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L I P E

HON. JEREMIAH SMITH, LL.D.

MEMBER OF CONGRESS DURING WAaHINGTON's ADMINISTRATION,
JUDGE OF THE UNITED STATES CIRCUIT COURT,
CHIEF JUSTICE OF NE^^HAMPSHIRE, ETC.

BY JOHN H. MORISON,

BOSTON:
CHARLES C. LITTLE AND JAMES BROWN.
1845.

Entered according to Act of Congress, in the year 1845,
By John H. Morison,
in the Clerk's Office ofthe District Court of the District of Massachusetts.

C I ,

*- 't

boston:
printed by freeman and bolles,
WASHINGTON STREET.

PREFACE

After Judge Smith's death, in the autumn of
1842, his papers were placed at my disposal, and
from them, chiefly, this memoir has been prepared.
Scarcely a document of any kind has been here in
troduced that was ever before published ; and where
facts, before known, are stated, I have usually done
it on the authority of the original evidence to be
found among Judge Smith's papers.
Many of the letters here given are from the origi
nal draughts which he preserved, and will sometimes
be found to differ verbally from the copies that were
sent. He was in the habit of transferring to his
common-place book whatever particularly struck him
in his reading, accompanying his extracts often by
remarks of his own. It is possible that, in two or
three instances^ I may have copied as his, what he
had only transcribed from others.

IV PREFACE.

It can hardly be necessary to say to the intelli
gent reader, that I am not to be held responsible
for Judge Smith's actions or opinions, but only for
the accuracy of my statements in respect to them.
I have endeavored to give a faithful transcript of his
mind and character, and have knowingly withheld
nothing from the fear of any unfavorable influence it
might have on his reputation. The errors and fail
ings of distinguished men are not the least instruct
ive part of their lives.
The preparation of this biography has been to me
a work of grateful affection, in which I have been
cheered and aided by the kindness of men, whom
it might savor of ostentation here to name; and I
cannot now dismiss it without the hope and the
prayer, that it may do something for the cause of
public justice, of private intelligence and virtue, and
that the picture especially, which it contains, of an
old age, happy, useful, and honored, may be not
without its influence on others.
J. H. M.
Salem, April 14, 1845.

CONTENTS

CHAPTER L
1759—1786.
Page
Birth — ¦ Childhood — In School — At College — Teacher
and Law Student at Barnstable, Andover, Salem. . 1
CHAPTER n.
1786—1790.
At the Bar — Influence in the Town of Peterborough — In
the New Hampshire Legislature. .... 26
CHAPTER HI.
1791 — 1795.
In Congress — First Impressions — Invalid Pensioners — ¦
Hamilton's Assumption of State Debts — Indian War —
Origin of two Parties — Madison's Tariff — French Pol
itics — Democratic Clubs, &c. . ... 45

VI CONTENTS.
CHAPTER IV.
1795 — 1797.
In Congress — Jay's Treaty — Fisher Ames — Mr.
Smith's Marriage — Washington  .75
CHAPTER V.
1797 — 1801.
Fourth Term in Congress — Difficulties with France —
Settled in Exeter — United States District Attorney —
Interest in Politics — Judge of Probate. . . 123
CHAPTER VI.
1801 — 1809.
Judge of the United States' Circuit Court — Chief Justice
of New Hampshire — Influence and Character as a Judge
— His Charges to the Grand Jury. . . . 143
CHAPTER VII.
Judge Smith's Political Feelings — Joseph S. Buckminster
— Fisher Ames — Letters to Mrs. Smith — • Death of
his Youngest Son. ...... 212
CHAPTER VIII.
1809 — 1810.
Governor of New Hampshire. ..... 244
CHAPTER IX.
1810 — 1820.
Mr. Smith at the Bar — Judiciary Act of 1813 — Chief
Justice — Judiciary Act of 1816 — Mr. Smith again at
the Bar  260

CHAPTER X.
1820.
Retires from Business — Fortune — Family — Tempera
ment — Occupation in Retirement. .... 284

CHAPTER XI.
1820 — 1829.
William Smith — Journey to Niagara — Mrs. Smith's
Death — Ariana, her Sickness and Death. . . 307
CHAPTER XII.
1829— 1830.
William Smith — His Sickness — Goes to Mississippi —
His Death  348
CHAPTER XIII.
1830 — 1834.
Judge Smith's Studies — Lectures on the Pursuit of
Knowledge — Second Marriage — Sayings and Letters. 365
CHAPTER XIV.
1834 — 1835.
Lectures on Washington, Franklin, Judge Parsons —
New England Jurisprudence. .... 407
CHAPTER XV.
1835—1838.
Journey to the South and West — Letters — Orphan Child
— Intercourse with Children — Wit. . . . 431

VIU CONTE>fTS.
CHAPTER XVI.
1838— 1839.
Judge Smith's Old Age — Youthfulness of Feeling — Ha
bit of Comparing the Past and Present — Interest in
New Books ; in the Young ; in Education — Intercourse
with Young Ladies ^ Letter to Miss Ross. . . 453
CHAPTER XVII.
Letters — Advice to Joel Furber — Judge Smith sells his
place at Exeter — Resides in Dover — Religious Views
and Character — Last Acts — Sickness — Death. . 48 1

LIFE OF JUDGE SMITH.

CHAPTER I.
1759 — 1786.
BIRTH  CHILDHOOD  IN SCHOOL  AT COLLEGE
 TEACHER AND LAW STUDENT AT BARNSTABLE,
ANDOVER, SALEM.
Jeremiah Smith was born in Peterborough, New
Hampshire, the 29th of November, 1759. An at
tempt had been made to settle the town as early as
1739, but the inhabitants were driven off" several
times by the Indians, and no families were estab
lished there till 1749. From that time, though hav
ing to deal with a rugged soil and all the hardships
of a first settlement, the httle colony, embosomed
amid the mountains, went on increasing ; and, in
1759, when they petitioned for a charter, there were
from forty-five to fifty families, living mostly in log
houses, and having few of what are now considered
the essentials of life. 1

LIFE OF JUDGE SMITH.

home discipline were not of the most indulgent kind.
It is said that once, on returning from her brother-in-
law's, she said to her husband, " I 've been to Samooel
Moore's, and there's family government, so there is ;
and if you was worth your ears, you 'd keep your
boys at home." Her husband, having calmly heard
her through, asked if she remembered the calf they
kept tied in the barn so long. " Ay, ay." " And
do you mind that when we let it out, it run till it
broke its leg ? " It is said that on some unusual oc
casion, a husking, perhaps, or log-rolling, a neigh
bor's punch-bowl had been borrowed. Jerry, as he
was always called, playing about the room, upset a
shelf. In the confusion that ensued, his mother, of
course, attended to her maternal duties first, and gave
the boy a smart whipping. But on going back, and
finding, to her consternation, that neighbor Miller's
punch-bowl had been broken, she concluded that the
punishment had not been at all proportioned to the
offence, and, seizing the child, whipped him severely
a second time. She was, however, a woman of sound
sense and kind feelings ; and, notwithstanding the
punch-bowl, was generally much more indulgent to
wards her children in practice than in theory. Jere
miah could remember but two or three whippings
that had fallen to his share.
A story, with which Judge Smith used to amuse
the infancy of the son of his old age, may be given
here as it is told by his son. " When Jeremiah was
about three years old, he and his two elder brothers,
William and James, playing about the well, fourteen
feet deep, were reaching over to see which could

LIFE OF JUDGE SMITH. 5
reach the farthest stone. Jeremiah, in his zeal to go
beyond the others, reached so far as to lose his bal
ance, and fall in. James and William rushed into
the house, and waked their mother, who was lying
down, and the only person in it, with the sound of
' Jerry 's in the well, Jerry 's in the well ! ' She hast
ened to the well ; but said, " he is not here, I see no
thing of him." Presently a circle appeared in the
water, and a little white head rose to the surface.
Her screams attracted the attention of Mr. Miller,
who was hoeing in a neighboring field, and who,
with the reckless courage of an insane man, (which
he was at intervals,) went directly down into the well,
and, as the little white head rose again for the last
time to the surface, seized it by the hair and shouted
' Let down the bucket.' The httle boy was put into
it, drawn safely up, and, after being rolled on the
grass, was soon perfectly restored." Jeremiah had
two other escapes from drowning, almost as narrow
as this.
By spinning and weaving linen, Mrs. Smith did
her full share towards supporting the family. Once,
after Jeremiah had got a little book knowledge, he
undertook to comment on his mother's language, as
ungrammatical. " But wha taught you langage ? "
she replied. " It was my wheel ; and when ye '11 hae
spun as many lang threeds to teach me grammar as I
hae to teach you, I'll talk better grammar."
Mrs. Smith was a strict Presbyterian in her faith,
and in truth a devout woman. A niece of hers, a
young orphan girl, who lived in her house, had been
guilty of some great offence, and there was a gather-
1*

& LIFE OF JUDGE SMITH.
ing of the connections to consider what should be
done. A sister of Mrs. Smith, who was looked upon
as one of the elect, proposed to " gar her into the
barn to pray ; " as if the poor, half-witted, friendless
thing were not fit even to be prayed with, except
among the cattle. Mrs. Smith indignantly rejected
the proposal ; but it had made on the minds of her
children an impression as lasting, as it was unfa
vorable to everything like a proud and sanctimo
nious faith.
Among those who visited much at the house, and
whose influence undoubtedly continued through hfe
with his nephews, was Mrs. Smith's brother, Moses
Morison. He was the wit of the town, and had a
rare faculty of entertaining the young by his extem
pore romances. Many anecdotes of him are handed
down, full of the peculiar humor for which the
Smiths v/ere afterwards distinguished. He had been
building a mill, in a neighboring town, for a man
named Patterson, and on his return home was asked
if Patterson had a good mill-seat. " Ay, very good."
" And has he plenty of water ? " " Ay, plenty ; but
he maun cart it foure miles." Once he was building
the trough in a cider-mill for Mr. Smith, who had
saved for the purpose some particularly nice plank,
which he did not like to waste by cutting them off at
the proper length. His sons remonstrated against hav
ing the trough so long. But he appealed to uncle
Mosey, if it could not be made the full length of the
plank. " Ay," was the reply ; and the father looked
with a sort of triumph towards the boys — "ay, but
the mare maun aye jump the trough." It was he

LIFE OF JUDGE SMITH. 7
who thus described his neighbor Deacon Duncan's
skill in hewing. " As I was ganging," said he,
" through the woods, I heard a desprite crackling,
and there I found a stick of timber that Deacon
Duncan had hewn, sae crooked that it could nae lie
still, but was thrashing aboot amang the trees. I
tauld him he maun gang and chain it doon, or it
wad girdle the hale forest." " Deacon Moore," he
said, "made a ladder, and it was sae twisting, that
before he got half way to the top, he found himself
on the under side, looking up." These stories would
be too trifling to tell in a serious biography, were it
not for their influence on the young. No one can
understand, in some of its most important particulars,
the character of Jeremiah Smith, without becoming
acquainted with the peculiar wit and pleasantry of
the race to which he belonged.
They were a serious and devout people. No
where, among the first settlers of New England,
every part of which was sought for a religious pur
pose," were the ordinances of religion more solemnly
regarded, or its truths more reverently received.
And yet there was a love of merriment and wit
mingling strangely with the most serious concerns.
Judge Smith used to say, that they went to meeting
on Sunday, practised all that was good in the sermon
through the week, and laughed at all that was ridi
culous. They were a Scotch race, who had been
for two or three generations in Ireland, and they
bore the marks of their double origin. There was a
1 It has heen said of the settlers at Strawberry Bank, (Portsmouth,)
that they professed to have come not to serve God, but to catch fish.

8 LIFE or JUDGE SMITH.
grotesque humor, and yet a seriousness and pathos,
about them, which in its way has never been ex
celled. It was the sternness of the Scotch cove
nanter, softened by a century's residence abroad amid
persecution and trial, wedded there to the pathos and
comic humor of the Irish, and then grown wild in the
woods among our New England mountains.
An uncle of Jeremiah Smith's, who had been an
intemperate man, was found dead on the road, and
an inquest was held, to decide upon the cause and
manner of his death. All the relations were assem
bled, and, of course, in the most solemn state of feel
ing. But the coroner made some ridiculous blunders
in reading ; the young could hardly keep their coun
tenances, and soon a sense of the ludicrous had so
prevailed, that the whole assembly, even the sisters of
the unfortunate man, were overcome by it.
Among Judge Smith's early recollections was the
funeral of his grandmother, which took place at his
father's, when he was ten years old. It was the
custom, borrowed, I suppose, from the Irish wakes,
for the friends and neighbors to sit up all night with
the dead, reading appropriate passages from the
Scriptures, engaging, part of the time, in prayer,
and telling stories of witches, and demons, and
ghostly apparitions, and of the death-warnings which
had been so often given. But the night was not all
taken up with these things ; there was eating and
drinking, and shouts often of laughter, before the
morning. So wild a mingling of revelry and grief
and superstitious terrors, connected as they were
with the uninhabited state of the country, made an

LIFE OF JUDGE SMITH. y
impression on the boy which followed him through
life. Whatever his reason might have taught, I do not
think that he, any more than Sir Walter Scott, ever
freed himself entirely from a sort of vague feeling,
in respect to supernatural influences. He used to
refer to stories connected with a particular place,
that was thought to be haunted, where horses were
often stopped, without apparent cause, and oxen
could not draw even a light load without great effort.
One illusion, of a similar kind, occurred in his own
experience, which I do not think he was ever able to
throw entirely off as only an illusion, however his
judgment may have been convinced that it was so.
As he was walking, when quite young, through a
large open field, he perceived a man approaching
him from behind. He slackened his pace, and,
looking back again, saw him, as he thought, still
nearer. A minute after, when he supposed that he
must have overtaken him, he turned round to speak
to him, but there was no man there. It is hardly
worth the while to say, that he was probably lost in
his own thoughts, and, some impression being made
on his eyes, he, without examining, took it to be a
man, and, still intent on what was occupying his mind,
carried on the illusion, till, when turning to speak, he
came to himself, and the vision was gone. He was,
of course, startled, and, in his childish imagination,
coupling it with the stories he had heard of super
natural apparitions, it is not wonderful that he
should have been strongly impressed by it. For if
any circumstances could tend to fix such things in

10 LIFE OF JUDGE SMITH.
the mind, it was precisely those under which he was
placed; — among a people who, without exception,
most religiously believed in them ; amid a wilder
ness yet unexplored, except by the Indians and a
few daring adventurers ; in the midst of what were
then savage mountains ; left much of the time alone
with the mysteries of nature, on which, to his mind,
none of the light of modern science had yet been
thrown. It is curious, and not without a philosophi
cal interest, to trace to its source, and then follow
out through the subsequent history of a strong and
cultivated mind, the effect of such impressions.
Another thing, which had no small influence on
the character of the boy, was the account given by
his relatives of the state of things in Ireland, and par
ticularly of the wars in which they had been engaged.
Many and temble stories connected with the great
massacre of Irish Protestants by their Popish neigh
bors had been handed down from father to son, losing
nothing of their circumstantial horrors in the descent.
He never forgot the impressive manner in which his
grandfather, John Morison,' recounted the dreadful

1 John Morison, the son of Samuel Morison, had come from Ireland
with his father and family in August, 1718. They arrived lale in the
autumn at Casco Bay, where they were frozen in for the winter. It is
said that on first landing upon that cold and cheerless coast, the wintry
ocean behind them, and naked forests before, after a solemn act of
prayer, they united in singing that most touching of all songs : — " By
the rivers of Baljjion, there we sat down, yea, we wept, when we re
membered Zion ; " and with peculiar feelings, as they surveyed the waste
around them, and remembered the pleasant homes which they had left,
might they add, "How shall we sing the Lord's song in a strange
land 7 " They left Casoo Bay early in the spring, and began their set
tlement in Londonderry, April 11th, O. S. 1719. From his wife, Mar
garet Wallace, who is supposed to have been of the race of Sir Wil-

LIFE OF JUDGE SMITH. 11
sufferings which he, then a boy, endured at the siege
of Londonderry. He used to tell of watching for
hours at a Tnouse-hole, in the hope of catching a
mouse for food ; and he most eloquently described
the intense anxiety they felt in the city, when, after
nearly two-thirds of their number had died of hun
ger, they saw a frigate coming to their relief ; the
sinking of the heart, when twice she had vainly tried
to break the boom, which had been thrown across the
rivet ; and then the violent change from despair to
the frenzied bewilderment of joy, when, at the third
attempt, she finally succeeded, and came up bringing
food to the starving inhabitants. This same old man
had been also at the battle of the Boyne, July 1, 1690,
and saw the Count Schomberg when he fell. It is
difficult for those born in cities to understand the
intense interest excited among children in the coun
try, and especially at that period, by incidents like
these, related by one who had been personally en
gaged in them more than three quarters of a century
before. It was a rude state of society in which the boy's
lot was cast, and though all his brothers, except one
who died early, were afterwards distinguished for
their intellectual powers, there was not, if we may
trust one who knew them fourscore years ago, a

ham Wallace, all the wit and smartness of the family were thought
to have been inherited. It is related of her that when her husband was
building his first habitation in Londonderry, she came to him and in a
manner unusually afiectionate, said, " Aweel, aweel, dear Joan, an it
maun be a log house, do make it a log beegher nor the lave," (higher
than the rest.) On her death-bed, being asked what she would have,
she replied, " Nothing but Christ." These were her last words.

12 LIFE OF JUDGE SMITH.
more uncouth, impudent, hungry-looking set of lads
in the town of Peterborough. Jeremiah was indeed a
diffident boy. The rest were great workers, and put
to work almost as soon as they could walk. They
were ready for all kinds of rough, practical jokes, and
it was not an easy thing to provide food for seven
such boys. To this day, in their native town, it is
told as a cause of their being afterwards so sharp-
witted, that on returning one night from some frolic,
they in the dark seized upon and devoured what they
thought a dry cod-fish ; but the next day their mo
ther, wishing to make a cheese, was in great distress
because she could nowhere find her rennet.
Under circumstances apparently so unfavorable,
there was, in Jeremiah's mind from his earliest years,
an intense desire for knowledge. " I well remem
ber," he said seventy years afterwards, " my longings
at that time." He taught himself to write a good
hand, partly by imitating his father's hand on pieces
of birch-bark, with ink made from vegetables. When
quite a boy, he was employed by people to write let
ters for them, not excepting love-letters, for which,
he said, he had no other model than the Songs of
Solomon. Peterborough, for some time after its set
tlement, had no enclosed pastures, and the little Jere
miah was employed in herding the cattle. He used
to recur to the pleasure he enjoyed at such times in
building stone houses. In these solitudes were pro
bably begun the habits of thought and meditation,
which he always retained. No man could be more
fond of society than he was in after life, but he loved
also to be alone, and not a great while before his

LIFE OF JUDGE SMITH. 13
death, he said, "I conscientiously think I have en
joyed more in a lonely ride than in the company I
loved the most." These circumstances, unpropitious
as they might seem, were really favorable to his intel
lectual development. " Your education of events,"
he said to a friend, " has been the best part of your
education. I think little of what teachers can do."
He drew this opinion undoubtedly from his own early
experience. , He would walk sometimes four or five miles to a
place where he had heard there was a book, and
reading it upon the road, he often devoured its con
tents before reaching home. When a little boy, he
fell in with the Arabian Nights, which he read with
delight. But the Bible was the book, which, above
all others, interested and instructed him from his ear
liest days, and for which, not less on account of its
literary merits than as the great repository of divine
truth, his admiration never abated. He read it again
and again, and committed large portions of it to me
mory. The Old Testament especially was a never-
failing resource. His knowledge of the scriptures
was indeed, as he thought, the cause of his being
selected for a public education. His father was one
of the deacons of the church, and his house a place
of resort for the neighboring ministers. Sometimes,
after the chapter had been read, at family prayers,
the father would say, " This little boy can repeat that
chapter." Whereupon Jerry was called up and
would recite ; " For Zion's sake will I not hold my
peace, and for Jerusalem's sake I will not rest, until
the righteousness thereof go forth as brightness, and
2

14 LIFE OF JUDGE SMITH.
the salvation thereof as a lamp that burneth." After
the boy had repeated this or whatever chapter it
might be, the minister would pat him on the head
and say, " This boy, 'squire, must be a minister. You
must bring him up to college." Thus by degrees it
came to be understood in the family that he was to
go to college ; an advantage he thought he owed to
his ready memory.'
He began to study Latin, when about twelve years
old, with Rudolphus Greene, an Irishman employed
by the town to keep school a quarter of the year in
each of the four quarters of the town. While he
was hearing a boy recite he usually held a stick in
his hand, on which he cut a notch for every mistake,
and, after the recitation was ended, another stick was
employed to give a blow for every notch that had
been cut. Jeremiah, who seldom had a notch against
him, followed him round in his circuit, and is de
scribed as a bashful, awkward boy, who might be
seen on his way to and from school, with an open
book in his hand, and taking no notice of anything
else. According to his own account, the instructions
he received in Latin were wretched enough. When,
longing to be enlightened on some dark passage in
his lesson, he went to his teacher with his heart as
full as if the whole world depended upon it, he often
came away with tears of disappointment from the
I Judge Smith always disclaimed being a man of genius. His me
mory, which was indeed wonderfully quick, retentive and exact, he
thought his most remarkable endowment next to his love of labor. If
Quinctilian's remark, " quantum memoriEe, tantum ingenii," were true
(which it is not) he might certainly claim to be a genius of a very high
order.

LIFE OF JUDGE SMITH. 15
blundering explanations that were given. At the
meeting-house, where the school was kept a part of
the time, the only seats and desks they had were
made of rough boards placed on blocks of wood. If
such was the meeting-house, what must have been
the common school houses ? Bad as the school was,
his attendance was often interrupted by the labors
that were required upon the farm, and his studies
must have been entirely suspended more than three
quarters of the time after he commenced Latin till he
entered college. He used to boast that when twelve
years old he could reap as much in a day as a man.
Through the town, however, he was singled out as
one who was yet to be distinguished. Late in life he
once said of a boy, " I don't like to see him bear
punishment so well ; it seems so naturally fitted for
him, and he for it." It was by the converse of this
reasoning, that old Mrs. Cunningham, who lived near
his father's, formed her opinion of him. " I knew,"
she used to boast, after the prophecy had been fulfil
led, " that Jeremy Smith would, make a great man,
always after I foond him on my ploomb tree, steahng
ploombs — he lukked sae shamed." A quick ingen
uousness of shame in a boy has been, from the time
of Quinctilian, no mean sign of distinction ; but in
the present case, an uncontrollable desire for know
ledge, and a readiness to pay, in laborious days and
nights, whatever price might be required, afforded a
surer presage of future greatness.
He lived among men who made great account of
theological discussions, and who, with rough, strong
sense, and an extensive knowledge of scripture texts.

16 LIFE OF JUDGE SMITH.
delighted to enter on such disputes. While working
with his elders, he was sometimes persuaded so far to
overcome his diffidence, as to " let off a speech."
Once, after a regular forensic disputation between him
and a colored man, who was owned as a slave by his
uncle. Deacon Moore, the audience decided, that,
though Baker made the most noise, Jerry showed
the most sense and the soundest doctrine.
Matters went on thus for several years, when he
was sent for a short time to New Boston, to be under
the instruction of an Irishman, named Donovan.
After this he went to Hollis, where, under the Rev.
Mr. Emerson, he began Greek and finished his pre
paration for college. This was a golden period, and
he always remembered his kind and intelligent teacher
with affectionate respect. He remembered only one
thing against Mr. Emerson. Soon after going to
Hollis, the evening before Fast Day, one of his fellow-
students said to him at tea-time, " You had better lay
in a good stock, for you will get nothing to eat to
morrow." This information sounded so strangely,
that he did not heed the warning, and, in fact, did
not believe it. But in the morning there were no
signs of breakfast. He went to meeting, came home
very hungry, and perhaps a little angry ; but how
must his irritation have been increased, when,
through the half-open door of the best room, he
saw his reverend teacher devouring drop-cakes and
custards ! It was in Hollis that he first became ac
quainted with Noah Worcester, the apostle of peace,
who was not more remarkable for the clearness of his
mind and his simpUcity and purity of character, than

LIFE OF JUDGE SMITH. 17
for the struggles through which he passed in early
life, under circumstances which seemed the most ad
verse to gaining an accomplished education.
It was about this time that Jeremiah first under
took the office of a teacher in a remote corner of his
native town. The fashion was for the master to board
round from house to house, with the parents of the
children. Once, he used to say, while he was sitting
at table, a hand from behind pounced upon his plate,
and carried off all its contents. It was the hand of
one of the hungry children, and the father of the
family laughed heartily, as if what had been done
showed that he might be a promising boy.'
In 1777, Jeremiah Smith was entered at Harvard
College, and about the same time enlisted for two
months in the army. News had just come of Bur
goyne's invasion. One afternoon, a young man,'' ap
parently about sixteen, called on Capt. Stephen Park
er, of New Ipswich, and offered to enlist. The cap
tain inquired who he was, and if his father had given

^ One of the most distinguished merchants in Boston, Samuel Apple-
ton, Esq., was, a few years later, engaged as a teacher in the same
neighborhood, though iu an adjoining town. He, however, instead of
going round with the scholars, was let out at auction, as paupers used to
be, to board with the lowest bidder. He did not much like the place
where he was to go, and a kind woman, a Mrs. Perry, who recently
died at the age of ninety-two, had compassion on him; and, for the four-
and-six-pence or five shillings a week, which her neighbor had thought
a reasonable compensatiou, took him into her family.
2 This account was kindly furnished me by the Hon. Salma Hale, of
Keene, N. H., who had it from Capt. Parker's son, and who, on exam
ining jjublic documents at Concord, found the name of Jeremiah Smith
on the roll of Capt. P.'s company. Mr. Hale's name is a sufficient
guaranty for the accuracy of the account, as far as he had anything to
do with it. 2'*

18 LIFE OF JUDGE SMITH.
his consent. The lad replied that his name was Jer
emiah Smith ; that his father hved in Peterborough,
and that he had come without his knowledge. Capt.
Parker knew his father, and, persuading him to re
main at his house till morning, he went in the night
to Peterborough to consult the father, who at length
consented that his son should be enUsted. He ex
acted, however, from the captain a promise, that
should his company be ordered into battle, he would
not take Jeremiah with him, but despatch him on
some duty that would be safe. Just before the battle
of Bennington, Capt. Parker ordered the lad on some
particular duty that appeared to be without danger,
but. in the midst of the fight saw him by his side.
"Why did you come here?" he said. "Oh, sir,"
he replied, " I thought it my duty to follow my cap
tain." In the battle a musket-ball gi^azed his throat, "^
leaving a mark which remained for years, and his gun
by another bullet was rendered useless. He threw it
away, and, seizing another that lay near a dying sol
dier, who had fallen by his side, he, in the language
of his captain, " fought with it like a young hero,"
till the battle ended. In his own account of the
matter he claimed no credit for heroism, and said
that musket-balls made a sort of music which he had
no disposition to hear a second time. He passed the
night after the battle in assisting to guard the Hes
sian prisoners, who were confined in the Bennington
meeting-house. At Cambridge he was in the class with the Hon.
John Davis, late judge of the United States' district
court, who remembers him as a good scholar and

LIFE OF JUDGE SMITH. 19
pleasant associate. It is a little remarkable, that, be
sides Samuel Dexter, who, as an advocate, was infe
rior to no man of his day, there should have been in
the same class three men, John Davis, Elijah Paine,
and Jeremiah Smith, who were all placed upon the
bench by the elder Adams. After remaining at Har
vard College two years, Mr. Smith was entered at
Queen's (now Rutgers) College, in New Jersey. His
reason for making the change was, that he got no
thing at Cambridge, the college being then in a de
pressed condition, and the instruction poor.' He
probably gained nothing by the change, except to cut
short his course, and he was graduated in 1780, a year
sooner than he could have been at Cambridge. While
in New Jersey he was in some danger of ruining his
eyes, by rising through the winter at four o'clock to
study Greek. Referring, fifty years afterwards, to the
state of the colleges at the time he took his degree,
he said, " I can remember when they were less at
tentive to the useful branches of knowledge than
now. You might formerly sometimes see a graduate
who could not write a page of good English, nor
spell well such English as he did write."
After leaving college he remained a year or two in
Peterborough. In the autumn of 1781 he went with
cattle for the army to Peekskill, N. Y., and there, for
the first time, met Alexander Hamilton. At a public
house he found a number of officers, and, among
them, a young man, who was listened to with marked

1 Perhaps the religious views at the New Jersey College had some
influence.

20 LIFE OF JUDGE SMITH.
attention by men evidently his superiors in rank, and
greatly so in years. Hamilton was then but twenty-
three or twenty-four, a circumstance which may well
excite our wonder, when we consider how much he
had already accomplished, and how great even then
was his influence with Washington and the ablest
men of the nation. The feelings which this inter
view awakened in Mr. Smith were never changed,
and to the close of his life, after a pretty intimate ac
quaintance with most of the great men of America,
who were on the stage with him, he always consid
ered Hamilton as a man of greater original powers,
and of a more magnanimous nature, than any other
whom he had known.
I have endeavored to trace back as minutely as I
could Mr. Smith's history to its early and humble
beginnings. It is much easier to show, in general
terms, the bow of promise which a great man's set
ting sun throws over the obscurity of his youth, and
it may answer the purposes of eulogy, but not of a
faithful biography. The little, and in themselves,
unimportant circumstances, which exhibit pecuhar
traits of mind, or which go to form the future char
acter, are the most instructive parts of a man's his
tory. It was during the two years Mr. Smith spent in
Peterborough, that he received from his native town
the first public mark of the confidence and respect,
which through all his political fortunes, continued
unshaken, even with those whose opinions were ad
verse to his. One who had known him intimately
from the time when he was taken out of the well to

LIFE OF JUDGE SMITH. 21
the last summer of his life, and who had been early
and intimately associated with him in the business of
the town, speaks in the strongest terms of his impor
tant services to the town. They differed entirely
in their religious views, but when some doubts were
expressed as to Mr. Smith's Christian character, he
said with a strong emphasis, " I did think him the
^-best-tempered man I ever knew. 1 can say, with a
clear conscience, that I placed more confidence in
Jerry Smith than in any [other] man that I ever
knew in the world ; for there was no guile in him,
but all fair integrity." And however they may at
times have been estranged by party conflicts, those
who knew him best from his childhood up, would, I
believe, unanimously testify, as strongly as this man,
to his good temper and the purity of his character.
These high qualities were recognized in him from the
beginning. The fact that his own family, who are
usually the best and often the severest judges of
character, together with all the neighbors, had set
him apart, from his childhood, for the ministry, shows
well enough the estimate which they put upon him.
The love of knowledge, a high sense of justice and
honor, and the desire to do well whatever he under
took, whether on a large or a small scale, and a more
than willingness to endure any amount of labor, were
then, as always, the distinguishing qualities of his
mind. And not more true is it, that the noblest
rivers come down from the loftiest mountains, than
that the most useful lives are always, though we may
not see the source, those which flow from the highest
aspirations and desires in youth.

22 LIFE OF JUDGE SMITH.
At a town meeting in Peterborough, January 21,
1782, a committee of five was appointed to examine
the plan of government which had been proposed for
the state of New Hampshire, and at the same meet
ing he was chosen to attend the convention in Con
cord, as a member from Peterborough. I can find
in the office of the secretary of state, at Concord, no
records of this convention ; and do not suppose that
the young legislator took any active part in this his
first public employment.
Having remained nearly two years undecided what
profession to take, he at length resolved to study law ;
and in August, 1782, he began the study with Shear-
jashub Bourne, in Barnstable, Massachusetts, being
at the same time a private teacher in the family of
Brigadier Otis. His predecessor in both these places
was his old classmate, John Davis, whose subsequent
fortune, in the usefulness of his judicial services and
the honored serenity of his old age, was not unlike his
own.' After remaining a year at Barnstable, he spent
the next year in Andover Academy, as assistant in
structor to " that able and excellent scholar," (as he
1 When Mr. Davis left the office of comptroller of the United States
treasury, his place was offered to Mr. Smith. ]Mr. Davis was appointed
United States district attorney, for Massachusetts, in 1796, Mr. Smith
for New Hampshire, in 1797, and they were both made judges, one of
the district, the other ofthe circuit court of the United States, I believe,
in the same year. The Hon. Prentiss Mellen, late chief justice for the
stale of Maine, and the Hon. Jeremiah Smith, late chief justice of New
Hampshire, both read law in Barnstable, and the Hon. Lemuel Shaw,
now chief justice of the supreme court of Massachusetts, was born
there. Judge George Thacher, Col. James Otis, also a judge, and Judge
Davis, father of the solicitor-general, Daniel Davis, were Barnstahle
men, and Judge Marcus Morton was descended from Cape Cod ances
tors.

LIFE OF JUDGE SMITH. 23
called him,) Dr. Pierson. Here it was his privilege
to number among his pupils, two presidents of Har
vard University, and the late honored principal of
Phillips Exeter Academy ; ' and he always boasted
with an honest satisfaction, of the relation which they
had once sustained to him. When, after Dr. Abbot
had been fifty years connected with the Exeter
Academy, his grateful pupils, with Mr. Webster at
their head, held a sort of festival in honor of their
teacher. Judge Smith claimed for himself a distinc
tion, " which," he said, " could belong to no other
man living. You were his scholars ; I his teacher.
It was little that I had to impart ; but that little was
most cheerfully given. I well remember the promise
he then gave ; and providence has been kind in plac
ing him just in that position where his life could be
most usefully and most honorably spent."
In 1784, he took the charge of a small school of
young ladies in Salem, at the same time reading law
under the direction of Wilham Pynchon. This he
looked back upon as one of the happiest portions of
his life. At Salem, he was brought into a larger cir
cle of refined and educated people than he had be
fore met ; and he is still remembered, by some who
knew him there, as an amiable, agreeable, intelligent
young man, and a great favorite in society. He en
tered earnestly into plans for the improvement of his
pupils, and, much as he admired and always professed
to admire personal beauty, he endeavored earnestly
' John Thornton Kirkland, Josiah Quincy and Benjamin Abbot. " I
sometimes," he said, " feel almost giddy when I think of the great men
who have been under my charge."

24 LIFE OF JUDGE SMITH.
to impress them with a sense of the superior value of
that higher and more lasting beauty, which belongs to
the mind and character. He was greatly pleased
with the turn which a young lady gave to some
complimentary remarks that he was making to her,
and wished that all ladies would make as good a
use of ffattery. " I know," she replied, " that I do
not possess those qualities ; but since you ascribe
them to me, I take it for granted that you wish me
to have them, and will therefore try to make your
words true." Of that period he might have said, as
Lord Eldon said of the corresponding period in his
life : " Oh, those were happy times, we were always
in love then."
He became particularly interested, while at Salem,
in a young lady of great beauty and loveliness, with
whom he corresponded for several years. The let
ters still remain, and though written after the fashion
of the day, bear marks of a deep and tender attach
ment on both sides. But his circumstances were not
such as to warrant an engagement or to commend
him to her friends, and she was reserved for a more
splendid fortune but an early grave.
Mr. Smith was remarkably communicative, and
used always to say that he had no secrets of his own ;
but an incident, which occurred while he was in Sa
lem, taught him to be careful about telling other peo
ple's secrets, even to his nearest friend. He was to
go on important business down into Maine to secure
a debt. The evening before he set out he happened
to mention it to an intimate friend and fellow stu
dent. The next morning he found that the horse.

LIFE OF JUDGE SMITH. 25
which he had counted upon having, was gone, and
immediately suspected that he was anticipated by his
friend, who, being left in charge of his father's busi
ness, had sent off a messenger at midnight to secure
a debt which was due to him. Mr. Smith took the
best horse he could get, and found, by inquiries upon
the road, that he was gaining on his competitor.
Before evening his horse gave out ; but another was
procured. It was a chilly night as he rode through
the Wells woods in his nankin small clothes and
thread stockings, but he pressed on, and at last stop
ped at a public house where the other messenger was
asleep. He procured some refreshments for himself
and horse, and, wishing his competitor a sound night's
sleep, rode on and accomplished his object. The
first man he met on his return was his friend, who
immediately called out to him ; " Well, Smith, I
know all about it. You 've beat, and I am glad of
it ; for you ought to beat." His friend was the Hon.
Benjamin Pickman, a man who carried with him
through life the nicest sense of honor, and between
whom and himself this little matter did not cause a
moment of estrangement or ill-feeling. As long as
they lived they cherished towards each other senti
ments of affectionate respect, and when, after more
than forty years, heavy domestic calamities had fallen
upon them both, they met, as from two opposite poles
in temperament, but with warm mutual sympathy and
kindness.

CHAPTER II.
1786 — 1790.
AT THE BAR  INFLUENCE IN THE TOWN OF PETERBO
ROUGH — IN THE NEW HAMPSHIRE LEGISLATURE.
Mr. Smith was admitted to the bar by the court
of common pleas holden at Amherst, Hillsborough
county, N. H., in the spring of 1786, and under cir
cumstances that cost him a good deal of anxiety.
His course of study, as we have seen, had been much
interrupted by other occupations, and, though he pro
duced ample evidence of his legal qualifications, it
was not easy to show precisely how much time he
had spent in acquiring them. There was a strong
feeling among the lawyers against his admission.
The court was to adjourn on Saturday, and he could
not succeed in getting a meeting of the bar called till
Friday morning, when, after considering his applica
tion, they rejected it, on the ground of its not being
accompanied by the proper certificates. He immedi
ately set out on horseback for Salem, and, having rode
all night, arrived at Amherst the next morning with
the required recommendation from Mr. Pynchon,

LIFE OF JUDGE SMITH. 27
which he offered to the president of the bar,' with a
request that another meeting might be called. This
was refused on the ground of want of time ; when
Mr. Smith rose and appealed to the court, who were
so convinced of the envious injustice with which he
had been treated, that, waiving the usual forms, they
at once unanimously admitted him. The bar were
exceedingly angry, and spent the remainder of the
forenoon in the most taunting remarks and insinua
tions. One moved that Jo Blanchard should be ad
mitted to the bar ; another proposed Judge Shepherd,
a man who turned tory during the war and joined
the British ; and other members of the bar, in insult
ing tones, proposed others who were either notoriously
ignorant or notoriously wicked. The court paid no
attention to them, and they could only comfort them
selves by asserting, that it was of no consequence, as
he certainly would not be admitted to the superior
court. But the young man whom they so despised
for his want of legal knowledge, almost immediately
took his place at the head of the bar. At the next
session he appeared with a full docket, and was em-

• Joshua Atherton. The Hon. Charles H. Atherton, formerly rep
resentative in congress, and a distinguished member of the New
Hampshire bar, was his son. Joshua Atherton was, in 1788, a member
of the convention for ratifying the constitution of the United States ;
and the only relic, it is said, that has been preserved of the debates in
the convention, is a speech of his against the constitution, because it
sanctioned slavery and the slave trade. He was the grandfather of the
Hon. Charles G. Atherton, who, as a representative in congress, was
the first to propose a resolution, by which all petitions relating to slavery
should be rejected without a hearing, and who, in the United States
senate, has given his vote for the annexation of Texas ; and, of course,
for the indefinite perpetuity and extension of slavery.

23 LIFE OF JUDGE SMITH.
ployed to argue their causes by some of the very men
who had most violently opposed his admission.^
What his feelings were, may be seen in the follow
ing extracts from a letter written to William Plummer,
in October, 1787. "I hate -a monopolizing spirit ; and
though the profession seems somewhat crowded at
present, the harvest small, and the laborers very many,
yet I cannot help thinking that there is room for as
many good characters as may be disposed to enter
into the profession." Then, after mentioning his ap
plication to the bar, he says — "I had the mortifica
tion to hear for answer, that their wisdoms were not
fully satisfied, and that they had continued it for
further consideration. This new mortification I had
to bear, as if the humiliating circumstance of barely
asking for admission into such a brotherhood were not
enough in all conscience. 'T is devilish provoking to
be denied admittance into bad company. I knew I
was not so well qualified as I ought, and would have
been glad, to have been ; but my age and circumstan
ces (especially when I adverted to the character and
pretensions of those already admitted,) determined
me to waive all ceremony, and apply directly to the
court, which I did at the adjournment, and was ad
mitted by their unanimous voice. This bold stroke
gave great umbrage, you have undoubtedly heard. I
do'nt know that I was right ; I was governed by the

• This account I took down from the lips of the venerable Timothy
Farrar, the judge who then presided in the court of common pleas, and
who, at the age of ninety-six, retained a distinct remembrance of all the
particulars of the transaction. There is, it will be seen, a slight difier
ence between this statement and that which follows. '

LIFE OF JUDGE SMITH. 29
impulse of the moment, and he whose feelings har
monize with mine will not condemn me."
Mr. Smith was now in a field which gave full em
ployment to his powers. The condition of the coun
try at that time, the crude and unsettled state of so
ciety, and the not less crude and unsettled state of
the law, tended greatly to multiply the causes of hti-
gation. As an attorney, he, from the beginning, ex
ercised his influence in discouraging the foolish,
angry, and wasteful suits which then formed so large
a part of the business of the profession. Sometimes
with pleasantry, sometimes with earnest remonstrance
and serious arguments, he turned away those who
were intent on ruining themselves ; and it was thought
by many of the most considerate men, that the town
of Peterborough might well afford to pay him five or
six hundred dollars a year, for what he saved to the
inhabitants by preventing lawsuits. As an instance,
a man came to him greatly irritated against his bro
ther for his unjust and oppressive conduct. " And
can you prove all this ? " was the question, after the
injured man had worked up his feelings by recount
ing his wrongs. " Certainly, I can." " Do you like
David's Psalms ? " " Why, yes," said the man, some
what amazed. "So do I," said the lawyer; "I
think there is a great deal of good reading in them.
One in particular I have read a great many times, and
think it excellent. I can't remember exactly which
it is ; but it is somewhere near the hundred and thir
tieth, and you may easily find it when you go home.
It begins with these words, ' Behold, how good and
3*

30 LIFE OF JUDGE SMITH.
how pleasant it is for brethren to dwell together in
unity ! ' "
"^^ The practice of that day in New Hampshire was
not of the kind best fitted to make a profound law
yer. The judges were not always men who belonged
to the profession ; and even the chief justice of the
superior court, at a much later day, in his charges to
the jury, was accustomed to say, " Gentlemen, the
merits of the case are the law of the case, and of
both you are to judge." Of course, the object of the
counsel was rather to get the good-will of the jury,
than to argue cases on the broad principles of law ;
and legal decisions were made to depend less on law
than on feeling, that most uncertain and often un
just of guides. It is usually at such times, when
it is the fashion to establish equity in the place of
law, that great legal principles are made subser
vient to vague ideas of justice, and the inferior arts
and quibbles of the profession are most in the ascend
ant. At all events, this was the state of things in
New Hampshire, when Mr. Smith came to the bar;
and during the four-and-thirty years that followed,
comprehending the whole of his active life, the one
pubhc object, to which, above all others, he devoted
his time, his strength, the earlier essays and the riper
fruits of his vigorous and disciplined mind, was to
bring about a better administration of justice. As a
practitioner, he strove to introduce a better practice ;
and in this he was powerfully aided by a few, who
soon after followed him into the profession, bringing
with them an amount of professional zeal and indus-

LIFE OF JUDGE SMITH. 31
try, an acuteness of discrimination, and a massive in
tellectual power, through which some of them have
risen to a rank not inferior to that of any lawyers in
the United States.
It is, however, from the nature of the case, impos
sible to point out the particular improvements that
were introduced, or where effects are known, to refer
them always to their true cause. The great, and
usually the most important influence of a leading
practitioner at the bar, and to an almost equal extent,
of a judge upon the bench, is the silent influence of
mind and character. The artifices of the profession,
the paltry shifts of legal cunning, and the subterfuges
of ignorance insensibly lose their respectability, and
are shamed out of countenance by the piercing look
of one who sees through them at a glance, and who,
it is known, will expose them to laughter and con
tempt. It is equally difficult to measure the influence
of such an example upon the young in awakening
their ambition and directing their studies. Yet,
though we cannot trace it step by step, it is easy to
see how in these two ways alone, an entire revolution
may be brought about by one or two powerful minds
in the whole administration of justice throughout a
state. Such a change undoubtedly did take place
in the courts of New Hampshire, and I believe that
all intelligent men, who have looked into the subject,
will unite in attributing it to Mr. Smith, more than
to any other single man.
The whole country, after the war, and especially
the legal profession, was infested by a set of idle and

32 LIFE OF JUDG-E SMITH.
worthless fellows, who lived by practices which are
now hardly known in New England, vitiating the
characters, and preying upon the time of the young.
Mr. Smith was at this early period, thrown much
into their society, but he had no part nor fellowship
with them. He did not set himself up as an exam
ple, nor treat them with harshness, but never fre
quenting their places of meeting, he contrived, by
various expedients, to shake them off, when, in their
visits to him, they were consuming the time which
he wished to employ in his studies.
All professional men, in country towns, are subject
more or less to one annoyance — the disposition of
clients to prolong their visits, after their business is
finished. This affliction fell particularly heavy on
Mr. Smith, owing to his easy and friendly manners,
and the charms which his conversation had for per
sons of all classes. The good people of Peterborough
and the neighboring towns, while sitting in his office
before a cheerful fire, and listening to his conversa
tion, full of wit and instruction, often lost all proper
regard both for his time and their own. He was,
therefore, driven to contrivances to shorten their long
visits. One was, when he saw a regular sitter ride
up, to order his horse to be saddled, or to take the
bridle and go himself towards the pasture. This
would sometimes, he used to say, shorten the visit ;
but sometimes his friend would be so exceedingly
kind as to assist him in getting his horse, and then
would propose to ride with him.
Through life Mr. Smith was one of the most in-

LIFE OF JUDGE SMITH. 33
dustrious of men, and always took great satisfaction
in thinking that, whatever might have been his suc
cess, he had spared no time or labor, but had done
all that he could. He was, to use an old English
word, a most painful practitioner, and never willing
to bring a cause into court without thorough prepar
ation. He had not the unmanly fears through which
great talents sometimes wear themselves out in those
minute and fruitless investigations, which embarrass
and perplex the mind rather than give it strength.
No man could act with greater boldness, but his bold
ness arose from the consciousness of having gained
the mastery of his subject, and was not the reckless
and ruinous self-confidence, through which so many
promising young men foolishly consider themselves
exempted from the necessity of exertion, and there
fore dwindle into insignificance.
The amount of Mr. Smith's practice at the bar
during the ten years that he kept his office in Peterbo
rough, though probably equal to that of any other law
yer then in the county, must have been small compared
with what it was some years afterwards. He very
soon engaged in public life. In 1786 he was chosen
town clerk. In 1787 he was appointed surveyor of
highways, for the district in which he lived. It had
previously been the custom to allow the same price to
all the men that worked upon the roads, and the con
sequence was that in some families the highway taxes
were worked out mostly by the old. But Mr. Smith
determined to allow them but half price, and fixed on
that rate for his father and Major Wilson, another
aged man of great consequence in the town. This

34 LIFE OF JUDGE SMITH.
produced a high opinion of his independence and
justice, and as he himself worked upon the roads with
his neighbors, he acquired such a reputation that on
the following spring he was chosen representative to
the general court.
In another capacity he performed a much more im
portant service for his native place. There were two
or three of his townsmen, who, without having studied
the profession, entertained a very high opinion of
their legal attainments, and had contrived to impress
it on others. As is usual with such persons, they
had a great disposition to put their knowledge in
practice. Like some young surgeons, who begin by
trying the lancet upon their own muscles, they began
by law suits of their own, and then, having induced
the town to engage in a foolish and unjust suit, they
were, in 1782, appointed a committee to carrv it on,
and soon after were appointed a standing committee,
with full powers to carry on all suits for and against
the town. As a consequence, the town was engaged
in long and vexatious suits, without either law or
justice on their side. The object of the committee
seems to have been to resist just claims, and then
worry out their adversaries by delays, which usually
involved the town in costs greatly beyond the original
demand against it. The more respectable of the
inhabitants were violently opposed to such a course
on the ground both of principle and expediency ; but
such was the general confidence in the legal ability
of their agents, that year after year they were contin
ued in office. At length, in April, 1787, Jeremiah
Smith was chosen in their place. There was, how-

LIFE OF JUDGE SMITH. 35
ever, a violent opposition ; the whole town was in
commotion, and on the 22d of June, it was voted to
dismiss him to make room for the old committee.
But at a town meeting on the 9th of July, this vote
was reversed, and Mr. Smith was again appointed
agent. Thus, in the course of the year, seven town
meetings were holden on this subject with various
success, till at last the old committee were perma
nently displaced ; and through the judicious manage
ment of the new agent, the town was freed from its
costly and harassing experiments in the law.
During the three or four years that followed, all the
public business of the town came, in a great degree,
under his supervision, and was placed on a new and
greatly improved basis. For several years he was
one of the selectmen, and according to the testimony
of one who served with him, " performed all the la
bors of the office himself, till he had taught them a
better way," when he declined being any longer a
candidate. He made great efforts for the improve
ment of the public schools, and through his influence
five new school-houses were built in 1791. He suc
ceeded, too, in procuring for the town better teach
ers than they had before had, and an impulse was
given to the cause of education, which has been felt
in the character of the inhabitants ever since. A
small social library was got up ; good books thus
brought within the reach of the young, were read
with eagerness and care ; important subjects in theo
logy, metaphysics and politics, were made the com
mon topics of conversation among young men, and
were discussed with correctness of language, with

36 LIFE OF JUDGE SMITH.
energy and ability. In this way, a race of strong-
minded, well-informed and thinking men grew up.
There was a beech tree near the meeting-house,
where they used to assemble before and after the ser
vice on Sunday. I use here the strong language ol
one," who remembers well the discussions he de
scribed, and who, in his own striking eloquence,
unites many of the finest qualities of the Peterborough
character. " Religion, politics, literature, agriculture
and various other important subjects were there dis
cussed. Well, distinctly well do I remember, those
debates. No absurd proposition or ridiculous idea
escaped exposure for a single moment. A debater then
had to draw himself up close, be nice in his logic and
correct in his language, to command respectful atten
tion. Strong thought and brilliant conceptions broke
forth in clear and select language. They were read
ing men, thinking men, forcible-talking men, and sen
sible men. Bright intellectual sparks were constantly
emanating from those great native minds ; and fall
ing upon younger minds, kindled up their slumbering
energies to subsequent noble exertion. The imme
diate effect of those discussions could be easily traced
in the beaming eye and the agitated muscles of the
excited listeners. It was obvious to an acute observer,
that there was a powerful effort going on, in many a
young mind among the hearers, to seize, retain and
examine some of the grand ideas that had been
started by the talkers. This rousing of the young

1 General James Wilson, in his speech at the Peterborough Centen
nial, October 24, 1839.

LIFE OF JUDGE SMITH. 37
mind to manly exertion, and aiding it in arriving at a
consciousness of its own powers, was of great advan
tage where the seeds of true genius had been planted
by the hand of nature."
We must allow something for the enthusiasm of
one speaking on such an occasion, of the citizens of
his native town ; but there were among those who
grew up with Jeremiah Smith, and who came upon
the stage while he resided in Peterborough, men who
would have been distinguished in any place for their
intellectual endowments. His brother John,' was
considered, by those who knew them both, as his su
perior in native strength. James Wilson was a man
of strong sense and of a quick, impassioned elo-

1 He was for many years, an able and influential member of the New
Hampshire legislature. Notwithstanding his plainness of speech and
the pungency of his wit, he was a man greatly honored and beloved,
and his sudden and violent death, in August, 1821, caused a deep sensa
tion of grief through the whole community in which he lived. The pre
sent governor of New Hampshire, John H. Steele, who always differed
from him in politics, has, with a warmth of feeling alike creditable to
both, thus described him. " If Peterborough can boast of a better, more
useful, brighter, purer-hearted son than was John Smith, I know him
not. That she can point to many, whose exterior, both in dress and
address, comes much nearer to what is termed a finished gentleman, no
one will doubt. But where now is the man, who never lets a human
being pass him unheeded ; whose ever-active mind and ready talent can
draw forth alike the budding powers of childhood, or those of ripened
age ; who is ever ready to aid, counsel or direct, with wisdom, purse or
hand, his fellow man ? Such a man was John Smith. With an ad
dress, which to a stranger appeared rough and rugged as the mountains
which surround his native town, he possessed a heart as tender and pure
as ever animated the breast of man. To him I owe more than I can
express. He was not only a friend but a father. He taught me to be
lieve that there is nothing impossible ; nothing that a willing mind and
active hand cannot accomplish. I yet seem to hear his voice reproving
me for saying, / cannot do it ! ' Why don't you try,' he would say,
' and not stand there looking as if you were in a trance ? ' "
4

38 LIFE OF JUDGE SMITH.
quence. And there were others fully able to main
tain their side of the argument against them.
During three years, 1788, 1789, and 1790, Mr.
Smith represented the town in the general court,
and took there the same high place which he had al
ready taken at the bar. In 1789 and 1790 he was
chairman of the committee appointed " to select, re
vise, and arrange all the laws and public resolves then
in force, whether passed before or since the Revolu
tion." The labor devolved almost entirely on him,
and took up all the time he could spare for two or
three years. The work he accomplished is not easily
estimated, but must have been of great and important
service to the state. As an evidence of the stand he
took in the legislature, it may be mentioned that the
house, having voted (June 17, 1790) to impeach the
Hon. Wodbury Langdon, one of the justices of the
superior court, appointed Mr. Smith to conduct the
impeachment, although he had voted against it. He
was obliged to go to Worcester, Mass., to get forms by
which he might draw up the articles of impeachment.
His speech, which is preserved, written out in full,
shows some of the characteristics of his mind, but
lacks the heartiness with which a strong man utters
himself, when he has full confidence in his cause.
The principal charge brought against Judge Lang
don was, neglect of the duties of his office, in conse
quence of too great devotion to his private business.
The following extracts are given, as showing what
notions Mr. Smith then had of the duties of a judge.
" To say nothing of the great qualities in a judge,
knowledge in discerning the true merits of a cause.

LIFE or JUDGE SMITH. 39
rectitude of heart, and strict impartiality in deciding
upon it, which are indispensable, I apprehend that a
steady and close attention to the business, both in
term-time and in the vacation, is equally necessary.
Nature hath not been so lavish to any of her sons, as
to give them an intuitive knowledge of any science
without the labor of close thought and reflection. A
judge must be possessed of great patience in hearing,
and coolness in deliberating. He must especially dis
engage himself from all other business and employ
ment, and devote himself to the duties of the office.
There is a dictum in one of the books of reports,
which, I suppose, will pass for very good law in this
court — - Ye cannot serve God and Mammon ' —
you cannot be a judge and a merchant. 'T is easy
to guess, in this contest, which will get the mastery.
I fear, if we look into human nature, we shall find it
written in page the first, in very legible characters,
that interest will prevail, and that our judge will be
more solicitous about fitting out his brig, than about
settling a knotty point of law. He will be too apt to
be disposing of a cargo, when he should be dispensing
justice. " This attention to private business has been the
bane of public justice. To this it has been owing
that our courts of law, when they have pretended to
sit to dispense justice, have rather dispersed than dis
pensed it. To the same cause it has been owing, that
difficult cAses of law have been determined without
any deliberation, and the very same question has re
ceived different determinations. In short, instead of
justice running in a clear, a steady and broad chan-

40 LIFE OF JUDGE SMITH.
nei, it has all the impetuosity of a torrent, and, like a
torrent, bears down all before it. The consequence
has been, that nobody rests satisfied with our legal
determinations. It is in consequence of this, too,
that the legislature, at every session, are troubled with
so many applications to restore persons, suffering by
these hasty determinations, to law.
" One end of legal decision of a cause is, to sat
isfy the parties ; but the parties never will be satis
fied, unless their cause has been coolly, deliberately,
and fully heard. This a judge never will do, if he is
entangled with private affairs. The parties think,
and have been heard to say, that when the honorable
judge's brig goes to sea, he will be more at leisure.
If the brig sails or arrives in term-time, the inhabit
ants of Cheshire and Grafton need not expect to see
the honorable judge. These are facts I do not mean
to exaggerate.
" With respect to individuals, who have causes
pending in court, it is easy to conceive that they
must be great sufferers by this delay of justice ;
though it is not easy to conceive of the full extent
of their sufferings. That a poor unhappy citizen,
who is so unfortunate as to be confined on suspicion
of having committed some offence against the pub
lic, should suffer the horrors of imprisonment six
months or a year longer, because the court should
refuse to sit to try him, and give him an opportunity
of showing forth his innocence, is something ; that
an honest citizen should lose his debt, perhaps his
all, because the court neglect to do their duty, is
something ; that juries, witnesses and parties should

LIFE OF JUDGE SMITH. 41
be summoned to attend, and no court to trans
act business should assemble, is no small griev
ance." Judge Langdon was acquitted, and soon after re
signed his office.
A little incident occurred about this time which,
Mr. Smith said, made a lasting impression on his
mind, and which, in the latter part of his life, he
used to tell for the benefit of young men disposed
to indulge their wit, without regard to the feelings of
others. While in the legislature, he one day, by
some humorous remarks, raised quite a laugh in the
house at the expense of a venerable man, who
was universally respected for his delicacy of feeling,
good sense, and moral worth. As he was coming
out, the Hon. John Pickering, afterwards chief jus
tice of the state, compUmented him on the wit and
talent he had shown ; " but," he added with emo
tion, " nothing on earth would tempt me so to
wound the feelings of a worthy old man like him."
Mr. Smith used to cause a good deal of amuse
ment, by the manner in which he gave an account
of his first, and I believe last, military appointment.
He and Major Webster, the father of Daniel and
Ezekiel Webster, had been delegated by the house,
in 1790, to go to Kingston and inform Dr. Josiah
Bartlett of his election as governor. They arrived
there Saturday evening, went to meeting with the
governor on Sunday, and, before setting out with
him on Monday, found that he had paid their bills at
the tavern. Their approach to the capitol was an
nounced by the firing of guns, which so frightened
4*

42 LtFi: OF JUDGE SMITH.
their horses that Mr. Smith was thrown flat upon
his back. It so happened that the governor's hat
and wig fell to the ground at the same instant, and
Mr. Smith, with admirable presence of mind, picked
them up and gave them back to him. It was sup
posed that he had leaped from his horse for no other
purpose, and on account of the agility he had dis
played in horsemanship, he was appointed aid to his
Excellency, with the rank of colonel.
In 1791 -2 Mr. Smith was a member of the con
vention, chosen to revise the constitution of New
Hampshire. He took, in the deliberations of that
body, an active and important part. The records,
though he was not the clerk, are mostly in his hand
writing ; and he must have been of great service in
drawing up the different articles. I find his vote
recorded in favor of expunging that clause in the
constitution, by which " no person can be capable
of being elected, a senator, (or representative,) who is
not of the protestant religion ; " an article which is
still in the constitution.
An anecdote relating to a period a little earlier than
this, and which has nothing to do with legislation,
may here be told, as characteristic of Peterborough
manners, and as showing how far Mr. Smith would
sometimes carry a joke. James Wilson, while a
member of college, was suspended for some youthful
indiscretions. Mr. Smith intimated to Major Wil
son, the father, who, though a sensible man, knew
nothing of college rules, that it was probably on ac
count of his extraordinary scholarship that his son
had been allowed to come home before his time.

LIFE OF JUDGE SMITH. 43
This testimony was in danger of being called in
question, by the untimely arrival of a letter from
President Willard. Mr. Smith, and very hkely most
of the wits of the town, (for Major Wilson kept a
public house that was greatly frequented,) happened
to be there when it came, and the Major's spectacles
not being at hand, he promptly offered to read it.
He went on with perfect ease reading it, as if it had
been a family letter from the Major's brother-in-law,
Mr. H  , giving such domestic intelligence, and
such an account of the crops, as might be expected
from such a quarter. " But what," said the Major,
" what is that name I see in the corner ? That is
not H  ; it looks like Willard." " Oh!" said
the young lawyer, " he merely says, / send this hy
one Jo Willard." This was probably received with
shouts of laughter by the company present, and Ma
jor Wilson's happy delusion was doubtless of short
continuance. In connexion with James Wilson, who was him
self a wit, another anecdote, which Judge Smith
delighted to tell in Wilson's presence, may be given
here. After Smith had been chosen a member of
congress, he was travelling with his friend, Wilson,
towards Groton. In the course of the day Wilson
rode on before his companion, and coming up with a
stranger, a sort of horse-jockey, he, for the sake of
sport, passed himself off as Mr. Smith, the member
of congress. On reaching Groton, Wilson began to
boast of what he had done, and how he had been
taken for the great man. " No," said Smith, " but
when you made the attempt the man exclaimed,

44 LIFE OF JUDGE SMITH.
' what, you Jerry Smith ! Why he is a respectable
man.' "
Doubtless other anecdotes might be given, in
which the advantage was on the other side. Mr.
Wilson was graduated at Harvard College in 1789,
and began to practise law in Peterborough about the
year 1792, which, of course, often brought him pro
fessionally into collision with Mr. Smith, and which,
as Mr. Smith was absent a considerable part of the
year at Philadelphia, must sometimes have given him
greatly the advantage. He took a leading part in
the politics of the state, was, at different times, a
member of the state legislature and a representative
in congress. He was distinguished at the bar, but
too much devoted to his private business to do
full justice to his professional abilities. He died in
Keene, his place of residence for many years, after
having accumulated, perhaps, the largest estate ever
acquired by any lawyer in New Hampshire.

CHAPTER HI.
1791 — 1795.
IN CONGRESS  FIRST IMPRESSIONS  INVALID PEN
SIONERS — Hamilton's assumption of state debts
 INDIAN war  ORIGIN OF TWO PARTIES  MAD-
ISOn's tariff  FRENCH POLITICS  DEMOCRATIC
CLUBS, ETC.
In December, 1790, Mr. Smith was chosen a mem
ber of the second congress, which began its session
the 24th of October, 1791. On his way to Philadel
phia, he stopped at Roxbury, Massachusetts, to be
inoculated for the small-pox. While undergoing this
preparatory discipline for congress, he was, accord
ing to one who was there with him, overflowing with
spirits, and, by his vivacity and wit, contributed
greatly to the life and entertainment of the company.
His first impressions both of the city of Philadel
phia, and of the body to which he belonged, were
not of the most favorable kind, as may be seen by
the following extracts from letters to his brother :
October 30. " I arrived in this city a week ago, and
last evening got into lodgings which I do not like. It

46 LIFE OF JUDGE SMITH.
will be impossible for you to have any idea of the diffi
culty of getting decent lodgings. The accounts you
have always had of this great and beautiful city will
blind the eyes of your understanding as they did
mine. I have had so little experience of congres
sional life, that I can say but little on that head. I
find, however, that this august assembly is composed
of men subject to like passions as we. These south
ern gentry do not please me. There are some ex
ceptions, however, and I intend to cultivate the good
opinion of all."
November 22. " I do not like Philadelphia ; nor
am I very fond of congressional life. I find myself
of very little consequence ; I am a raw hand, unac
quainted with men and the modes of conducting bu
siness. The only consolations I have, are that I
shall learn, and that I find a few others in my own
situation. They (the Philadelphians,) are from the
highest to the lowest, — firom the parson in his black
gown to the Jille de joie, or girl of pleasure, — a set
of beggars. You can't turn round without paying a
dollar." January 12, 1792. " I am glad you have had
resolution enough to avoid the loo-table. I am sure
my friend Page, &c., spend too much time in this
way. I do not think that gambling has any ten
dency to better the morals, add to the property, or
increase the pleasure and happiness of its votaries.
From what I have said you will be led to beheve that
I do not play. In this conclusion you will be justi
fied by the fact. It is not an uncommon thing in this
city to hear of a gentleman or lady, losing three or

LIFE OF JUDGE SMITH. 47
four hundred dollars at a sitting ; nor is it uncom
mon to hear^ that the people who gamble so high
are bankrupts, and hving on the property of other
people. " I spend the greatest part of my time in my
chamber with my books, a good collection of which
I have purchased. My acquaintance continues to be
small, but agreeable enough."
In a letter to A. Moore, Esq., February, 1792,
after speaking of a case in which the personal influ
ence of an accomplished woman had effected what
argument could not, he adds ; " Logicians think
that if they can point their artillery at the under
standing, and discharge a good volley of heavy shot
at the part called the mind, it is a mighty pretty
thing. This is a stupid notion of theirs. The mind
is a stubborn thing ; it has a surprising faculty at
dodging these shot. But there are certain other
things, which though they have very little to do with
reasoning, are strangely convincing."
From a letter to D. Warren, Esq., March 2, 1792.
" Do you wish to know in what light I am consi
dered here ? Just as Allen is in your house — an
illiberal, ignorant fellow, who has never seen the
world, who is startled at the mention of millions,
who says nothing, except now and then to snarl a
little at an extravagant grant of money. I am of
too little consequence to be courted by the ministry.
We have no opposition, else I beheve I should en
list. Don't be easily persuaded, my good friend,
that I am altogether inactive and stupid. I am learn
ing, and may possibly some time or other, convince

48 LIFE OF JUDGE SMITH.
the world that the fellow has more sense than he ap
pears to have."
His brother Robert, being left a widower, had an
inclination to study divinity, and wrote to Jeremiah
for advice, who replied, March 29, 1792. "You
have yourself suggested the principal objections. I
mean the advanced period of life, and the want of
early education. There must, in my opinion, be
very powerful considerations, to induce one circum
stanced as you are, in all respects, to strike out a
new course. It would certainly be thought very odd
in a traveller, who had performed more than half his
journey, who had made himself master of the road,
the geography of the country through which he had
to pass, and who, knowing the difficulties that would
naturally present themselves, had learned to overcome
them, to desert the old beaten path and to enter upon
a new one, lying through a country rugged and un
known. I am by no means satisfied that a change of
pursuit would either promote your happiness, interest
or usefulness. But if you are of a different opinion,
(and you certainly are the best judge,) it would be
necessary for you to spend a year or two in prepara
tory studies, in which it may be in my power, and I
shall certainly have the inclination, to assist you. I
have purchased a very good library, as well in other
branches of learning as in law. A small number of
these are theological, and excellent of the kind. I
intend to have a good library in divinity, but I fancy
it will not be that kind of divinity, which will be
agreeable to you. I have but an indifferent opinion
of the clergy in this quarter, and think them inferior

LIFE OF JUDGE SMITH. 49
lo those of New England. One hears in the churches
in this elegant and polite city a great deal of rant,
nonsense and stuff, which would disgust one of our
country congregations. What must the country here
be ! I anticipate, with some degree of pleasure, the
opportunity I shall have of improving the summer
coming. I am not a man of pleasure, and have been
even in Philadelphia, more studious than I have been
at any one period of my life heretofore. I consider
it as among the number of unfortunate circumstances
attending me, that I could not have had a good col
lection of books when I left college.
" I am not at all attached to congressional life, and
can return to private life not only without regret, but
with much pleasure and satisfaction. My standing
here is as good as I ought to expect. In time, I
think I should learn my duty. I have no doubt of
my independence or integrity, to perform it faith
fully." In a letter of the same date to his brother John he
says, " I have written R. If you are right in your
conjectures as to the new couitship, it will probably
prove more efficacious in preventing a change of pur
suit, than anything I have said in my letter to him.'
I begin to form some acquaintances in this city, which
afford me much pleasure. I am almost in love with
a little Quaker. They (I mean the ladies of that so
ciety) are gay, sprightly, sensible. But you know I
am easily caught. I am anxious to be home, that I
• It was even so ; R. was married, and nothing more was said of a
change of profession. 5

.50 LIFE OF JUDGE SMITH.
may enter upon that course of study which I have
marked out. I must begin. I find I know nothing.
I shall have an elegant assortment of books. Busi
ness goes on very slowly in congress. It is no breach
of charity to suppose that the members are at least as
anxious to promote their own, as the interest of the
public, — I mean in creating offices, and getting them
selves or friends appointed to them. For, as to the
wages and pay of a member, when you deduct the
expenses, of which you can have no idea, — to say
nothing of the sacrifices that many must unavoidably
make in business at home, — it cannot be considered
as a great temptation to protract the business."
The consciousness of his own ignorance, not wast
ing itself in peevish remarks on others, but awaken
ing within him a longing for improvement, not only
in his own profession, but in all generous and useful
studies, was the secret of Mr. Smith's subsequent
distinction and success. Through life it was his wish
to fit himself for important stations, and the society
of distinguished men. If they sought him out, he
was gratified ; if not, he may have been disappointed ;
but, in forming and carrying out yet larger plans of
intellectual advancement, he always had at hand re
sources and occupation, which might take from dis
appointment its sting, and give a healthy exercise
both to his mind and heart.
During the first two sessions of congress that he
attended, he was, according to his own intimation,
rather a learner than an actor. His previous experi
ence in political life, obliging him to spend so much
time on the laws of a single state, while it undoubt-

LIFE OF JUDGE SMITH. 51
edly sharpened his faculties, had yet prevented his
attending, as he otherwise might, to the national
government, and taking those large views, which
should direct the legislation of a great people. In
matters of a more limited and private character, he
acted with great spirit and discretion ; as, for exam
ple, in the case of the invalid pensioners. " It gave
me pain," he said to a member ofthe legislature, " to
learn that after the public (you will excuse me, but I
mean the former legislatures of New Hampshire,) had
practised sharping on the poor invalids, by compelling
them to receive their depreciated paper, that these
unfortunate souls should have been imposed upon by
that rascally tribe of speculators and sharpers, who,
like their master, travel up and down through the
country, ' seeking whom they may devour.' By ex
amining the papers which I enclose, (and which may
be authenticated if need require,) you will perceive
how successful W. has been in this speculation.
You are not unacquainted, I suppose, that congress,
at their second session, made provision for the pay
ment of the arrears of pension, (meaning what was
due till 4th March, 1789,) in register certificates, to
be issued at the treasury of the United States ; and,
I dare say, know that these certificates are worth
more than twenty shillings on the pound. If the
deceit practised on these pensioners, in the instances
alluded to, can be proved, and they should think it
advisable to prosecute W., I shall most cheerfully
procure any evidence that may be necessary at the
treasury. I never feel so confident that I am in the
way of my duty, as when I am employed in detecting

52 LIFE OF JUDGE SMITH.
and punishing villany, especially when an honest,
simple person is the object of that villany."
In matters of great national interest it may be
questioned whether Mr. Smith was qualified to act
with the same discretion. He examined them from
too low a point, and came to conclusions which his
riper judgment could hardly approve.
" Some people," he said, in a letter to Governor
Bardett, April 6, 1792, "act upon a scale too large
for me ; they talk much of the good of the whole."
 "I asked Mr. John Langdon, if he thought
New Hampshire would prove a debtor to the Union
on just settlement." " No." " Then upon the
principles of these two assumptions, as contemplated
by the secretary of the treasury, will we not be pay
ing seven or eight hundred thousand dollars of the
debt of some other state ? " He replies, that " It is
a great national measure ! — that New Hampshire
does not contribute her proportion of the public rev
enue." " I write this in the most perfect confidence.
It does not become me to lay claim to more know
ledge or patriotism (I mean fidelity to my state,) than
other gentlemen possess."
Hamilton's measure for the assumption of the state
debts had been adopted before Mr. Smith was a mem
ber of the house. But he was vehemently opposed to
it ; and the following extract from a letter to Gov. Bart
lett, Dec. 24, 1791, in respect to a spirited memorial
on the subject from the legislature of New Hampshire,
may serve as a specimen of his mode of reasoning at
that time, " It was undoubtedly reasonable that the
claims of the several states, for services and expendi-

, LIFE OF JUDGE SMITH. 53
tures in the war, should be adjusted on principles of
equality, in order that the delinquent states should be
compelled to pay, as well as the creditor states be en
titled to receive, the balances respectively due. The
idea of assuming, or, which is the same thing, paying
balances, before the accounts are adjusted, is alto
gether new. 'T is uncertain ground to go upon,
and it would be little less than a miracle, if the result
of the final settlement of accounts should justify this
measure. If the assumption was intended to give
relief to the slates from the burthen of their debts
contracted during the war, it should have gone fur
ther, and the whole state debts of this description
should have been assumed. If it was intended only
as an advance payment to the states, then the debts
only of those states to whom balances will probably
be found due, should have been assumed. Congress
never could have been influenced by the first of these
motives in assuming two hundred thousand dollars
from Delaware, for they owed none ; nor by the se
cond of these principles, in assuming twenty-two hun
dred thousand dollars from Pennsylvania ; for it seems
granted, on all hands, that they are a debtor state.
" I have puzzled my brain, to know upon what
principles this business was conducted, that I might
have it in my power to point out the badness of them,
or show wherein they had deviated from them, if
good ; for it is clear that injustice has been done.
But, after the most painful search and inquiry, I have
never yet been able to find that they were actuated
in managing this business by any principles at all,
unless those principles which govern sharpers, right
5*

54 LIFE OF JUDGE SMITH.
or wrong to get the best bargain they can, may be
denominated such. It has. I confess, always been
matter of astonishment to me, that there could exist
a man so weak, as to be duped by the states who
pressed this measure, and who alone were to be gain
ers bv it. Having troubled you with my sentiments
on this subject, which I believe are such as generally
prevailed with the legislature in framing the memo
rial referred to, I would take the liberty to observe
that the idea of rescinding the act assuming the state
debt is altogether inadmissible, and the thing wholly
impracticable ; as the rights of individuals have be
come blended with pubhc measures and must be held
sacred." These remarks should undoubtedly have weight
as applied to particular pro\isions ' of the measure,
which may have been introduced only to secure the
support of states that would otherwise have prevented
its passage ; but they do not even glance at the broad
principles which lay at the foundation of Hamilton's
policy, and which prove the greatness of his genius,
and the profound, far-reaching wisdom of his pubUc
conduct. The union was then little more than a
political form. It had not been established by the
happy experience of many years, and strengthened by
the affections of the people. The constitution, which
was a compromise of local interests, and adopted by
a small majority as the best that could be had, was
not hailed with anything like a general enthusiasm.

1 Some of these provisions fell with peculiar severity on the state of
New Hampshire.

LIFE OF JUDGE SMITH. 55
It was looked upon by its ablest supporters only as
an experiment. There was no strong attachment to
it ; and, for some time after it was adopted, among
the representatives of these several independent states,
the feelings of national pride and honor, through
which they were to be bound together as members of
a great national confederacy, hardly had an existence,
while local jealousies were even stronger than at the
present day. The sentiment of loyalty to the parent
country, which had been weakened by our whole
experience as colonists, and fatally severed by the
revolution, had as yet no new object to which it
might attach itself. That nameless influence, which
binds a people to their country ; the associations,
which through a thousand years have been cement
ing their affections to their government as by the
blood of their fathers, and uniting them in one by
the great achievements and great names, which have
come down as their common inheritance, had no ex
istence here. The common dangers which allied the
colonies during the war, had given place to conflict
ing interests, and except the name of Washington,
there was nothing which had enough of a central,
gravitating power, to draw towards a common point
the diverging affections of the people, and to serve
as a nucleus, around which the associations of na
tional honor and respect might gather. Washing
ton's influence was soon to pass away. And without
some strong central and centrahzing power, the con
federacy must soon have split into fragments. In
this point of view, it is impossible to over-estimate
the practical and far-reaching wisdom of Hamilton's

56 LIFE OF JUDGE SMITH.
first great measure, the assumption of the state debts.
As a financial measure, (and, if proposed now, it
would be viewed only as such,) it may or may not
have been expedient. This was only a secondary
consideration. In its more extended bearings, as
suming as it did on the part of the general govern
ment, a national guardianship, and serving thus to
bind into one body these different and otherwise
conflicting members, and give to them a national
character, it answered a far more important end than
the immediate purpose for which it was designed.
The great measure of the first session of the second
congress was a bill to increase the army for the pro
tection of our frontiers. Mu Smith voted steadily
against it. Some remarks on this subject we have
already quoted. The following extracts from a letter
to his brother, John Smith, March, 1792, relate to
the same subject.
" The annual expense according to calculation
(and experience always shows that calculations are
too small,) will exceed a milhon of dollars, and all
this to gratify a parcel of fellows, who do not care
whether the country sinks or swims, provided they
can make their own fortunes. Land-jobbers and a set
of rascals on the frontiers, who are interested in kicking
up a dust, are the cause of the war. I have uniformly
voted against this standing army, not that I apprehend
any danger to our hberties from it, but merely because
I do not like the expense. I dare say I am thought
a very illiberal fellow ; — a term which is here applied
to every man who votes against large grants, sala
ries, &c. I would not be understood as speaking

LIFE OF JUDGE SMITH. 57
against the powers that be ; though I do not believe
they are ordained of God. The government is, I
think, in the main good. I detest faction. There
are here some very rich men, who certainly do not
sympathize with their constituents. They affect to
consider a million of dollars as nothing ! They talk
of raising money by direct taxation, as a measure
highly expedient. As long as the money to pay the
charges of government is raised by the indirect and
imperceptible mode of impost, excise and duties, the
people will not murmur at the high salaries, pensions
and profuse grants ; but the moment recourse is had
to dry, hard taxation, the spirit of inquiry will be
roused, and the expenditures will be minutely investi
gated. I never wish to see that day arrive. I dare
say all this political stuff will appear to you extremely
insipid, now that you have it in your power to em
ploy your leisure moments in domestic felicity.
Blessed change, from the company of drunken randys,
&c., to the agreeable society and charming conversa
tion of your lovely wife ! "
Mr. Smith's political opinions, and even the prin
ciples on which they might rest, were not yet estab
lished. Indeed, the public opinion of the country
was yet unorganized and unformed, without fixed
rules or principles of political action. From this
heaving mass of almost chaotic opinions, at first
hardly perceptibly, but at length through excitements
and commotions that shook the whole fabric of so
ciety, two great political parties were rising into
shape, and arraying themselves against each other.
Hamilton and Jefferson were the leaders in this

58 LIFE OF JUDGE SMITH.
movement ; but it arose from causes deeper than the
personal feehngs or opinions of the two secretaries.
They were but the representatives of two great sys
tems of policy, springing out of our condition as a
nation ; and however these systems may be affected
by temporary measures respecting war or peace,
slavery or commerce, or particular electioneering or
ganizations, growing out of personal or local inter
ests, they must still continue to be the principles of
political division, throughout the country. There is
a constant tendency to foment ill feelings on the
score of opposite and warring local institutions, and
if it should go on without interruption, it must ne
cessarily lead to entire alienation and hostility be
tween the two large sections of the country. But
this other movement, by introducing new subjects of
controversy, and dividing the country on other than
local grounds, absorbed to itself passions, which if
wholly spent in local contests, would long since have
put an end to our national existence. Thus, when,
on the assumption of the state debts in 1790, New
Hampshire and Virginia were arrayed against Massa
chusetts and South Carolina, something was done to
prevent the organization of the North and the South
against each other, and to allay the bitterness of local
jealousies. The great division into parties was not fairly per
ceptible, until the first session of the second con
gress. Towards its close, the beginnings of such an
organization were manifesting themselves. In a let
ter to his brother, 20th April, 1792, Mr. Smith says,
" Everything now [at the latter end of the session,]

LIFE OF JUDGE SMITH. 59
grows languid, dull, and heavy ; and there seems to
be nothing stirring amongst us, save a little nature,
which I believe will hold out to the last. There are
two parties here. I belong to neither. I mean the
friends and enemies of the funding system. I do
not find that harmony in the public councils which I
expected. Those who are interested in the funds,
stock, bank, &c., support every measure of the se
cretary of the treasury, whilst those who are out of
the funds (meaning the Virginians, &c. &c. &c.)
oppose every measure of his, however wise and
good. The good of the whole is not a primary ob
ject with either of these two classes. The one
zealously contends for measures which will tend to
increase the public credit, because at the same time
he advances his own private property ; whilst the
other would be willing, like Samson, to pull down
the mighty fabric of public credit and confidence,
because it would overwhelm his enemies, (the stock
holders, &c.) though he himself should be buried in
the ruins."
The next session of congress (1792-3) was
passed without any very important public measures ;
but was marked by an increased irritation of party
feeling, and by the beginning of the difficulties with
the French republic. Mr. Smith, whose health was
most of the time poor, continued to look carefully
into the progress of events, and applied himself dil
igently to reading, being still, less an actor than one
preparing himself for future action. In the mean
time he had been reelected, and was evidently much
gratified by the result. In a letter to his brother.

60. LIFE OF JUDGE SMITH.
John, November 15, 1792, he says, "I have seen
the event of the voting for representatives to con
gress, from New Hampshire, and am disappointed
and exceedingly gratified. I find I had all the votes
of Hillsborough, Cheshire, and Grafton, and a ma
jority in each of the other counties. I wish my
friends may know how much I feel myself obliged,
by this flattering proof of their attachment, and the
disposition I feel to seize every opportunity of testi
fying my gi-atitude. I do not think that I needed
any additional motives to stimulate me to fidehty,
and the most strenuous exertions to promote the in
terests of the state. If I did, this unexpected proof
of pubhc confidence would certainly operate power
fully." The following extracts from letters will sufficienfly
show Mr. Smith's feelings, during the first session of
the third congress. •
To Samuel Smith, February, 1793. " I approve
of your passion for Miss G. ; prosecute it with ar
dor. I am under the influence of a similar passion
— a hopeless one too. I don't mean that my fair
one frowns on me ; in that case I should very soon
cease to love her. But prudence dictates to me the
impropriety of such an attachment, and probably the
same prudence suggests the same thing to her. A
Philadelphia belle would make a strange wife for a
poor man in New Hampshire. What a strange set
of creatures we are ! It seems to me now that I
never sincerely loved before. God grant that time
and absence may have their usual effects.
" I was determined to purchase no more books.

LIFE OF JUDGE SMITH. 61
yet I have expended sixty or seventy dollars in that
way. This rage for books will ruin me ; and that
rage for building mills, barns, dams, pearl-ash
houses and castles, will, I fear, prove the destruction
of you."
To his brother Samuel, 28th January, 1794, he
wiites: — " We are now debating the propositions
made by Mr. Madison, for laying additional duties
on the manufactures of Great Britain. If these
should obtain, it will still more favor the American
inanufacturer. .1 shall oppose these resolutions, be
cause I conceive they will upon the whole be inju
rious. If I consulted no interest but yours, I believe
I should favor the resolutions."
To Robert Fletcher, Esq., 12th February, 1794,
he says : " I am sorry that French politics gain
ground with you. They are my utter abhorrence.
I almost hate the name of a Frenchman. They have
opened some leaves in the volume of human nature,
that I never believed were in the book. They liuve
done the cause of liberty an irreparable injury. I
do not wish them success. Their principles are hos
tile to all government, even to ours, which is cer
tainly the best. You will have seen Madison's pro
positions to regulate commerce ; calculated to stir up
a war between Great Britain and us. I attribute
these propositions to French influence. I do not
mean that the advocates of these measures are bribed
by Citizen Genet ; but I consider them as resulting
from that childish and nonsensical attachment they
appear to have for Frenchmen and French politics,
which leads them to put in hazard the true interests
6

62 LIFE OF JUDGE SMITH.
of this country, to gratify their resentment against
Great Britain. It is now certain, beyond all possi
bility of doubt, that Genet, in his constant and un
remitted endeavors to plunge this country into the
war, was only pursuing the instructions he received
from his government. Though this may in some
measure palliate his abominable lies, duplicity, &c.,
yet it ought to make us hate and detest his nation.
On these resolutions, your brother Dexter ' made a
very eloquent and sensible speech, which was uni
versally applauded ; and his character already stands
high. There is no danger of his sinking in public
estimation, for his talents are solid, and his integrity
and honesty inflexible."
To Samuel Smith, 14th April, 1794, he writes :
" We are now debating the propriety of withdraw
ing ourselves from any commercial intercourse with
Great Britain. I think it will pass the house, but
fail, at least in its present shape, at the senate. We
are in a most honible passion ! How we should
act, provided there was any fighting in the case, I
can't say, but certain it is that we scold most cour
ageously." In a letter to William Plummer, dated 8th May,
1794, he says : " My dear friend, your letter of the
28th April, I received by the last mail. It could not
fail of giving me pleasure, as it contained assurances
that my political conduct has your approbation, as
well as that of ' the more considerate and well-in
formed ' among the people at large. I have been,
' Hon. Samuel Dexter, of Massachusetts.

LIFE OF JUDGE SMITH. 63
and I believe always shall be, among the number of
those who deprecate war. Those who have, in the
course of the session, advocated Madison's resolu
tions, sequestration, the bill to suspend the trade and
intercourse between the United States and Great
Britain, and other measures of a similar nature, make
the same profession ; at least most of them do so.
I have no doubt but that some of them are honest ;
some of them are not. Taylor and Monroe, the two
Virginia senators, on Monday, moved in the senate,
for leave to bring in a bill to suspend the execution
of the fourth article of the treaty of peace, that is, to
put a stop to the collection of British debts. This
leads us strongly to suspect, that their hostility and
rage against Great Britain, is not so much the pure
fire of patriotism, (which they pretend,) as it is the
flame of self-interest. In this motion they were most
shamefully defeated, and, upon a division, stood alone.
Their friends thought the measure too glaring, and
deserted them, leaving the senate, when the question
was taken. I know it is common for parties to charge
each other with bad intentions, sometimes, no doubt,
without any foundation. Both may mean honest,
but I believe that is not the case at present. They
charge us with monarchical and aristocratical princi
ples ; with designs to change the constitution, and
subject the people to slavery ; with being the agents
of Great Britain ; under British influence ; friends
of the funding system, and in favor of a great na
tional debt. Now this is so impudent a calumny,
and so without the shadow of probability, that I do
not believe that they believe a syllable of the matter

64 LIFE OF JUDGE SMITH.
themselves ; and yet in this ignorant and stupid
place, there are not wanting persons who are trem
bling for their liberties, and really alarmed for their
privileges. The democratic societies have under
taken the guardianship of the rights of the people.
They are ever and anon blowing the trump of fac
tion, and warning the people of their danger ; puff
ing the members of congress who are for sequestering
British debts, and widening, instead of healing, the
breach between Great Britain and us. Need I add,
that this renders our situation uncomfortable — to
me it is hateful. This zealous attachment to the
rights of the people, this bellowing against mon
archy, aristocracy, national debt, &c., this scorching
fire of patriotism would be suspected, with us in
New Hampshire, but here it answers a good pur
pose." Mr. Smith now felt more at home, and enjoyed
himself more than at any previous session. " On
the 9th of June," says Marshall, " this active and
stormy session was closed, by an adjournment to the
first Monday of the succeeding November." The
next session was to have commenced on the 3d
of November, but there was not a quorum till the
18th. Party divisions had become more fixed,
and entered more deeply into social and personal
relations ; motives, as well as measures, were se
verely commented upon ; and if less was done than
at the previous session, it was only because the tem
pestuous strife had subsided into a sullen calm, while
both parties awaited with anxious interest the result
of the mission to England.

LIFE OF JUDGE SMITH. 65
The following extracts will show what were the
feelings of that day.
To Samuel Smith, 20th November, 1794. " I in
close the president's speech. It is very popular with
the friends to government ; we consider what he
says of self-created societies, and combinations, dis
regarding truth, &c., stirring up insurrections, &c.,
as too apphcable to democratic clubs, &c., to admit
of any mistake as to the application of it ; we smile,
and they pout. They feel it. Let their mortifica
tion be increased tenfold."
To the same, 29th November, 1794. " We have
been engaged the whole week in framing an answer
to the president's speech. The persons with whom
I act wished to express an opinion that the demo
cratic clubs had fomented and stirred up the insur
rection, in the western counties of Pennsylvania.
This was opposed by our southern brethren, who feel
a wonderful sympathy with these inflammatory clubs.
On the question, which we considered as the main
one, the house was equally divided, and the speaker,
who belongs to a club of democrats, gave the casting
vote against us, so that our answer is chips and por
ridge. I feel provoked. What a mercy it is that I
have not your troubles to add to mine, and that you
have not mine to add to yours ! "
To John Smith, 6th December, 1794. " An ac
count of congressional proceedings would give you
no pleasure. Except the attack on democratic clubs,
we have scarce had any debate and very little busi
ness. We are lying on our oars till we hear from
Mr. Jay. If his mission is favorable, we shall do
very well ; if not, the devil will be to pay,"

66 LIFE OF JUDGE SMITH.
Mr. Smith's interest in public affairs may be seen
in the following extracts, relating to the election of
United States' senator from New Hampshire. His
temperament was one of the most hopeful, and hardly
in all his confidential papers, have I found anything
like despondency or gloom. What follows here, as
in many other parts of this memoir, is of course to be
taken as a picture of the writer's feelings at the time,
and not as an impartial estimate of character.
To William Gordon, Esq., 17th December, 1794.
"It is quite natural, too, that your detected villains, who
dread the whip of the law, should contemplate with
satisfaction the annihilation of order and government ;
but that a man circumstanced as Mr. L. is, should
lend his aid to the enemies of the rights of property,
to the enemies of order and good government, the
enemies of the peace, and, in my opinion, the inde
pendence of this country, these things surprise me.
Perhaps jMr. L. does not intend any such thing. A
man is in a situation not much to be envied, when
his friends are under the necessity of justifying his
heart at the expense of his head. Besides, in the
present case, it would be peculiarly unfortunate ; be
cause friend L. can suffer very little deduction there,
without being reduced to a size which would baffle
the naked eye, and even set at defiance all the mi
croscopes that have yet been invented. Our affairs
are, at present, so critically circumstanced, that a
single vote in the senate is worth perhaps as much as
the peace, prosperity, and happiness of our country.
I am mortified that ^ew Hampshire should be divided
as they are in the senate, on all occasions w here na-

LIFE OF JUDGE SMITH. 67
tional questions are involved. Undoubtedly every
public man should act his opinions, whatever they
may be ; but certainly I would not choose an agent
who should do the things I would not. Besides, I
can hardly muster up charity enough, with all I can
borrow from my friends, to persuade myself that these
things are the effects of conviction. He has been
flattered into a belief, that if he will wear the south
ern livery, he shall be made the second man, as it
were. Now though this flattery is gross, yet that
is no reason why it should not be greedily devoured.
Flattery, unlike other food, seems to be swallowed the
more greedily, the coarser it is. But I am running
into reflections which always make me gloomy. This
same government of ours is built on the pillars of
public virtue and public opinion, say our wise men.
The wise and the good, when united, are still a
minority, I fear. When desertions take place, the
case becomes desperate, and in such a case, true wis
dom consists, not in attempting any longer to support
the tottering fabric, but in running away, as far as
you can, so as not to be injured by its fall."
To R. Fletcher, 3d January, 1795. "I am anx
ious to hear who is chosen senator. The lot is by
this time cast. I am afraid ' the Lord has had no
thing to do with the disposing thereof.' Supposing
L. to be the man, I am beginning to reconcile myself
to it. If he is not elected, he will, I fear, be soured,
and rear up an anti-federal party in the state ; set up
democratic clubs, and poison the pure principles of
our virtuous citizens. Let our people fall into the
hands of the devil, but let them not fall into the

68 LIFE OF JUDGE SMITH.
hands of these men ; famine, the plague, and pesti
lence are nothing to it. By the way, we are all
hugely pleased with parson Osgood's Thanksgiving
sermon ; we extol him to the third heaven, and
swear (it is in a good cause you know) that he was
inspired ! If the virtuous members of congress
(meaning those of our partv) had the power to confer
degrees, he would instandy be daubed over with
tides. We think he as richly deserves it, as ever
King William, in Corporal Trim's opinion, did a
crown. It is proposed to print an edition in this
city, for the use of our brethren at the southward.
We are afraid, if we do not alter the title-page, it will
be a sealed book. But, what is very unusual, it has
been published entire in a newspaper in this city,
and, I believe, read by many people who were never,
in the whole course of their lives, in the inside of a
church. I am charmed with your picture of a family
party at Christmas. It must be the most delightful
thing in the world. Tell Mrs. F. that I should have
been very happy to have made one of your little so
ciety, and that I am confident she enjoyed far more
pleasure, surrounded by her children and friends,
than Mrs. Dexter, at Mr. Bingham's, Mr. Morris's, or
even the President's sumptuous dinner. I was sin
gularly happy on that day myself; dined with a num
ber of my friends at Mr. Wolcott's, (who, by the
way, will be secretary of the treasury, in the room of
Col. Hamilton,) and spent the evening in company
with a divine woman I have lately become ac
quainted with, and who is all that woman can or
ought to be ; but, heigh ho ! she is as good as mar-

LIFE OF JUDGE SMITH. 69
ried. I am glad I was informed of that circumstance,
else I should have been over head and ears in love.
Informed of my danger, I find it difficult to restrain
my ardent affections. I am glad to find that I am
not dried up and congealed, but that my heart is as
susceptible as ever. I had rather be a man, and feel
as such, even if I suffer by it, than be one of your
insensible devils."
To R. Fletcher, Esq., January 7th, 1795. " You
wish for a list of congressional actions. There are
but few entries, and those few unimportant. I was
doubtful whether we could have spun out the time
till the third of March ; but, thanks to some of our
chattering geniuses, we are out of all danger of a
premature death. We are of opinion with good old
Cato, in another case, that we ought to draw our term
of service out, and spin it to the last ; and that one
year of congressional life is better than a whole eter
nity at home. I will enclose some newspapers, if I
can pick them up before I seal this letter, by which
you will see that we have been much engaged in
amending the law for the naturalization of aliens,
particularly a motion made by Mr.' Giles, to make
it necessary for an alien nobleman, previous to his
becoming a citizen, to renounce his title. This
naturalization is very warm work.
" Giles's motion prevailed. It was made, I pre
sume, with a view to cast odium on the New England
aristocrats, who, it was foreseen, would vote against
the motion, as altogether frivolous and ridiculous. I
dare swear it will occasion a great bustle, and that
the Independent Chronicle, (that is a paper entirely

70 LIFE or JUDGE SMITH.
devoted to a party,) wifl teem with abuse. Here 's
a fine set of fellows for you ! for introducing nobility
from Europe 1 Don't you tremble, my friend, for
the liberties of your poor country ? Depend upon it,
we are in great danger from the introduction of mon
archy and aristocracy. We shafl certainly be tricked
out of our hberties if we are not very jealous ! Here
you see what a narrow escape we have had ; even
Madison, the watchful guardian of American liber
ties, the vigilant Madison, slept. He brought in the
bill, and had omitted this clause. But the saviours
of our country must come from the south ¦ — ¦ his col
league, Giles, has the consolation to reflect that he
has rescued us from the most imminent danger ! Let
the praises of the geese who saved Rome, no longer
engross the public approbation ; certainly, in all mo
desty, Giles may divide the matter with them. Don't
tell me there is no danger ; oh blindness and stupid
ity ! Fools can fear when there is any danger —
wise men manage the matter much better ; they,
honest and sagacious souls, espy dangers that never
did, and never can exist. Did not Rome produce a
Caesar ? Think' of that ! May not America do the
same ? Answer me that. Who would, then, place
any confidence in a public officer ? Certainly not
true republicans ; they know that the only way to he
faithfully served, is to distrust and abuse all their offi
cers. Let monarchs caress and reward their faith
ful and trusty friends and servants. They must be
strangely ignorant of human nature, indeed ! Our
method is both economical and safe ; first, to cheat
them out of their wages, and then, to prevent the

LIFE OF JUDGE SMITH. 71
effect of their clamor on the world, vilify and abuse
their characters. Huzza for the new invented max
ims of government ! Pardon me, my friend, I can
proceed no further ; I am so sick of this nonsense,
which is daily ringing in my ears, that I ardently
long for the moment when I shall bid adieu to Phila
delphia, and exchange its folhes, noise and nonsense,
for the simplicity, the quiet and peaceful regions of
New Hampshire."
To Samuel Smith, 31st January, 1795. "The
time of our dissolution draws near, and I, like other
good Christians, view its approach with calmness and
serenity, indeed with pleasure. I can give up the
plays, parties and public entertainments of the city,
for the repose and wholesome atmosphere of the
country, and make a good exchange. Not being a
man of pleasure, I make but little sacrifice in quitting
the gay scenes ; my brethren here cannot all say so.
Many of them plunge into the vortex of dissipation ;
they do not always escape unhurt, but like the mari
ners, who have been shipwrecked in nine voyages,
will venture on the tenth."
To the same, 1 1th February, 1795. " There is now
no doubt that the treaty of commerce, &c. is con
cluded by Mr. Jay, with the British court ; though it
has not arrived in America yet. The uneasy spirits
who have used their endeavors to plunge this coun
try into the war which desolates Europe, have opened
their foul mouths against it, though they do not even
know what it contains. This is no reason, however,
why they should not abuse it, and they would act
inconsistently with themselves, if they did not shoot

72 LIFE OF JUDGE SMITH.
arrows in the dark, and endeavor to wound the char
acter and conduct of those to whom this country is
indebted for the peace and prosperity we now enjoy.
The supreme court of the United States has been
one week in session. I have been pretty constant in
my attendance there and in congress, so that I have
but little leisure or time that I can call my own."
To the same, 25th February, 1795. " Your letter
on Monday found us all up in arms ; the whole city
turned topsy-turvy, mad with joy. It was the day
we celebrate the president's birth. We had a great
deal of inarching and counter-marching, processions,
firing of cannon, ringing of bells, &c. Everybody
waited on his highness, to congratulate him on the
event of his growing old. In the evening a very
splendid ball was given in honor of the day. The
president and lady, the ministry, foreign ambassadors,
the members of the two houses, attended. Such a
display of beauty, dress, &c. my eyes never beheld
before. If the president does not rejoice that he is
a year older, I am sure he might be glad that he is
one day further advanced. Monday must have been
very fatiguing to him. I will not be president, even
at thirty thousand dollars per annum, though that
would be a fine thing to keep your mills a-going.
The treaty, concluded by Mr. Jay, does not arrive ;
it is said the vessels intrusted with it and duphcates,
have been taken and lost, so that we do not expect
it before the adjournment, which is next Tuesday.
The session has been rather peaceable, it bids fair to
end in a dead calm. I begin to hope that our polit
ical sky will become more serene. Last winter, it
was stormy enough, in all conscience."

LIFE OF JUDGE SMITH. 73
During his whole congressional course, Mr. Smith
was, perhaps, more intent upon becoming a lawyer
than a statesman. Whenever his other duties would
allow it, he constantly attended in the supreme court
of the United States, to make himself familiar with
the ablest practice at the bar, and the best judicial
forms. He was also deeply interested in the New
Hampshire courts. In a letter to his brother John,
January 31, 1795, who was then in the legislature of
New Hampshire, he asks, in reference to the chief
justice, " Why did you not remove him ? Surely
there has been time enough for experiment. Want
of nerves, (or whatever his disorder may be,) as
effectually disqualifies him for the office he holds, as
want of integrity or capacity. If he and D. were
both removed, I do not believe the vacancies would
be well filled ; but the main thing is, to have them
filled with men who would do their duty in attending
at the several terms ; for be assured, it is of more
importance that causes should be tried, than that
they should be well tried." Singularly enough a let
ter dated the 3d of February, 1795, came to Mr.
Smith, from the Hon. James Sheafe, one of the most
wealthy, influential and respectable men in New
Hampshire, and Mr. Smith's warm personal friend,
urging him to use his influence in securing the ap
pointment of this same gentleman to the office of
district judge of the United States. Mr. Smith's
reply may be taken as a specimen of mild but manly
independence, such as cannot be too strongly recom
mended to our public men. " Dear sir : your letter
of the 3d February I received by the last mail. Mr.
7

74 LIFE OF JUDGE SMITH.
P. was appointed district judge before your letter
came to hand. I congratulate you on this event, and
assure you that I participate in the pleasure it must
afford him and his friends. You will not call my
sincerity in these professions in question, when I add
that I should have given my voice, if I had been con
sulted, in favor of another  I am very happy
to learn that Mr. P.'s health is restored ; it is the
only circumstance which has prevented his talents
from being eminently useful to his fellow-citizens."
Mr. P.'s abilities, legal attainments, and integrity
were unquestioned, but if Mr. Smith's advice had
been followed, it would have been better for all
concerned. The public would not have been shocked
by what seemed, in his conduct, a burlesque upon
the solemn forms of justice ; his friends would have
been spared the pain of finding that attributed to
fraud, which was only the result of mental derange
ment, nor would the nation have witnessed the sad
spectacle of its highest tribunal removing from the
bench, by impeachment, a worthy man, whose facul
ties, at the time, were not such as to enable him to
answer, or even to understand, the charges that were
brought against him. It was not the least singular
part of these extraordinary proceedings that he, who
was the most active in removing him, and who suc
ceeded to his place, passed the latter portion of his
life under the same heavy calamity, which through
his influence had been solemnly imputed to his pre
decessor as a crime 1

CHAPTER IV.
1795 -— 1797.
IN CONGRESS  JAy's TREATY  FISHER AMES — ¦
MR. smith's MARRIAGE  WASHINGTON.
The next session of congress was one of those criti
cal points in our history, which give a direction for
years to the course of public events, and establish
that interpretation of the constitution on which the
stability of the government depends. Difficulties,
which, unless soon settled, must inevitably have led
to war, had, since the peace of 1783, existed be
tween this country and Great Britain. In the spring
of 1794, John Jay, then chief justice of the United
States, was appointed envoy extraordinary to adjust
these difficulties. He arrived in London the 15th
of June, and on the 19th of November had suc
ceeded in forming with the British government a
treaty of anrtity, commerce, and navigation, which
was not, however, received at the department of
state in this country, till the 7th of March, 1795,
a few days after the adjournment of congress. No
pains, as we have seen by Mr. Smith's letters, had

76 lii'e of judge smith.
been spared to excite a violent prejudice against it,
before any of its provisions were known, and even
before it was certain that a treaty had been formed.
On the 8th of June, the vice-president and senate
met, and on the 24th, after having given to it the
full and serious deliberation which the importance of
the subject demanded, by a vote of precisely two-
thirds, advised and consented to its conditional rati
fication, and adjourned without removing the injunc
tion of secrecy. But, immediately, an imperfect
abstract, and, in a few days, a complete, but, of
course, unauthorized copy of the treaty, was pub
lished. In the whole history of political and party
strife, it would not be easy to find a more violent
attempt to poison, mislead, and exasperate the pub
lic mind, than now ensued. Everywhere public
meetings were held, and by inflammatory harangues,
misrepresenting the conditions of the treaty, and
holding it up as fraught with consequences the
most ruinous and dishonorable, the passions and pre
judices of the people were roused to the highest
pitch. Addresses, almost simultaneously, from all
parts of the union, from Boston, New York, Phila
delphia, Baltimore, and Charleston, and then from
the smaller towns and remote country districts, were
poured in upon the president, urging him not to give
his assent to the treaty. " It is diflScult," says Judge
Marshall,' " to review the various resolutions and
addresses to which the occasion gave birth, without
feeling some degree of astonishment mingled with
' Life of Washington, vol. v. p. 626.

life of judge smith. 77
humiliation, at perceiving such proofs of the deplor
able fallibility of human reason." Yet while the
one party were so violent in assailing the treaty, the
other was not equally prepared to defend it, and, for
a time, seemed bent down by the rush of the popular
torrent. To the president the condition of things
was perplexing in the extreme. In a private letter
to the secretary of state, dated the 29th of July, he
says, " I have never, since I have been in the admin
istration of the government, seen a crisis which, in
my opinion, has been as pregnant with interesting
events, nor one from which more is to be appre
hended." But he was not moved from his purpose.
" All these things," he added, in a letter from Mount
Vernon, of the 3d August, " do not shake my deter
mination with respect to the proposed ratification."
He reached Philadelphia the 1 1th of August, and on
the 18th "igned the treaty. Until now no attack
had been made upon the president. Whatever else
had been assailed, party violence, in its extremest
rage, had not dared to lift its hand against the spot
less majesty of his character. But now it was more
than insinuated, not only that he had violated the
constitution, for which an impeachment was publicly
suggested, but that he had drawn from the treas
ury, for his private use, more than the salary an
nexed to his office. So boldly, and with such a
show of evidence, was this charge made, that the
confidence of some, even among the faithful, was for
a moment shaken, and they feared lest some signal
indiscretion or mistake might be proved. But party
malevolence itself was, at once and forever, silenced

78 life of judge smith.
on that point by the statement of Colonel Hamilton,
who, though not in office since the last day of Jan
uary, had been secretary of the treasury at the
time the peculation was said to have taken place.
Another event meantime had occurred, which, for
a short while, almost rivalled the British treaty in the
interest it awakened. Through a letter from the
French minister, M. Fauchet, which had been inter
cepted on its way to France, circumstances, never
yet satisfactorily explained, were brought to light,
which left strong suspicions on the mind of the pre
sident, that Edmund Randolph, who, on the Ist of
January, 1794, had succeeded Mr. Jefferson as se
cretary of state, had been drawn into an improper,
if not criminal, intercourse with the French govern
ment. The president, to whom the letter had been
communicated by the British minister, in the pres
ence of the other members of the cabinet, handed it
to Mr. Randolph, who, on reading it, immediately
and indignantly resigned his office. This took place
on the 19th of August, the day after the treaty had
been signed by the president.
When congress met in December, 1795, it ap
peared that a large majority of the house, were op
posed to the late measures of the administration.
The treaty, which had been only conditionally rati
fied, was waiting till the conditions should be as
sented to by the British government, and therefore,
except in the address upon the president's message,
could not in the early part of the session, be brought
before the house, which was mostly taken up with
matters not of a party nature. Among other things.

life of judge smith. 79
with that passion for stage effect, which is so charac
teristic of the nation, the ffag of the French repub
lic was, through the president, presented to congress,
as a mark of the enthusiastic attachment existing
between the two governments. It was difficult for
Washington to refuse this token of friendship, and
yet, with his severe taste, it was also difficult to
know how to receive it. The great topic, however,
of interest through the winter, was the treaty, which,
at length, on the last day of February, was an
nounced to the people of the United States, by a
proclamation of the president, which on the follow
ing day was communicated to the two branches of
the legislature.
The feelings which, while the house were engaged
on other subjects, had been but poorly concealed,
now burst out with open violence. The contest was
begun by a resolution offered by.Mr. Livingston, of
New York, requesting the president to lay before
them the instructions of Mr. Jay, and the corres
pondence, and other documents relating to the nego
tiation. After an exciting debate, in which all the
powers of reasoning and the passions of party strife
were engaged, the resolution was carried, on the
24th of March, by a vote of sixty-two to thirty-
seven. The president, after deliberately weighing the sub
ject, on the 30th of March sent to the house a mes
sage, in which, with great dignity and firmness, he
refused to comply with the request. This decisive
step seemed to break the last cord of union between
him and the leaders of the opposition. An angry

80 life of judge smith.
discussion followed on the treaty-making power, and
resolutions adverse to the message were passed, by a
large majority. Another battle-field, however, sfill
remained. On the 13th of April, when a bill to
make appropriations for carrying out the treaty, was
introduced, the whole matter was again brought up
under a new aspect, and a debate yet more remark
able for strength of argument, and the earnestness of
its appeals to the lowest and the loftiest of political
passions, was finally closed on the 30th of April,
two daj's after Fisher Ames's great speech, which
produced an effect probably never exceeded by any
speech in the halls of congress.
Time had now been given to the people for ma
ture consideration. The first vehement emotions
had subsided. Misrepresentations had been cor
rected ; argument had succeeded to declamation,
and, through the . writings of the ablest men, espe
cially the essays of CamUlus,' the popular current
was changed. As before against the treaty, so now
in its favor, petitions from all quarters came pouring
in upon congress, and the majority of the house, to
their consternation, found themselves supported by a
minority of the people. This produced such an
effect, that when the vote was finally taken in the
committee of the whole, on the 29th of April, the
bill was passed by the casting vote of the chair
man, and on the following day the house came lo
the same decision, by a vote of fifty-one to forty-eight.
In the debates of this session, Mr. Smith took a
' Alexander Hamilton.

LiFE OF JUDGIi SMITH. 81
more active part than at any time before. Those of
his speeches' that I have seen, are, what they purport
to be, discussions, in which facts and principles are
brought lo bear, with great force, on particular subjects.
Under particular circumstances, and generally with
reference to particular men. They are remarkable
for the skill with which everything adventitious is set
aside, and the subject held up in its naked simplicity.
With most of them the interest, when they were de
livered, must have been greatly increased by the
good-humored, but sometimes exceedingly severe per
sonal thrusts, dealt, as it were, in sport, while, with
out turning to the right hand or to the left, the
speaker goes steadily forward to the complete eluci
dation of the subject. Their merit, like that of a
judicial decision, consists in the force of the whole ;
parts cannot be given as samples ; and, unlike a legal
opinion, they are to be viewed not only with refer
ence to the exact nature and bearings of the question,
and the facts connected with it, but with a full un
derstanding of the position of individuals, and the cir
cumstances connected with each particular stage of
the discussion. In the latter part of his life, Mr.
Smith himself attached little value to them. But in
them he showed himself a skilful debater, and an
able defender of Washington's administration.
The following extracts from letters will show what
were his feelings, and may serve also as a running

1 Mr. Webster has said of his speeches that they are excellent ; es
pecially some of them on constitutional points. His speech on the Brit
ish treaty the 16th March, for instance, may be commended as a clear,
direct, strong, judicial statement of a constitutional argument.

82 LIFE OF JUDGE SMITH.
commentary on the events of the day. During the
previous session, his letters had been almost despond
ing. But now, in the heart of the conflict, though
himself, on a subject which he considered of such
vital consequence, in a small minority, his letters
were full not only of hope, but of a boyish glee ;
hardly in a single instance, tiff after the contest was
successfully ended, did they exhibit anything of doubt
or gloom. He was not a man to be cowed down by
what seemed an overwhelming opposition. So that
he could but meet them fairly, his strength and cour
age were only roused by difficulties and dangers.
Through life this sportiveness under circumstances
which filled others with apprehension and gloom, was
a marked feature in his character, and bore him up,
when otherwise he must have sunk by the way.
To John Smith, 12th December, 1795. " It is
now a week since I arrived at this place, (Philadel
phia.) I am still very much of an invalid, my cold,
as was to be expected, rather increased than dimin
ished on the journey. I am taking every precaution
to prevent its continuance, and hope in a few days
to be able to give a good account of it. I called on
my friend Ames, and spent a night at his house. I
think he is on the mending hand, but his recovery
will be but slow, and he will not be able to give his
attendance here till towards spring, if at all. We
have scarcely entered on business. The president's
speech I enclose. You will see that he treads lightly
on the treaty. It is difficult to see how we can find
an opportunity to abuse him in our answer, but, as I
believe a majority of our house are in the opposition,

LIFE OF JUDGE SMITH. 83
it is more than probable that some censure will be
mingled in our answer. Not a word as to Mr. Ran
dolph. His affairs seem still enveloped in mystery.
When the curtain shall be drawn, which is to disclose
the hidden things of darkness, is altogether uncertain.
I am not so agreeably circumstanced as to company,
as last winter. I miss my friend Ames very much."
To the Hon. John Taylor Gilman,' 16th December,
1795. " Dear sir : I have just read your address to
the legislature at the opening of the present session,
and cannot deny myself the pleasure of assuring you
that it has given me the highest satisfaction. That
the federal government is a foreign one, that its ad
ministrators and its measures are to be viewed through
the medium of apprehension and jealousy, are senti
ments cherished by many in high office in some of
the states. They are sentiments no less false than
pernicious. From this cause, it has happened that
scarce a measure of the general government has es
caped censure, and the most virulent and unprovoked
abuse has been levelled against every man actively
concerned in its administration. The honest and
patriotic have experienced what the guilty and cor
rupt alone could merit. When faction has been con
sidered as the surest test of patriotism, and calumny
as the proper reward for faithful services, it requires

' A man whose sound judgment and uprightness were alike honorable
to himself and to the people of the state, who, in fourteen different elec
tions, chose him for their governor. " He furnished," said Judge Smith,
" a living proof that firmness and independence of mind, joined with
integrity and talents, may be popular. Yet he was not in the habit of
addressing himself to popular passions and popular prejudices. "

84 LIFE OF JUDGE SMITH.
but little political sagacity to foresee what kind of
pilots we shall soon have at the helm of our political
ship. In every society there are men, — the virtu
ous, the industrious, and the good, — (in this coun
try they are a great majority,) who are interested in
the preservation of order and good government. It
is a vain expectation that society is, or ever will be,
composed of no other descriptions of character ; there
will always be drones in every hive, and there will
always be ambitious men desirous of climbing up the
ladder of political power and eminence ; there will
always be popular topics to catch the giddy and un
thinking. It will always be the duty of good men,
and especially of those who share largely in the con
fidence of their fellow-citizens, by a manly and ex
plicit avowal of their sentiments on all proper occa
sions, to counteract the views of the enemies of our
public peace. I am persuaded that the present crisis
demands such a line of conduct ; I am pleased that
you have adopted it. I am persuaded if your exam
ple were followed in the different states, the effects
would be the most favorable that can be imagined.
The confidence which you express in the president,
Mr. Jay and the senate, is, I am confident, deserved.
It is totally different from implicit faith, and bhnd
obedience to persons in power ; and were I to look
for these last qualities, base and abject as they are, I
should expect to find them, not among the men who
bestow a just confidence where it is justly due, but
among the false patriots and demagogues of the pre
sent day. The answer of your house of representa
tives, as it evinces a unanimous concurrence in the

LIFE OF JUDGE SMITH. 85
sentiments advanced by you, must be flattering and
gratifying in the highest degree. That the state I
have the honor to represent should, on this occasion,
so honorably distinguish themselves, as the friends of
rational liberty, good order and good government,
affords me a satisfaction which I can find no words
to express. There surely can be nothing more agree
able than to find that one's sentiments are in perfect
harmony with that of the people at large. Mr. R.'s
long-expected vindication is at length promised for
Friday next. Little doubt seems to be entertained
of his having been improperly wrought upon by Fau
chet. It will not be easily credited that Mr. R. is
the first on whom attempts have been made by our
virtuous sister."
To John Smith, 29th January, 1796. "We have
not passed a single bill, and have been in session
eight weeks. I do not think that this is against us ;
we are maturing business. If the state legislatures
should, in this respect, imitate us, it would be better.
Not so many of your bills at the last session would
have been negatived. The great danger is, that we
legislate too much. There is some business of con
siderable importance under deliberation, and I think
the session will not terminate before the latter end of
April. I do not think much mischief will be done.
There will be an attack, we are told, on the treaty,
when it is laid before us ; and we expect in a few
days to commence a discussion on the propriety of
giving more encouragement to our own shipping.
As this will be at the expense of the agriculture of
the country, I shall oppose it. I like the independ-

86 LIFE OF JUDGE SMITH.
ence of Governor Gilman, and think it will event
ually operate in his favor. Perhaps the bill he ob
jected to was a good one, but still, I believe he acted
uprighdy, and therefore I approve of his conduct.
I write this in the midst of a debate on the ques
tion, whether we should employ a stenographer,
or short-hand writer, to take down the debates of the
house." To the Hon. Fisher Ames, 14th January, 1796.
" As to your inquiries about Randolph's connexion
with Fauchet, how far it went I am altogether igno
rant. The despatches No. 11, &c., luckily for the
parties, have not been intercepted. K Randolph has
not, since October, '94, ' touched something real,' it
must have arisen from the cause mentioned by the
Citizen, and which he seems to regret exceedingly,
namely, that he had no cash, more than sufficient for
himself; and though our allies are vastly civil, in
leading their friends to some very pretty amusement,
such as a little exercise at the guillotine, and a short
sail in a drowning boat, where ladies are concerned,
yet I have always observed, that when money is
concerned, they are very apt, clownish as it is, to
help themselves first. He put him off, the first time,
with the old story of the pure morals of his nation,
but it is not to be presumed that Randolph would be
fobbed off so. Besides, I think the Citizen, with all
that impudence for which his nation is so remarkable,
and of which he was the fit representative, would
not think of passing the same stale trick twice upon
our worthy secretary."
Mr. Ames, on account of his feeble health, was

LIFE OF JUDGE SMITH. 87
not able to take his seat in congress till the 9th of
February. Till then there was a very frequent cor
respondence between him and Mr. Smith, who kept
him informed of the proceedings at the seat of go
vernment. This correspondence, with the exception
of three or four letters from Mr. Ames, and two or
three fragments from Mr. Smith, I have not been able
to find.
From the Hon. Fisher Ames, Dedham, January
18, 1796. " My dear friend : You have deserved
well of the country for writing so punctually, and so
fully, so wittily, and so wisely. I am glad you
abstain from scandal, because you know I hate it.
Yet abuse Mr. Thacher, if you please, for his not
writing to me, and I shall esteem the favor in pro
portion to your known repugnance to the task. I
think spiritedly, and almost resolve to go on to Phi
ladelphia. Should this snow last, I am half resolved
to jingle my bells as far as Springfield, within a
week. That, however, is a crude purpose, ripening
in my brain. To-morrow I go to my loyal town of
Boston, in rtiy covered sleigh, by way of experiment
of my strength, which will prove just nothing, as it
is no exercise. More of this, and more decidedly,
in my next. I am, I believe, unfit for any fatigue, or
for business. I go with a fixed design to be useless.
Does that surprise you ?
" I have read two Camilluses, on the constitution
ality of the treaty ; so much answer to so little
weight of objection, is odds. He holds up the aegis
against a wooden sword. Jove's eagle holds his bolts
in his talons and hurls them, not at the Titans, but at

88 LIFE or JUDGE SMITH.
sparrows and mice. I despise those objections, in
which blockheads only are sincere.
" Our governor ' has not yet dehvered his most de
mocratic speech, although it is the second week of the
court sitting. To-morrow wisdom opens her mouth.
It is said he has twice or thrice new-modelled his
preachment, as he was led by hopes and fears of the
temper of the members, finding no anti-treaty stuff
would be well received, it is to be supposed. So says
rumor. Your despatches are referred to a committee
of the whole, and if any part shall be found to de
mand a more detailed answer, it shall be sent by the
next post. Whether you did play the fool or not,
when the flag was delivered, you seem to have done
it. Such parade to check enthusiasm! Oh stuff!
Is it necessary to show zeal for the power of
France, to evince regard for liberty ? You remark,
justly, ' Reason is a slim underpinning for govern
ment.' But our reason is no less wild than our
passions. Our very wise folks think a man false to
his own country, if he is not a partisan of some fo
reign nation. Your friend, F. A."
From the same : Springfield, Jan. 29, 1796, Fri
day. " I pray you look out lodgings, such as will suit
my invalid condition. If I might choose, I would
prefer a place where only you and I could be re
ceived ; that is not material. How would it agree
with your taste to have our two beds in one chamber,
where a fire might be, every evening, if desired ; and
the other a drawing-room ? This thought has not lain
1 Samuel Adams,

LIFE OF JUDGE SMITH. 89
long ripening, and may be met by your objections ;
it shall not be allowed to contend against them.
Mrs. Ames relies upon your friendship to keep the
talking bullies off, whose noise and perseverance would
waste my strength as well as patience. My organs
are sound, but I am yet weak, and five minutes un
due exertion will overthrow me for a whole day.
This makes it absolutely necessary to secure a place
of repose, and to persist in a plan of great careful
ness and abstemiousness. I shall hire my speeches
made and dehvered. Bradley went home, in 1794, re
porting through the country that the printed speeches
were known to be made by Englishmen, who had
come over to work in that way, some at five guineas
a speech, some as high as ten. But a speech could
be bespoke and printed, at almost any price."
From the same. " Mamaronuk, at Mrs. Horton's,
twenty-seven miles east from New York, Feb. 3,
1796, Wednesday morning. My dear friend : Here
I am, per ' varies casus,' through thick and thin ;
' jactatus et terris ; ' the sleigh often on bare ground ;
vi superum, and then there was great wear and tear
of horse-flesh ; tantsene animis, irte, such is my pat
riotic zeal to be useless in congress. I give you a
translation to save you trouble ; and I have the most
intimate persuasion that it is as near the original as
the copies of Mr. Fauchet's despatches. No. 3 and 6.
I left Springfield Saturday morning, and came on to
Hartford, very sick all the way. But I assure you
solemnly, I survived it, and was well the next morn
ing. Lodged at New Haven Sunday night, at Nor-
walk Monday night. The snow grew thin at New

90 LIFE OF JUDGE SMITH.
Haven, and was nearly gone in the cart-way at Stam
ford. There I procured a coachee from a Mr. Jarvis,
who was very obliging, and no democrat, his name
notwithstanding. Came on wheels to this place, and
slept ; waked, and found a snow-storm pelting the
windows. It still continues, and I have sent back
the coachee sixteen miles to Mr. Jarvis, and wait for
the sleigh. Fate, perhaps, ordains that it will thaw
by the time it comes back ; so much uncertainty is
there, in all the plans of man ! The novelty of this
grave reflection will recommend it to you. To
morrow expect to hear the bells ring, and the light-
horse blow their trumpets on my reaching New York.
If Gov. Jay will not do that for me, let him get his
treaty defended by Camillus and such understrap
pers. I intend to pass two days there, and three
more will, I trust, set me down in Philadelphia. Do
not let me go down to the pit of the Indian Queen. It
is Hades, and Tartarus, and Periphlegethon, Cocytus,
and Styx, where it would be a pity to bring all the
piety and learning that he must have, who knows the
aforesaid infernal names. Pray leave word at the said
Queen, or, if need be, at any other Queen's, where
I may unpack my weary household gods. I am the
better for the journey, although I have at least three
times been so ill as to come near fainting. My
country's good alone could draw a man so sick from
home — saving that I am not sick, and shall do my
country no good. That, however, is not allowed by
counsel to impair the obligation to pay me six dollars
per day. Forbearing to be mischievous, is said
to be a valid consideration. I shall not prove a trou-

LIFE OF JUDGE SMITH. 91
blesome lodger, nor call for little messes ; a slice of
dry bread at noon, wine-whey frequently at bed-time,
will be all the addenda to the common attendance.
Your offer to lodge with me in the same house is
really very friendly, as you might well expect to find
me both stupid and hyp'd. If I should prove other
wise and better, it wifl be a just reward for your
generous friendship. Yours."
To Mr. Ames, 6th February, 1796. " You say
you will play orator Mum, in congress. You shall be
permitted to play no other part by me, because it will
injure your 'health ; and by my friend Harper, be
cause he talks all the time himself; by the jacobins,
because they never liked your speaking ; and by all
your friends, because they wish you ' to live to speak
another day ; ' and, I may add, because there will be
no subject worthy of your talents. ' Nee deus inter-
sit nisi vindice nodus.' I ain't sure I have the Latin
right. The supreme court are in session, and I am,
you know, fond of attending, to learn wisdom. You
will therefore be so good as to excuse this very hasty
scrawl." To Samuel Smith, 5th March, 1796. " Mr. Ells
worth, a senator from Connecticut, is appointed chief
justice of the United States, and will accept. He is
a good man, and a very able one ; a man with whom
I am very well acquainted, and greatly esteem. The
treaty is laid before our house, and probably will be
discussed in a few days. The event cannot be cpn-
jectured. We have a great many changeable ani
mals ; one never knows where to find them. I am
very sanguine, however, that all will be well."

92 LIFE OF JUDGE SMITH.
To the same, 19th March. "We are engaged in
the debate mentioned in my last, as to the powers of
the house of representatives, in making treaties. Part
of the debates are in the paper enclosed. I will send
you, by the next post, my observations on the ques
tion, as delivered in the house on the 16th. They
appear in to-day's paper. I have taken a more active
part in business than formerly, and have been as suc
cessful as I had any reason to expect."
To the same, 25th March. " We have had a de
bate of three weeks, nearly, on the question to call on
the president for the papers relative to the treaty with
Great Britain. The call is made under an idea that
the house of representatives have a right to judge of
the merits of the treaty, and, if they do not like it,
reject it. Under this idea, we opposed the motion.
Yesterday the question was decided — sixty-two for
calling on the president for the papers, and thirty-
seven against it. I have on this occasion, as on
some others this session, taken the liberty to give my
sentiments. They are published, but I have not a
copy on hand. I shall send you a newspaper con
taining them, when I can procure one. In some of
the papers they are not yet published. Notwithstand
ing the house determine they have a right to inquire
into the merits of the treaty, I yet persuade myself
they will (that is, a majority will,) agree to make the
necessary provision to carry the treaty into effect."
To the same, 31st March, 1796. " We have re
ceived an answer from the president of the United
States, to our request of the 24th March, calling on
him for his instructions to the minister who negoti-

LIFE OF JUDGE SMITH. 93
ated the treaty with Great Britain, and the corres
pondence and papers relative thereto. He refuses to
send the papers. You can scarcely conceive the sat
isfaction we derive from this determination of the
president. He enters somewhat at large into the
subject, and refers to the proceedings of the conven
tion who framed the constitution. This is under
stood as a severe criticism on the conduct of Mr.
Madison and Mr. Baldwin, who were both members
of that convention, and who must have known that no
thing was further from the intentions of the members
of that convention, than to give the house of repre
sentatives the power in relation to treaties, which a
majority of that body now claim. Madison's conduct
is utterly irreconcilable with an ingenuous and honest
mind ; and I think his duplicity and insincerity, on
this occasion, have given a wound to his character,
(I mean his political character,) which no time can
heal. The president must be dissatisfied with him.
The matter is now before the dread tribunal of the
pubhc, and I believe they will determine right. The
weather begins to grow warm, and, of course, very
uncomfortable. I am afraid we shall have much in
ternal heat as well as external. The Lord have
mercy on us ! The Virginians threaten us, that, as
the president would not give the papers, they will
make no provision for executing the treaty. They
are capable of almost anything, and I am afraid that
a difference between the two houses will prolong the
session. The senate will never consent to rise till
provision is made to execute all the treaties. The
president has this day nominated the commissioners
under the treaty."

94 LIFE OF JUDGE SMITH.
From the Hon. Christopher Gore, 12th April,
1796. " My dear sir : I am much obliged by your
letter of the 2d instant. Ames's health is precious
to his friends, and I have no doubt is much in
creased by your affection and attention. If he could
cease to think, he would certainly be a well man.
The action of his mind stops that of his body.
Your house and the president seem to be at war.
I know of no neutrals in this contest. The law of
our nation admits of none. The public is much in
debted to you and your friends, for placing this ques
tion, so as to leave no loopholes for even knaves and
hypocrites to creep out. They must assume the
right of opposing the constitution, or tread back the
false steps they have taken. They are not ingenuous
enough for the latter, and I hope they have not im
pudence enough for the former. In expectation of
taking you by the hand shortly, I remain, my dear
sir, your affectionate friend, C. G."
To Samuel Smith, 28th April, 1796. " The treaty
is still on the anvil, but we expect the question this
day, and it is doubtful which way. I am more en
couraged this morning than at any former period,
that we shall prevail on the first vote. At all events
the division will be pretty equal, and we shall cer
tainly carry it in time. The sovereign people ap
pear to be very much alarmed. An express arrived
yesterday from Boston, in sixty-two hours, with a
petition signed by upwards of eleven hundred mer
chants, traders, and citizens. These things have their
effects on weak minds, of which, it must be con
fessed, a part of our house is composed. I had

LIFE OP JUDGE SMITH. 95
intended to have spoken on this question, and was
prepared some days ago, but not having an opportu
nity then, if the question is taken to-day, believe I
shall give a silent vote. There have been many
speeches made, some of which might as well have
been omitted. My mind has been a little agitated
lately, by a proposal to go into the treasury depart
ment, as comptroller, at a salary of two thousand six
hundred and fifty dollars per annum. When I say a
proposal, I mean that the thing has been mentioned
to me, as what might be obtained. Upon the
whole, I rather viewed it as less advantageous than
my prospects, considering that one must reside in
Philadelphia, and live at great expense, and declined
being a candidate. The office in that department is
next to the secretary of the treasury, and is the office
from which the present secretary came. It is the
head of the accounting department, and requires
mercantile and legal knowledge. It would be a new
path to me, and would derange all my views in life.
I have been very happy this winter, in enjoying the
esteem and confidence of those whose good opinion
is worth regarding, and I am sure have many friends
here." To the same, 29th April. " We have just taken
the question on the resolution to appropriate the money
necessary to carry the British treaty into effect, in
committee of the whole ; the members rising in the
affirmative forty-nine, the same number in the nega
tive. Muhlenberg, the chairman, wonderful to re
late, decided in our favor ! He has been a violent
anti, but the sovereign people of Philadelphia happen

96 LIFE OF JUDGE SMITH.
at this time to be on the right side, a thing which I
presume he had no right to expect. It is certainly
the first time.
" To-morrow we expect the question by ays and
noes in the house. The event is yet doubtful.
You perceive that we have been, I may say still
are, on the edge of a precipice, ready to take a leap
into the abyss of confusion. If we could persuade
our brethren of Virginia and North Carolina to take
this leap, and they are, in truth, fit for nothing
else, our government might jog on for some time.
God knows how this ship of ours will sail, when
the present pilot quits the helm. If we may
judge, from present appearances, she will inevitably
founder. I am afraid that we are mistaken, when
we place so much refiance on the wisdom of our citi
zens, to supply the place of power in the government.
Has not every citizen good sense enough to know that
it is his duty, and certainly it is his interest, to be
temperate, sober, and virtuous ? And yet how few
are there of this character ! We have had a thou
sand escapes, miraculous escapes, since the formation
of the present government. We have but just es
caped the vortex of European politics, and, on this
occasion, we have been within an ace of tarnishing
the national character and honor — a stain which all
the water in the ocean could never wash out. The
present crisis affords the most unequivocal proof that
our prejudices are an overmatch for our judgment,
our interest, and even our sense of national honor
and character.
" My friend Ames, on Thursday, (April 28,) gave

LIFE OF JUDGE SMITH. 97
us the most eloquent speech I ever heard. The im
pression was great ; probably much increased by the
bodily weakness of the speaker. His introduction
was beautiful, and his conclusion divine ! His words,
like the notes of the dying swan, were sweet and
naelodious. I tefl him that he ought to have died in
the fifth act ; that he never will have an occasion so
glorious ; having lost this, he will now be obliged to
make his exit like other men. If he had taken my
advice, he would have outdone Lord Chatham. I am
tired of this cursed treaty ; it ruins my temper and
spirits." In another letter Mr. Smith says : " I send you my
friend Ames's speech. He was much indisposed,
and has been so for a year past, and has taken little
active part in business. He- spoke without premedi
tation, and without having intended to speak at all.
The effect produced was very great." " When Mr.
Ames rose to speak," Mr. Smith used to say, " he was
so feeble as to be hardly able to stand, and supported
himself by leaning upon his desk. As from the first
faint tones he rose to the impassioned outpourings of
high sentiment and patriotic zeal, his physical ener
gies increased, till the powers of his body seemed
equal to those of his mind. At the close he sunk
down, weak and exhausted ; ' his mind agitated like
the ocean after a storm, and his nerves like the
shrouds of a ship torn by the tempest.' " The speech,
I am told, was written out from memory by Mr. Dex
ter and Mr. Smith, and to their labors, corrected by
Mr. Ames, we are indebted for the copy we now
have, greatly inferior, Mr. Smith always said, to the
9

98 LIFE OF JUDGE SMITH.
speech that was delivered, but with enough of its
original fire and lofty enthusiasm, to be still recited
and read with feelings produced by no other Ameri
can speech of the last century, except two or three
before the revolution.
To Samuel Smith, 28th April. " I enclose you a
copy of a letter written by a son of the Marquis La
fayette. An inquiry was set on foot by E. Living
ston, the patriot, with a view, as it was whispered, to
disgrace the president. It was known that the young
man was in this country, and the attachment of this
country to his father was well known. It was cir
culated, among these devils, that the president took
no notice of the lad, because he loved the British
and hated the French.' The inquiry has proved the
falsehood of these insinuations ; and the president has
on this occasion, as on every other, been found the
good as well as the great man. The letter of the
young Lafayette is well written, and does honor to a
youth of fifteen." — " P. S. May 2. We have at
length taken the question on appropriating for the
British treaty in the house, and have had a complete
victory. We carried it fifty-one, besides the speaker,
to forty-eight. They endeavored to obtain a sen
tence of condemnation against the treaty, but could
not obtain it. We expect the session will close in
three or four weeks. They will probably attempt
some other mischief, though God knows what it will
be ; but I trust they will be disappointed in all their
> Any one who reads VFashington's letters to Mr. Cabot and others,
respecting the young Lafayette (see Sparks's Washington,) will wonder
how so impudent a calumny could have heen got up.

LIFE OF JUDGE SMITH. 99
machinations. The sovereign people are with us ;
and we are told that in Virginia they are on the right
side, and that petitions will flow in from that quarter
this week."
To the same, 10th May. "lam anxious to be
with you ; a session of five or six months becomes
very tedious, and especially such an one as this,
which agitates all the passions of the human mind.
I do not believe that the like will ever happen again.
Good men will soon become tired of a government
which requires constant propping and shoring up.
The action of the sovereign people on the members
of our house carried the British treaty. We cannot
expect that the people will always be wiser than the
government; on this occasion they have been so.
We are informed that the people at the northward,
roused like a giant refreshed with wine, are fierce for
the government."
Early in May Mr. Smith, in company with his
friend, Mr. Ames, who made the journey for the
benefit of his health, visited at Bethlehem the Society
of United Brethren. In a very lively, pleasant letter,
giving an account of his visit, to his brother, after de
scribing the other parts of the establishment, he adds :
" On Sunday we were conducted by the bishop to
the chapel, and were greatly edified by a very long
orthodox sermon in the German language. The
music we could understand without an interpreter.
They had a pretty band — an organ, violins, hautboy,
clarinet, &c., and played well. The scene shifted.
At twelve o'clock we had a sermon in English. But
the best of it was the audience — seventy or eighty

100 LIFE OF JUDGE SMITH.
charming, divine little girls, belonging to the board
ing school, from Philadelphia, New York, Baltimore,
&c., from nine to fifteen, dressed in uniform, and
many of them very handsome. You know my pas
sion for these blossoms of innocence and beauty. By
the appearance of the company, I thought myself in
heaven. I was in love with a dozen of them succes
sively, before the exercises were ended. We visited
their chambers. They played on the piano-forte, and
sung to us. This, you may say, finished what their
eyes began, and did my business completely. I left
them with a heavy heart, or to speak more properly,
with no heart at all, — vowing that I would and will
be married, and with the assistance of the Deity who
presides over matrimony, have at least a dozen sweet
little girls of my own.
" The discipline of manners and morals which per
vades this society, extends to the young ladies of the
boarding-school. I never saw so much good order
and propriety of behavior in the same number of per
sons of any age or sex. Do not understand me as
approving all the customs of these good people. That
is an abominable one, which interposes a barrier be
tween the sexes, and cuts off all intercourse. I
have myself derived so much pleasure, and (if you
will allow me) I will add, improvement in morals,
from the society of the ' last and best of all God's
works,' that I can't endure the thought of having the
dear creatures shut up and secluded from the world.
Don't laugh, but look grave, and I will assure you
that in all my castles of happiness, (and I build a
great many,) one of this charming sex makes a con-

LIFE OF JUDGE SMITH. 101
spicuous figure. I will not inhabit the finest castle
that ever my own imagination built, (and I can beat
Inigo Jones, and every other architect that ever lived,
in the castle building way,) unless she will consent
to be the mistress of it.
" I ought not to omit a circumstance which shows
the disposition of these good people to keep the sexes
apart. In the place where their dead are deposited,
they have drawn a hne, and are extremely careful
not to mingle the bodies of the sexes. I ridiculed
this extreme caution in conversing with friend Tho
mas, and told him that as their people were so very
chaste while living, I thought they might be safely
trusted when dead. He seemed to think that this
was one of the cases in which too much caution
could not be used. At the most, it was justifiable
on the principles of uniformity.
" Will you be so good as to excuse this long epistle ?
I could not resist the desire of giving you some ac
count of a visit which has afforded me so much plea
sure. I am sensible that my picture falls very short
of the things I have attempted to describe, and if
you should happen to faU asleep before you get
through, I can't help it. Mr. King is this day ap
pointed minister plenipotentiary to the court of Lon
don, in the room of Mr. Pinckney, who returns to this
country. I have much pleasure in this appointment,
because I esteem the man, and am sure he will do
honor to our country. I regret that he leaves the
senate. I send you Ames's speech ; it is much ap
plauded, and thought to be the most popular that
ever was delivered in this country. The 25th is the

102 LIFE OF JUDGE SMITH.
day of adjournment. I am inclined to believe it will
be further protracted, say to the 30th. Adieu, my
dear friend."
A wish expressed in this letter was nearer its fulfil
ment, than the writer at the time could have sup
posed. The divine woman, mentioned in a letter to
Mr. Fletcher, nearly a year and a half before, was
Miss Eliza Ross, of a respectable family in Bladens-
burg, Maryland, who was then boarding with her sick
mother in the same house with Mr. Smith. He became
exceedingly interested in her, and was pained to learn
that she was already engaged. The following frag
ments, containing the only attempts at poetry that I
have found among his writings, may show something
of his feelings. " To Adam, Paradise was given,
Blooming with all that charms the sense :
Of fruit? — one only was forbidden.
And that occasioned sore complaints.
How much severer is my fate
Than his ! unjust! how could he grieve?
He was denied the precious fruit,
But I, alas ! deprived of Eve.
Nay more, severer still my case,
A double pain, without alloy ;
The fruit that I 'm forbid to taste,
Another freely may enjoy." J. S.
December 17, 1794.
To DeUa, 23d December, 1794. "It would be
affectation in my charming girl to pretend that she
did not understand what would have been my wish,
in case I had dared to express it, in the conversation

LIFE OF JUDGE SMITH. 103
at the tea-table. Mrs. R. chose wealth. My wish
comprehends everything. Is it wrong, Delia, to wish
for what we never can possess ? If it is, I am guilty ;
chide me like a sister. I have always told you that
you would find me a very bad brother. There is a
difference between hopes and wishes. Hopes I have
none. Chide me too, for the following lines. They
have no pretension to poetical merit. They are al
most an impromptu. They have in short nothing to
recommend them, except that they come from a heart
too much Delia's to be anything but truth and sin
cerity. THE WISH, OR PETITION.
" If Jove should condescend to grant
What he could spare, and /most want,
Think you I 'd ask for wealth or fame,
The world's applause, a hero's name.
Or, what is still to be preferred
By virtuous minds, with wisdom stor'd,
Some friends to cheer in ev'ry trouble,
My griefs to halve, my joys to double,
A troop of friends to gild my days
With pleasure, happiness and ease ?
One single boon I 'd ask great Jove :
Incline my Delia's heart lo love ;
All my ambition, wealth and fame.
Are center'd in her charming name :
My wishes then are gratified ;
To me what is the world beside ?
He who has Delia 's rich to excess ;
The world when taken from his store,
Can never make his wealth the less.
When added — still he has no more.
Tuesday evening, December 23, 1794. J. S.
These and other expressions of yet more ardent
admiration, devotedness and affection, such as might

104 LIFE OF JUDGE SMITH.
overwhelm with confusion any but a lady educated
in the school of Sir Charles Grandison and Lady
Harriet, were answered firmly, but always with deli
cacy and tenderness. The correspondence, as between
brother and sister, was kept up through the winter by
him with the most passionate zeal ; but on his re
turn to New Hampshire gradually died out. In the
mean time she had returned to Bladensburg, and
either through her lover's unworthiness or a change
in her own affections, found herself freed from her
former engagement. About the middle of May, Miss
Ross came to Philadelphia, and in a few days wrote
to Mr. Smith a note, in which, after speaking of her
mother's feeble health, she says, " My sister will leave
me in a day or two ; I have very few acquaintances,
and this is the time when the company of a friend
would be most agreeable. In you I expect that
friend. I read over your letters in which you pro
mise me your esteem forever. I will not, cannot, for
a moment, think I have lost it, when to retain my
own has cost me so much unhappiness." They met,
and understood each other. It is not worth the while
to be more particular, or to quote more largely
from letters written with reference to the most
delicate and sacred of human relations. Mr. Smith,
near the close of his life, had his correspondence
with her bound in a volume, which he thus very justly
described : "' These letters show real fervor and at
tachment, and marks both of strong affection and
passion ; but they are little suited to the general eye.
It is the tendency of all strong feeling, from dwelling
constantly on the same idea, to be monotonous ; and

LIFE OF JUDGE SMITH. 105
those often-repeated vows and verbal endearments,
which make the charm of true love-letters to the par
ties concerned, make them cloying to others."
At the close of the session, Mr. Ames proposed to
Mr. Smith to join him in an excursion to Virginia,
but he felt obliged to decline the proposal and re
turn home. He arrived at Amherst, New Hamp
shire, the 11th of June, and, on the following Wed
nesday, " the honorable judges of the court of
common pleas, then sitting in this town, fhe gentle
men of the bar, the grand jury, and a number of
respectable citizens of this and the neighboring towns,
met at the hall of Dr. Samuel Curtis, and presented
the following address : ' ' It is with singular pleasure
we congratulate you on your return from our na
tional councils. Language can hardly express the
satisfaction we feel in the part you have taken.
When our peace, happiness and prosperity were at
hazard ; when our national honor was tottering, and
in immediate danger of being sacrificed ; when dis
cord, anarchy, and war, with all their horrors, were
entering upon the peaceful borders of America, —
your patriotic exertions were not wanting to rescue
her from a situation so humiliating, so ruinous, so
distressing. Accept, sir, our most cordial thanks.
Long may you participate in that happiness, so hon
orably and substantially secured to your fellow-cit
izens.' "
To this address he replied in a few words, express
ing his gratification that the course which his own
' Village Messenger, (Amherst,) June 21, 1796.

106 LIFE OF JUDGE SMITH.
judgment and conscience had recommended should
meet the approbation of his friends. " Hilarity,"
the account continues, " with order, eminently dis
tinguished the evening, and the whole concluded
with the most perfect harmony and satisfaction."
Mr. Smith's account of this matter is given in a
letter to Miss Ross, dated 26th July, 1796. " Yes
terday I visited some of my friends in a neighboring
town, and received many compliments for my pohti
cal conduct the last session. I omitted, I believe, in
my former letters to tell you that on my arrival at
Amherst, (not far from where I live,) a farce of the
same kind was acted in public by the court, the bar,
and some of the principal inhabitants of the county,
in which your friend played harlequin. If I could
have found any window to jump out at, I believe I
should have ventured. I am but an indifferent actor
at the best ; was not fond of the play, and have no
ambition to play the principal part. I don't pretend
to be indifferent to public opinion. He must be a
bad man, who does not wish for the praises of the
good ; but this I can say with the strictest truth,
that I should prefer an address from my Eliza, ap
proving of me in my private character, to one from
the whole state of New Hampshire, approving my
political conduct. I can be happy without the one ;
I should be miserable without the other. Ehza, I am
tired of political life, and wish to quit it."
The allusion in the newspaper account to the
order and harmony of the meeting was not, perhaps,
so unnecessary as one might suppose What follows
was written from the same place, in a private letter

LIFE OF JUDGE SMITH. 107
to Mr. Smith, by a prominent lawyer, three months
before ; and, after making afi the allowances we can
for humor and imagination, it certainly leaves behind
an impression, anything but favorable to the charac
ter of the bar for temperance. " I will write about
the court and bar ; and firstly of the court. Judge
 wore a new wig, alias a scratch, which was,
upon the whole, tolerably ridiculous, especially as it
was frequently made to change its position, to our no
small amusement. As to the rest, I will say no
thing. Gordon had the bar to dine with him on
Thursday, and it happened that I had previously
asked the judges to dine with me, and therefore
missed of much pleasure as well as wine, that I
should have enjoyed at his house. He endeavored
to get all his brethren drunk, and, it not being a very
difficult undertaking, he succeeded very well with
respect to them and himself too. About half-past
three in came the whole fraternity, with Judge D.
at their head, who was the soberest man among
them, (what think you of the others ?) ready to give
the fraternal hug even to old K. himself. D. gog
gled to the court. A. and S. were silent for the
best of reasons ; they could not speak. C. and W.
quarrelled, and threatened to fight. Gordon laughed
at everything and everybody. B. and S. D. Jr.,
argued a case, to the great satisfaction of themselves.
Clagett fell asleep, and Ben Champney made poetry.
N. G. stole a few writs, and Thompson made up his
large bills of costs. Old ,K. broke all his deputy-
sheriffs, and took care of the jury himself, to save the
fees."

108 LIFE OF JUDGE SMITH.
The summer and autumn of 1796 were spent by
Mr. Smith, as he had before spent the intervals be
tween the sessions of congress, attending the Hills
borough courts, and making his home at his father's,
where he lived in the most simple manner, and at
very small expense. The great object of interest at
Philadelphia during the session of 1796 and 1797,
was the retirement of Washington, and the election
of his successor. Some little idea of what engaged
Mr. Smith's thoughts, may be gained from the fol
lowing extracts.
To Samuel Smith, 4th December, 1796. " I ar
rived here two days ago, in very good health. The
weather was very cold, but, contrary to my usual
experience, I suffered little on that account. As to
lodgings, I am not so happy. My old friend Ames
fives with a gentleman in this city as a guest, not as
a boarder ; consequently I shall be deprived of his
society as an inmate, and I have found him the most
agreeable companion. I have just received a letter
from my Dulcinea, and I am all impatience to visit
her. I think I shall set out some time the latter end
of this week. All the talk of this city is about
Citizen Adet, and the election of president. These
subjects are indeed connected, as nothing can be
more evident than that our sister, the French repub
lic, interests herself very much in the question. She
wishes we may have a good one, fears our discretion
or capacity to make a suitable choice, and kindly
uses every effort,, that Mr. Jefferson may be the man.
I spent last evening with Mr. Adams ; he has been
most scandalously vilified in the public papers, and

LIFE OF JUDGE SMITH. 109
though he is a philosopher, yet he has so much of
the man about him, that I think he feels sore, and
will be sorer still, if Jefferson reaches the goal before
him. I think Adams's chance the best, still it is but
a chance. We are anxious and distracted with ap
prehensions. I hope all will be well."
To Miss E. Ross, 4th December, 1796. " I left
Boston 22d November, with my friend, Mr. Thacher,
an odd mortal you have seen at Mrs. Ramsey's. On
the road to Springfield, (one hundred miles,) fortune,
to make amends for the badness of the weather,
treated us with a succession of incidents, which made
the journey extremely pleasant. At Springfield the
scene shifted, but our good fortune still continued.
Dr. Ames ' and Mr. Foster were my only company
to New York. As we were in a close carriage, we
suffered little from the unusual coldness of the season.
I need not say the journey was amusing. The god
dess, as if determined to acquire a character for con
stancy and stability, increased our pleasures at the
same time that she increased the number of our
company from New York to Philadelphia. The
journey, independent of the idea that every day
brought me nearer to you, was exceedingly pleasant."
To Samuel Smith, 7th December, 1796. " I en
close you the president's speech, delivered to-day in
the house of representatives, to a very crowded
audience. The idea, that we shall see his face no
more in that place, threw a solemnity, and even sad
ness, into every countenance. He appeared to be
1 Fisher Ames, LL.D., and the Hon. Dwight Foster.
10

110 LIFE OF JUDGE SMITH.
affected with it himself, and discovered an unusual
degree of sensibility. For a few moments, faction,
jacobinism, and French politics, seemed to hide their
heads, and I believe I may venture to say, we all felt
as Americans ought to feel."
To Miss E. Ross, 7th Dec. 1796, Wednesday.
" The weather is threatening, but I have determined
to set out on Saturday. On Sunday I am promised
to reach Baltimore. Monday evening I invite myself
to drink tea with you. To-day we had the presi
dent's speech. The idea that ' we shall see his face
no more ' mingled itself with the business of the
day, and threw a solemnity and sadness over the
scene. Jacobinism, faction, and French pohtics
were for a moment hushed ; and I am confident,
while the speech was delivering, the whole house feU
as Americans should feel, — all gratitude to Heaven
for raising up this wonderful man for our deliverance,
and grieved to see him about to retire from the helm.
Excuse this political effusion. When we have no
thing else to say, I wiU talk politics with you at B.
Till Monday eve, adieu ; may Heaven bless my Eliza
with the accomplishment of all her wishes."
To Miss E. Ross. " What a blockhead is  to be
learning Italian when he ought to be learning English,
as you well observe, or laboring to retrieve his affairs,
and pay his honest creditors. This desire to get a
smattering of a great many things, and nothing per
fect, is very ridiculous. I was pleased with an ob
servation of Mrs. Washington's, which was very
severe, without any intention of being so on the part
of the old lady. Mrs. S. was saying, that she had

LIFE OF JUDGE SMITH. Ill
such a master, and such another, to teach her daugh
ter this language and that ; to play on various instru
ments, and, in short, you would suppose that she was
to be complete mistress of the whole circle of sci
ence. Mrs. W. replied, that it had been her en
deavor to have Nelly taught but few things, so that
she might stand the better chance to excel in any
thing ; that she thought it quite enough for a lady to
play on one instrument, and that it was very seldom
they played tolerably on any."
To Samuel Smith, 28th Jan. 1797. "Since I
wrote you last, a melancholy event has taken place.
The dwelling-house of Mr. Andrew Brown, printer
of the Philadelphia Gazette, (in which was his print
ing-office,) was yesterday morning discovered to be
on fire. Every exertion was made to save it, and the
exertions so far succeeded, that the printing-office re
ceived no damage, and the dwelling-house but little.
The calamity fell on the inhabitants. Mrs. B. and
the three children were suffocated, and expired im
mediately. Mr. B., in endeavoring to save them,
was so dreadfully burnt, that he died this morning.
Thus the whole family have fallen victims to the de
vouring element. What a sad reverse of fortune !
They had risen from want to a state of great aflElu-
ence, in a very few years ; and Mr. B. intended soon
to leave off business. The number of accidents by
fire are very great. It seems as if Heaven in wrath
had doomed mankind to destruction, and the French
in Europe, and the fire in this country, were the in
struments of his vengeance. I feel a thing of this
kind with unusual interest, considering how you are

] 12 LIFE OF JUDGE SMITH.
circumstanced. I have just heard that Judge Farrar
has resigned his seat on the bench. How has this
happened ? It will puzzle the governor and council
to put in so good a man."
To the same, 31st Jan. 1797. "I now inclose a
copy of the president's message on French affairs,
with the papers accompanying. When the remain
der of this interesting paper comes from the press, I
will forward it. This publication will, I am confi
dent, have good effects. It will serve to place in the
true point the conduct and views of the French
government towards this country, and it must, I
think, completely vindicate our government against
the charges of M. Adet and his venal tools. It will
promote American feehngs, which are much needed,
and increase real patriotism, which, after all, is
rather a scarce virtue, and is generally, like true re
ligion, at the lowest ebb, when there is the most noise
about it. Our Palinurus is about to quit the helm ;
still I think he will be useful to us. He has left be
hind some excellent instructions, and a chart of the
rocks and quicksands on our coasts. I hope we shall
have the wisdom to profit from his experience, and,
though the war in Europe will probably continue
through this year, we shall steer our little bark safely
through the storm of European war and European
madmen. We shafl be injured, but not destroyed."
To Miss E. Ross, 6th Feb. 1797. " I spent yester
day in a manner which I am sure my Eliza would
approve. It was a delightful day, and I accepted an
invitation from my friend Mr. Ames, to ride with
Mr. Piundle and him. Mr. R. is polite enough to

LIFE OP JUDGE SMITH. 113
offer me his horses at any time, and I shall certainly
avail myself of his very friendly offer. I dined with
them enfamille. It was domestic and charming. In
the afternoon and evening we had the greatest va
riety imaginable. We spent a few minutes with
Dr. Priestley, and talked divinity ; with the vice-
president and judges of the supreme court, and
talked politics ; drank tea with Mrs. Listen, and
talked scandal and treason ; and the remainder of
the evening at Mr. Wolcott's, and had a very friendly
chit-chat, a la mode New England."
To the same, Feb. Sth, 1797, Wednesday, P. M.
" I am just returned from the hall. We have had a
splendid exhibition. The two houses assembled in
the chamber of the house of representatives, to attend
the opening and examining the votes for president
and vice-president. The result has been long since
known. Mr. Adams, as president of the senate,
made the declaration that John Adams was chosen
president, and Thomas Jefferson vice-president.
There was a great concourse of people, and a very
brilliant circle of ladies. Being near-sighted, I re
ceived no injury from the great display of female
charms on the occasion, but came away with a heart
just as whole as I went. The only thing remarkable
in the ceremony of the day, and what we did not ex
pect, was the concluding scene, which consisted of a
short prayer, a la mode New England, by Mr.
Adams. We were struck with amazement, and some
of your southern gentry prayed, who never prayed
before." To Samuel Smith, 11th Feb. 1797. "I write
10*

114 LIFE OF JUDGE SMITH.
three times a week to B., and regularly three times a
week receive answers. These form my principal
happiness. I can hardly persuade myself, I am
within four weeks of matrimony. I thank you for
the good wishes expressed in your last letter for my
happiness. I have no doubt but that I shafl be as
happy as it is possible for man to be with an amiable
wife. I am heartily tired of Philadelphia ; the time
seems long, and I do not enjoy so good health as at
the beginning of the session. I ascribe it to the want
of exercise and free living. My wishes are never to
attend another session."
To Miss E. Ross, Feb. 22d. " It is now eleven
o'clock, and I am just returned from the ball. There
were assembled at Ricket's amphitheatre about five
hundred ladies and a greater number of gendemen.
The ladies were very elegantly dressed. I thought
there was more variety than I have before seen in the
dresses. This is a proof that they have made some
progress in taste, if the dresses are becoming, and
suit the person, complexion, &c. The president and
Mrs. W. were in very good spirits, and, I am per
suaded, have not spent so agreeable an evening for a
long time. Every countenance bespoke pleasure and
approbation. Even democrats forgot for a moment
their enmity, and seemed to join heartily in the fes
tivity of the day. My heart, I assure you, my love,
was in no danger from the constellation of beauty
and elegance, which the female actors on this showy
stage exhibited. I did not think I could be so indif
ferent to beauty."
To S. Smith, 23d Feb. 1797. "Yesterday was

LIFE OF JUDGE SMITH. 115
the anniversary of the president's birth-day. It was
celebrated with unusual show. The political sun of
the greatest and best of men is setting with a splen
dor the world never witnessed before. The highest
respect was paid him by all classes, from the president
elect to the scavenger in the streets, with a very few
exceptions of the partisans of France and anarchy.
The evening exhibition was brilliant indeed. The
largest number of well-dressed people of both sexes
I ever saw, assembled at the ball ; every face wore
the appearance of joy, and, most of all, that of the
president himself. He is throwing off a load, which
will, I fear, prove too heavy for his successor."
A day or two before the close of the session, with
out waiting to witness the inauguration of the new
president, and the sublime spectacle of Washington
casting off the cares of public life, Mr. Smith set out
for Maryland, where, on the 8th of March, he was
married to Miss Eliza Ross. Her father, Alexander
Ross, a sensible, energetic man, Scotch by birth,
had died before Mr. Smith's acquaintance with the
family, and her mother, Ariana Brice, from one of
the best families in Maryland, was a woman of a rea
soning and philosophic turn of mind. Mrs. Smith is
said to have been a remarkably pretty young lady ;
but her beauty was of that delicate kind so easily
lost by ill health, and the rearing of a family. Her
manners were graceful. The prudence and good
sense, which her lover so frequently spoke of in his
letters, as well as her attachment to him, and all the
duties of her home, continued unabated to the end.
They began with warm mutual affections, and with

116 LIFE OF JUDGE SMITH.
simple unambitious views, and found more than they
had hoped. Her great difficulty in housekeeping
arose from the difference between the circumstances
of her early education at the south, and her duties
at the north. She had been brought up in the
midst of slavery, with the habits growing out of it ;
and during the thirty years she remained in New
England, without once visiting her former home, she
could not so assimilate herself to the New England
modes of thought and life, as to feel perfectly at
ease. The following is from a letter written by Mr.
Smith to his brother, two days after his marriage :
March 10th, 1797. " I am set down to write, and
can truly say I never in my life was so much puzzled
about the manner. I want to tell you that I am
married, and consequently a happy man. But as
the subject is perfectly new to me, and happiness no
great clarifier of the brain, I foresee that I shall ac
quit myself badly. What if we should suppose the
information given, and I should content myself with
mentioning only the time, place, &c. Wednesday
evening was the time, and, as our dear mother is cir
cumstanced, the family and those immediately con
nected with them, were the only witnesses of the
solemn act, which I consider as the most happy of
my life. I have every reason to be pleased with the
behavior of my new friends and relations. I forgot
to mention that three miles before I reached Bladens
burg, I had the misfortune to lose my trunk, with all
my clothes, of the value of two hundred dollars.
The fastening untied, and some very great knaves

LIFE OF JUDGE SMITH. 117
happening to live in the vicinity, picked it up before
the stage-driver returned to look for it, which was in
less than fifteen minutes. This is the conjecture.
I have offered a reward for it, but have not as yet
had any success, and begin to despair of recovering
it. It has subjected me to much inconvenience, as
well as a pretty heavy loss. I saved nothing but my
travelling clothes. This loss could not have hap
pened at a more unseasonable time. Luckily I had
no money in it, and unluckily, very little anywhere
else." The accident' occurring at such a time, was very
severely felt. Among the articles lost was a pearl-
colored coat, about which he had had a long corres
pondence with Miss Ross, who insisted upon it as
essential to his wedding dress. He found great diffi
culty in procuring it, and asked whether, if obhged
to appear in a more sombre dress, he might not
make up for what was wanting, by simpering all the
time during the ceremony. But the lady was too
much in earnest to be put off so, and after diligent

1 Those who are curious in such matters, may be interested to see
what were the articles of a gentleman's travelling wardrobe, under such
circumstances. " A light-colored broadcloth coat, with pearl buttons.
Breeches of the same cloth. Ditto black satin. Vest, swansdown,
buff striped. Ditto, moleskin, chequer figure. Ditto, satin figured.
Ditto, Marseilles, white. Ditto, muslinet figured. Under vesf faced
with red cassimere. Two ditto flannel. One pair of flannel drawers.
One ditto cotton dilto. One pair black patent silk hose. One ditto
white ditto. One ditto striped ditto. Ten or a dozen white silk hose.
Three pair of cotton hose. Four pair of gauze ditto. A towel. Six
shirts. Twelve neck handkerchiefs. Six pocket handkerchiefs, one of
them a bandanna. A chintz dressing gown. A pair of silk gloves.
Ditto, old kid ditto."

118 LIFE OF JUDGE SMITH.
search the coat was found, to furnish another illus
tration of the vanity of human wishes.
In a letter to his brother, dated 17th March, 1797,
Mr. Smith says : " I saw General Washington, as he
passed through this town, on his way to Mount Ver
non, two days ago, and spent a pleasant hour with
him alone. He was undisguised in his sentiments of
men and things, and, for the first time in my life, I
conversed with perfect freedom with the greatest and
best of men."
A few weeks after this Mr. Smith visited Wash
ington at Mount Vernon. He arrived there late in
the afternoon, and received a most cordial welcome
from Washington and his lady, the latter, " at this
time," he said, " a squab figure, without any preten
sion to beauty, but a good motherly sort of woman."
After a cup of excellent tea, &c. the evening passed
in conversation. There were present, besides the
family, a son of Lafayette, and another French gen
tleman. While they were talking, a servant came
into the room and said to Washington, " John would
like the newspaper, sir." He replied, " you may
take it," but after he had gone out, said, " he had
better mind his work." He then told Mr. Smith a
story of his coachman, a long-tried and faithful man.
One very rainy day he was obliged to order his car
riage unexpectedly, to go a long distance on business.
After getting into it he perceived that there was some
delay about starting, and putting his head out, he
saw that there was a great bustle among his servants,
who were trying to mount the coachman on the
box, and with much difliculty, at length succeeded.

LIFE OF JUDGE SMITH. 119
" What is the matter ? " asked the general. The ser
vants replied, that he was intoxicated ; " where
upon," said Washington to Mr. Smith, " I was
tempted to say to the man at once, be gone about
your business. But the coachman at that moment
turned round and said, ' never fear, massa, I '11 drive
you safe.' And I trusted him," continued Washing
ton, " and he never drove better."
At about half past nine, Mr. Smith signified his
intention of retiring, when Washington also arose,
and taking a lamp, led the way to a most comfortable
apartment, in which was a fire brightly blazing. He
assured his guest, that the fire would be " perfectly
safe," and intimated that he might " like to keep his
lamp burning through the night." In the morning,
after breakfast, Mr. Smith took leave, though desired
to prolong his visit ; and a very urgent invitation
was given, that he should " bring his bride to see
them." Horses were brought to the door, and Wash
ington accompanied him some miles on the way.
" He was always," said Mr. Smith, " dignified, and
one stood a littie in awe of him." '
' This account was kindly furnished me by a lady, who wrote it down
the evening after she heard it from Judge Smith. The following anec
dote, I believe, rests on unquestioned authority. It was told to Mr. Mason
hy the Hon. Joseph Lewis, who was for thirty years a member of congress,
and was called by Mr. Jefferson, " the residuary legatee of federalism
in Virginia." Judge Marshall and Judge Washington were on their
way to Mount Vernon, attended by a servant who had the charge of a
large portmanteau containing their clothes. At their last stopping place
there happened to be a Scotch pedlar, with a pack of goods which re
sembled their portmanteau. The roads were very dusty, and a little
before reaching the general's, they, thinking it hardly respectful to pre
sent themselves as they were, stopped in a neighboring wood to change
their clothes. The colored man got down his portmanteau, and just as

120 LIFE OF JUDGE SMITH.
This was the last time that Mr. Smith met Wash
ington, but he continued through life to cherish
towards him feelings such as he had for no other
human being. He pronounced a eulogy upon him
at his death ; and one of his last compositions was a
lecture on his private character. It was dehghtful to
witness the veneration, amounting almost to rever
ence, which he uniformly expressed, mingled, as the
feeling always was, with the sentiment of religious
gratitude, as if by the especial hand of God, he had
been raised up for his country's good. And all, who
foflow with deep interest the history of our country
step by step through the war, and the greater perils
that succeeded when the war was over, must with
devout joy and thanksgiving recognize the influence
of the great man, whose character rises so high, and
with each coming generation, will rise so much
higher, not only above all others with whom he was
connected, but above his own position as the head
and father of a great nation, — outshining even the
splendor of his actions and his fame. His greatness

they had prepared themselves for the new garments, ont flew some
fancy soap and various other articles belonging to the pedlar, whose
goods had been brought on instead of their own. They were so struck
by the consternation of their servant, and the ludicrousness of their own
position, being there naked, that they burst into loud and repeated
shouts of laughter. Washington, who happened to be out upon his
grounds near by, heard the noise, and came to see what might be the
occasion of it, when, finding his friends in that strange plight, he was
so overcome with laughter, that be actually rolled upon the ground.
Judge JIarshalltold the Hon. Benjamin Watkins Leigh, within three
months ofhis death, that he was never free from restraint in Washing
ton's presence — never felt quite at ease, such was Washington's state-
liness and dignity.

LIFE OP JUDGE SMITH. 121
was not dependent upon circumstances. It was not
Trenton, nor Yorktown, nor the successful termina
tion of a seven years' war, nor the chief command in
a righteous cause, nor the highest station in the land,
that made him fllustrious. Other men have been
dwarfed by their own achievements, and, on ap
proaching them, we are saddened and disappointed
to see the man dwindling away before the magnifi
cent associations that history has gathered round
them, as when, in disinterring from a pyramid of
Egypt the dusty remains of an ancient king, we are
pained by the contrast between the grandeur of the
monument and the meanness of him by whom it
was erected. But Washington can suffer by no
such comparison. Through whatever avenue of il
lustrious deeds and high associations he is ap
proached, we lose nothing of our admiration and
respect for him. Great as were his office, his ac
tions, and his mission upon the earth, the man towers
always above them all. In his presence we are im
pressed only by himself. Such power has a really
great and good man, over all the circumstances
that usuafly attend on human greatness. He whose
influence rests on a foundation like this, cannot
pass away from the admiration and affection of
mankind. Whatever was connected with him, be
comes almost sacred to us.
It is not long since I fir^saw Mount Vernon, be
ing on a journey from the south. It had not oc
curred to me that we should pass the spot, till it was
announced, and I saw before me on a hill, rising
gently, and commanding a wide view of the river,
11

122 LIFE or JUDGE SMITH.
the home of Washington. I had never been so
affected by any other scene. Battie fields, and all
such places have disappointed me. But here were
associations too strong and sacred, a quiet domestic
influence in the place itself, so harmonizing with his
character, that I almost seemed to see, sitting on his
piazza, or walking through his grounds, the man
who in his greatness stands so widely apart from
afi other men in the world's history. I wished to
throw myself down hke a littie child, and weep.
The emotions of that hour, and the conversation that
followed with an intelligent Virginian, who was sub
dued almost to tears, I shall not soon forget. And
while at the capital, I could not but think, how dif
ferent would be the standing, and how different
the influence going from them, if the noisy actors
there, who boast of their chivalry and call them
selves our national rulers, would go on pilgrim
age to Mount Vernon, there to learn how calm and
gentle a thing is the highest greatness and all true
dignity of mind.

CHAPTER V.
1797—1801.
FOURTH TERM IN CONGRESS  DIFFICULTIES WITH
FRANCE  SETTLED IN EXETER  U. S. DISTRICT
ATTORNEY  INTEREST IN POLITICS  JUDGE OF
PROBATE.
Mr. Smith had now completed his third term of ser
vice in congress. His position in the house was grat
ifying to his feelings, and, with his experience and
his attainments, the result of careful study, he had
been constantly rising in the esteem of those through
out the country whose approbation he most val
ued. He was on pleasant terms of personal inter
course with many of the distinguished men of his
time : with the elder Adams, Oliver Ellsworth and
John Jay, with Alexander Hamilton and John Mar
shall, Rufus King, and Charles C. Pinckney, Timothy
Pickering, Samuel Dexter, and Caleb Strong ; and
met, with the freedom of intimate friendship, Fisher
Ames, George Cabot, Robert Goodloe Harper, Chris
topher Gore, Ohver Wolcott, Theodore Sedgewick,
and others, whose names, now less familiar, were

124 LIFE OF JUDGE SMITH.
hardly less prominent in their day.' But he was al
ways more desirous of being a lawyer than a states-
man, and, tired of public life, longed, as he said, '¦ to
be at home, seated by a snug fire of liis own kindlin::,
where neither business nor impertinent visitors should
disturb his meditations.' He had determined to
withdraw from the national councils and attend to
the practice of the law. But, towards the close of
1796, he was chosen for another term in congress,
almost without opposition, having a considerably
larger number of votes than either of the other gen
tlemen, whose names were upon the same ticket.
.Since he had determined to quit public hfe, I do not
know why he permitted himself to be again a candi
date. The reasons given in the following letter,
(18th November, 1796,) to Miss Ross, are not quite
satisfactory : " Eliza, you are quite a flatterer ; I
never was very unfriendly to flattery, but yours is
peculiarly grateful. You do not spoil me as you be
gin to fear ; your praises make me anxious to deserve
them. I wish to owe to your justice, what I am
afraid I must now attribute to your partiality, lou
told me, in a former letter, that you found I was a
candidate for congress, and that you thought this
irreconcilable with what I had told you of my disin
clination for public life. The phrase •' being a can
didate,' has not the same meaning here as at the
1 Tul the violent contest on the British treaty he had been on friendly
terras with Madison, and found him always very obliging in imparting
or pointing out the means of acquiring information on political subjects.
At that time he had no communication with him, and believed bim dis
honest ; but these hostile feelings disappeared, and during the latter
part of his life he held him in great respect.

LIFE OF JUDGE SMITH. 125
southward. It means with you a person who ex
presses a desire for an office, solicits votes, perhaps
treats the electors. Here it only means a person
talked of for an office ; not by himself or particular
connections, for in that case he certainly would
not be elected. I did not advertise the public that
I would not serve. I did not know that I should
have the offer, and I was, and yet am, uncertain
whether things may not be so circumstanced that I
may wish to go one session more. At present, how
ever, it is the furthest from my thoughts and wishes.
My inclination is, to sit down in some country town,
where the society will be tolerable, in a small run of
practice in the way of my profession. I have, on
my own account, but little desire to be rich ; and I
vyould take as many precautions against ambition as
I would against the yellow fever, the one being as
great an enemy to happiness as the other is to life.
The fever of the mind I take to be the greater evil of
the two." It was Mr. Smith's intention to come
with his wife immediately to the north, resigning his
office, without even taking his seat under the new
commission ; but the call of an extra session changed
his plan, and on the 4th of April he set out from
Maryland alone.
To Mrs. Smith. " New Castle, 6th April, 1797.
One o'clock, P. M. Here we have been the last
four hours, and here we are like to remain the next
four — the wind and tide against us. That is gen
erally the way with misfortunes, they seldom come
single. Oh that you were here ! that I might have
somebody to vent my ill humors upon, somebody in
11*

126 LIFE OF JUDGE SMITH.
duty bound to bear them all. Such a villanous
house and such company ! Positively I will set out
on foot, if the winds do not tack about. As to the
tide, it is not to be expected that it should reJa.x a
tittle of its punctuality and steadiness, to oblige good
company ; and, myself always excepted, a more
scurvy set were never collected, for one packet.
Noah's packet, with aU the beasts, birds and reptiles
of creation in it, was nothing to it. We (by which
in this case I mean they,) look for all the world like —
like — hke the Harrises, Wrights, and Findleys in
your neighborhood. After having said this, I will
not affront the old gentleman, whose name is often
used on these occasions by way of comparison, so
much as to say they resemble him. If he resembles
them, his enemies have not done him justice — he
is worse than they have painted him. One would
think, seeing such shoals of miscreants going to Phil
adelphia, that all the vices, deformities, natural and
moral uglinesses of creation, were summoned in
congress in Philadelphia, and that these were the
deputies. Fit representatives for such constituents !
Thank heaven, they can steal nothing from me !"
To the Hon. Dwight Foster, 16th April, 1797.
" I need not say that I left Bladensburg, (leaving
Mrs. Smith there.) with regret. In a few days we
should have set out together, but the president's pro
clamation deranged all our plans. Not having been
fortunate enough to have made my resignation before
congress were summoned, [ considered that I could
not with honor do it till after the session, and there
fore will be obliged to attend. You see, my dear

LIFE OF JUDGE SMITH. 127
sir, my patriotism is not a dead letter, an inactive
principle. It will cost me one thousand miles travel,
and the sacrifice of happiness you can estimate with
out any description or calculation of mine. I left
Philadelphia on Monday, at noon, and arrived here
yesterday evening. I spent a few minutes with our
friend Ames, at Dedham. His patriotism, like the
French ships he so fancifully described, burns to the
water's edge. We shall miss him next session. I
spent some time with Mr. Pickering and the new
president, on my way through Philadelphia. I ask
the old gentleman's pardon for mentioning him last.
I had from the former a very circumstantial account
of the villanous treatment of our minister by our
good friends and only natural allies, and it is reafly
worse than the newspapers tefl. The morning after
they received the news of their successes in Italy,
they gratified Mr. Pinckney with a note in writing,
telling him they would not receive him as minister,
and offering him passports for Holland. These devils
are honestly entitled to the pure and fervent hatred
of every true American. I am glad I have it in my
power to say that those, with whom I have con
versed, appear to be decided — those south as wefl
as north."
The following portions of a hastily written letter,
from the Hon. George Cabot to Mr. Smith, wifl serve
to show something of the feelings of the time, as
well as of the sentiments of one of the wisest and
ablest men in the union : " Brookline, Aprfl 17,
1797. My dear sir : it is easy to say what ought
not to be done, in certain conjunctures, but diffi-

123 LIFE OF JUDGE SMITH.
cult to determine what ought. The truth is, that
we often arrive at a dilemma, in which something
must be done, and yet that something must appear
to be wrong ; for the inconveniences of the course
taken, whatever it be, must be considerable, and will
be the most known, and the only ones felt. But no
considerations of this kind will deter many men, whom
I am proud to call friends, from adopting any measures
which, in their judgment, the public good may re
quire. But what are these measures ? you ask. I
wish I could give a satisfactory answer to the ques
tion, but I confess I cannot. There is, however, in
my mind, no difficulty in deciding, that an embargo
would be much more injurious to us, than all the
depredations will be ; much more injurious to us
than to the French; and indeed much more injurious
to the other nations who have colonies, than to the
French. As a permanent measure, or principal
measure in any system, I consider an embargo as
always preposterous, being necessarily more distress
ing to the nation that imposes it, than to the nation
against which it is intended to operate. But there
is an infinitude of cases in which partial, special, or
temporary embargoes may be expedient, and there
fore, at all times of public danger, the executive
ought to be authorized by law to lay them. In the
most probable cases this power cannot be exercised
directly by congress without defeating its own de
signs. I now release you from the embargo, and
proceed to express my hopes that the first measures
of congress will be to provide more revenue. A land
tax, however unpalatable at first, wfll be approved

LIFE OF JUDGE SMITH. 129
by the people themselves, after they are brought to
contemplate a littie more soberly the nature and ex
tent of the pubhc dangers. The few frigates, which
are in forwardness, ought to be equipped forthwith ;
and the merchants should be authorized to defend
their vessels, as far as it can be done, without actual
war. If no better idea occurs on this point, let con
voys accompany them. But a minute examination
of the rights of nations is requisite, to enable a man
to delineate this system fully. With respect to a
new embassy, it would be disgraceful, and indicate a
dread of France, which is already too great ; but
my principal objection to it is, that it may be easily
made the means of recruiting the exhausted strength
of the French party within our country, and their
mischiefs are more to be dreaded, than any their mas
ters can perpetrate without.
" Thus, my friend, you see with what readiness I
give you my crudest opinions. If they are erroneous,
it will be a satisfaction that they have no authority,
and I no responsibility. But before I close this let
ter, let me entreat you to be at Philadelphia on the
day mentioned by the president. Probably you will
then find a well-digested plan of the executive, which,
if not repugnant to your own ideas, you will zeal
ously support. If no system is formed by the exe
cutive, or such as shall be formed is not supported,
there will be no consistency, and of course no effi
ciency, in our measures."
Within a fortnight of the time that Mr. Smith
left Bladensburg, his wife was aflilicted by the death
of her mother. It is remarkable that neither of

130 LIFE OF JUDGE SMITH.
them, in the letters written on the occasion, refers to
the only true source of consolation. There is no ex
pression of devout confidence and resignation, and no
intimation even of religious feeling. In Mrs. Smith's
early letters, generally, there is more of Stoic fortitude
than Christian trust ; and her husband's Christianity,
tiff he had suffered deeply, seems to have been rather
a conviction of the intellect, than a sentiment of the
heart. He received it as approved by reason, and
cherished it as essential to the well-being of society.
He shrunk from the infidel philosophy of France, as
tearing away the supports, and laying waste the
hopes and finer affections through which alone the
great ends of government may be secured.
On the death of his brother Robert, who died in De
cember, 1795, he wrote as follows to the widow : " I
sincerely sympathize with you in this afflictive dis
pensation. As you are called to drink deeply of
this bitter cup, I sincerely pray that your fortitude,
resignation, and patience, may be equal to the trial.
It is not necessary that I should suggest any consi
derations to you on this occasion ; your own good
sense will present them to your mind ; and that ha
bitual piety, and regard for the principles of religion,
which have hitherto marked your character, wifl not
desert you in a time of adversity, when you so much
need the consolations which they, and they only can
bestow. It cannot fail to give you satisfaction to
reflect, that we have every reason to believe that our
friend has made a happy exit, and gains far more by
the exchange he has made than you lose. From
my knowledge of him, and opinion of you, I am

LIFE OF JUDGE SMITH. 131
persuaded that your recoflections of past scenes will
be very far from being painful. They will be pleas
ant, and such as those who have lived a life of virtue
and goodness, on the death of a most intimate friend,
alone can experience."
After visiting New England, Mr. Smith reached
Philadelphia the 17th of May, and took an active
part in the business of the session. The following
is from a letter to his brother Samuel, dated July
3, 1797 : " By the last accounts from Mr. Pinckney,
now in Amsterdam, the aspect of things in Europe,
as it respects us, is not changed for the better.
There is every appearance of war with the terrible
republic. If a general peace, however, should now
take place, and of course the war cease between
France and England, we shall avoid an open rupture
with our allies. On Saturday a number of gentle
men in this city, with some members of congress,
gave a dinner to Monroe,' in testimony of their
approbation of his conduct in France. Was
there ever such a set of miscreants before ? The
weather begins to be extremely hot and disagreeable,
I long to bid an eternal adieu to Philadelphia, and in
this I am joined by Mrs. Smith. My friend Ames
writes me every week, and I find much instruction
and entertainment in his letters. I am sorry that he
is declining in his health, and fear he will hardly sur
vive the relapse he has had this spring."
Mrs. Smith soon joined her husband in Philadel-
' It ought to be added that Mr. Smith, after a full knowledge of the
circumstances, changed his views in respect to Mr. Monroe's conduct in
France.

132 LIFE OF JUDGE SMITH.
phia, and remained with him till the close of the ses
sion, early in July, when they went together to their
new home, in Exeter, New Hampshire. In making
their domestic arrangements, as in looking forward to
the true sources of happiness, their views were sim
ple, unambitious, and just. " Riches," he said in a
letter to her before their marriage, " which take to
themselves wings ; beauty, which fades as a flower;
perpetual spring, which exists nowhere but in the
imagination of the poets, make no part of my calcu
lation. Good sense, improved by education and ex
perience ; a moderate portion of the good things of
this world, remote from both poverty and riches ;
hearts united in the most tender friendship, whose
highest bliss is to make each other happy — indeed,
my love, we do not deceive ourselves when we dwell
on this picture ; it is not overdrawn." In writing to
Miss Ross, January 27, 1797, he had said: " My cor
respondent at Exeter, New Hampshire, has just written
me that he can have a house, which he thinks will an
swer our purpose, for forty dollars a year. I have no
recollection of the house of which he writes, though I
am well acquainted with the town. In a smaU vil
lage, when one must depend on hiring, you know
one cannot have a choice, or at least it must be a
very limited one. From the price, I should con
clude it must be a very ordinary house ; but per
haps it wiU serve our purpose for a littie while, say
for a year or two, till we can accommodate ourselves
better, either in buying or hiring. I have as yet
made no arrangements as to furnishing a house, and
shall not, till I have the pleasure of your commands.

LIFE OF JUDGE SMITH. 133
I persuade myself that you will concur in opinion
with me, that in this, as in everything else, we ought
to consult propriety. As our means are not great,
and our plans frugal and economical, extravagance
in furniture, even if it cost us nothing, should be
avoided, as it would tend to destroy that uniformity
which I hope we shall never lose sight of."
February 11, 1797. "Nothing can be more just
than the sentiments in your letter, ' that if we live
above our income to please others, we shall lose that
independence without which there can be no happi
ness.' I wished for wealth, it is true, but I do not
repine because we have it not. We shall, I flatter
myself, never want a competence ; and if heaven
had given us riches, Eliza, we should not have
hoarded them up, we should only have been the
almoner of beneficence. Now perhaps we shall have
the same pleasure in giving a little we should have
had in bestowing much."
The following, written in connection with the
same subject, is in a more enthusiastic strain : " My
heart has blossomed with the sweetest hope, and
I have been happier than at any former period of my
life. In looking forward, though I do not flatter
myself with a total exemption from all the numerous
train of ' ills that flesh is heir to,' yet I feel that we
shall be happy. We shall be but little dependent on
the world for happiness. Two hearts, united in the
tenderest bonds of love, which live but for each
other, which are blessed only when they are bless
ing, and which receive pleasure only when they
bestow it, must be happy ; they will find all their
heaven in themselves." 13

134 LIFE OF JUDGE SMITH.
These were views to which he always attached
very great importance. He consulted a wise econ
omy, that he might be just, independent, and gene
rous. A comprehensive treatise on a careful but
liberal system of economy in private life, in public
affairs, and especially in the management of literary
and charitable institutions, might be compiled from
his writings, and iUustrated by his example. And
when we see how many young men, with fair pros
pects, ruin themselves by extravagant expenditures,
and in how many the springs of kindly feeling are
dried up from a hard and unthrifty parsimony ;
when we consider how little a wise and generous
economy is practised by pubhc bodies, whose con
duct is too often marked, at one and the same
time, by wanton profuseness and niggardly mean
ness, and when we see the sad waste of funds
which have been treasured up, through years of self-
denial, that in some public institution they may be a
perpetual fountain, going forth in streams of know
ledge or of Christian kindness, — we cannot think that
he has overestimated the importance of the subject.
On the 10th of July, 1797, Mr. Smith was ap
pointed United States' attorney for the district of
New Hampshire, and on the 26th of the same month
sent in to Gov. Gilman the resignation of his office
as member of congress. If we may judge from his
confidential letters, it was then his intention to take
no further part in political matters as a public man ;
and he did not repent of his decision. His profes
sional business and domestic concerns gave him full
occupation, and of the kind he desired. In a letter,

LIFE OF JUDGE SMITH. 135
9th March, 1798, to his friend, the Hon. Dwight Fos
ter, who was still in congress, he says : " I have never
regretted my leaving the house. Of late, indeed, I
rejoice with joy unspeakable that I am one of the
people, and that I am not a partaker of the dishonor
which attached to the body of which Lyon is a mem
ber, and who could retain him, when a fair opportu
nity offered of getting rid of the animal. Indeed,
my friend, it is carrying party spirit too far, when we
suffer our character, as men, to be disgraced and sa
crificed on the altar of party."
He took still a decided interest in public affairs,
and, notwitiistanding what he here says of party spirit,
was undoubtedly more influenced by it at this than at
any other period of his life. He was impressed with
the horror which the French revolution was so well
fitted to produce, and believed that if the princi
ples of the opposition here should prevaU, our coun
try would be involved in the same scenes of blood
shed, anarchy, and crime. His letters are marked
sometimes by hope, sometimes by gloom, sometimes
dealing in a playful raillery, and sometimes pouring
out his sarcasms in all the pungent bitterness of a
real detestation. "It is," he says, in 1798, "my
firm belief that the righteous shall not always mourn,
nor the wicked always prosper. On every calcula
tion of human events our prospect is gloomy ; but,
ere long, the clouds will disperse, and we shall have
a bright day." Again : "I am almost beginning to
be sick of republican government, and have half a
mind to adopt O'Brian's political creed before he
sailed from this port (Portsmouth) for Algiers. In

136 LIFE OF JUDGE SMITH.
conversation, he did not hesitate to give the prefer
ence to the Algerine government over ours. He said
the dey and his regency would despatch more busi
ness in half a day than our congress in a month ; and
he did not see but that the Algerine affairs were as
weU managed as ours. Really, my friend, there is
too much truth in all this. Suppose the dey had
been buffeted by Satan as we have been by the
French, would he, think you, spend three or four
years in determining about the means of protection,
tiU everything worth protecting had fallen a prey to
the rapacity of the enemy? How long have you
been building three frigates ? They must, forsooth,
be built in three different places; and you must, to
show your economy, appropriate but half as much as
was necessary for the object. In short, you behave
so, that the executive officers must, in their self-
defence, deceive you. You talk about checks. There
are checks enough, in all conscience, enough to sat
isfy the most zealous anarchist."
Exeter, 20th April, 1798. " Portsmouth had cir
culated a petition to the selectmen, to call a town-
meeting on the subject. I am told they are now as
zealous on the right side, as they have been in times
past, on the wrong, and make the most extravagant
professions of loyalty to the ' powers that be.' But
this is always the way with the mob. Heaven de
fend us against mob government. 'Tis the essence
of tyranny ; the sublimation of villany, and the
scourge of honest men." . . . . " Your favor, with
the despatches and instructions, came safe to hand
by the last maU. I have, in consequence, re-perused

LIFE OF JUDGE SMITH. 137
them. As to our own government, I find everything to
approve ; and, as to that nest of vipers, everything to
condemn. Surely, they are ripe for destruction. If,
by God's good providence, they have been permitted
to travel thus far in the paths of wickedness, that He,
through them, may confound the lying philosophers
of our age, the end must be fully answered. Those
who are skeptics now, would not listen to a preacher
from the dead. Enough has been done for the fools,
and as to the knaves, nothing will do them any good,
but the whipping-post and the gallows." Again, in
reference to the same class of men, he says that he
would not counteract the designs of Providence,
which possibly might be for wise purposes, to re
serve them for punishment in the world to come, but
still he should be glad to have them hanged here ;
for, he adds, " it is but a small addition to the pun
ishment that awaits them, but very useful in this
world, and particularly in this country." 
" We are this moment engaged, in this town, in
raising a temple to the Lord of Hosts, not a taber
nacle for the filthy worship of the goddess of reason.
The French pollute everything they meddle with.
We have great reason to be thankful they have not
laid their filthy hands on religion. They have brought
reason, republicanism, public spirit, &c. into ridicule.
I hope God has, in his good providence, determined
to honor these sacred things, by making the abuse of
them as infamous as they have made themselves
wicked." " The French praise him, (Gerry,) I cannot
like him. Since they have voted the Deity in again,
I own I feel more doubts than usual about the evi
dences of his religion." 12*

138 LIFE OF JUDGE SMITH.
27th June, 1798. " I received your last letter of
the 19th by the maU of Monday, and anxiously wait
for the mail of this day. The plot thickens, and we
are near the catastrophe. I am inclined to think that
the public mind is prepared for the last solemn ap
peal. War is inevitable, and the sooner we have it,
the better. I have seen Talleyrand's letter in the
newspapers. It is couched in true democratic lan
guage, well calculated to ' deceive the people who sit
upon the waU,' to whom it is, in fact, addressed. On
men of sense it can have no influence, except that of
making them hate the great nation stUl more. It is
entirely destitute of argument, and is no answer to
the memorial. I am sorry the evidence multiphes so
much against Gerry. He must have acted impru
dently at least ; but Marshall is with you, and can
tell you all about it. Give me the result of Marshall's
communications. I place great confidence in him as
a true patriot and a discerning man, and he must be
able to communicate much valuable and useful in
formation, and to advise what Israel ought to do in
this perilous hour.' The French must, in all this
manpeuvering with Gerry, principaUy aim at gaining
time. They never can believe that our government
will suffer the negotiation with him alone to proceed.
1 Judge Smith used to give a remarkable instance of Judge Marshall's
ability as a debater in congress. There had arisen a discussion on some
intricate and perplexing subject, in which several prominent members of
the house, and, among them, Mr. Gallatin, had taken part. After they
had spoken, Mr. Marshall rose, and in a few words laid the whole mat
ter open, with such perfect distinctness, that Mr. Gallatin, who had just
spoken on the opposite side, exclaimed, " Mr. Speaker, we are all wrong ;
the gentleman from Virginia is right," and the whole house was satis
fied. It is said that Judge Marshall never, in his life, took up more
than three'quarters of an hour in a single speech.

LIFE OF JUDGE SMITH. 139
Indeed, I doubt not, long ere this he is stripped of
his ministerial robes. The French have my free per
mission to embrace him as kindly and fraternally as
they please. I wish our good president could be per
suaded to rely a little less on himself, and a little
more on his faithful ministers, who, to my certain
knowledge, were opposed to this appointment, or,
rather, were not consulted."
These extracts, though very great allowances wfll
of course be made for their humorous exaggerations,
sufficiently show how strongly he was carried away
by the political feelings of the day. He was con
sulted by the secretary of the treasury, Mr. Wolcott,
in respect to his appointments in New Hampshire,
and in the advice he gave, took decidedly the ground,
which he afterwards as decidedly condemned, that
all, who did not support the administration, were to
be removed from office. " A real jacobin," he says
in a letter to Mr. Wolcott, " in my opinion is never
made by want of knowledge only. It is the qualities
of the heart that constitute the essence of this de
testable character. He hates the light, because it
reproves his deeds. It is a solecism in politics, that
a government should be administ^d by its enemies.
It has always been my opinion, that those whom the
sovereign people entrust with the administration of
their political concerns, are in duty bound to appoint
and continue in office, those men, and those only,
who are firmly attached to the principles of our gov
ernment and the administration." Mr. Smith even
went so far as to maintain that a public officer should
be removed, unless he took an active part in support

140 LIFE OF JUDGE SMITH.
of the administration. In a letter to Joseph Whip
ple, who by his advice had been removed from an
important office in Portsmouth, he says : " To your
politeness as a gentleman, integrity, zeal and intelli
gence as an officer, I could most cheerfully bear wit
ness. But these are not called in question. You
are sensible that the public opinion of your politics is
what I have mentioned  When our govern
ment has been assailed by a profligate foreign faction,
to be moderate, is to be cold in the cause, and at
once a hypocrite and a traitor. Ten thousand lies
have been daily circulated by lying men and lying
presses against our pubhc organs. Those who knew
them to be so, and yet have been silent, are sharers
in the guilt. I am told that treasonable speeches
against the government, were daily uttered in your
streets. Silence under such circumstances, is a sort
of misprision of treason."
This view of the subject is not unlike that generally
taken by violent partisans in defence of their illiberal
and exclusive measures, and is, as Mr. Smith in his
riper judgment maintained, inconsistent with the true
principles of republican government. It opens the
way to exaction, meanness and corruption, converting
the offices of a people into the spoils of party warfare,
holding them up, not to be filled with dignity and
fidelity, but to be polluted and preyed upon by par
tisan rapacity and violence. It degrades the political
action of a nation, from an honorable contest in be
half of principles and measures, to a low scrambling
for official rank and emolument, and enlists under its
standard, only the selfish and vulgar passions of our

LIFE OF JUDGE SMITH. 141
nature. The appointments made by Mr. Smith's
advice were, I believe, such as are usually made un
der such circumstances ; and in more instances than
one, the places of experienced and faithful officers
were assigned to men of insufficient attainments and
irregular habits. His motives were undoubtedly cor
rect. The perUous condition of our government,
exposed to foreign factions and intrigue, and the con
sternation caused by the mighty events that were
shaking the earth, and threatening all governments
with ruin, might at that time furnish an excuse for
stronger measures than could be justified at any sub
sequent period of our history. Still, proscription for
opinion's sake, is at all times inconsistent with the
genius of a free government, and must at length
prove fatal in its consequences.
But however much Mr. Smith may have been in
terested in political matters, his attention was almost
exclusively given to the studies and business of his
profession. His practice was laborious and exten
sive,' and with what he had already laid up, promised
in time a competency for himself and famUy. " I
have less," he somewhere says, in a letter to his bro
ther, " of the hoarding appetite than most people,
and I thank God it does not increase with age. I
love economy, and hate avarice and idleness. I
never lost an hour's sleep with care, and never in-

' For the year ending 1st of September, 1799, the ne) income from his
profession was (S2351 ; do. do. ending 1st of September, 1800, was
*3018 69 ; do. do. ending 1st of September, 1801, was S3077 50. He
practised in the counties of Rockingham, Strafford, Hillsborough and
Cheshire.

142 LIFE OF JUDGE SMITH.
tend to. I would choose to fill up the day with
business and action, because I am happiest when
employed ; but care and anxiety I put far away from
me." This was, through life, a true picture of him
self. He loved labor for its own sake, and had
besides an honorable ambition to do his best, in
whatever he undertook. But he indulged in no un
necessary forebodings or regrets. Having done all
that he could do, he was content to leave the rest
with Him who governs the world, and this habitual
cheerfulness, whUe it left his faculties always bright,
contributed in no small degree, to his ability to labor,
his health, enjoyment and success. In the fall of
1800, Mr. Smith was appointed judge of probate for
the county of Rockingham, and continued in that
office for about two years. He labored hard to re
duce to order this branch of law, and prepared a full
and elaborate treatise on the subject. This work,
which, in the opinion of one eminently qualified to
judge, was much superior to any treatise on probate
law then existing, is stUl in manuscript. But more
than forty years have passed by, and no legal essays,
except those, which with remarkable power Ulustrate
the great and fundamental principles of law, can,
after lying in sUence nearly half a century, speak
with any decisive authority to a generation who have
sprung up since they were prepared, and who, edu
cated in other elementary works, are bound by other
systems of legislation.

CHAPTER VI.
1801 — 1809.
JUDGE OP THE U. S. CIRCUIT COURT  CHIEF JUS
TICE OF NEW HAMPSHIRE  INFLUENCE AND CHA
RACTER AS A JUDGE  HIS CHARGES TO THE
GRAND JURY.
On the 20th of February, 1801, Mr. Smith was
appointed a judge in the United States circuit court,
which had been estabhshed a short time previous.
He accepted the appointment, in the following letter
to John Marshall, then secretary of state, who had
interested himself in securing for him the office : —
" Exeter, N. H., March 11, 1801. Sir: I had the
honor to receive yesterday your letter of the 21st
ult., inclosing a commission for the office of circuit
judge of the United States. You will be pleased
to inform the president, that I accept the appoint
ment, and that it shall always be my earnest endea
vor to merit, as far as I am able, this distinguished
mark of confidence. Allow me to add, that I am

144 LIFE OF JUDGE SMITH.
not insensible, on this occasion, to the kindness and
partiality of my friends. My obligations to you are
particularly grateful, as affording to me evidence of
the regard and esteem it has always been my wish
to deserie and my pride to cultivate. I am with
great respect, sir, your obedient servant, J. S."
Mr. Smith had now reached the office to which,
above all others, he aspired. He was particularly for
tunate in his associates upon the bench, and always
spoke of John Lowell, the cliief justice, as one of
the purest and wisest of men, and of Judge Bourne,
as a delightful companion, full of intelligence and
life. There was just the sort of difference in their
characters, which might serve to make their inter
course most delightful ; the two younger judges hav
ing that boyish playfulness in conversation, which
contrasted so finely with the more sedate wisdom
of the chief justice, whose children still remember
to have seen their mother laugh, till the tears ran
down her cheeks, at the saUies of Judge Smith's wit.
Judge Lowell's health had already begun to feul, al
lowing him no opportunity to do justice to his pow
ers, and short as was the duration of the office which
he held, it outlasted his life. His death, at the time
of their greatest perplexity, was a sore calamity to his
associates. For three months before engaging in the active
duties of his office. Judge Smith employed himself
not less than fourteen hours a day on his professional
studies. He seldom went out of the house, his daily
walk extending only from his dining-room to his li
brary. Though always a hard student, he now re-

LIFE OF JUDGE SMITH. 145
garded his former attainments as of no account, and
afterwards looked back on those three months as the
beginning of his legal education. It might not be
safe for others to imitate his example in this respect,
for though not of a strong constitution, he had, to a
very uncommon extent, the power of enduring long-
continued and severe intellectual application. Like
the late Dr. Bowditch, he could bear to be inter
rupted in the midst of his professional investigations.
After attending to what had called him off, he would
return immediately, and without embarrassment, to
his studies, and go on with them as if nothing had
occurred. However deeply he might be engaged,
and however suddenly drawn off, he would seemingly
without effort, and with the utmost good humor, join,
whether in a frolic with a child, in sportive conversa
tion with a young lady, or in answering intricate
questions of law ; and the moment these were
finished, return to his previous investigations, when
no ripple remained to show that the clear deep cur
rent of his thought had been disturbed. Those who
studied law in his office, speak of this as a remark
able feature in his character. At first they would
hesitate about breaking in upon him, when they
saw him absorbed in study. But they soon found
that they need have no apprehensions, that, however
much he might be engaged, he would cheerfully an
swer their questions, taking whatever time might be
needed for the purpose, and then return to his stu
dies, without appearing to have been drawn aside. It
is easy to see how valuable a trait this is in the charac
ter of a lawyer, and especially of a judge, enabling
13

146 LIFE OF JUDGE SMITH.
him to carry on a profound and laborious process of
investigation, without permitting the thousand httle
points that are constantiy coming up, and which
sometimes materially affect the result, to escape, di
vert, or annoy him.
Judge Smith entered upon his new office with the
expectation that it was to continue for life. The
studies which it required of him at home, and the
business of the circuit abroad, were alike suited to
his taste, and furnished the sort of variety which is
so essential to a full and liberal culture of the mind.
He was brought into the society that he most en
joyed, and was filling, in the eyes of the community,
a useful, responsible, and honorable ofiice, and, in
the enlightened and conscientious discharge of its
duties, he looked forward to the gratification of his
highest ambition. By devoting to it his time and
strength, by dihgence in study and fidelity in action,
he hoped to be constantly enlarging his stores of
knowledge, to fulfil an important trust as a member
of society, and to gain the approbation of the wise,
and the confidence of the good. He used to say, it
was the only office that he had ever greatly desired, or
the loss of which he had greatly regretted. In age
he looked back on no part of his public life with so
much pleasure, though it was a pleasure accompanied
always by the feefing, that in losing the oflSce he had
been thrown out of the place best fitted for his im
provement, distinction, and usefulness.
He attended on all the circuits ; but I know of
nothing unusual connected with them. In conse
quence of the mental derangement of the district

LIFE or JUDGE SMITH. 147
judge in New Hampshire, he was appointed to hold
the district court in Portsmouth, when a circumstance
somewhat embarrassing occurred. The district judge,
unconscious of his infirmity, took his seat upon the
bench, attended to the business as it went on, and,
after the counsel had got through, rose to charge the
jury. He was, however, soon perplexed, and being
unable to proceed with his charge, uttered a short
prayer and retired ; when the circuit judge went on,
as if nothing had taken place.
Early in the next session of congress, (1801-2,)
there was manifested a strong disposition to repeal
the judiciary law of the previous session. A bill for
that purpose originated in the senate, and after a
long and spirited debate,' finally passed the house by

' The fiillowing are extracts from two letters from a member of con
gress, Samuel Tennej' to Judge Smith, dated January 14, and February
19, 1802. " The question for repealing this law has been several days
debated in the senate ; and several members on bnih sides of the house
have hi^^lily distinguished themselves, particularly Morris and Tracy,
for sound sense and solid argument ; Wright, Cooke, and Stone, for non
sense and absurdity.
" When Tracy, after his speech, retired to the fire, half dead with
his c.\erlions, Calhoun coming up lo him, gave him his hand, and
said, ' "\^ou are a stranger to mc, sir, but by  you have made
me your friend. I had been told a thousand lies about that part of the
judiciary established last winter, particularly that the bill was brought
in at the heel of the session, and hurried through without consideration
or debate, in consequence of which I was disposed to repeal it. You
have convinced me that the repeal would be both inexpedient and un-
conslilutioual. I shall be with you on the question.' ' Mr. Calhoun,'
said Tracy, taking him by the hand, ' may we depend upon you? ' He
replied, with great earnestness, ' By  you may.'
" He was followed by Mr. Hemphill, of Pennsylvania, who for more
than an hour held both sides of the house, the senate, the lobby, and
the gallery, in a mixture of surprise and admiration. He is a country
attorney, about twenty-eight years of age, equally remarkable for the

148 LIFE OF JUDGE SJIlTH.
a large majority early in March. This was purely a
party measure, adopted solely for the purpose of dis
placing the judges who had been appointed by Mr.
Adams, and, having that for its object, was palpably
a violation of the spirit, if not of the letter, of that
part of the constitution which would guard the inde
pendence of the judiciary. But whether constitu
tional or not, the voice of the dominant party was for
it, and nothing further could be done.
I find the following letter from Judge TUghman :
Philadelphia, Jilay 22, 1802. " Sir : I have the honor
of addressing you, on behalf of the circuit judges
for the third circuit of the United States. The act
of the last session of congress, repealing the law
under which we hold our offices, has filled our minds
with the most serious reflections. Believing, as we
do, that the repealing law is a violation of the con
stitution, we feel ourselves impelled by sacred obli
gations, to take legal measures for disputing its
validity. How to bring this important subject to a
constitutional decision, with the least possible inter
ruption of the public convenience and tranquilhty.

simplicity of his manners, the correctness of his morals, and the mo
desty of his deportment. It was the general idea, that the subject bad
been so completely exhausted in the senate, that nothing was left for us
but a different dress and new arranceirjtnt of the arguments there used.
But the ground taken by Mr. Hemphill was so new, his reasonings
from various parts of the constitution so clear, and his deductions so
incontrovertible, th.3t it was said several of the majority of the senate
were staggered. At the close of his speech, Giles moved that the com
mittee should rise and report progress, though it was nearly an hour
earlier than the usual time of adjourning, observing, that the arguments
of the gentleman were very weig'ity, and that he was not then prepared
to answer them."

LIFE OF JUDGE SMITH. 149
and how, in the meantime, to conduct ourselves with
the greatest propriety, are questions which require
full and mature deliberation. It appears to us, that
they cannot well be answered, without a personal
communication of sentiments between the judges of
the different circuits. A free and candid discussion
wUl lead to that uniformity of conduct, which is, in
many respects, so desirable. We feel assured that
we are all equally interested in the public welfare,
equally influenced by pure and honorable motives.
Under these impressions we have thought it advisa
ble to request a general meeting of the circuit judges,
in the city of Philadelphia, on Saturday, the 17th
July next. An earlier day would not afford time for
proper notice, and a later might be attended with
inconvenience. We hope for the benefit of your
presence and assistance ; but should you be unable
to attend, which we should indeed consider pecu
liarly unfortunate, you will much oblige us by a
written and full communication of your sentiments."
To this. Judge Smith replied : " Exeter, 7th June,
1802. I feel, as you do, impressed with the convic
tion that some steps ought to be taken to obtain a
constitutional decision on the late act of congress, re
pealing the judiciary law of 1801. It is certainly of
the highest consequence, in an affair of this kind,
delicate as respects ourselves, and important as re
spects the public welfare, that the most unexception
able course of action should be adopted and pursued.
I see no objection to the meeting you propose in
July. Perhaps it is the only way of accomplishing
what we all, I presume, desire. I do not know that
13*

1.50 LIFE OF JUDGE SMITH.
it will be in my power to attend. If it should not, I
will with pleasure communicate anything that may
occur to me on the subject of the meeting."
Only four judges attended the proposed meeting.
Another meeting was appointed to be holden in
PhUadelphia, on the 20th of November, the result of
which was, that a memorial to congress was drawn
up and presented, but without any effect. The loss
of this office was the severest disappointment that
Judge Smith experienced in his public hfe. But
before its term expired, another important judicial
station was offered to him. The office of chief justice
of the superior court of judicature in New Hamp
shire had been vacated by the resignation of Simeon
Olcott, who had been elected to the senate of the
United States. Timothy Farrar was appointed by
Gov. Gilman, and received the commission of chief
justice in February, 1802. He was very desirous
that the administration of justice should be estab
lished on purely legal principles, and, with a modesty
not less remarkable than his good sense, kept the
office open till one, whom he considered greatly his
own superior in the law, should be at liberty to take
it. This he did by presiding in the court as senior
justice, without either accepting or declining the
commission which had been offered to him, until it
was ascertained that Judge Smith's office in the
federal court was to be taken from him. He then
formaUy declined the appointment, and the commis
sion was made out on the 17th of May for Jeremiah
Smith. But the smallness of the salary (eight hun
dred and fifty dollars a year) was such that Mr. Smith

LIFE OF JUDGE SMITH. 151
could not think of accepting it. In his reply, June
5, 1802, to Gov. Gilman's notice of the appointment,
after expressing his gratification for this new mark of
confidence, and his wUlingness to continue in that
course of life, he adds : " But with the compensation
now annexed to the office, it is not in my power to
accept it. It has not been my lot to acquire any
considerable property hitherto. I have a family, for
whom I am bound to provide. I cannot think it my
duty, at my present time of life, to occupy a situation
in which I must eventually consume the small earn
ings of a few years of industry and economy, and
very soon find myself, and those I love, depending
for subsistence on public or private charity. This
is a subject on which I could say a great deal, but
the delicacy of my peculiar situation prevents. I
would not have said so much, and especially about
my own affairs, did I not feel anxious that you, and
my fellow-citizens in general, should be possessed of
the true motives which actuate me on this occasion.
Though I cannot but feel much regret, that I am not
better qualified, yet if it seems meet to the legislature
to make such provision for the office as wUl enable
me to accept, I wiU do so with a firm determination
to devote all my time and powers, such as they are,
to the discharge of its important duties. If this
course should not meet the general approbation of
those to whom the people have intrusted the power,
I shall most cheerfully acquiesce, so far as I am per
sonally concerned, and shall return again to private
life with as much pleasure as ever I quitted it."
In the mean time it had been suggested to him by

L52 LIFE OF JUDGE SMITH.
Mr. Dexter, of Massachusetts, through the Hon.
Timothy Bigelow,' that he ought formally to resign
his office of circuit judge, before accepting that of
chief justice of New Hampshire. To this he replied,
June 7, 1802. " My dear sir : I had the pleasure of
your letter of the first instant a few days ago. I will
not accept the office of chief justice, unless addition
is made to the compensation ; of which there is no
greater probability than that a thousand democrats
should in one day become honest men, or that our
brother Prentice should set up a singing school, and
teach vocal and instrumental music. I cannot, how
ever, subscribe to the sentiments contained in your
letter, on the necessity and propriety of resigning
the office lately taken from me, in case I should find
an inclination to accept that of chief justice. I cer
tainly believe that I shall continue a circuit judge de
jure, and it is equally certain that I shall cease to be
a judge de facto. The office of supreme judge in
this state, by our state constitution, is incompatible
with the holding of a living office under the United
States. But as I am to receive no salary, and am
in no immediate expectation of a pension from the
United States, I do not conceive that it is incompat
ible with my titular office of circuit judge, according
to the spirit of our constitution. So much in answer
to an objection from a New Hampshire citizen. In
1 Mr. Bigelow, for many years speaker of the house of representatives
in Massachusetts. He used to say that Judge Smith, with whom he
was on iiitimate terms, once exclaimed to him : " Bigelow, you are a
clever fellow : you are a very clever fellow : I have always said so, and
have made a great many enemies by it too."

LIFE OP JUDGE SMITH. 153
the constitution of the United States, I find nothing
which renders the two offices incompatible. If I
viewed it in this light, I should decline, at all events.
I conceive that there is stiU a faint glimmering ray of
hope, that the circuit judges wiU be restored. I am
weU assured (in confidence) that measures wiU be
taken to try the validity of the repealing act. I do
not conceive that accepting an office in the state in
compatible with that of circuit judge, according to
the state constitution, would be evidence that I con
sider the oflice as extinct, in consequence of the re
pealing law. It would only be evidence that I con
sider its duties and emoluments as suspended, and
chose to make myself useful during the suspension,
or, to come still nearer to the truth of the case, that
I choose to live, till it should please the sovereign
people to ' overturn, till they whose right it is should
judge.' The evidence, as it respects the effect of the
act of congress on the judiciary system, would be just
as great, I think the same, if I should employ myself
in practice, as I must ; for I have considered practice
at the bar equaUy improper in a circuit judge, as ad
ministering justice on the bench. Neither is incom
patible, but both improper, if the emoluments of the
office had not been taken from it. Suppose some of
your Groton patriots should take it into their wise and
patriotic heads, that it would be doing something for
the good of the whole, to turn you out of your dwell
ing, in some violent storm, and, by force, hold you
out ; would you think it necessary, in order to show
that you thought the whole proceeding iUegal, to re
main in the highway as near as you could, and suffer

154 LIFE OF JUDGE SMITH.
a drenching as well as expulsion ? Would it weaken
your title, in the opinion of others, or betray any
want of confidence in it on your part, if you were to
take the earliest opfMjrtunity of obtaining the best
shelter you could, and leave it to the proper tribunal
to settle the question of riaiit? I have heard of cler
gymen, who, when denied entrance into their pulpits.
have thought it necessary, in order to keep up their
claim to salarv. to wear a band and black gown on
Sundavs: and some have thought it necessary to hold
forth, whether they had any hearers or not, as near the
meeting-house door as possible. I do not pretend to
have thought much, and, as you wUl readUy perceive,
I have not thought seriously on this suliject. If ac
cepting an office in the state would be a vacating the
office under the United States, then I conceive your
opinion well founded ; otherwise, I do not feel the
force of the observations con air. ed in your obhging
letter. And certainly, as they come from two per
sons I have always been in the habit of esteeming, I
feel disposed fully to appreciate them."
An addition was made to the salary of the chief
justice. By an act of the legislature, (ISth of June,
1502.) it was raised from eight hundred and fifty to
a thousand dollars. The following letter to Governor
GUman, is dated 1.3th Aujust, 1602. "Sir: Con
trary to my first determination, I have at length con
cluded to accept of the office of chief justice, and to
resign that of judge of probate. The principal ob
jection I have had to this acceptance, respects the
salary annexed to the office, which I have thought,
and still think inadequate to the duties. It is with

LIFE OF JUDGE SMITH. 155
great reluctance I have formed this determination,
and I have a strong presentiment that I shall repent
it. I mention this that I may avoid the imputation
of fickleness, in case on trial I should find it to be
my duty to resign it."
Upon trial he was, as he had anticipated, entirely
convinced of the inadequacy of the compensation,
and in June, 1804, addressed to the two branches of
the legislature a letter, containing suggestions which
deserve to be seriously considered by those who are
engaged in legislating on this delicate and important
subject. If, through the smallness of the salary, com
petent men are excluded from the office, and the
bench is made a sort of public asylum for those who
have not talent or industry enough to support them
selves at the bar, for every dollar that is saved, hun
dreds wUl be lost to the community. The delays
occasioned by unskilful management, the needless
continuance of actions, the multiplication of law-suits
growing out of the uncertainty of the law in the hands
of those who do not understand its principles, and
the consequently increased expense of jurymen and
witnesses, must add indefinitely to the cost. And
the injury is one which faUs with peculiar severity
upon the poor, who must look for protection to an
able and impartial court ; since with a feeble court it
wUl be in the power of the rich to secure the most
ingenious advocates, and to worry out a poor adver
sary by the obstacles, which a skilful lawyer may
throw in the way of an unskUful judge, to obstruct
or turn aside the course of justice. But where the
judges are from the ablest members of the profession.

156 LIFE OF JUDGE SMITH.
the poor man, who can afford to employ none but
weak or inexperienced counsel, and who seems ready
to be crushed by the unequal weight of a powerful
adversary at the bar, wiU find upon the bench an
advocate who will restore the balance, and secure to
him his rights. It is strange, therefore, that it should
so often be considered a popular measure to reduce
the compensation of judges.
" To the president of the senate. Exeter, 6th June,
1804. Sir : When I accepted the office of chief
justice, I was not so vain as to imagine that I pos
sessed suitable qualifications for an office of so much
importance. At the same time I viewed the com
pensation annexed to it as inadequate, if its duties
were performed in any manner as they ought to be.
But having for some time before left the bar, I was
induced to make the experiment. Sufficient time
has now elapsed for that purpose. I have endeavored
faithfully to perform my duty ; I have spared no la
bor or pains, but have whoUy devoted myself to the
business of the office, and yet I am sensible that the
performance has been extremely imperfect. It has
been far, very far below my own wishes. But what
ever opinion may be formed on this subject, I am
constrained to observe, that I have found the com
pensation so inadequate, that I cannot longer retain
the office. It has been my fortune to acquire but
litUe property. For the best part of the last sixteen
years, I have been a very laborious and assiduous,
though very unimportant servant ofthe public; and,
whatever other advantages may be supposed to have
flowed from these employments, they have not proved

LIFE OF JUDGE SMITH. 157
profitable to me in a pecuniary point of view. At
no period of my life have I been anxious to acquire
property. A competent support is all I have desired,
or yet desire, and for that I must still depend upon
my daily labor. Having been from the bar for up
wards of three years, I prefer continuing in my pre
sent office, to returning again to the practice. But
if the compensation be not in some way made equal
to the actual expense of living, there is no alternative
left. I must yield to the dictates of necessity. The
office with which I have been honored, I believe to
be of sufficient importance to merit a decent main
tenance. I know it has been imagined by some that
its duties require but a portion of the time of the
person holding it, and that a considerable part may
be devoted to other pursuits. I conceive this to be
a mistaken opinion. A judge must annually travel,
on the circuits as they are now established, upwards
of seven hundred miles, and be absent from his fam
ily near half the year. In every county, and at every
term, questions arise which are both difficult and
important. To delay the jury, the witnesses, and
all those who have business at the court, till these
difficult questions are settied, would be attended with
great expense and inconvenience. It must be obvi
ous, on a moment's reflection, that this kind of busi
ness can be better done in the vacation, when the
judges are relieved from the hurry and bustle of
court, and from the fatigue attending the hearing a
multiplicity of causes, and when they can have access
to such books and papers as may be profitably con
sulted. In this way, and I will venture to say in
14

158 LIFE OF JUDGE SMITH.
this wav only, can new and difficult questions which
daily arise in the courts, be settied in a manner hon
orable to the court, or satisfactory to the parties. In
this wav decisions may be made, which wiU serve as
rules for deciding similar questions as they arise, in
future causes, and the law wUl become, what it ought
to be in every free state, a known rule of conduct.
So strongly am I impressed with the utility of this
course of proceeding, that I will venture to say, that
let a judge set out with ever so large a stock of know
ledge, and let his natural abilities be ever so good,
stUi he wUl meet with many hard questions, too diffi
cult to be solved on the circuit ; questions which will
require both time and consideration, and afford suffi
cient employment during the vacation. He wUl find
it useful to revise all opinions formed in court, as well
as to investigate questions reserved. He wiU find it
necessary to store his mind with knowledge of the
usages, customs and history of his own country, with
the opinions and decisions of those who have gone
before him, and to avaU himself of the knowledge and
experience of the wise and the good of every age and
country. If he does not pursue this course, his judi
cial opinions wUl not be respectable, and of course
they win not be respected. The law will be un
known, and consequently uncertain. Nothing wDl
be settled on a firm and solid basis — everything will
be in a state of fluctuation. This wiU be a fruitful
source of litigation, and to this it is in part to be
ascribed that in some states, I will not mention our
own, there are ten times as many lawsuits in pro
portion to the number and wealth of the inhabitants,

LIFE OF JUDGE SMITH. 159
as in others. I can assure you, sir, imperfectly as
the duties of my office have been discharged, (and
no man can be more sensible of this imperfection
than I am,) I have been for the last three years as
much occupied out of court, in the way I have men
tioned, as I have been engaged in court. The vaca
tion has not been a season of leisure to me, and I
cannot help flattering myself that by these means, in
some small degree, more business has been done and
considerable expense saved, both to the pubhc and
to the parties. The constitution has, in my opinion,
wisely prohibited a judge of the superior court from
holding any other office ; because it considers him as
fully occupied. I can hardly persuade myself that a
good judge, while in office, will be fit for anything
else. His mind will be wholly engrossed with the
busine.ss of his office, and when that is the case, he
wUl derive neither pleasure nor advantage from other
pursuits. " If there is any one who imagines that this office
docs not require the closest attention, and the most
assiduous and constant application, I must refer him
to those judges in the different states, who have
been examples of what I recommend. This office
requires health, though it has no tendency to give or
continue it. It requires the best part, not the dregs
of life. The employment of a judge is a business
that cannot be slighted. It is an unpleasant em
ployment ; he has to contend with ignorance, knav
ery, and with prejudice — the prejudice which every
man feels, in favor of his own cause. He acts in
public, and every part of his conduct is open to ob-

160 LIFE OF JUDGE SMITH.
servation. If he commit any improper act, he is
sure to be detected and exposed ; if he is ignorant,
it is impossible it should be concealed. He must not
expect popularity ; he whose express duty it is to
deal out justice to others, must not expect justice
himself. The losing party is under a strong tempta
tion to arraign his knowledge or his impartiahty. In
short, his situation may be compared to that of a
sentinel, who is always on duty in the face of the
enemy. Such is my opinion of the arduous em
ployment of a judge, that I am fully persuaded that
ten or twelve years' faithful performance of its duties,
such as they are in this state, will wear out the best
constitution, and leave the man, if it leaves him life,
nothing but the comfortable reflection arising from
a conscientious discharge of duty. If there is any
person who entertains an opinion that the office does
not require professional skill, I shall hardly be per
suaded that he has ever looked into a court of jus
tice, or bestowed a moment's reflection on the sub
ject. " Those whose lot it has been to prosecute or de
fend their just rights, when invaded, surely are of a
different opinion. Is there any one who seriously
believes that honesty and integrity are all that are
necessary in an advocate at the bar ? Where is the
man who would think himself or his cause safe with
an honest lawyer, destitute of skUl in his profession,
while his adversary v.as aided with counsel possess
ing superior knowledge, if the judge was deficient
in legal information ? Would he feel no apprehen
sion lest the superior talents of the advocate should

LIFE OF JUDGE SMITH. 161
mislead tiie judge, however upright his intentions ?
Is honesty, in common life, a sufficient protection
against cunning and talents, and is the law a science
where a man may become a proficient without
study or application ? If you require professional
knowledge in an advocate, why not in a judge ? It
is generally supposed that there is one side in a court
of justice, who have an interest in perverting the
law and confounding right — an interest in obscur
ing the cause, instead of enlightening the court. If
this be correct, and if the judge has no resources of
his own, how is he to detect and expose such at
tempts to mislead his judgment ? Is it not absurd
that a judge, when seated on the bench to dispense
justice according to law, should on all occasions be
under the necessity of learning from the bar what
the law is ? Is it not unseemly, that the people
should in a court of justice look up to the bar, and
down upon the bench ? WiU parties feel satisfied
with the decision of their causes, if they have not
the fullest confidence in the knowledge, as well as in
the integrity of the court ? In these observations I
certainly mean no reflection on the bar. So far from
entertaining prejudices against the profession, it is
natural to suppose that, as an order of men, I highly
respect and esteem them. But still I maintain, that
in the order of things, judges should not be less
skilled in the principles of law, than the advocates
who manage the causes at the bar. And yet I be
lieve this superiority in the advocate wfll always
exist, as long as the one employment gives an honor
able support, and the other scarcely affords a scanty
subsistence. U*

162 LIFE OF JUDGE SMITH.
" One would think it would be the policy of
the public to invite, by holding out suitable en
couragement, the most eminent at the bar or in the
state, those of the fairest character both for talents
and integrity, to a seat on the bench. There were
at a late period, living, ten persons who had resigned,
and two who declined the office of judge of the
superior court. Three are lately deceased. Since
the revolution the judges of the superior court, upon
an average, have held the office less than five years.
Can there be better evidence that the emoluments
are not considered as adequate to the duties ? While
a judge holds the office no more than five years,
have we much reason to expect uniformity in de
cisions ? Do we not lose all the benefits flowing
from experience ?
" As to the dignity of the office, I do not wish
for any salary on that account. I believe it is with
this, as with every other office in the state, the honor
and dignity of the office depend altogether on the
manner in which its duties are performed. It is the
importance of the office which requires salary, not
its dignity. It may, however, be correct enough to
say, that the honor and dignity of the state, as well
as the true interest of the people, require that the
judges of the superior court should be neither indi
gent nor dependent. I have thus taken the liberty
to mention some of the many considerations which
have occurred to my mind, as reasons why the com
pensation to the office I now hold should be rendered
more adequate to its duties.
" If these, with many others that will occur to every

LIFE OF JUDGE SMITH. 163
member, should be deemed of sufficient importance,
to call the attention of the legislature to the subject,
they will doubtless receive all the consideration they
deserve. As I have expressed my sentiments with
candor and frankness on this unpleasant subject, I in
dulge the hope that they will be candidly received.
If, in the opinion of the legislature, the public interest
requires further provision for the office which I at pre
sent hold, I shall rejoice. Three years' practice has
made the duties more easy to me, and I feel that I
am approaching that period of life, when the em
ployment of advocating causes at the bar becomes
irksome and unpleasant. If, on the contrary, it
should be thought that ample provision is already
made for the office, I shall cheerfully acquiesce.
There may be, in the state, persons of sufficient for
tune to enable them to make a sacrifice which my
circumstances will not allow. Doubtiess there are men
of suflicient patriotism to induce them to undertake a
very arduous and difficult office ; I am very sure that
many may be found every way better qualified than
I am. I shall trespass no longer on your patience
than to request that you would have the goodness to
lay this letter before the honorable body over which
you preside. I have made a similar communication
to the house of representatives. I wUl only add that
an early expression of the will of the legislature on
this subject, as it will determine the future course of
my life, wiU be esteemed as a great favor. I have
the honor to be, with the greatest respect, sir, your
most obedient servant. J. S."
On the 15th of June, Judge Smith wrote in confi-

164 LIFE OF JUDGE SMITH.
dence to his friend, John C. Chamberlain, a member
of the legislature : " I have just heard that there has
been a committee on my letter to the two houses,
and that they propose reporting fifteen bundled dol
lars. It would have been improper to have named
any sum in my communication to the legislature. I
am satisfied with that proposed, but anything less
would not answer my purpose.* I have kept regu
lar accounts of my expenses since I came to Exeter,
and upon an average, they have exceeded twelve
hundred dollars a year. I do not take into the
calculation my expenses on the circuit, which have
annually exceeded three hundred dollars. This lat
ter sum must be deducted from the salary, and the
remainder is the real compensation. This will barely
defray the expenses of my famUy. The httle I am
now worth is already too small to leave as the sole
dependence of my wife and chUdren, when I go from
them. God knows when that will be. It is, per
haps, an event at no great distance ; at any rate, it
must happen in a few years. I cannot bear to see
this little fund diminish as I wear out. I mention
these things by way of apology for saying that I
would have you or some other of my friends, in
case there should be a disposition to grant some
thing, but less than fifteen hundred dollars, (so
as to leave me twelve hundred dollars net,) to
declare in my behalf, that I cannot accept it, and
that I would not give the legislature any further trou
ble on my account. I have not taken this step with
out mature reflection and consideration. It would
mortify me if the legislature should think me alto-

LIFE OF JUDGE SMITH. 165
gether unworthy of the office I hold, but I can bear
even this mortification better than poverty and de
pendence. I have hitherto endeavored to act my
smaU part on the stage of life honestly, and, with the
assistance of heaven, I wiU not disgrace the past by
the future. I will try to get an honest livelihood at
the bar, and I do not despair."
Before Mr. Chamberlain received this letter, a reso
lution had passed the house by a vote of one hundred
and one to fifty-seven, and the senate by a vote of
eleven to one, fixing the salary of the Hon. Jeremiah
Smith at fifteen hundred dollars a year, during his
continuance in the office of chief justice. This reso
lution was the more honorable both to him and to
them, from the fact that a majority of the legislature
were opposed to the political principles, which he was
perfectly weU known to profess.
On first coming to the ofiice in 1802, Judge Smith
" rode the circuit " with Judges Farrar and Liver-
more, and in Strafford, Rockingham and Hillsbo
rough, declined taking any active part in the trial of
causes. Judge Farrar, from whom I have the ac
count, attributed it partiy to the unwUlingness of the
chief justice to take his place at once, above those
who were his seniors in ofiice, and partly to his diffi
dence about trusting himself to act, before he could
feel at ease in his new situation. In Cheshire county
an important cause was to be tried, which had excited
a good deal of interest, and which had already been
tried at three different times, without either the court
or the jury being able to agree, it being then the
practice of all the judges who chose it to sum up to the

166 LIFE OF JUDGE SMITH.
jury, so that the judges might differ on the law of
the case, as well as the jury on the facts. It was
the case of Lyman and Foster. Judge Olcott being
a parishioner of Foster, the minister of Charlestown,
had declined giving any opinion, and the Judges Far
rar and Livermore, had at each of the different trials,
charged the jury on opposite sides. At Amherst,
therefore, they agreed between themselves that they
would have nothing to do with it at the next trial,
but would leave it entirely to the chief justice, and
on their way to Keene, told him that he must take it
into his own hands. He was a good deal moved,
and with great reluctance assented. The trial lasted
two days. Pierrepont Edwards, then a very distin
guished lawyer of Connecticut, appeared for the
plaintiff, while the defendant was represented by Ben
jamin West, of Charlestown, " one of the most sue
cessful advocates," says Mr. Webster, " if not the
most successful, before a jury, that ever practised in
the courts of ^ew Hampshire ; a person who, to singu
lar powers of popular logic and persuasion, added the
weight of the utmost purity and respectability of pri
vate character ; and one who, if he had not always
refused public office, could not have failed to make
a figure in the national councils, into which he de
clined entering after being elected by his fellow-citi
zens a representative in congress." ' Judge Smith

1 There was no man whom Jud:;e Smith, down to the close ofhis life,
remembered with a more affectionate respect. He spoke of him as ex
celling at the bar, particularly in the narration of facts. In the case of
Lyman and Foster, Mr. West spoke of the plaintiff as a rich man, who
could send into another state for the ablest advocate, while his client.

LIFE OF JUDGE SMITH. 167
did not sleep a moment during the night after the
argument, and the next day, on rising in court to give
his charge, which had been . almost entirely written
out, he was so agitated, and his hand trembled so
much, that he could not hold his papers, but was
obliged to sit down, and deliver it from his seat ; a
practice which he always afterwards continued, and
which has been kept up by his successors. In this
charge he first urged a maxim on which he always
afterwards laid great stress, that in civU matters it is
often of greater consequence that a cause be decided,
than that it be decided right.' The jury agreed in
finding a verdict for the defendant.
From the time when he entered upon his office in
1802, tUl he left it in 1809, Judge Smith gave him
self to it with his whole heart. He went through
nearly the whole circuit of the state twice a year,
travelling over roads often so bad, that he could go
only on horseback, and bridges, of which, many years
afterwards, he said that he remembered well their
condition when he had occasion to pass them ; " and
" the poor minister of a country town, was obliged to put up with such
counsel as he could get among his own poor parishioners." The words
must have been clfoctivc, to be remembered now, after the lapse of more
than forty years. They were repeated to me by Dr. Amos Twitchell
of Keene. Judge Smith used to say, that Mr. West, when a widower,
questioning him respecting two ladies of their acquaintance, he replied,
that the one " loved to wait upon her friends, the other to be waited on by
them." Mr. West married the former; the other also was married, and
the result of the two marriages, Judge Smith thought, showed the wis
dom of his friend's choice.
' This, like every other very pointed expression, must be received, as
it undoubtedly was by Judge Smith, with some qualiiication. " It
should he," says a high legal authority, " in civil cases some risk had
better be run of deciding a cause wrong, rather than not to decide it at
all, or even very unreasonably to protract the controversy."

168 LIFE OF JUDGE SMITH.
certainly," he added, "' he must have been destitute
of piety, who did not return thanks to Providence,
when he found himself and his horse safe on the fur
ther side." When he came home, worn down by a
laborious circuit, he usually refreshed himself for a
week or two, by reading novels, or any other species
of hght literature that might be within his reach.
The remainder of his vacation was spent in constant
application to the severe studies of his profession, re
viewing his decisions, examining legal questions on
points reserved for the purpose, extending his know
ledge to the less frequented departments of the law,
enriching his mind with the principles of legal sci
ence, to be drawn from theological investigations, or
an enlarged acquaintance with history, and doing all
this with reference to a better system of legal prac
tice and a better administration of justice. He went
scarcely at all into society, and sometimes for weeks
was hardly seen without the doois of his own house.
Almost his only relaxation was with his own family.
It is impossible for those who did not know him in
his own house, to have any idea how much amuse
ment he could extract from the most trifling events ;
and how much incidents, which others leave as un
worthy of notice, were made to contribute to the
animation and real enjoyment of the whole house
hold, while they had no smaU share of influence in
preserving the vigor and elasticity of his constitution.
It was a saying of Paley, that " he who is not a fool
half the time, is a fool aU the time." And the reader
probably remembers the story of Robert Hall, who,
on being reproached by a very dull preacher with

LIFE OF JUDGE SMITH. 169
the exclamation, " How can a man who preaches like
you, talk in so trifling a manner ? " rephed, " There,
brother, is the difference between us ; you talk your
nonsense in the pulpit, I talk mine out of it." Judge
Smith used often to teU, with great zest, the story of
Dr. South, I think, who, in the midst of a frolic, see
ing an acquaintance approaching, exclaimed, " Stop,
we must be grave now, there is a fool coming."
Certainly no one without a true relish, not only for
wit, but for fun, can at all appreciate Judge Smith's
character, or fully understand even his more serious
conversation and writings. His humor, like the foam
and phosphoric light in the wake of a man-of-war,
often marked the progress of his mind through sub
jects the most profound, and in his moments of re
laxation it burst out and flashed in all manner of antic
and fantastic shapes. He would, for instance, amuse
himself and family, by imagining them in strange
situations, with people perhaps the most incongruous,
and then would carry on, with the drollest effect,
long conversations between the persons thus gro
tesquely brought together. Sometimes the assumed
names would be preserved, and the farce or romance
kept up for weeks together, as if it were a fact con
nected with their daily life.'
1 The most undignified instance of his love of fun, that has come to my
knowledge, was told me by the Hon. Levi Woodbury. An old physician,
imprisoned in Exeter for debt, was hi the habit of making frequent and
long calls on Judge Smith, whose house, unfortunately, was within the
limits of the jail. One afternoon, the judge, seeing his venerable friend
coming, threw himself, as if in great pain, on the floor, and word was ta
ken to the door that he could see no one. The doctor, suspecting how the
matter was, said he could not possibly abandon his friend at such a time,
and, rushing into the room, threw himself down hy his side. The appli-
15

170 LIFE OF JUDGE SMITH.
If there was anything in which he showed himself
a man of genius, it was in the humor which flashed out
through every feature of his mind and face. In the
tone of his voice, the roguish play about his mouth,
and the fire of his eye, there was an undefinable
something which gave relief to a dry discussion, and
imparted at least a momentary zest to expressions,
which might, otherwise, have fallen lifeless from his
lips. He did not require wit or inteUectual superi
ority in his daUy associates. He was always fond of
the society of ladies, and no one could respect them
more than he ; but the gentle and amiable qualities,
united with intelligence and good sense, were what
most engaged his affections. It might be said of him,
as of Lord Mansfield, that " his professional labors
were great, and it was natural that he should resort
to society more for relaxation and rest of mind, than
for anything that could put him upon fresh exertions.
Even dulness, so long as it was accompanied with
placidity, was no absolute disrecommendation of his
private hours ; it was a kind of cushion to his under
standing." These, however, were but moments of respite
from severe labor. The only regular exercise that
he took, was in sawing, splitting, and bringing in the
wood for his fire ; employments which he kept up
tiU the last years of his life, and which he always
performed with great exactness. These things un
doubtedly contributed much to the soundness both of
his body and mind, but he was taxing his constitu-
cation was perfectly successful, and the patient was soon able to sit up ;
but the physician,/eori7ig- a relapse, continued with him till evening.

LIFE OF JUDGE SMITH. 171
tion beyond his strength. His friends saw that he
was wearing himself out, and he evidentiy thought
that his life must be a short one. His letters often
speak of this, and sometimes, though very seldom,
show something of the low spirits that are connected
with disease.' They furnish little information re
specting his professional pursuits ; but afford glimpses
of his peculiar mode of thought and feeling, as in
the following extracts from letters to William Plum-
er, then a senator in congress, and afterwards gov
ernor of New Hampshire.
Exeter, November 21, 1803. " My dear friend :
I received yours of the 3d of November, a few days
ago. I am much better for the fall circuit. This I
ascribe to my devoting myself less to the business of
the court than usual, and more to riding on horse
back. I do not intend to engage in any law study
this vacation, as I am determined not to think much,
and yet abhor idleness as much as nature does a
vacuum." February 11, 1804. " As to myself, I
have too much zeal, for the crazy house of my taber
nacle. Whatever my hands find to do, I do it with
all my might, and I find that continued, unremitted
attention, for a considerable length of time, fa-

1 From a letter to his brother Samuel, December, 1806 : " tie might
have added that I am now forty-seven, with a sickly constitution, in an
office which does not maintain me, and with a family the most helpless
in New England. Vou see I am not in good spirits ; I am sincerely
glad you are. I hope they will continue, and that your endeavors will
be crowned with success. I hope this on your own account, on account
of your wife and children, and on account of my own. As to myself, it
is of little consequence what becomes of me ; and I have no doubt, as
long as I live I shall have meat to eat, aiid raiment wherewithal to be
clothed."

172 LIFE OF JUDGE SMITH.
tigues me more than it did a few years ago." Jan
uary 1, 1805. " I intended a winter of leisure,
but I find as much difficulty in spending my time
idly, as some others do in exertion. In my con
science I believe I am doing no good, and yet I am,
under the influence of this conviction, all the time
doing. What a mercy it is that I am not addicted
to drinking, gambling, horse-racing, cock-fighting,
(you see I speak to you as a southern man,) or any
other such like vices, for I am sure I should never
leave them off, as long as I had hquor, cards, and
money or credit, horses, cocks, &c. Some evil ge
nius has been for years stirring me up, to look a littie
into the science of pleading ; and my powers of
resistance at this time happening to be weaker, or
the temptation stronger, I have done, as good men
have done before me, yielded, and am now enve
loped in counts, bars, replications, estoppels, traverses,
&c. You will say, and say justly, ' what the deuse
has a New Hampshire lawyer or judge to do with
special pleadings ? ' If he acquires any knowledge,
standing alone, he will have nothing for his pains but
mortification. He must be disgusted with every re
cord he hears read, and can never hope to reduce
our horrible jargon into form or shape. All this is
true. Surely there must be something in destiny,
which you know it is in vain to resist. I can no
more help trying to be a special pleader, than Cocke
can help being an able statesman, or Sam Smith
a modest, unassuming, correct senator. Our des
tinies wifl have it so. I mean, however, that you
should consider all this as an apology for not writing

LIFE OF JUDGE SMITH. 173
often, and when I do write, writing a la mode special
pleading, as it respects entertainment."
It is not in my power, indeed it hardly belongs to
a personal biography, and would not be interesting
to the general reader, to trace minutely the changes
which Judge Smith introduced into the administra
tion of the law. " With him," I use the words of
the present able chief justice of New Hampshire,
" there arose a new order of things. Those mem
bers of the bar, who were diligent and attentive to
their business, were commended and encouraged, and
those who were negligent were lectured and repri
manded. There was, of course, greater preparation
on the part of the bar, and greater investigation and
deliberation on the part of the bench. A general
practice was very soon adopted, for but one judge to
charge the jury in each case.' Points of law were
ruled, and cases saved for more thorough examina
tion. New trials were granted for errors in matters
of law, but when this practice began, the rule was to
grant no new trial for any such error where the case
was open to review.^ There was, in the outset, con-

' In a letter to William Plumer, llth of February, 1804, Judge Smith
says : " I am just returned from Portsmouth, not a little fatigued. A.
Livermore did not attend. I do not know how it is, but it really seems
to me that there is no use in having a court that try causes with a jury,
to consist of more than one judge. Our friend W. H. A. is chafed in
his mind, and the venerable old judge grows more and more inditferent
to the business ofthe court."
2 The first intimation of a change in this respect, arose in a case
where a young woman, who was possessed of some property, died at the
house of a brother, who was worthless ; and he, without any authority,
took a promissory note which belonged to her estate, presented it to the
maker, and received payment. The father, who was entitled as heir,
15*

174 LIFE OF JUDGE SMITH.
siderable opposition to this correction of errors, but
it was sustained. Manuscript reports of that time
have, it is understood, been preserved, but have never
been given to the public."
Before Judge Smith, there had been, on the part of
the judges of New Hampshire, littie attention given
to the law as an established science. The justice of
the case was held up as the law of the case ; and
the jury were to judge both of the law and the fact.
Of course there could be no uniformity in the deci
sions. There were no fixed principles ; but each
case must have been decided according to the im
pulse of the jury, who could have no rule but their
own fluctuating ideas of justice. It is not diflScult
to see what a door must have been left open for aU
the arts of the profession, the passionate appeals, the
low cunning, through which law is neglected and jus
tice set aside.
Judge Smith required a strict attention to the law,
even in its minute forms ; wisely judging that seve
rity, even in technical matters, though sometimes it
might bear hard on individual cases, was yet the only
secure preservative of justice. Exactness in form,

took administration, and brought an action against the maker of the
note, to recover the money, on the ground that the payment to the
brother, who had no authority to receive it, constituted no discharge.
The court so charged the jury, but they returned a verdict for the de
fendant ; and the foreman, upon being asked on what ground they
brought in such a verdict, said he thought if a man paid his note once,
that was sufficient. The action was reviewed, and on the trial of the
review. Chief Justice Smith said, had a motion been made, he should
have been induced to set aside the former verdict, the case was so
strong.

LIFE OP JUDGE SMITH. 175
leads to exactness in the whole mental discipline,
and they who are deepest in the principles of a
science, are always among those who are the most
exact in its details. No warrior was ever more ex
act or exacting in all that belonged to the minute
discipline of each soldier than Napoleon, and it was
this exactness in details that enabled him to carry
out, in a battle or a campaign, the large and compre
hensive rules of his science. So it must be in every
department. General knowledge is but another
name for general ignorance. In order to be of any
practical use, knowledge must be particular, minute,
and exact ; and never more so than in the applica
tion of legal principles, where so many warring in
terests and prejudices come in, to turn justice aside
from its true ends. Technical rules and forms are
the defences which have been thrown, by the wis
dom of ages, around the pure abstractions of the
law, to guard them from human infirmities, and
secure them in their administration from the influ
ence of fear, enmity, compassion, and whatever other
momentary impulses might interfere with the straight
forward course of justice. These were the views
entertained by Judge Smith, and which, in his judi
cial character, he labored earnestiy to practise and
enforce ; and with such success, that before he left
the bench there was probably no state in the union
where the law was more strictly administered.' In-

• Mr. Webster has been heard to say, that having practised in many
courts, beginning with that of George Jackman, justice of the peace for
the county of Hillsborough, who had held a commission from the time

176 LIFE OF JUDGE SMITH.
deed the matter was carried so far, that the New
Hampshire practice has become almost proverbial
for its severity, and has sometimes been held up
as inconsistent with the courtesy that becomes the
members of a liberal and highly respectable pro
fession. There may have been something in the early train
ing of the great New Hampshire lawyers, which,
while it brought out their strength, left them without
the urbane accomplishments and graces, in their
professional intercourse, which sometimes belong to
those who have been born and bred amid the luxuri
ous refinements of society. Their gigantic minds,
grapphng with hard questions, and powerfully moved
by all that gives excitement to debate, could not al
ways choose the most courtiy words, and it is not
impossible that, from fear of giving undue advantage,
they may have been in the habit of yielding too
little to what may be called the courtesy of the bar.
But it may weU be questioned, in the first place,
whether the practice as a general rule, of yielding
nothing which the law in its utmost rigor requires,
is not the most favorable to the strict administration

of George the Second, and going up to the court of John Marshall, at
Washington, he had never found a judge before whom it was more
pleasant and satisfactory to transact business than before Chief Justice
Smith ; that he had known no judge more quick in his perceptions,
more ready with all ordinary learning, or possessing more power to
make a plain and perspicuous statement of a complicated case to the
jury. He added, that with Chief Justice Smith, industry in preparation
on the part of the counsel, research into the points of law, and a frank
and manly presentment of the whole ease, placing it upon its true
merits, without disguise or concealment, would go as far for the mainte
nance of truth and justice, as with any judge he had ever known.

LIFE OF JUDGE SMITH. 177
of justice ; and secondly, whether this extreme se
verity, when once it has become the settled rule of
practice, may not be perfectiy consistent with the ur
banity and kindness that should mark the intercourse
of gentlemen, in all their relations.
But, while laboring to introduce a practice con
forming to strict technical rules, Judge Smith held
always in great contempt those lawyers ' who, unable
to grasp the law in all its length and breadth, would
seize on some of its minute forms, and make every
thing yield to them. We have seen how large and
generous were his views of legal culture. No branch
of knowledge came amiss. With him the law was
not a collection of arbitrary rules, to be learned by
rote, and administered, each according to its own
letter. It was a great and comprehensive system,
proceeding from, and sustained by, the principles of
universal reason, according to which, each and all of
its provisions were to be interpreted and applied. It
was only as springing from, and subordinate to, these
central principles, that legal forms engaged his re
spect. He loved to observe the exact letter, only so
far as it embodied the exact spirit, of the law ; and
among the records which he has left of his private
thoughts, are these emphatic words — "' If the world
should be pleased to speak of me after I am dead, let
them say, he was a judge who never permitted justice
to be strangled in the nets of form."
The same general remark applies also to the esti-
• " Isli minuti philosophi," as Cicero calls the corresponding class of
philosophers, unless the expression apply more properly to the class
mentioned in the next paragraph.

178 LIFE OF JUDGE SMITH.
mation in which he held the extreme refinements and
subtle reasonings upon the law, which, with very acute
minds, holds the same place as minute forms, with
minds of a different character. He knew how to
analyze an intricate subject, to throw aside that which
is not essential, and follow with singular acuteness
each particular fibre, from the topmost branch to the
very root. He knew, also, that the most important
questions turn sometimes upon an exceedingly small
pivot. But he had great confidence in plain, common-
sense views, and though highly entertained by the
exhibition, (which he must often have witnessed at
the bar,) of extreme logical ingenuity, he looked
upon it as a perversion, rather than the legitimate use
of reason, and always distrusted its results. After
quoting Lord Eldon's remark, " There is no mistake
so foohsh, as to suppose a judge wiU not alter his
opinion ; I am sure it has often occurred to me, that
I have set about to see if I could not alter my opin
ion," — Judge Smith adds, " I have seen a judge
laboring to alter his opinion. He often succeeded,
and often from right to wrong, abandoning a plain,
sound, common-sense opinion, for one merely inge
nious, plausible, &c."
Another quality, for which Judge Smith was emi
nently distinguished on the bench, was his business
talent. To this he attached great importance.
" When men," he says, " have been considering the
qualifications of a judge, it is astonishing that they
should overlook experience in business. Who can
tell how much it contributes to despatch ? It greatly
exceeds acuteness of parts, or, rather, the latter can

LIFE OF JUDGE SMITH. 179
do littie without the former." He required that
every man connected with the court should be ready
when his time came. By this habit of punctuality,
by a more orderly and systematic arrangement of
business, by seizing on the real points at issue, and
excluding irrelevant matter, and especiaUy by his
own promptness and decision, he, without hurry or
indecent haste, did much to avoid the wearisome de
lays which often clog the wheels of justice, and bring
upon it so heavy a reproach.
Judge Smith always paid particular attention to
young men ; and there are many who gratefully ac
knowledge their obligation to him, for the encour
agement he gave them as they were entering upon
their profession. Perhaps the circumstances under
which he was himself introduced to the bar, had
always some influence upon him ; but he had from
nature, I believe, a warm sympathy and fellow-feeling
for the young. He loved to watch their progress,
and where he saw marks of real promise, could easUy
bear with the indiscretions that arise from want of
experience, and the irregularities that proceed rather
from the superabundance of animal spirits, than the
superfluity of naughtiness. He was ready to pardon
much to the ebullition of youthful feeling, provided
that he saw, underneath, ingenuousness of character
and a purpose of self-improvement. There was no
thing on which he more, or perhaps more justly,
prided himself, than the faculty of reading, in its
early developments, the man's future history.
At the court holden in Hillsborough county, in
1806, a young man who had been admitted as an

180 LIFE OF JUDGE SMITH.
attorney but not as a counsellor, appeared with a
cause of no great pecuniary importance, but of some
interest and some intricacy. Though not then of
such advanced standing at the bar, as to be entitled
to address the jury, he was yet aUowed to examine
the witnesses, and briefly to state his case both upon
the law and the facts. Having done this, he handed
his brief to Mr. WUson, the senior counsel, for the
fuU argument of the matter. But the chief justice
had noticed him, and on leaving the court-house,
said to a member ' of the bar, that he had never be
fore met such a young man as that. It was Daniel
Webster, and this was his first action before the
court. It should be noted, however, that Judge Smith
had, before this, a long and friendly acquaintance
with Mr. Webster's father. They had known each
other in the times of the revolution. They had been
^together at Bennington ; and when Ebenezer Webster
was made a judge of the court of common pleas,
about the year 1791, he became a member of a court,
before which Judge Smith practised many years in
the earlier part of his professional fife. Judge Web
ster was, according to all accounts, a man for whom
strong good sense, integrity of purpose and activity
of mind, had done whatever those qualities can do to
fit a man to be a judge who yet wanted a suitable
education for judicial employments. He entertained
the most exalted opinion of Judge Smith, and was
one of his warmest supporters during his continuance
in congress. It may be, therefore, that Judge Smith's
1 General James Miller, to whom I am indebted for the anecdote.

LIFE OF JUDGE SMITH. 181
prediction of the future eminence of the son, was
strengthened by his feeling of friendship for the fa
ther.' The character of Judge Smith's advice to young law
yers may be understood from the following paragraphs
taken from his common-place book : " Many, very
many leisure hours, has a young lawyer, before he can
fairly and honestiy get into practice. I say honestly,
meaning honorably, for he may push himself in dis
honorably, and wiU be sure to pay for it in the end —

' For the account I have here given of Judge Webster, as well as for
his kind and importaut assistance in many ways, 1 must acknowledge
my obligations to George TIcknor, Esq. A speech by the Hon. Charles
H. Warren, at the dinner of the New England Society, in New York,
December, 1811, contains some further interesting particulars respecting
Judge Webster. " In the olden time," so the speech is reported in the
newspapers, " there was a man in New Hampshire, who in his youth
was ' bound apprentice,' as we call it there, to a farmer ; and the farmer
was bouud by his covenants to give him three months' schooling in the
year — a good old Yankee custom, and I tru.st one also in New York;
but unlike Yankee masters in general, he failed to give the boy an
hour's schooling, and he never had one till the day of his death. In the
old French war of 1766, this boy entered the army as a private, and he
fought himself up to a commission, first as a warrant oiRcer, then as an
ensign, and upon the peace of Paris, in 1763, he left the army, came
home, and his first act upon his return, was to bring an action against
his master for a breach of his covenant in not sending him to school.
(Laughter and cheers.) And the master compromised his claim and
gave him a tract of land that is the family homestead now. The war of
the revolution came, and this same man now a captain of militia, went
with his company to West Point, and was there at the time of Arnold's
treason. And two nights after that treason, he stood guard before
Washington's head quarters, and the next morning Washington thanked
him in person for his vigilance and fidelity. Well, that man has left a
son, and that son has often mounted guard since, when he thought trea
son was working in the American camp. The father's name was Eben
ezer Webster! (A spontaneous and tremendous mark of applause —
waving of handkerchiefs and most enthusiastic cheering.) I see it
needed no prophet to tell what the son's name was ! (Renewed chetr-
ing.)" 16

182 LIFE OF JUDGE SMITH.
in loss of fame, friends, and even loss of business.
Let these leisure hours be spent in acquiring know
ledge ; he need not be afraid of having too large a
stock for his business, when fairly introduced." In
another place, after quoting the maxim, "he that
would climb a tree must grasp by the branches, not
by the blossoms," he adds : " No man ever became
distinguished as a scholar, a statesman, or a profes
sional man, who felt no other stimulus than the pre
sent pleasure derived from his studies. The pleasure
is the reward, the consequence rather than the efficient
cause. He must not follow where pleasure leads,
but ambition must prompt and judgment direct. Fro
pretio labor est ; nee sunt immunia tanta.

AU noble things are difficult to gain.
And without labor, none can them attain.

" He who says, Vivamus, mea Lesbia, atque ame-
mus, will never be a scholar, statesman, nor lawyer,
whatever else he may be."
" To the young lawyer — Have you more acute
ness, genius, mind, knowledge, than Parsons ? Yet
who was more indefatigable in his profession, and in
the acquisition of knowledge ? If I must choose for
my son, between genius or great talents, and indus
try, I shall not hesitate a moment in my choice of
the last."
Then, in reference to the observation that to some
beings the bounty of nature dispenses with the usual
steps to excellence, and instinctively supplies what
the most painful study can rarely reach, and never

LIFE OF JUDGE SMITH. 183
surpass, he says : " Nature does a great deal of mis
chief, in these occasional freaks. The vanity of
thousands, and some of them clodpoles, whispers to
thom, ' thou art the man,' instead of ' thou art the
clodpole.' "
The foUowing is dated 29th September, 1825.
" Great things may be accomplished in a short time
where the disposition is good, and the understanding
apt. You must shake off your indolence ; begin by
making yourself master of your profession, and as
soon as possible acquire the habit of attention. Fur
nish your mind, enlarge your experience. One would
think the genuine passion of love for a deserving
woman could not fail to whisper this advice, and pre
vail. He must be far gone in indolent habits who is
insensible to such promptings."
What follows, was written when he was nearly
eighty-two years old, and shows the feehng with which
he entered upon his profession, and which continued
to the end, so true is it that the most useful and hon
orable lives are those which begin with the highest
purposes. " The oath of a knight, never to sit in a
place where injustice shall be done, without righting it
to the utmost of his power. J. S. took this oath in early
life, and hopes he has in some good measure kept it.
Let not this be called vaunting. Remember his life
is about closing, and he, in a worldly sense, a disin
terested witness." In a passage, written nearly ten
years before this, he says : " I don't know whether I
can with propriety say it, but I can't help saying, that
I was endued with strong feelings of abhorrence to
injustice, and of resistance to oppression, and I am

184 LIFE OF JUDGE SMITH.
very sure that motives of a personal nature have
very seldom, if ever, o[)erated to prevent the expres
sion of my honest and independent sentiments and
opinions. In these things I am afraid that I cannot
lay claim to temperance of mind, or feelings well bal
anced." Judge Smith's charges to the grand jury, which
are written with great simplicity, are full of sound
practical instruction, relating to the nature of the
laws, the way in which they were to be administered,
and the best means of securing and advancing the
public welfare.
" Laws," he said at a time when the doctrine was
not so fully admitted as it now is, " should be mild ;
where punishments are mild, shame follows the finger
of the law, but where they are severe, there is a sym
pathy excited for the offender, and he is viewed as a
martyr to arbitrary power. Experience has abun
dantly proved, that mUd laws are more efficacious
than severe ones, and that rigorous punishments tend
rather to produce, than to prevent crimes. Laws
should be few in number. Legislation may be car
ried too far. Every unnecessary ' restraint is tyran
nical and unjustifiable, for every member of the state

' " A land may groan under a multitude of laws, and I believe ours
does, and when laws grow so multiplied, they prove oftener snares, than
directions and security for the people." — Lord Shaftsbury.
" The senate of the Areopagus, once punished a senator for stifling a
little bird that had taken refuge in his bosom. It was considered a
crime against humanity." — Anacharsis.
" Corruptissima Republiea, plurimae leges."— Tacitus Annal. HI. 27.
Judge Smith always thought, that our great danger lay in legislating
too much.

LIFE OF JUDGE SMITH. 185
is of right entitled to the highest possible degree of
liberty which is consistent with the safety and well-
being of the whole." But however excellent the
laws, they wUl be of no avail unless faithfully exe
cuted. " The certainty of punishment is more effi
cacious to prevent crimes, than the severity of it.'
Among some it has been a favorite opinion, that po
litical freedom consists in an exemption from the re
straints of law. There cannot be a greater error. If
the laws are not strictiy executed, they wiU soon be
totally disregarded ; and where the laws do not gov
ern, depend upon it, the wifl of a despot or despots,
(for there may be more than one at a time,) will gov
ern. ' Amid the clashing of arms, the laws are si
lent ; ' the converse is also true, that when laws are
sUent, arms will be heard, and they wiU be obeyed.
Grand juries are sometimes deterred from presenting
infractions of the law, by personal compassion ; but
they ought to remember, even if they forget their
oaths, that private and individual compassion is often
times general cruelty. Let there be abundant clem
ency in the code of laws, and mercy lodged with the
supreme power in the state ; but let courts and juries
faithfully execute the laws, which is the trust more
especially confided to them. I conclude, gentiemen,
with repeating my belief that you will conscientiously
discharge the duty incumbent on you, at this term,
by presenting all offences that may come to your

' " So rigorous were the forest laws of France, that a peasant, charged
with having killed a wild boar, alleged as an alleviation of the charge,
that he thought it was a man.''— 3 Bils. Lee. 15.
16*

186 LIFE OF JUDGE SMITH.
knowledge, truly and impartially. Like perfect his
torians, you will not fear to say anything that is true,
nor dare to say anything that is false ; but will so act
in every part of your office, that the innocent may
approach this tribunal without apprehension of dan
ger, and the guUty leave it without complaining of
injustice." In respect to banishing men, as a punishment, he
says : " We are more given to importing, than to ex
porting; and it is easy to see that the balance of this
species of trade is very much against us. It is nat
ural, perhaps, that those who have escaped from the
jails in Europe, should be fond of liberty when they
come here, and that those destitute of morality, should
endeavor to cover their deformities with the mantie of
patriotism, which, like charity, covereth a multitude
of sins. But it was not to have been expected that
men, whose highest claim is to our sufferance, should
venture to interfere in our councils, and dictate to us
in the management of our affairs."
The following paragraph, from the charge delivered
in the spring of 1804, is marked " omitted in the de
livery " : " False and malicious writings against men
in office, deserve the reprobation of all good men,
and the severest chastisement of the law. Justice,
like a guardian angel, should watch over the pillows
of the men whose lives are devoted to the public ser
vice. Every blow levelled at their reputations and
characters, if unjustiy inflicted, is, in its consequences,
injurious to the public. The character and welfare of
the community, is intimately blended with the charac
ter of their rulers, and it is impossible unjustiy to de-

LIFE OF JUDGE SMITH. 187
fame the one, without doing essential injury to the
other." During the first two or three years that Judge Smith
was on the bench, there was no crime to which he so
constantly and earnestly caUed the attention of the
grand jury, as forgery. It appeared, from the evi
dence in different cases, that gangs of counterfeiters
made their head-quarters in New Hampshire, in con
sequence of the great mildness of the New Hampshire
laws towards their offence. He often, and in the
strongest language, speaks of perjury, " the attack on
religion and law, in the very point of their union."
" So atrocious," he says, " was this offence viewed,
by the pious and moral settlers of New England, that
in their first code of laws perjury was subjected to
capital punishment." "It is a melancholy thing, that
judges are often called upon to state to the jury, that
a fact is not proved, because it is sworn to. We can
not help seeing, in men of some standing in society, a
disposition to evade the truth, to practise cunning and
ingenuity ; as if there were as much merit in gaining
a cause by ingenious swearing, as by ingenious argu
ment." At the time Judge Smith came to the bench, per
jury was practised to a most alarming extent. There
were men of apparent respectability, who made it
their business to be witnesses, and to train others to
testify as circumstances might require ; so that it came
to be understood that any one, unscrupulous enough
to adopt the means, might procure for any case such
testimony as he wished. In order to put down this
alarming evil, the chief justice, in conformity with

188 LIFE OF JUDGE SMITH.
what he beheved the spirit of the English law, allow
ed the counsel, provided they were willing to take
the risk, an unusual degree of severity in cross-exam
ining witnesses. There was one man in particular,
who attended the courts almost as regularly as the
judges ; a man of some property and of considerable
talent and influence, whom it was exceedingly diflicuU
to catch, but who, at last, after a cross-examination of
many hours, was so completely broken down and ex
posed, that his testimony afterwards was of no value.
Such a practice at the bar must have had its disad
vantages, but in its effect was undoubtedly favorable
to the administration of justice. Cross-examining is,
however, a weapon, which, unless used with great skUl
and caution, is likely to fly back and wound him who
uses it, more than his antagonist.
In the charge delivered in the fall of 1807, after
speaking of the little attention bestowed upon the ju
diciary, compared with what is given to the other
branches of government, he enters more particularly
into an account of the arduous and painful duties of
a judge, and adds : " To balance all these evUs, and
many besides, which every judge could add to the
list, he is aUowed to enjoy, pure and unmixed with the
trash of this world, all the satisfaction which flows from
a conscientious discharge of duty. This is, indeed,
the most precious reward for labor ; and society wiU
generally take care that it shall be the only reward
of a judge.
" The institution of juries is, however, favorable to
judges, as well as to the administration of justice.
Forty or fifty persons are selected, at every term, from

LIFE OF JUDGE SMITH. 189
the most respectable inhabitants of the vicinity, to at
tend the court while employed in the exercise of its
judicial functions. If they were mere spectators of
what passes in court, they would be of great utility.
The presence of so many respectable persons must
have a beneficial influence over witnesses, and I have
no doubt has been the means of preventing much per
jury; The very countenance of good men affords no
small support to a poor man struggling to obtain jus
tice, against an artful and powerful antagonist, whUe,
at the same time, it has some tendency to weaken the
strength of the boldest transgressor. To the court,
the presence of these respectable men is no less ben
eficial. If the judges are what the constitution re
quires them to be, skilful in discerning the path of
duty, diligent, upright and impartial in dispensing
justice, these men will be witnesses for them, and their
respectable and impartial testimony, in a tolerable state
of society, wUl, it may be hoped, far outweigh the mis
representations of those who revile and hate the ad
ministration of justice, because they are made to feel
the just effects of their foUy and wickedness.
" But it is still better, when a considerable number
of persons from the various parts of the country, are
occasionally called to take a part in the administration
of justice, civU and criminal, to bear a portion of that
burthen, which will prove too heavy for any man to
sustain many years. It is said that the safety of every
free government requires that the virtuous part of the
community should enjoy a certain weight in the ad
ministration. Is not this applicable to the judiciary ?
Without this popular intermixture, judicial decisions

190 LIFE OF JUDGE SMITH.
would hardly give satisfaction ; and of what utility
would the wisest and most correct decisions be, if the
majority of the citizens were dissatisfied with them ?
In short, gentlemen, I verily believe, that the wisdom
of ages has never produced, and that the wit of man
never wUl produce, anything so admirable, as the
institution of juries, grand and petit, in the adminis
tration of justice. But, at the same time, it cannot
be denied, that even this mode of inquiry, excellent
and useful as it is, like everything of human inven
tion, is not entirely free from defects. We can even
conceive of its existing in such a state, as to be the
worst tribunal on earth. The best things, when de
generate and corrupt, become the worst. And this
would be true of juries, if not composed of suitable
and qualified persons ; if they should overleap their
proper bounds, and if they should become negligent
or corrupt, or even suspected of gross partiality in
the discharge of their functions.
" In some parts of our country, (and in early times
in New England,) it has been deemed proper for grand
juries to notice, in their presentments, the operations
of government, and to expose, at least to inspection,
public men and public measures ; to suggest public
improvements, and the modes of removing public in
conveniences. These presentments may sometimes
have had a salutary effect, but I have no hesitation in
saying, that the effect will generally be pernicious.
If they sometimes aid a good government, they will
at others, perhaps, thwart the best measures of the
best government. If they sometimes denounce bad
men, what security have we that they wUl always spare

LIFE OF Judge smith. 191
the good ? Their means of getting information are
too limited to speak decisively on such subjects, and
they will oftener express the sentiments and feelings of
the party to which they belong, than the sentiments or
opinions of the public at large. It is, besides, introduc
ing politics into courts of justice, an evil which cannot
be too carefully guarded against.
" With regard to the manner in which you ought to
discharge your duties, it is not necessary for me to say
much ; your oath, which is the commission under
which you act, is a good summary of your duty. But
it may be useful, perhaps, to mention some ofthe temp
tations to which juries are most exposed, and the points
on which they are most likely to fail of performing
their duty. A jury, I speak of traverse as well as grand
juries, is a popular body, and as such, must be expos
ed to suspicion of partiality, arising from local preju
dices, popular clamor, and party spirit. The latter is
not peculiar to these times, or our country. Wherever
there is freedom, there party spirit will be found to
exist, and where juries are summoned from the neigh
borhood, they wUl, they must bring with them into
court, much of the sentiments and feelings of the
people from whom they are selected. It requires no
small share of virtue and vigor of mind, to rise above
local prejudices and party spirit, to decide justiy be
tween a neighbor, and a stranger — one who has po
pularity on his side, and one who has the misfortune
to be obnoxious. To be perfectly cool, when a cry
has been raised, and the neighborhood is in a flame,
falls to the lot of a few only. And, even if we should
be happy enough to rise above aU obstacles, and be

192 life of judge smith.
able conscientiously to discharge our duty, we can
scarcely hope to escape suspicion.
" A few centuries ago, when sheriffs and attorneys
were less correct in their morals than at this day, and
when the sheriff returned the juries, it was a common
article in an attorney's bill, to charge a certain sum
for procuring the friendship of the sheriff, in the choice
and return of jurors. Embracery of jurors, or the at
tempt corruptly to influence them to one side, was an
offence often committed, and severely punished, and
it is an offence still. It is, perhaps, natural enough,
as human nature is, that parties, and especially those
who have a bad cause, should endeavor to secure, by
undue means, the favor of the jury. When jurors are
applied to by parties, in this way, they should always
understand that the party applying thinks as meanly
of his own cause as he does of the uprightness, deli
cacy, and honor of the juror. To so great a height
had these evUs arisen at particular times and places,
as almost to justify what was said by a good bishop,
of the London juries, who seem at all times to have
been peculiarly exposed to this external influence, —
' that they were so prejudiced and partial, that they
would find Abel guilty of the murder of Cain.'
" I have had occasion to observe, during my at
tendance on courts, that popular causes are generally
decided wrong, and the reason is, because law and
evidence are not alone regarded. When a cause has
been repeatedly tried, and become a subject of con
versation, it is difficult to obtain a correct decision.
Few, except court and jury, have the means of hear
ing the whole ; many are not capable of judging in a

LIFE OF JUDGE SMITH. 193
complicated cause which they have fuUy heard ; yet
all undertake to judge. No man objects to his own
competency, or withholds his opinion. It requires a
degree of firmness and manly independence, not very
common, to resist what appears to be the general
opinion of others."
" I have dwelt longer than I intended on the dan
ger of partiality in jurors. I hope what I have said
will be supposed applicable chiefly to former times
and other places. I hope the picture I have sketched
wiU bear little resemblance to anything which lately
has been, or speedily will be, seen in this state. But
there is a great evU in jury trial, which is of modern
growth, and in a great measure peculiar to ourselves ;
I mean the frequent instances in which juries of trial
disagree. It is well known to you, gentiemen, that
when the grand jury is composed of twelve only, the
law requires that they should be unanimous, and
when the number is greater, there must be twelve, at
least, agreed to find a bill, and that unanimity is al
ways required in the traverse jury. It would be a
matter of curiosity, for which we have no leisure at
this time, to trace out the origin of this most singular
institution — the principle of unanimity. It was not
at once adopted, either in England or in this country,
and it does not prevail in Scotland to this day. But
it is sufficient for our present purpose, that it is now
the law of this state. In criminal prosecutions this
principle is favorable to the accused. If the offence
is not proved beyond aU reasonable doubts in the
mind of the most scrupulous juror, it operates as an
acquittal ; but in civU suits it has lately, in practice,
17

194 LIFE OF JUDGE SMITH.
occasioned delay, a great evil in the administration
of justice ; so true is the Eastern maxim, in many
cases, ' that speedy injustice is better than tardy jus
tice.' The modern method of trying causes, of itself
occasions great delay. The length of the pleadings,
arguments of counsel, &c., sometimes necessarily,
and sometimes unnecessarUy, protract the trial to
a most unreasonable length. A late trial in this
country, has occupied more than a month.' It is but
a few years since an adjournment was first permitted
in the trial of a cause. The disagreement of juries
adds greatly to the evU. In fifty trials within the last
five years, the jury have not agreed. Those have
generally been causes where the expense of a trial has
been considerable ; to the parties concerned, it has
amounted at least to five thousand dollars ; and to
the other parties who have causes in court, and to the
public, the extra expense has been still greater. I
speak much within bounds, when I say the whole
expense has been a greater sum than the whole judi
ciary department has cost the state during the same
period. Most of the causes where this disagreement
took place, were those where local prejudices and
public opinion have been suspected of having had an
undue influence. Real difficulty in the question to
be tried has seldom prevented a verdict. Some of
the causes to which I aUude, have been tried five or
six times. With the court, I trust, there has been no
cause for disagreement of the jury. It has always
been their uniform endeavor to declare the law, to
> The trial of A. Burr, in the circuit court of Virginia.

LIFE OF JUDGE SMITH. 195
make it inteUigible to the jury, and to assist them in
judging of the facts. It is remarkable that the greater
number of the causes where the jury have not agreed,
have been such as might have been reviewed, of
course. Both parties, therefore, would have been
gainers by losing the cause when the jury had so dis
agreed. There have been instances, within my know
ledge, where the party finally prevaUing, after re
peated trials, in which there has been no verdict,
would have been a gainer by losing the cause at the
first trial, supposing that trial to be final."
The great subject however, beyond all others, on
which these charges, from beginning to end, insist, is
the importance of public schools, and of moral and
religious instruction. " The race of man," says
Judge Smith, in his first charge, " cannot be happy
without virtue, nor actively virtuous without freedom,
nor securely free without rational knowledge and
education. Everything cannot be expected from
mere forms of civU government, though one form
may be, and undoubtedly is, preferable to others.
Great expectations have been raised of an end being
put to wars, and of brotherly love and universal good
will prevailing in the earth, by the mere exchange of
monarchical forms of government for republican and
democratic, and from the iUuminations which phi
losophy is supposed to be shedding on this age of
reason. But it has been found, on experiment, (the
surest touchstone of political opinions,) that the state
of society and the condition of mankind have not
been much improved by political revolutions. Like
earthquakes and tornadoes in the natural world, they

196 LIFE OF JUDGE SMITH.
serve to convulse society, and too often overwhelm
in their ruins the most virtuous portion of the com
munity. They do not make good men better, but
bad men worse. It is worthy of remark, that those
who have been predicting this political millennium,
this peaceable state of society, which is to flow from
mere forms of civil government, have been, in fact,
the greatest disturbers of mankind ; and the boasted
philosophy of the present day has been found, on
experience, better calculated to weaken the bonds of
society, than to unite mankind in brotherly love and
affection. The world is not to be regenerated by
political revolutions, nor by the dogmas of infidel
philosophy. " The sum of the whole is, that while we faithfully
discharge our several duties of jurors and judges, in
impartially executing the laws, we must cherish our
religious institutions. Disregarding all trifling distinc
tions among professors of the same faith, (for such will
always exist,) we must cling to the Christian religion,
as our only sure and steadfast anchor of hope. It is
peculiarly our duty to do so at this time. We live in
an age fond of liberty, but impatient of those salutary
restraints of law which alone make liberty either last
ing or valuable. We have a constitution of govern
ment, the best formed to insure peace and happiness
to the subjects of it. But governments, like the indi
viduals of which they are composed, have their imper
fections and defects. They have all, hitherto, proved
mortal. Those formed on the principles of freedom
and justice, have not been hitherto exempted from the
general destruction. They have perished, hke the

LIFE OP JUDGE SMITH. 197
rest. Indeed, we have the mortification to learn from
history, that the freest governments have been of the
shortest duration. Like some of the fairest flowers,
they are the most easily destroyed by the rude blasts
of popular passions. Let ours be built on the solid
foundations of religion and morality, and when the
rains descend, and the floods come, it shall remain un
moved, because founded on a rock."
He urges again and again, the necessity of enforc
ing upon towns the laws requiring them to make pro
vision for public schools. And, notwithstanding all
that has been done, this is a subject on which, as mem
bers of a free community, our citizens now, especially
some among the rich and learned, do not bestow the
attention which its importance demands. They for
get that the security of property, and their position in
the midst of a peaceable community, must depend on
the education ofthe masses, whom, with a contempt,
which argues as little for the soundness of their minds
as for the kindness of their hearts, they would shut
out from all but the lowest branches of knowledge.
Judge Smith looked upon the subject with the eyes
of an enlightened wisdom.
In his charge for the spring circuit of 1807, he says :
" It is hardly to be expected that private individuals,
in towns which are negligent, will bring forward pro
secutions. Some of the rich are so sordid as to think
that the money laid out in educating the children of
the poor, is money Ul bestowed. The ignorant are
doubtless ignorant of what they, as members of the
community lose, by the neglect of maintaining schools.
It is not even to be expected that the youth for whose
17*

198 LIFE OF JUDGE SMITH.
immediate benefit these wholesome regulations are
framed, can be fully sensible of how much importance
it is to the community at large, that they should be
early instructed in those principles of good manners,
good morals, and useful knowledge, which are to be
acquired in every well-regulated school. With what
ever disdain the pride of learning may look down on
the scanty information which town schools can con
vey, men of benevolence and good sense, and I may
add, all true republicans, wUl never consider any de
gree of knowledge as trifling, which tends to civilize
and humanize a nation, and to fit it for the enjoyment
of free government. Where the people are ignorant,
the government must be despotic ; and it is certainly
true that the welfare of a nation depends much less
on the refined wisdom of the few, than on the man
ners and character of the many. This is particularly
true in republics, for we have no security that the
wise few will have any influence at all with the igno
rant many."
Religion and virtue he regards, everywhere, as the
pilars of our govern ment ; and omits no opportunity
of recommending them, and whatever may conduce
to them. " My design, gentlemen, in making these
observations, is to impress on your minds, the import
ance of cherishing our religious, moral, and literary
institutions. In your office of grand jurors, you are
censors of the public morals and manners. In that
character, in common with all in authority, it is your
indispensable duty to lead the way to every design to
meliorate and improve the state of society. It is an
obvious truth, that example is more seductive, more

LIFE OF JUDGE SMITH. 199
powerful than precept. It will, perliaps, be too much,
after using all the means in our power, to expect that
we shall be able to reduce the tumultuous activity of
mankind into absolute regularity, but something may
be done, and good actions and good sentiments will
not be totally lost ; if they do not benefit others, they
will benefit ourselves. We may at least hope that
they will in some degree lessen the necessity of in
flicting punishment on our feUow-creatures, and that
they will hive some tendency to secure to us the bles
sings of liberty and a republican form of government,
and enable us to transmit both to our posterity."
" A society which has no other method of promot
ing virtue, but by punishing offences when committed,
will have a great many punishments to inflict. The
gaUows wifl be crowded with victims, and the execu
tioner's axe constantly wet with blood. The great ob
ject of government, in all their institutions, should be
to prevent the commission of crimes. Our institutions
of a literary, moral, and religious nature, are admira
bly calculated to produce these effects. But they
must not be neglected, they must be carefully and as
siduously cultivated and cherished. An experiment
has been lately made on the great theatre of the world,
of governing mankind, under a republican form of
government, without the aid of religion ; and how did
this experiment succeed ? Just as all such experi
ments will ever succeed, till the nature of man under
goes a radical change. Republicanism is an excellent
form of government, but it cannot supply the place of
religion and morality. Indeed, it requires a double
portion of both. A good monarch may govern well

200 LIFE OF JUDGE SMITH.
a vicious people ; but a vicious people under the re
publican form, must have bad governors. It is to be
presumed that they will choose to have laws and an
administration like themselves.
" Virtue is the foundation of republics ; it is the cor
ner-stone. We are now, as far as I know, the only
people on earth endeavoring to maintain a government
which, in every department of it, emanates from the
people, which, in every feature of it, is democratic.
It is a solemn consideration ! And I wish to leave
it with my fellow-citizens, as my fixed and decided
opinion, that the experiment we are now making will
turn out like all others that have been made, if we do
not cultivate and improve our minds and social affec
tions by education and learning, and our morals, by
the pure principles of sound morality, and above all,
by the mild and gentle influence of that 'religion
which Cometh down from above, which is pure, peace
able, and full of good fruits.' "
What foUows is the close of the last charge that
he gave to a grand jury, before retiring from the
bench, in 1809: "From this brief review of our
criminal code, gentlemen, I think I am warranted in
saying, that it ought to be carried into strict execu
tion. For it is so agreeable to reason, that even those
who suffer by it, cannot charge it with injustice or
cruelty ; so adapted to the common good, as to suffer
no folly to go unpunished ; and yet so tender of the
infirmities of human nature, as never to refuse an
indulgence, where the safety of the public wiU bear it.
It gives the government no power but of doing good,
and restrains the people of no liberty but of doing

LIFE OF JUDGE SMITH. 201
evU. This code of laws, and your office, gentlemen,
are the means employed by society to compel men
to become orderly and peaceable members of the
community. They are an address to the fears of
men, when better principles have lost their influence
upon the heart and conscience. But it is always
to be remembered, gentlemen, that punishments by
which innocence is protected, do not give habits of
morality. They are inflicted to put a stop to the
consequences of vice, but they do not remove the
cause. If all, or even a majority of the people of a
state were Ul-disposed, the infliction of punishment
would aggravate, instead of curing the distemper.
The sight of a jail, or even of a malefactor on the
gallows, wiU not make industrious a man who is
inured to idleness, or give sentiments of honor to one
practised in dishonesty. There have been many
thefts committed under the gallows, during the time
of a public execution. A code of penal laws, how
ever excellent, is by no means a power adapted to
extirpate the depravity which pervades a great por
tion of mankind. It corrects the distemper, but does
not eradicate it. This can only be accomplished by
the Christian religion, which is a part of the common
law of this state, and by far the noblest part. Its
excellency and utility arc expressly recognized in our
constitution. Christianity is, indeed, the most bene
volent system that ever appeared among men. It
breathes love and charity in every precept. It has
an obvious tendency to check and restrain every ma
levolent and irregular passion, to strengthen and
establish every benevolent, every virtuous principle.

202 LIFE OF JUDGE SMITH.
to exalt and perfect our reasonable natures, and to
promote peace and good-wiU among men. Its influ
ence on the welfare of society has never been
doubted by any wise man or able statesman. The
father of his country has said, and said truly, that it
is the greatest pillar of human happiness, and the
firmest prop of the duties of men and citizens. In
short, religion is as well calculated to promote happi
ness in this world, as in the next. The pUlars of
government — of a free government, must be laid on
the fundamental principles of religion, or the fabric
will never stand. It will degenerate into despotism,
on the one hand, or anarchy and licentiousness on
the other. It follows, that our institutions ' of reli
gion, learning, and discipline, must be fostered and
encouraged by the legislature, by courts of justice,
and by aU good citizens, and especially by those in
office, by those who have influence in society, and
by none more than by the respectable men who com
pose the grand juries ; who, whUe they labor to
bring to condign punishment offenders against the
law, will with pleasure promote every institution
which has a tendency to prevent the commission of
crimes. Virtue and industry are articles that can be
manufactured, and the stock increased, at pleasure.
It is surely better to reform mankind, by giving them
good dispositions, than to punish them for having

1 " With respect to the Sabbath, in particular, it has been said, and, I
believe justly, that it is an institution of great political consequence,
if it were nothing more, and that there is a very exact proportion be
tween the vices and immoralities of a nation and its relaxation or indif
ference in the observance of the Sabbath."

LIFE OF JUDGE SMITH. 203
bad ; to make them good citizens, and useful members
of society, rather than shut them up in prisons, or
take away their lives."
I am aware that in these quotations there is little
which can now strike the reader as new. They
were written forty years ago, and the progress of
opinion, imperceptible in the daily passage of time,
appears distinctly marked, when examined after an
interval of so many years. The leading character
istic of these charges is their sound practical wisdom.
I doubt whether they contain a single suggestion of
any moment, which experience has not confirmed ;
and this will be deemed no mean praise, when we
remember that they are not made up of solemn tru
isms, but that many of their assertions were in ad
vance of their time, and, when first uttered, startled
men by their novelty and boldness.' Much of what
they contain relates to temporary matters, and its
value has passed away with the abuses they were in
tended to correct ; but much still remains, as fresh,
as important, and as worthy to be repeated and en
forced, as when the government was first established.
I have now said the littie I am able to say of
Judge Smith's conduct upon the bench, endeavoring
to show how his influence was exerted, rather than

' The following passage, for instance, produced, I am told, a strong
sensation among the religious part of the community, as setting aside
what they had been accustomed to consider the fundamental reason for
the laws against profane swearing, blasphemy, and the profanation of
the sabbath. " Society does not punish these merely, if at all, be
cause they are offences against the Deity, for he can, and assuredly
will, avenge himself of his enemies, but because they are of evil
example, and attended with pernicious efiects on society itself."

204 LIFE OF JUDGE SMITH.
what he actually accomplished. His judicial deci
sions, the appropriate monument of his learning, in
dustry, and inteUectual power, having been prepared
for a generation that is passing away, and not having
been published so as to take their place among the
authorities of the time and perpetuate themselves in
other decisions growing out of them, could not now give
a fair idea either of what he was, or what he did, as a
judge. His works, like the last year's dew and rain,
have gone into other forms, and wiU continue to act
where their influence is least recognized, in the more
healthy tone and structure of society. It is a blessed
thought, that the labors of the wise and true are not
confined in their results to what the eye may see,
but by the unseen hand of Providence are led on to
issues of a vastly purer and more extended good.
Little can the ocean know of the distant fountains
from which its waters are supplied, and littie can the
fountains tell either what blessings their pure streams
may dispense in their progress, or what an ocean they
may fill.
In one of Judge Smith's latest writings he has
given, in a half imaginary sketch, his idea of a judge.
" I have often," he says, " indulged my imagination
in drawing a picture of Washington on the bench of
justice, supposing opportunity and inclination had
allowed him to acquire a competent knowledge of
the law. Everything in and about him was judicial.
A fine, graceful, and manly person — his manners
reserved, though far from stern and forbidding.
Candor and moderation are essential ingredients in
the judicial character, and they were his in an emi-

LIFE OF JUDGE SMITH. 205
nent degree. He would have been far removed
from tlie political judge, seeking popularity from his
judicial decisions, and estimating the politics of
parties before him, as ingredients to be weighed, as
well as the evidence before him. His independence
and impartiality would have soon been felt and ac
knowledged, even by the parties, as well as the spec
tators of the scene. His fortitude, firmness, and in
flexibility, as they are much wanted on the bench, so
they would never desert him for a moment. His ut
most diligence would be employed, in investigating
the evidence and the rule of law applicable to the
case. He was exemplary for patience and prudence,
and, when necessary, he could reprehend as well as
praise. His strict regard to truth, his spotless integ
rity, his enlightened and hberal principles, his re
gard for the institutions of religion, morals, and edu
cation, his great purity of heart, his delicate and
scrupulous sense of honor and honesty, — all these
qualities would have placed him among the first, if
they had not made him the very first, of judges."
It would be difficult to find two men more unlike,
in many respects, than Washington and the man
who has given this sketch of his character. Yet in
Judge Smith might be found, with some trifling ex
ceptions, and combined in different proportions, all
the qualities which he has here ascribed to that ex
traordinary man. His countenance and bearing,
though entirely unlike those of Washington, and
often relaxed into the most humorous expression,
were yet those of a man whom it might not be safe
to approach with anything hke disrespect. His keen
18

206 LIFE OF JUDGE SMITH.
and penetrating eye, his whole bearing and deport
ment, were such as to give the impression of a mind,
that " looked quite through the deeds of men," of a
lofty independence, a proud consciousness of integ
rity, a courage, an inflexibifity of purpose, to be
moved neither by the hope of gain, by flattery, nor
threats. It is possible that his wit, while it sometimes
enfivened a dull cause, may also at times have exas
perated a dull advocate, and that, by taking some
thing from the apparent dignity of the judge, it may
also have taken something from the apparent weight
of his opinions.' Notwithstanding the quickness of
his perceptions, and his ardent temperament, he was
remarkably dispassionate in the trial of causes, and
distinguished not more for his acuteness and learn
ing, than for the soundness of judgment, the candor,
moderation, patience, and diligence, with which he
went through with laborious and protracted investi
gations, whether relating to the evidence, or the rule
of law applicable to the case. But it may be ques
tioned whether, after having satisfied himself, he
was always equally patient in bearing with the te-

' He was distinguished for his uniform courtesy to all the members
of the bar, but in a few instances could not refrain from indulging in
some little pleasantry at their expense. On one occasion, it is said, josl
as the lawyer was rising to argue his cause, the judge laughingly pro
posed, that he should let it go to the jury without argument ; " for,"
said he, " your cause is a good one, and I have no doubt the jury think
so too. I am not quite so clear they will continue to think so after you
have argued it." On another occasion a young lawyer, more coucehed
than wise, said, " May it please your honor, the prisoner is underwitted.
Surely you will assign him counsel." " Yes," replied the judge ; " but
then it must be such counsel as may be of service to him in that
regard."

LIFE OF JUDGE SMITH. 207
dious processes required by slower minds, in argu
ments at the bar. I have the highest authority for
saying, that, however decided he may have been in
his views of a case, he was remarkably free from the
imputation of ever assuming the part of an advocate,
when charging the jury.' No man, Who understood
anything of his character, could hope to have the least
influence with him, through his political opinions.
On that ground, no charge was ever seriously brought
against him ; and the large vote by which his salary
was increased, was an unequivocal testimony to his
entire impartiality. I once asked Governor Plumer,
who, from a warm personal and political friend, had
become, in both respects, entirely estranged from
him for many years, if he beheved that politics ever
had any influence on Judge Smith's judicial con
duct ; and he replied, in the most emphatic manner,
" Never, never." Another man of the same political
party with Governor Plumer, told me, that being upon
a jury in high party times, he watched the chief jus
tice closely with reference to this matter, " and I am
confident," he said, " that party politics had no in
fluence upon him ; not the slightest."
I never have seen the person who in his inteUect
ual habits appeared to me so entirely the personifica
tion of justice. As a man, he had very decidedly his
preferences and his dislikes, and in the choice of his
associates was guided by them ; but as a judge, all
' It is said that a sailor once .having heard a ease tried, was asked
what he thought ofthe pleas. He spoke well ofthe lawyers, but said
he thought the white-headed man that sat up high at the end of the
court-house, argued the best.

208 LIFE OF JUDGE SMITH.
these feelings were laid aside. No one had any
thing to hope from his friendship, or to fear from his
enmity. The men were forgotten, the law and the
testimony alone regarded. The influence on a
neighbor, a brother, or even upon a child, could in
no way affect his decision. In reading some of the
reports, which he has drawn up in reference to per
sons of quick sensibilities, and who certainly had
claims upon his kindness, I have sometimes felt as if
he were needlessly cruel, while in fact he had only
set entirely aside those feelings which, under such
circumstances, cannot be indulged without perverting
the ends of justice. This severe regard to justice,
with the keen intellectual powers which cut away
everything irrelevant, and present the naked facts
according to the evidence in the case, under the
fight of the great legal principles that should bear
upon them, is, if I mistake not, the highest attribute
of a judge, and it has been possessed by few men
in a higher degree than by him. His manly intel
lectual vigor, his talent for business, his rare saga
city in judging of men and things, his great learning,
his straightforward independence, and, above aU, the
spotless purity of his character, have placed him
among the ablest of New England judges.
" But I shaU now," to use the words of Bishop
Burnet, in his life of Sir Matthew Hale, " conclude
all that I have to say of him, with, what one ' of the
greatest men of the profession of the law, sent me
as an abstract of the character he had made of him,
' Jeremiah Mason.

LIFE OF JUDGE SMITH. 209
upon long observation and much converse with him."
" Judge Smith's natural powers of mind were of a
high order. With an ardent and excitable tempera
ment, he acquired knowledge easUy and rapidly.
After he commenced the practice of law, he always
indulged himself freely in miscellaneous reading and
studies ; and his attainments in literature and general
knowledge were highly respectable. But the chief
labor of his life was devoted to the study of the law.
This he studied systematicaUy as a science. As a
counsellor and advocate, he soon rose to the first
grade of eminence at the bar. Although successful
at the bar, he was preeminently qualified for the
office and duties of a judge. With an ample stock
of learning, in aU the various departments and
branches of the law, well digested and methodized,
so as to be always at ready command, he united
quickness of perception, sagacity, and soundness of
judgment. Disciplined by a long course of laborious
study, he was able to bear with patience the most
tedious and protracted investigations and discussions,
to which a judge is so constantly subjected. The
most distinguishing traits of his character were im
partiality and inflexible firmness, in the performance
of all his judicial duties. As chief justice of the
supreme court of New Hampshire, he found a suffi
cienfly ample field for the exercise of all his talents.
Before the Revolution, little had been done in the
colony of New Hampshire to systematize the prac
tice of law ; and, for many years after the Revolu
tion, lawyers were seldom selected to fill the bench
of even the highest courts. The consequence was,
18*

IS

2X0 LIFE OF JUDGE SMITH.
that the practice and proceedings of the courts were
crude and inartificial; and the final determination
of causes depended more on the discretion and arbi
trary opinions of the judges and jurors, than on any
established rules and principles of law. This, of
course, rendered judicial decisions vague and uncer
tain, the most intolerable evU of a bad administration
of justice, and but slightiy alleviated by the highest
purity of intention in the judges. To remedy this
evU, Judge Smith labored with diligence and perse
verance, by establishing and enforcing a more orderly
practice, and by strenuous endeavors to conform aU
judicial decisions to known rules and principles of
law. His erudition and high standing with the pro
fession, as weU as with the public at large, enabled
him to effect much in this respect ; and to his labors
the state is greatiy if not chiefly indebted, for the pre
sent more orderly proceedings, and better administra
tion of justice." '
' There has been something quite remarkable in the longevity of those
associated with Judge Smith, at the time he took his seat upon the New
Hampshire bench. Paine Wingate was born in May, 1739, and gradu
ated at Harvard College in 1759. He studied theology, and was a set
tled minister in Hampton Falls, from 1763 till 1771. He then estab
lished himself as a farmer in Stratham. In 1787 he was chosen a repre
sentative, and in 1789 a senator in congress. Prom 1793 to 1796 he was
again a representative. In 1793 he was appointed a judge in the supe
rior court, and there continued till May, 1809, when he was seventy years
old. He continued to reside in Stratham, till the congregation, over
which he had been settled, had become a part of the great congregation
of the dead, and he had outlived all who were members of the college
while he was there, all who were members of the house of representa
tives and of the senate, in which be had first taken his seat, and all, ex
cepting one, who were members of the court at the time of his appoint
ment to the hench. He died the 7lh of March, 1838, having attained to
the great age of ninety-nine years. His widow, with whom he had

LIFE OF JUDGE SMITH. 211
lived nearly three quarters of a century, was the sister of Timothy Pick
ering, and died when more than a hundred years old.
Timothy Farrar was born in July, 1747, and graduated at Harvard.
College in 1767. At the commencement of the war, in 1775, he received
by the same mail commissions as a major in the army, and as a judge
ill the court of common pleas. He became a judge, and in one or the
other of the New Hampshire courts continued lo hold the office more
than forty years. He was a modest, well-informed, conscientious, de
vout man ; and now, having almost completed his ninety-eighth year, is
enjoying the cheerful serenity which comes only from a well-spent life
and a firm religious faith.

CHAPTER VH.
JUDGE smith's political FEELINGS  JOSEPH S.
BUCKMINSTER  FISHER AMES  LETTERS TO MRS.
SMITH  DEATH OF HIS YOUNGEST SON.
Mr. Smith was appointed chief justice in May, 1802,
and resigned the office in June, 1809. I have
thought it best to give the account of his judicial life
and character unbroken by other events. At first
his interest in political affairs was very strong, and he
was not without some of the fears, in which many of
the best men at that time indulged, in respect to the ,
great experiment of self-government, which had not
then been fairly tried. The following extracts from
two letters to WUliam Plumer, dated 21st A^ovember,
and 25th I)ecember, 1803, wUl show his feelings,
although, from the half ironical style in which they
are written, their meaning may not be perfecdy clear
to a stranger. He inquires earnestly and minutely
about the negotiation for Louisiana and the Floridas,
which was then going on, and adds : "I do not
know how it is with my brother sovereigns, the peo
ple, but really, considering that our servants abhor

LIFE OF JUDGE SMITH. 213
' sacracy,' and are passionately fond of ' pobleesity,'
(as S. would say,) it is astonishing how little is
known of all these things. It has always been said
that kings are ignorant. This is no doubt the case
in monarchies. But is it apphcable to republican
kings ? If the sovereign people are ignorant, consid
ering that they are by no means destitute of passions,
I fear they wiU make but sorry kings."
" I am glad to find that federalism is at a low ebb
with you. It is dead, and I sincerely wish it buried
out of my sight. Don't flatter yourselves that it is
ever to have a resurrection. Federalism can suit
only a virtuous state of society. These times de
mand other principles and other systems. Abjure,
then, that uprightness which cannot accommodate
itself to events — which cannot flatter the people : —
that stifl', ungracious patriotism, which professes to
save the people from their worst enemies, themselves.
Form a union with some of the better sort of the
democrats, and with some of the worst ; we want the
former to increase our numbers, and the latter to do
our lying. Federalism has been ruined for want of
active partisans of this description. Be sure to en
gage Duane, Cheetham, and some of the most expert
in this science, in the ancient dominion. Appropos
to lying, secure Baldwin, he will be useful in the
southern section. He is a prudent man, and knows
the worth of everything. There is nothing he will
not sell, and therefore he may be bought. We must
have a new set of leaders. Pickering, Dexter, Ames,
Tracy, Ellsworth, Griswold, Wolcott, Jay, HamUton,
King, Ross, Bayard, Marshall, Harper, W. Smith, &c.

214 LIFE OF JUDGE SMITH.
must be abandoned. They have had their day
They cannot be sufficiendy accommodating. Let us
have a goodly number of foreigners, they will always
be favorites of the people. Let us have men who
can relax their principles of morality as occasion may
require, and adapt themselves to circumstances with
as much facUity as joiners open and shut their rules,
Our old rulers in our new body would be hke trees
transplanted from a forest into a garden, whose
branches it is difficult to bend to the fancy of the
gardener. We must have more pliant men. But
why should I doubt your skill to arrange this busi
ness ? It is sufficient that I have given a hint.
" Is it possible that we can long stick together as
a nation, when there is so little cement, and so much
centrifugal force in this heterogeneous mass ? To
keep a nation together, there must be national insti
tutions as well as a national government ; national
courts, national militia, army, navy, a national debt,
national taxes, national patriots. Now we have none
of these things, except a national debt, and a litUe
bit of a navy.
" Themistocles, when desired at a feast to touch
a lute, said he could not fiddle, but he knew how to
make a small town a great city. Mr. Jefferson can
fiddle, and make models of dry docks, and aU that,
but he cannot make a number of small states a great
nation. He can add to our territory, and to our
numbers, but these additions tend only to diminish
our strength. It never troubles a wolf, how large the
sheepfold, or how many the sheep be.
" Now don't say that these things wUl ever take a

LIFE OF JUDGE SMITH. 215
more favorable turn, that the good sense of the people
wiU ever lead them to cherish national feelings and
national institutions. It is idle to expect it, it is un
natural. The very end and design of national insti
tutions, is to counteract the local and selfish spirit of
the people. Man is a gregarious animal, it is true ;
but nature leads to small herds. Experience evinces
that there is nothing so contrary to common sense,
so repugnant to the principles of justice, freedom and
humanity, but will pass at certain junctures, when the
infatuation of party rage has turned the giddy brains
of the unthinking multitude. This party spirit, like
the poor, we have always with us. It will be, as it
always has been, in the power of bold ambitious de
magogues to ride the people, by persuading them
that they are in danger of being ridden. Nothing is
more easy than to inflame the passions of the multi
tude ; it is easy to acquire their confidence, and easy
to lose it. While in favor, there is nothing which
the popular leader may not say or do ; and when not
in favor, the wisest man in the state is the man who
has the least influence."
This interest in political matters gradually dimin
ished, as Judge Smith became more absorbed in his
judicial duties, and in his letters for several years, I
find hardly a passing reference to the political events
of the day. Among other things, he amused himself
by writing a few articles for the Anthology. He was
first applied to in August, 1805, by the Rev. Joseph
S. Buckminster, who in his letter, says, " Your man
uscript volumes are weU known by some of your
friends here, to contain many titbits of literature,

216 LIFE OF JUDGE SMITH.
which would be highly relished, if they could be per
mitted to garnish the pages of the Anthology." To
this Judge Smith rephed, 13th December, 1805. "I
have pretty many trifles of the kind you allude to,
but as the Anthology grows better, (it evidently
does,) and my manuscript trifles grow worse, you will
readily perceive there is lilUe prospect of their ever
meeting. But stiU I am desirous of adding some
thing to the pages of the Anthology. This new zeal
is produced by reading the Massachusetts Term Re
ports, by G. Williams. I have a fancy to try my
hand at a review of this work. It is somewhat in my
way. If no other person attempts it, and it meets
your editor's plan, I will for next month, or the month
after, send something which may be committed to
the press or the flames, according to the verdict of
the critics thereon. Let me hear from you. If I do
not, this new zeal wiU soon flag. If you approve, I
shall stand engaged to make the attempt.
" I have finished your Fawcett, and like him. He,
however, reminds me of Horace Walpole's crificism
upon Johnson. ' He illustrates till he fatigues, and
continues to prove after he has convinced : he charges
with several sets of phrases of the same calibre.' But
still he is a man of genius, a philanthropist, and a
poet, and I should be gratified by the perusal of the
second volume. I shall return it the first opportunity
with Walker, who is well enough, and no better —
nothing striking. He does not interest, amuse, or
much inform me. I do not rise from him much dis
satisfied with myself, or much pleased with him ; ergo,
he is not a good preacher. You see we Exeter peo-

LIFE OF JUDGE SMITH. 217
pie are always ready to favor preachers with our
opinions. It is no small proof of our benevolence,
for we have hitherto derived no advantage from it ;
and you may add, ' nor we.' "
Mr. Buckminster's answer is dated December 18.
" My dear sir : I was highly gratified by learning that
you had not forgotten me, nor the Anthology, nor
literature, in the intervals of relaxation from the Musa
sevei'iores ; for it seems, as long as you had that vile
judge's coif about your ears, it was impossible to
make you hear even the sweet sounds of flattery. I
am exceedingly happy that you propose to review
Williams's Reports, and stUl more so, that you have
already read them ; let not your ardor cool, I pray
you, and believe me, the editors are fully sensible of
the honor of the proposal. 1 am requested also to
urge you to send a review of Tucker's Blackstone.
If you do not own the book, it shall be sent on to
you. Remember you have said, that whatever your
hands find to do, you do with all your might, which
we shall interpret, ' with all despatch.'
" You are right in your conjecture respecting Faw
cett ; he is no mean poet. But it is remarkable that
this man, who drew fuller audiences than any rational
preacher, before or since ; whom Mrs. Siddons regu
larly attended, to learn elegance of gesture and elo
cution, and who was decidedly at the head of pulpit
talents among the dissenters of Great Britain, abdi
cated his power at its very height, and is now retired
as a private gentleman, in the neighborhood of Lon
don, where, with a handsome fortune, I doubt not,
he feeds upon more substantial food than popularity.
19

2 18 LIFE OF JUDGE SMITH.
With your leave, I think that Walpole's remark,
when applied to Johnson's style, is utterly false, be
cause it is so very true of Fawcett's ; and every one
must see that these two styles are utteriy dissimilar.
Walpole was a kind of quidnunc in literature, and,
as I suspect, incompetent to relish the heavy but ad
mirable proportions of Johnson's style.
" I am sorry to close so soon, but I am called out.
I can only say, do not suffer your zeal to subside.
' iVe exudas magnis.' Mr. Ames ' has not engaged
to accept ; it is a great deal to be able to say he has
not yet refused. Yours, with respect. J. S. B."
The review was forwarded in February, 1806, with
the accompanying note. " Dear sir : I have just finish
ed my critique on Williams's Reports, and send it
because I can bear it no longer in my sight. I am
heartily sick of it, of Williams, judges, law, and
everything but the Anthology and its friends. If I
did not think it would do some good, I would not
send it at aU. I have aimed at utihty, and therefore
have not spared labor ; I hate a flimsy, general criti
cism. I have tried to make it such as wUl be read ;
and yet, if you knew how many severe things I have
omitted, how many hard things I have softened, and
flattering things I have inserted again.st my own opin
ion, as your attorney-generals draw the indictments,
your opinion of my good humor and politeness would
probably be somewhat increased. It being a new
thing, I have indulged myself in taking broad ground.
I could easily have written a book ; my mind has
I Fisher Ames had just been chosen president of Harvard College.

LIFE OF JUDGE SMITH. 219
teemed with conceptions, such as they are. I am
like a bottle filled with new fermentable liquor. I
have been ready to burst. Probably you wUl think
this ' have been ' requires to be put into the present
tense. I entrust it to your critical tribunal, as PufT
did his tragedy to the players, with permission, which
they used freely, of cutting out ad libitum. I have
not noted my authorities for many of the sentiments
and even the language in the margin, because I did
not think it proper. The learned reader wiU easily
know that many of the sentiments are not my own ;
they will stand the test."
The review ' here spoken of, is written with great
spirit, and attracted no small attention in its day.
The criticisms, though severe, were of the kind to be
useful, both to the judges and the reporter. The im
portance of law reports is thus regarded : " A correct
history of what passes in courts of justice is of incal
culable advantage. With a single exception, it is the
best of all books. It perpetuates the labors and sound
maxims of wise and learned judges. It serves to
make the path of duty plain before the people, by
making the law a known rule of conduct ; and, for
the same reason, it diminishes litigation. It has a
tendency to limit the discretion of judges, and conse
quently increases liberty. Maxims of law are like
landmarks. " Limes agro positus litem ut discerneret arvis."
In respect to the style of reports, it is said, " Pro
lixity fatigues, while extreme brevity leads to ob-
1 Review of first volume of WiUiams's Massachusetts Reports, con
tained in the Monthly Anthology for March, 180G.

220 LIFE OF JUDGE SMITH.
scurity. But there is a conciseness which is no
enemy to perspicuity, and a profixity which con
founds instead of enlightening. Perhaps it is not in
the power of a reporter to say just enough for some
readers, without saying too much for others. But we
are decidedly of opinion that modern reports are, in
general, too prefix. Expunge from them everything
not material to the statement of facts, everything
from the arguments which does not bear on the
question, and everything given for the reasons of the
decision which is wholly foreign or irrelevant, and
many a huge folio would dwindle into a duodecimo.
The eight or ten volumes of Vesey, Jr., would be re
duced to two or three ; Dallas would be reduced one
half; Wallace to a few pages ; Cranch would make
No. 1 of Vol. I. ; and Root would entirely disap
pear." The writer, however, does not attribute aU the
blame to the reporter. " We are also of opinion,"
he adds, " that the arguments of some of the judges
might have been condensed with advantage to the
pubhc, and without doing any injury to the argu
ments themselves. We are not agreeably impressed
with ' wordy eloquence ' from the bench, stUl less
with attempts at eloquence without success. As the
style of laws should be concise, plain and simple, so
decisions of courts, which declare the law, should be
neither tumid, diffuse, nor rhetorical. The language
of judges should correspond with the dignity of the
office, and with the majesty of the subject. Great
ornament is as ill becoming in the style of a ' reve
rend judge,' as a black gown turned up with pink
is unbecoming his person. The sages of the law

LIFE OF JUDGE SMITH. 221
should not for a moment be suspected of sacrificing
precision to the harmony of periods. Lord Mans
field was a scholar and an orator ; but his eloquence
at the bar, in the senate, and on the bench, were as
unlike each other, as the eloquence of which we
complain is unlike either. When our judges shall
have taken as much pains in forming opinions in the
cases before them, as Lord Mansfield always did, and
shall have spent as many years in the acquisition of
polite and elegant hterature as he did, we wUl not
object to their being as eloquent on the bench as his
lordship. It will no doubt subject us to the suspicion
of dulness ; yet we shall not scruple to declare, that,
in a judge, we prefer labor to genius, and pains
taking to ingenuity."
He then illustrates his remarks by comments on
particular cases, and adds : " Other decisions might
be mentioned as exceptionable ; but we forbear en
tering further into the subject. If the learned judges
should be disposed to think that we have already
gone too far, we trust that we shaU have their for
giveness, when they consider that we have diflfered
less in opinion with the court than they have differed
from each other. We can assure them, that the ob
servations we have made have not proceeded from a
desire, on our part, to depreciate their learning or
talents, for which we have the most cordial respect ;
nor with a view to lessen the value of Mr. W.'s
labors ; for we believe they will prove advantageous
to the public, and honorable, we sincerely wish we
could add profitable, to him ; but principally that we
may have an opportunity of expressing our sincere
19*

222 LIFE OF JUDGE SMITH.
conviction, that our system of jurisprudence is radi
cally defective, and that we shall never have any
thoroughly-examined and well-digested determina
tions — decisions which will stand the test of time,
and serve as permanent and fixed rules, so long as
the judges, the depositaries of our law, are wandering
through the state, without any fixed or permanent
place of abode.
" The old proverb, that a roUing stone gathers no
moss, is not more true than that a court, constantly
in motion, settles and establishes no principles of law.
When the principal business of a court is to travel,
and to retail the law in every county town, is it rea
sonable to expect deep research, nice discrimination,
or copious discussion on legal questions ? Let our
readers figure to themselves our supreme judicial court
in session at Lenox, for example. Questions of law
and trials of fact are blended together on the docket.
Amid the tumult and bustle necessarily incident to
trials by jury, counsel occupied and teased with clients,
witnesses, &c., it is easy to see how questions of law
will be argued, even by eminent counsel. The judges,
long absent from their families, can hardly be suppos
ed to be perfectly at ease in their minds. Denied all
access to books, and fatigued with the labors of the
day, and liable, from their situation, to constant inter
ruptions, they cannot so much as have an opportunity
of communicating their sentiments, or of hearing one
another's reasons. On Saturday morning they must
pronounce judgment. Under such circumstances, is
it not cruel to exact an opinion, and ridiculous to
expect a mature and well-digested one ? The first

LIFE OF JUDGE SMITH. 223
thoughts which occur to a sensible, and, if you please,
to a learned lawyer, on legal questions, may be reason
able, we grant ; but they may not be so reasonable,
so just, as after-thoughts. The conjectural positions
of natural reason, if not fortified by precedents, if not
confirmed by elementary writers, or if they are not the
result of much previous study and patient investiga-
fion, are always to be distrusted. A judge should think
reasonably, but he should think and reason as one long
accustomed to the judicial decisions of his predeces
sors. He should be well versed in history, and espe
cially in the history of the constitution, laws, manners,
and customs of his own country. The study of New
England antiquities, if we may be allowed the expres
sion, is a necessary qualification of a New England
judge. " We believe it is in the power of the legislature to
lay the foundation of a system of jurisprudence which
in a few years may even equal that of Great Britain.
To accomphsh this, it is indispensable that the trial of
facts and law should be separated. The former should
be in each county, and the latter in one, or, at most,
in two or three stated places. There is, in the nature
of things, no more reason why questions of law should
be determined in each county, than that the statutes
should be framed and enacted in each county. County
lines have nothing to do with either ; and it is just as
proper that the legislature should be ambulatory, as
that a court, not of trials, but of law, should be so."
Most of the suggestions thrown out in this article,
with respect to the judiciary of Massachusetts, and the
mode of reporting cases, have been since adopted, to

224 LIFE or JUDGE SMITH.
the great and manifest improvement of both. What
influence the article itself may have had, it is not
possible to determine. The following letter from
Mr. Buckminster, shows how it was received at the
time. April, 13, 1806. " Dear sir : It is not less in con
sequence of my own inclination, than in pursuance of
the request of the Anthology Club, that I have now
set down to return you thanks for the communica
tion with which you favored us, and which has ap
peared, (I hope to your satisfaction,) in the last num
ber of the Review. It excites great speculation here,
especially among the bar, and there is not a dis
sentient voice on the subject of its great excellence
and importance. The lawyers were, at first, sadly
puzzled. Some attributed it to Mr. Parsons, others
to Charles Jackson ; but at length some of the wisest
of them were satisfied, from internal evidence, that it
was Judge Smith. S. thinks this cannot be true,
for ' Smith and he are very good friends, and he would
not have spoken of him in such terms.' The expres
sion, ' wordy eloquence,' he takes to himself. You
have put your hand to the plough, and must not look
back. Pray favor us with something else — Wil
son's works, if possible. You know not under how
great obligations you have laid us."
Twenty years after this correspondence. Judge
Smith, wrote the following sentence : " Mr. Buck
minster, (all the world knows, I mean the younger,)
in his words, looks, manners, but especially in the pul
pit, had a spirit beatified before its time." How beau
tifully does this describe the impression made by Mr.

LIFE OF JUDGE SMITH. 225
Buckminster, even from his earliest years. I do not
know that I ever witnessed anything more affecting
than the testimony given to his influence many years
after his death, at a public gathering of the graduates
of the academy at which he received his early educa
tion. The afternoon had been spent in delightful re
collections. Former days were revived, and the harsh
features of life effaced, when one, known through the
nation more than any other man now living for the
power of his intellect, rose, and after referring in lan
guage of touching pathos to other benefactors of his
youth, spoke with overpowering tenderness of him,
his early friend, " whom he could not think of with
out strong emotion, nor mention without tears."
It was while Judge Smith was on the bench, July 4,
1808, that he lost his friend Fisher Ames, for whom
he cherished always the warmest admiration. It is
much to be regretted that no further memorial of his
delightful domestic qualities has been preserved ; for
the account prefixed to his works is rather a brUliant
essay upon his genius, than a sketch of his life. In
1809, Mr. Cabot collected many of his letters, with a
view of preparing a volume from his familiar corres
pondence ; but the undeitaking was not carried out,
and instead of a monument, has proved to be a grave.
Mr. Ames, I have been told, first greatly distinguished
himself in the Massachusetts convention that was
holden to decide upon the constitution of the United
States. Samuel Adams had many doubts about the
biennial election of representatives in congress, and
asked earnestly why that provision had been made ?
Mr. Ames rose in reply, and looking far down into

226 LIFE OF JUDGE SMITH.
the future, with aU the fervid eloquence for which he
was afterwards distinguished, pictured out the eflfect
of the multiplied elections that were proposed. This
he did with such power that, when he sat down, Mr.
Adams replied that he was entirely satisfied, and would
make no further objection. But brilliant as was Mr.
Ames's public career, he was no less remarkable for his
social and domestic virtues, for the purity of his life,
the warmth of his affectiohs, and that genial overflow
of spirits which is so delightful in the daUy intercourse
of friends, and which, often carrying him beyond his
strength, left him languid and depressed. It was Mr.
Smith's business, as we have seen, in the winter and
spring of 1796, to preserve his friend from the too
great excitements of social intercourse. But it was a
task beyond his ability ; for Mr. Ames's remarkable
conversational gifts were too attractive to be resisted,
and his unwillingness to turn his friends away was
such that, against Mr. Smith's remonstrances, he would
often get up from his bed, engage in conversation with
as much earnestness, spirit and apparent vigor, as if
he had been in perfect health, and then, when the
company had withdrawn, would retire to his bed ut
terly exhausted.
" While both were members of congress " — I
use the language kindly furnished by Mr. Webster —
" there was quite an unusual friendship and infimacy
between them. Mr. Smith entertained the most sin
cere affection for the social qualities of Mr. Ames, with
the greatest admiration for his eloquence, imagination
and high tone of national feeling. On the other hand,
Mr. Ames found in Mr. Smith a lawyer, on whose

LIFE OF JUDGE SMITH. 227
learning he could safely lean, a sound politician of the
Washington school, and a companion always gay,
cheerful and entertaining. The more sanguine tem
perament of Mr. Ames brought with it occasionally
hours of depres.sion, as well as brighter hours of hope
and confidence. Mr. Smith, on the contrary, was
more equable, and often chased away clouds which
the state of affairs seemed to be gathering over the
brow of his friend. No two men, indeed, during the
whole period of Mr. Smith's service in congress, were
more united in their sentiments and their purposes, or
exercised a more genial and kindly influence on each
other ; an influence the stronger, be it remembered,
because they had a common bond of sympathy, in the
deep reverence they both entertained for their great po
litical chieftain, President Washington. Their inti
macy was long remembered by those who witnessed it.
It is not a great many years since a gentleman, going
to congress from New Hampshire, was asked by one of
the old oflrcers of the house of representatives, who
had removed with the government from Philadelphia
to Washington, whether he knew Mr. Smith, add
ing : ' I remember him well in the time of President
Washington, always coming to the house arm-in-arm
with Fisher Ames.' "
The following extracts, in addition to those already
given, are from the few letters that have been pre
served out of the many that Mr. Ames wrote to Mr.
Smith, but they will serve to show the sort of inti
macy that existed between them, as weU as his pecu
liar mode of feeling and writing.
" Boston, March 13, 1798. My dear friend : Do

228 LIFE OF JUDGE SMITH.
not wrong me so much as to suppose that my long
delay in answering your letter, (so full of wit and
friendship,) arose from any dechne of my regard. I
had resolved to write before I had yours. I have
been busy, sick, and stupid for four weeks. I have
been stupefying in the supreme court in this place,
abusing the health I have acquired, and marring the
prospect of its future improvement. No experience
has been so decisive of my incompetence to any
thing that excites, or requires much engagement of
mind, as that which I have lately had. Yet I am
not dead, and hope to inhale health with the air and
repose that next week offers at Dedham. Fate is
heedless of my prayers, which are, to be in a situa
tion to rear pigs and calves, and feed chickens at
Dedham, the world forgetting, by the world forgot.
Saving always, I would not forget my friends, nor
have them forget me ; saving also the right, at all
times, to rise into a rage against the politics of con
gress, and a few more savings, all equally moderate
and reasonable. In serious sadness, I wish to rest
from all labor of the mind that wears out the body,
and I would do it if I could eat Indian pudding
without drudging in court. You, I hope, enjoy good
fees, cum dignitate — happy you certainly are, and
you know it. I have heard that Mrs. Smith had a
long iUness when she was confined. I have not
been able to learn how she is of late, and I will
thank you to offer to her my best wishes and regards.
I salute my daughter-in-law,' whose merits and ac-
' At this time six months old.

LIFE OF JUDGE SMITH. 229
com plish ments are so rare and excellent. My eldest
son is at Springfield, and has there cast his eyes on a
young lady of that town, but my second son is at
present unengaged, and is offered to you as the party
to the treaty."
" Boston, November 22, 1798. My dear friend :
Seeing Mr. Conner in an office, I steal a moment
from the din of the supreme court, sitting here, to
tell you I am alive — pretty well — very glad to hear
from you and your better half, as I do by Mr. Con
ner. Write to me, and kiss my daughter-in-law, the
princess. Her future spouse is a fine fat boy, as
ragged and saucy as any democrat in Portsmouth.
You have none in Exeter. They abound in Ded
ham, though the liberty pole is down. Nelson has
beaten the French fleet. Do not grieve for that.
What are we to do ? The devil of sedition is im
mortal, and we, the saints, have an endless struggle
to maintain with him. Your state is free enough
from his imps and infiuence, to give joy and cour
age to two Langdons. I really wish to see you and
Mrs. Smith. God bless you. Yours."
" Dedham, February 16, 1801. My good friend :
It is bold in you, sinner as you are, to ask anything
of me. You did not answer my letter about writ
ing to Ben Bourne, nor a former letter, nor those
letters I did not write, but which you knew I had
regard enough for you to write. I have your judge-
letter ; and with aU these demerits unatoned, I wrote
for you to Dexter, requesting him to show it to Mar
shall, and to do all that he can possibly do for you. I
heap coals of fire on your unworthy head. But I wiU
20

230 LIFE OF JUDGE SMITH.
not allow my rage to proceed any further ; on the
contrary, I thank you for early asking my influence,
which, as one of the Essex junto, you know is great,
in favor of your appointment. I did not write to
Mr. Adams, which piece of neglect he wiU excuse,
and I hope you wUl. I have read, and I admire, his
book. And if you wUl write a great book on ten
ures, as you promised, I wUl buy it, and, if possi
ble, read it. I am your friend, and wiU exert myself,
you see, to serve you. Seriously, I wish you a
judge, though you have not gravity. I wish to see
you, to give you pudding in my house, and to tell
you with the warmth of feeling of 1796, that I am,
court sitting, very busy, your friend, &c."
The letter from which the following is taken, was
written soon after the United States' circuit court was
abolished. " The second French, and first American revo
lution, is now commencing, or rather has advanced
two sessions of the national assembly almost, for
the message will decide and do the work of the
pending session. To demolish banks and funds, not
directly, but under plausible pretexts, all false and
cheating, all founded on experienced state policy,
will he the first act, though the death-blow may not
be given to either of them till the fifth, which will
be three or five years later. To amend the constitu
tion, and give to Virginia the power to reign over us,
is the next step. To do this, new activity will be
used to raise and strengthen the factions in each
state, and to drill and equip them as subs to Vir
ginia. The newspapers wiU lie and declaim as usual,

LIFE OF JUDGE SMITH. 231
and more than usual. Unprinted lies will be spread
abroad, carefully steering off from post-roads and
offices, as pedlars carry their packs far out of the
way of large shops. Emissaries, such as David
Brown was, will be pedestrian and equestrian car
riers of the popular maU. This is doing in all the
obscure parts of New England, and the spirit of New
England will be as much perverted soon, as it is
flattered now. Even Connecticut, so ardent in fed
eralism, will decline from her high station, and
learn politics of Abraham Bishop. I am serious —
a party inactive is half-conquered. The feds main
tain twenty opinions, the best of which is quite
enough to ruin any party. ' Let the people run them
selves out of breath — all wUl come right. There
is no occasion for us to do anything.' Others say,
' we despair, nothing can be done with effect.' Not
unfrequently the same persons maintain both opinions.
" Let us be precise in deciding our object : first,
negatively ; it is not the regaining of the supreme
power. The end is, security against the approach
ing danger — or the best security, if not perfect,
that is attainable. What are the means ? Not
indispensably that we should again have a majority ;
it is enough to have a strong minority. That minor
ity need not be very numerous, but it should be
powerful in talents, union, energy and zeal. It
should see far, and act soon. At this moment we
actually hold sway in three of the New England
states. Vermont has a good governor, and many
good feds — almost one half the legislature. Rhode
Island should be wrong, and lend the dirty mande

232 LIFE OF JUDGE SMITH.
of its infamy to the nakedness of sans culotism.
New Jersey and New York are not hopeless. Dela
ware and Maryland are not yet as much emptied
of federalism as Pennsylvania is. Say little of the
more southern states, though federalism sprouts in
all of them — it is, I own, however, with such a
sickly yellow vegetation, as the potatoes show in
winter in a too warm cellar. Now sum up the forces,
and surely we are not to despair. We have a strong
minority in numbers ; of talents, enough ; of zeal,
Utile, but more may be excited ; and the approach
ing danger, if duly represented, would excite it all.
Self-defence exacts from us a union closer than ever,
and supplies to our party the energy that party alone
possesses — an energy that is inconsistent with lan
guor or inaction in the chief men who inspire and
guide it.
" As the newspapers greatly influence pubhc opin
ion, and that controls everything else, it is not only
important, but absolutely essential, that these should
be used with more effect than ever. Let aU federal
papers be kept up, as high as at present. But let a
combination of the able men throughout New Eng
land be made, to supply some one gazette with such
materials of wit, learning, and good sense, as will
make that superior to anything ever known in our
country, or in any other, except the English Anti-
Jacobin, in 1797 and 1798. To pretend to supply
with such materials twenty federal papers, is absurd
and impracticable. But instead of educated printers,
shop-boys and raw schoolmasters being, as at present,
the chief instructers in politics, let the interests of

LIFE OF JUDGE SMITH. 233
the country be explained and asserted by able men,
who have had concern in the transaction of affairs,
who understand those interests, and who will, and
ever will when they try, produce a deep national
impression. The pen wUl govern, till the resort is
to the sword, and even then ink is of some import
ance, and every nation at war thinks it needful to
shed a great deal of it. As matters are actually
arranged, the Palladium must be that paper ; it must
have, it must have by requisition, the contributions
of the mind from those who are rich in that sort of
treasure. One or two of that gazette ought to be
crowded into every small town, and more into larger
towns throughout New England. It must be so
supplied as to need no helps in money, but to force
its own progressively increasing circulation. It should
clearly and aptly state the merits of every question,
tell every inquirer exactly what he wants to know
about the pubhc business, and in the manner that
wiU impress him — in the manner that wiU confound
and disarm jacobin liars. The principles, the cir
cumstances, the effects of measures should be un
folded, summarily for the most part, but often by
profound investigation and close argument. Busi
ness paragraphs should be short, clear, and frequent.
Occasional essays should appear, to examine specu
lative democratic notions, which yet prevail, and
almost all of which are either false or pernicious,
but often mischievous conclusions from admitted pre
mises. Wit and satire should flash like the electrical
fire, bat the Palladium should be fastidiously polite
and well bred. It should whip jacobins as a gen-
20*

234 LIFE or JUDGE SMITH.
tleman would a chimney-sweeper, at arms length,
and keeping aloof from his soot. By avoidmg
coarse vulgar phrases, it would conciliate esteem,
and appear with an unusual dignity for a new.spaper
being. " Foreign news should be skilfully exhibited, not
in the jumbled map that is usual. Literature de
mands the review of books, and especially of all
newspapers, so far as their general scope or any re
markable performances require it. Agriculture should
have a share, once a week at least, of the paper.
Morals, manners, schools, and such disquisifions as
general knowledge would supply, should be furnished
with regularity. And for all these labors, various
classes of able men should be engaged to supply these
various departments. But for the superintendence
and principal conduct of the paper, only a few should
be selected, and the others should hold themselves as
a body of reserve, to step in fresh when the front-
rank grows weary. Only six able men in the differ
ent branches of the undertaking — I mean six in the
whole — would secure its success. McFingal Trum
bull, I hope, would be one, as he is Hermes redivivus.
WUl you think of these things ? WiU you make
these ideas known in confidence to Governor GUman
and Mr. Peabody ? WUl you contribute with your
pen to such discussions of law or constitution, or
such pleasantries as you can easily forward to War
ren Dutton, Esq. ? Will you spread these opinions
among your leading good men, and hasten their de
liberate judgment on the only means to save our
country ? AU this being done, and weU done in

LIFE OF JUDGE SMITH. 235
every state, then let the buUding up the state govern
ments be considered an important federal object.
Let state justice be made stable and effective. Let
the first men be persuaded to take places in the state
assemblies. AU this must 'be done, or all will be in
confusion, and that speedUy. Federalism cannot be
lost or decline much lower, without losing all. For
though new parties would succeed federal and ja
cobin, yet the extinction of federalism would be
followed by the ruin of the wise and good. The
only parties that would rise up afterwards, wUl be the
subdivisions of the victors — the robbers quarreling
about their plunder — all wicked. Despondency,
inaction, democratic .sanguine notions, or federal de
spair, are to be renounced. I write as fast as I can,
and am in a hurry to get done. Now you may talk,
for I require no more of your attention. Your affec
tionate friend. F. A."
Few men have been more happy in their domestic
relations, than Judge Smith. His children, one
daughter and two sons, were all children of unusual
interest and promise. His letters to his wife are full
of considerate tenderness, and the allusions to their
little ones show how fondly the pleasant images of
home were cherished by him, when occupied by his
official duties. " Hopkinton, 9th May, 1803. I
wish I could spend the day with you and your httle
tribe. Instead of you I have Wingate ; instead of
Ariana and William, the plaintiff and defendant ;
instead of Jeremiah, sweet innocent creature, lying
witnesses ; for I am in the midst of a cause. If I
thought the said Ariana, William and Jeremiah would

236 LIFE OF JUDGE SMITH.
resemble any of the three hundred people now before
me, excepting some eight or ten, it would make me
very sad."
" Keene, 22d October, 1803. I am really sorry
for my friend Gordon. ' Husband and wife should
always die together. But what puts dying in my
head ? May it be far away. And may it be away
from our little pratflers ; may they long prattle, and
may some of the bar, who now pratfle, prattle no
more. The jury, I see, most heartily join me in that
prayer." "HaverhiU, llth October, 1805. My dearest
wife : Mr. Adams unexpectedly gives me an oppor
tunity of writing to you. He does not caU you to
my recollection. I have neither forgot you nor yours,
many hours, since I parted from you a fortnight ago
yesterday. I have been much of my time alone, and
part of the time in a dreary wilderness, and you have
accompanied me in ascending and descending the
White HiUs, which are sublime enough to merit the
name of mountains. They put my old acquaintance,
(I believe I may say my old friend,) the grand Mo-
nadnock, far into the back ground. They are very
lofty and very numerous ; and though they sink un
der Carrigain's description, they are really very sub
lime. You and I should have enjoyed the prospect
exceedingly. I can't help thinking that people bred
on mountains or used to them, have more genius and
more understanding than the inhabitants of the low
country, such as *****^ &,c. Last evening, I heard
from you, in a letter from Colonel Rogers. He only
says you were better than when I left you, and

LIFE OF JUDGE SMITH. 237
the rest of the family well. I wish he could have
said the latter of you ; however, it is something to be
better. If you will promise to continue growing bet
ter, I shall almost find it in my heart to forgive you for
not being weU. Seriously, my dearest love, there is
nothing I so much desire in this world as your health
and happiness ; and this I am sure you can say in
return of your husband. Heaven grant our mutual
prayers may be heard, and as to everything else, I
will be resigned, and almost indifferent. I am sorry
you could not write when Colonel Rogers did. I
am sure you could not, or you would have written.
It was something to receive my old surtout immedi
ately from home ; I was going to say immediately
from your hand. It would add much to its value, if
this were the case. Mr. Adams sets out immediately
for home, and yet I do not wish to accompany him.
The business he goes on is indeed unpleasant. You
have, no doubt, heard all about it. We despise
many, almost hate some, and love a few of our fellow
mortals, and yet we are very dependent on this same
motley crew, and the worst of them can make us
very miserable. Is it not a matter of grateful recol
lection, that, among all the rogues with whom I have
been professionally and officially concerned, no one
has done us any harm ? I am almost ready to say,
God bless them. I forgot to teU you that I am very
well, and have been vasUy well ever since I left Ex
eter. If this should continue to be the case, don't
you apprehend I shall set my face reluctandy towards
the east ? If you will meet me at Amherst, I think
you will have no great difficulty in dragging me to

238 LIFE OF JUDGE SMITH.
Ariana, WUliam and Jeremiah. Give my love to
them and the giri, and believe me entirely your Jere
miah Smith."
In another letter he said : " Our friend died this
morning at five o'clock. As she suffered greaUy the
last two days, I was glad to hear that she was re
lieved. The famUy suffered extremely." A few
days later he said : " We had a great funeral — large
company, much grief, and the mourners well dressed.
Much time had been taken for the purpose. 0
pride, pride ! thou minglest with our sorrows as well
as our joys  I long very much to see you
and the two sweet little fellows that are pratthng at
your side. God bless you, my dearest love."
" Amherst, Tuesday, twelve o'clock, November 4,
1806. I beg, my dearest love, that you would attend
particularly to the hour mentioned above, (twelve
o'clock,) because the few lines I sent by Mr. Spar-
hawk, were dated at eleven. You may be sure I had
not then read your sweet letter, by that lump of earth.
Dr. Tenney. Strange that a letter carried in his
pocket-book thirty hours, had not lost all its spirit, and
what is infinitely dearer to me, all its love ! I have a
great mind that he should lose his cause. I perceive
that it was his fault that you are not now with me.
Can you conceive of my disappointment, when he pre
sented himself at my lodgings, and alone, just as I was
going to court this morning ? Judge Wingate had
informed Mr. Cliarles H. Atherton, on his arrival,
and Mr. A. informed me that Dr. Tenney would be
up in the evening, with Mrs. Smith. This was un
expected happiness, and therefore made the greater

LIFE OF JUDGE SMITH. 239
impression. I began to love the doctor, because he
was to be so near you. I can't describe to you how
delighted I was at my prospects. Nine o'clock
came, and ten, and eleven, and I retired to my soli
tary cell, not to sleep — that was impossible for
many hours, but to think what time you set out —
how you parted with the chUdren — what accidents
befeU you by the way — where you lodged, and at
what hour I should see the chaise arrive this morn
ing. If the doctor is satisfied with the reception I
gave him, he is more insensible than you can con
ceive of. I neither inquired for his health, nor that
of his wife, but where you were. He said he could
not procure a carriage strong enough. Everything
with him goes by weight, and so, I dare say, he
thought of you as of one hundred and fifty pounds
of lead. Well, surely we are differently made, and
I hope and trust of difl^erent materials. I shall hate
and despise Exeter, the longest day I live, for having
weak horses and slender carriages. But I wUl not
be deprived of what has thus got possession of my
whole heart. I will send my horse and chaise for
you, and you must be with me ; I shall be sick if
you do not. P. S. — Dr. Tenney has just called on
me, (two o'clock,) and makes bad worse. He says
you sent word to him on Saturday, to know how he
was coming ; and he sent back word that he would
carry any letter or package to me. It seems it never
occurred to his feeling heart, that the best thing he
could bring me was you, and that you could have
any wish to come and comfort me, in my labors
here."

240 LIFE OF JUDGE SMITH.
" Wednesday, two o'clock, P. M. I have this mo
ment received at the post-office your letter of yester
day, and am as happy as happy can be, at the pros
pect of seeing you Saturday night. What a charm
ing conclusion to a troublesome week. I had just
made my arrangements to send for you to-morrow.
I had engaged a horse, and intended this afternoon
to propose to WiUiain Gordon to be your gallant.
But Mr. Mason's politeness makes it unnecessary to
send. You wiU come directly to my lodgings, which
are very good. There is no person with me, and
everything is as it should be. I caUed on Mrs.
Mason last evening, and she expressed a strong wish
that you might come with her husband. That was
very good in her, was it not ? "
" Chariestown, N. H., May 14, 1808. I never
can express, in terms strong enough, how much I am
delighted with your letter by Mr. Stevens. If you
will promise to write me such letters, I wUl go from
home half the time at least. Let us grow old to
gether, and let our path of love, like the path of the
just, shine more and more to the perfect day."
" HaverhiU, N. H., October 13, 1808. I cannot
yet say when we shall adjourn ; but the better opin
ion is, that Saturday night will end the turmoU of
Haverhill court, in which case you will be so good
as to prepare for me a smile by Wednesday. I am
very weU, and in very good spirits, because very
busy, and the business does not fatigue me, as was
the case at the Exeter court."
The day after these lines were written. Judge
Smith's family was visited by a most afflictive event,

LIFE OF JUDGE SMITH. 241
which is thus described in a letter of business, dated
the 31st of October: " I mentioned my return from
the circuit ten days ago. It was the first painful
visit to my own home. Our dear little Jeremiah, in
his seventh year, was drowned on the 14th instant.
At play with a boy of his own age, he accidentally
fell from a bridge, and, before any assistance could
be had, was past recovery. I was at the distance of
one hundred and twenty mUes, but arrived in season
to attend the funeral. I wiU not attempt to paint
his mother's distress ; and his aunt P.'s ' sufferings
are, I believe, nearly as great. He was her favorite
from infancy. I hope a similar calamity may never
befall you or yours."
To the Rev. Mr. M'Clary, November 2, 1808.
" Reverend and dear sir : According to the request
expressed in your letter of the 31st ult. I have made
such a certificate as you desire on the deed, and sin
cerely hope it wUl answer the purpose intended. I
am sorry to hear of your indisposition, and hope it will
be of short continuance. Your kind sympathy with
Mrs. Smith and myself, on the loss of our dear child,
as an evidence of your friendly regard, is consoling.
I hope we are entirely submissive to the divine will,
in this sore breach on our little circle, and only soli
citous to improve the afflicting dispensation as we
ought." Judge Smith almost immediately set out again on
his judicial duties, but with feehngs tender and sub-

' Two of IVTrs. Smith's sisters were in Judge Smith's family ten
years. 21

242 LIFE OF JUDGE SMITH.
dued. He was not a man to talk of his emotions ;
but those who know how to read what is expressed
by silence, as weU as by words, wiU see how much is
implied in the following short notes to his wife.
"Amherst, November 11, 1808. Judge Win
gate has just taken his seat, and brings me no letter
from you. Captain Dana has not arrived, and I am
about to set out for Peterborough. Judge Liver
more is very good, and agrees to stay till Monday
morning ; so that 1 can spend two days at P  . I
am sorry to go further from you without hearing.
Never was there a time when I had so great anxiety
to hear from you. Mrs. Mason I have just seen,
and it seems she but just saw you. But I wiU sup
pose you well, and your sister better, because with all
my heart I desire it."
" P. S. — Captain Dana has arrived, and brought
me your letter. I have read it with more interest
than I ever read anything from you. I did not ex
pect you would now write, as you would have done
three months ago. I perceive our friend M'Clary
soothed your feelings. I wish he could visit you
every day tUl my return. You are not weU ; do,
my dearest wife, take care of your precious health.
Do not add to my misfortunes ; for my sake be well.
Your mind will gradually recover its tone, and we
shall — our hearts will, be made better. God bless
you, my dearest wife. So prays your ever affection
ate husband, J. S."
" Amherst, November 14, 1808. Monday even
ing. My dearest wife : Captain D. is so obliging as
to call, and oflTer to carry a letter. I can't omit

LIFE OF JUDGE SMITH. 243
writing, though I expect to be with you Thursday
evening or Friday noon. What would I not give to
have you with me this night ! Mrs. Spalding is all
goodness, and you would be charmed with her ; but
the days are long, and the nights longer. I returned
this morning from Peterborough. They are all weU ;
but I did not enjoy myself. I never took so little
interest in business or in friends, as at this circuit.
Judge Farrar is just gone ; he spent the evening with
me. It is now past nine. He made the kindest in
quiries after you. God bless you, my sweet wife."
It was a sore and lasting grief, which thus robbed
business and friendship of their accustomed interest,
making the days " long," and the nights " longer."
It was the first really severe calamity that Judge
Smith had known. His affections and his pride were
bound up in the " dear child " that, with his name,
was supposed also in his character to bear no small
resemblance to himself. The world could never
again become to him what it was before ; a change
had passed over it ; his feelings were chastened ; and
if no great and sudden revolution was wrought, his
character was deepened ; the day-spring of a brighter
hope began, and yielding, as he did, with entire sub
mission to the divine will, his heart was made better,
and the way prepared for patience, through other and
heavier trials, to have its perfect work.

CHAPTER VIII.
1809 — 1810.
GOVERNOR OP NEW HAMPSHIRE.
In the spring of 1809, Mr. Smith was chosen gov
ernor of New Hampshire. His interest in politics,
as has been already observed, had been gradually
diminishing, and for several years his papers contain
scarcely a reference to political events. His judicial
office gave him occupation enough, and of the kind
he best liked, whUe it opened to him a field of use
fulness and honor that might satisfy his ambition.
Why then should he consent to be held up as a can
didate for any political office, especially for one less
lucrative, and, in the judgment of every wise man,
less honorable than the office he already held ? " In
accepting it," he said, "I have consulted neither my
interest nor inclination. The last seven years of my
life have been entirely devoted to the office I have
just vacated. In that office, congenial with my hab
its and pursuits, and the duties of which had in some
measure become familiar by practice, I began'to in
dulge the hope, if my life should be spared and health

LIFE or JUDGE SMITH. 245
restored, that I might realize in some small degree,
the wish always nearest my heart, of being useful to
my fellow-citizens. But it has always been my be
lief, and I am not sensible that my practice has been
at variance with it, that, in a government like ours,
every citizen is at the disposal of his country ; and
though no wise man will ever aspire to office, yet no
dutiful citizen will feel himself at liberty to decline
its labors and its cares, at the call of his country.
He will consider his fellow-citizens as the best judges
in what way he can best serve them, and it wiU be
his highest ambition to merit their approbation by a
dUigent and faithful discharge of duty."
The reason here given is strengthened by the fact,
that in the whole matter he was entirely passive. I
cannot learn that he ever consented to be a candidate
except by not formally dechning. He went steadily
on in the performance of his judicial duties, taking
no part in the election, and probably as indifferent to
the result as any man in the state.
The reason above given, however, does not,fuUy
meet the case. The great object of Mr. Smith's
public fife had been a better administration of justice.
To this he had chiefly devoted himself while in the
state legislature. As a judge he had introduced a
more orderly practice, and prepared the way for a
more strict and exact administration of the laws.
But the laws themselves were exceedingly defective,
and he considered that it was only by establishing
the judiciary on a more liberal foundation, and re
forming the whole body of statute laws, that the juris
prudence of the state could be made as perfect as the
21*

246 LIFE OF JUDGE SMITH.
lot of humanity would admit. He hoped that Mr.
Mason might be persuaded to succeed him on the
bench, in which case the duties of the office would
be discharged with eminent abUity and impartiality ;
whUe he, in his new capacity, should give his whole
strength to the improvement of the laws, and thus
introduce into the executive and legislative, what he
had already accomplished with such remarkable suc
cess in the judiciary department. Such in substance
were his views, as explained in confidence to a friend
who called upon him before the election, in order to
dissuade him from allowing himself to be a candidate.
But in each and every respect he found himself dis
appointed and deceived.
He was chosen by so small a majority that what
ever he might recommend could have no great weight
of public opinion to sustain it. He was elected by
a political party, in violent party times, when both
those who supported and those who opposed him
were more intent on the little party expedients of the
day, than on any extended system of legislation,
which might look to the permanent advancement of
justice and the well-being of society. In his speech
to the legislature, the 14th of June, 1809, the judi
ciary was almost the only subject which he particu
larly recommended. " I cannot," he says, " forbear
calling your attention in a particular manner to the
administration of justice, and recommending this most
important branch of civil polity to your protecting,
fostering care. Next to the power of religion, a
strict, able and impartial administration of justice is
the best security of morals. It is indispensable to the

LIFE OF JUDGE SMITH. 247
peace, happiness and good order of society. It is in
vain that the legislative body frame and adopt the
wisest and the best system of laws, if the interpreta
tion of them be entrusted to incompetent or unskilful
hands. No part of our constitution is more just than
the declaration that, ' It is essential to the preserva
tion of the rights of every individual, his life, liberty,
property and character, that there be an impartial
interpretation of the laws, and due administration of
justice.' But this declaration of rights will be at
tended with no practical advantage to our citizens,
unless the legislature and the supreme executive give
it life and energy by the due exercise of their respect
ive functions.
" It is not sufficient that these departments abstain
from encroachments on the judiciary. Adequate
provision must be made by the legislature for its sup
port. Twenty years' attendance on courts of justice
has taught me something of the importance to the
community of an able, upright and independent judi
ciary, and nearly nine years' experience on the bench
has given me some knowledge of the perplexities,
labor and great responsibility incident to the office of
a judge. In the worst constituted judiciary, able
and independent judges may happen to be found,
but such are not to be expected. Judges will gener
ally bear an exact proportion to the provision made
for the office. A long and continual sacrifice of in
dividual interest for the general good, ought neither
to be expected nor desired. The nature of man must
be changed before institutions buUt on the presump
tive truth of such a principle can succeed. It would

248 LIFE OF JUDGE SMITH.
be a reproach to our state, of which it is altogether
undeserving, to suppose that it wants either the abU
ity to make a suitable establishment for this all-
important department of government, or materials for
judges such as the constitution contemplates. When
the oflfice is made as respectable as it ought to be,
the emoluments adequate to its arduous duties and
high responsibUity, men will always be found who
will cheerfully devote twenty years of their lives in
preparation for the office, and the residue in the labo
rious and faithful discharge of its arduous duties. I
would not depreciate the value of a spirit of patriot
ism which leads to individual sacrifices and sufferings
for the public good, but it is unreasonable to expect
from any man a fife of study and appfication, the
sacrifice of much of that ease and comfort every man
finds in the bosom of his family, the total renuncia
tion of all other means of acquiring property, without
the expectation of receiving from the public an ade
quate reward for these sacrifices and services. With
the legislature, then, it rests to determine what shaU
be the character of our judiciary. The constitution
requires and enjoins that it should be as perfect as
the lot of humanity will admit. WiU our citizens be
content with one less perfect, because they can have
it for a less price ? on this subject will they be satis
fied to be outdone by our sister states ? It is in vain
that the executive possess the power of appoint
ment. It is but the power of inviting to a seat on
the bench those whose learning, ability and integrity
qualify them for the employment. But wiU such
obey the call if the provision for the office is deemed
inadequate ?

LIFE or JUDGE SMITH. 249
" To me it would be a source of great regret to find
this office, or this department of government, subject
to the revolutions of pohtical parties, or at all affected
by party feelings. All parties are bound to unite in
a subject involving in it everything dear to all. If
the time should ever arrive when our courts of justice
shall be swayed by popular clamor and popular pre
judices, when our judges shall know no other rule of
judgment but the humor of the times, it will be falsely
said that men are tried for their lives and fortunes ;
they will live by chance, and enjoy what they have as
the wind blows, and with the same certainty. As far
as depends on me, you may rest assured, that no con
siderations of that nature, will have the smallest in
fluence on such appointments  I trust you
will excuse my earnestness on this subject. I feel its
importance. It lies near my heart. I urge my senti
ments with the greater freedom, because I cannot, I
shall not, receive the smallest benefit from the best
judicial establishment, except in common with my fel
low-citizens. I can have no other inducement for
what I recommend, than a full conviction of its utility
and indispensable necessity to the honor and well-
beingof the state. I am not conscious of a wish more
sincere than that of seeing the place I now leave on
the bench, filled by a person every way better quali
fied for his station than I could pretend to be."
Strange as it may seem, these remarks so true, so
important, and prepared with so high an object, were
made, above everything else, the means of bringing
odium upon the governor, The e^jpression, " twenty
years' attendance in courts of justice," was tortured

250 LIFE OF JUDGE SMITH.
from its true meaning, and made in the democratic
papers a hissing and a by-word against bim. In a
series of articles ' written with much adroitness and
ability, and supposed to be by an old friend and corres
pondent, the changes were rung upon them with a
disingenuousness which nothing but the malevolence
of party rage could paUiateor excuse ; while many of
the federalists, smitten by that curse of all political
parties, the fear of offending the people, and looking,
not to his language, but to the popular mind for the
interpretation, had neither the wisdom to understand,
nor the magnanimity to sustain him. Of course, his
recommendation had no influence with the legislature,
and the measures nearest his heart feU to the ground,
answering no other purpose than to make him un
popular with the people. It was a cause, however,
in which he might rejoice to be counted worthy to suf
fer shame, and in reference to it, he might have em
ployed the language used by Edmund Burke, on a
simUar occasion.'
As another instance of misrepresentation, I would
refer to an act of the legislature, appropriating about
thirty-five hundred dollars for the erection of a build
ing connected with the medical school at Hanover.
Immediately in the opposition papers the cry was
raised that, by this measure, the governor was en-
' In the New Hampshire Patriot.
2 " The charges against me are all of one kind; that I have pushed the
principles of general justice too far ; further than a cautious policy would
warrant; further than the opinions of many would go along with me.
In every accident which may happen through life, in pain, in sorrow, ia
depression and distress, I wiU call to mind this accusation, and be com
forted."

LIFE OF JUDGE SMITH. 251
couraging resurrectionists, and that if he were con
tinued in office, the dead would not be permitted to
sleep quietly in their graves. In 1832, J. S. said in
a lecture, " we now witness what I never expected to
see below, legislative bodies providing subjects for ana
tomical dissections."
In his judicial appointments he succeeded as little
to his mind. As no adequate provision had been
made for it, Mr. Mason could not accept the office
of chief justice. The Hon. Arthur Livermore, an
associate justice, was promoted to it, which left stUl
a vacant seat upon the bench. But the salary was
such that men of very high qualifications would not
accept it. George Sullivan, Samuel BeU and Caleb
Ellis, refused to be nominated. And to increase the
difficulty, three of the five ' councillors, as they be
longed to the democratic party, would permit none
but a man of their own party to be selected. In a
conversation at the September session of the councU,
they expressed an opinion in favor of Clifton Clag-
gett, an amiable, honest man, I believe, but wholly
unfit for the place, more especially as the other asso
ciate justice, who had just been appointed, was a
man of no legal education. The governor expressed
a decided opinion against him. At the December
session, the governor requested that they should name

' The councillors were Elijah Hall, Richard Dame, Samuel Bell, de
mocrats ; Caleh Ellis, Benjamin J. Gilbert, federalists. My statements
here are drawn from minutes taken at the time by the governor, and
compared with the ofiicial records of the council, in examining which, I
was greatly assisted by the obliging attention of Mr. Treadwcll, the
secretary of state.

252 LIFE OF JUDGE SMITH.
some other person, but they did not feel themselves
at liberty to agree upon any other. No nomination
was made ; but at the next meeting of the councU in
February 1810, after the governor had nominated Mr.
Vose, Mr. W. H. Woodward and Mr. Moody, with
out success, the council named Mr. Plumer, Mr. Bell
saying, as Mr. Dame had formerly done, that he thought
his abilities good, but doubted as to other qualifica
tions. The governor expressed no opinion of his
other qualifications, but did not express a high opinion
of his law knowledge. A majority ofthe council then
agreed upon Jonathan Steele, and the governor con
curred in the appointment as the best that, under
existing circumstances, could be made, " it being," as
he said in a letter to Judge Livermore, " deemed (by
the council) more important that the court should
have right opinions in everything else than of law."
It is easy to see how exceedingly vexatious these pro
ceedings must have been, and how completely, in
their result, they must have dashed to the ground the
anticipations with which he entered upon his office.
In little things, oftentimes more annoying than
graver matters, the tide went equaUy against him. On
his return from Concord, at the adjournment of the
legislature, a cavalcade went out from Exeter to escort
him home. They met him in the midst of a violent
rain, and he on horseback and bare-headed, was
obliged to ride half a mile or more, till his very boots
were filled with water. In the awkwardness and con
fusion occasioned by his untried situation, on arriving
at his house he was said to have forgotten to invite
the company to take any refreshments, and this by

LIFE OF JUDGE SMITH. 253
some was maliciously attributed to his fear of the ex
pense, while others amused themselves by ludicrous
stories of Mrs. Smith's horror at seeing her carpets
soiled by so many muddy boots. The opposition
newspapers, of course, made the most of this, and the
omitted civility was held up as such an instance of aris
tocratic meanness, as to be not without its influence
at the next election.
At the earnest request of President Wheelock, go
vernor Smith attended the commencement at Dart
mouth college. He was met at Lebanon, about five
miles distant, by a very large number of gentlemen
from Hanover and the neighboring towns, and a com
pany of cavalry. When he first appeared in sight of
the village, " his approach was announced by the
ringing of the bell and the firing of cannon. When
he had reached the square, he was again saluted by
three heavy discharges of cannon, by an elegant con
cert of music, and especially by the joyful counte
nances of a numerous company of spectators." And
" this manifestation of love and respect," adds the
newspaper from which I have borrowed the account,
" was from gentlemen of the first respectability, with
out any distinction of political party." These atten
tions were undoubtedly gratifying to his feelings, al
though, in his sober judgment, he attached to them as
litUe value, as those who profess to despise them most.
Whatever satisfaction his visit may have given in other
quarters, it seems not to have left a pleasant impres
sion on the mind of President Wheelock.'

1 Several little incidents occurred, which the governor used afterwards
22

254 LIFE OF JUDGE SMITH.
The particular act which probably wounded Mr.
Smith most severely at the time, came from his poht
ical friends. Seeing, as they thought, the tide of po
pular favor turning against him, and supposing that
John Taylor Gilman would be more likely to be
chosen, the men who had the year before taken such
pains to get him from the bench for what they con
sidered a more important place, appointed a com
mittee to wait upon him, and advise him, on account
of his apparent unpopularity, to decline being again
a candidate. The committee, who went on this
ungracious errand, were received as might been been
expected. He replied, in substance, and with emotion
not unmixed with anger, that as he had taken no
part in putting himself forward for the office he then
held, so he should take no part in withdrawing him-

to tell very amusingly. There happened to he present, (I believe it
was on this occasion,) an English lady of some note, whom a. distin
guished literary gentleman was, as the governor thought, overloading
with flattery. When an opportunity occurred, he ventured to suggest to
the lady, that she must not consider that man a fair specimen of
American breeding ; but she replied, with some warmth, that " he was
the only well bred man she had found in America." A long time be
fore, Mr. Smith had been on terms of intimate friendship with a young
lady, with whom he corresponded in a manner certainly not creditable
to his sincerity, unless he intended to marry her. After two or three
years the lady very properly broke oiF the correspondence, and, in a
letter which showed how deeply her feelings had heen wounded, but
with the digniiy becoming a woman under such circumstances, sent
back his letters, and asked that hers might be restored to her. Tears
had now passed by, since both the parties were married, when they met
once more at President Wheelock's, and it fell to the governor's lot to
wait upon her to the dinner-table. As they were going out, she ob
served in a tone of some resentment, " Ah, Jerry Smith ! I know you."
" And my dear  ¦  ," he instantly replied, " I know you, and I
love you too." It is difficult to say which most to admire, the gallantry
or the impudence of the reply.

LIFE OF JUDGE SMITH. 255
self from it. His friends retired as wise as they
came ; but there was left on his mind a feeling,
which he never got over, of inexpressible repugnance
to the little, self-elected, irresponsible cliques, who by
their secret management would dispose of all offices
and control public affairs. His subsequent writings
are marked by a degree of severity and bitterness on
this subject, which they show in respect to nothing
else. It was a standing remark of his through life,
that he had received more injury from his friends
than from his enemies.
At the election in March, 1810, John Langdon
was chosen governor of New Hampshire, and Mr.
Smith was once more thrown back into private life.
Except in respect to his health, which I cannot but
think was one of his chief reasons for leaving the
bench, the experiment had proved an utter failure.
In not one of the principal measures-iwhich he had
proposed to himself had he succeeded ; but at every
step he was vexed, embarrassed and disappointed.
He often referred to words used in the prayer at his
inauguration, " that he might go in and out before
this people," as literally fulfilled. We may well
understand how, when some years after he was ad
dressed by a stranger in the words, " Governor
Smith, I believe," he could very sincerely reply,
" The same that was such for a short time, and but
a short time, thank God ; — not but that I believe
in my conscience the good people of the state were,
to say the least, equaUy glad that the time was
short." But however lightly he might speak of it, and

256 LIFE OF JUDGE SMITH.
however cheerfully he might bear it, the experience
of that year was to him a severe and heavy disap
pointment. He was not, I believe, insensible to
popular favor ; but took, as every good man will, an
honest satisfaction in seeing his efforts appreciated
and valued. But the sore trial was to find himself
thwarted and crippled, in respect to those great
measures by which he had hoped to advance the best
interests of the state, and by its superior laws and
judicial institutions, to build up, in the judgment of
the wise and good, beyond the reach of popular
favor or reproach, a lofty and enduring reputation.
But why did he not succeed ? In the first place,
those were violent party times, and he who did not
enter with his whole heart into the party contest,
could not secure the public sympathy so far as to
carry through any great and important public meas
ure. Where, under the discipline of unscrupulous
leaders, a party, guided by party feefing, keeps itself
in power for a succession of years, there is estab
lished a despotism, which curses the very soU on
which it treads. Social affections, public and pri
vate honor, the rights of individual judgment, when
at variance with the rules of a few party leaders,
are sacrificed without mercy. They who have the
courage to stand by their own opinions, are pro
scribed and driven out from offices of trust and
honor, and many of the best and ablest men are, in
fact, disfranchised and disowned. The political his
tory of New Hampshire, for the last five-and-thirty
years, might be adduced, to illustrate and confirm
these general remarks. If the future historian should

LIFE OF JUDGE SMITH. 257
condescend to notice those who have there held the
highest offices, he will meet with honorable excep
tions ; but too often, while seeking to hold up en
couraging examples of pohtical distinction, he will be
obliged to make out the sad record of moral degra
dation. But there is a law of retribution, which
makes no distinction between pubhc and private
conduct, and which, in its own good time, obliges
all to reap even as they sow. When the leading
federalists, forsaking the great principles of public
policy on which they professed to act, began to show
their conservatism by deranging permanent institu
tions, in order to remove temporary evils, the party
fell through, as untrue to itself. And so with the
other party, when, instead of looking to the good of
aU, it converts itself into a mighty engine for the
exaltation of its leaders, it may for a long time seem
to prosper ; but sooner or later they who have tri
umphed most, will be forced to taste the bitter and
poisonous fruit of the tree which their own hands
have planted, in the vain hope that it would prove
fatal only to their opponents.
But in addition to all this there was, in the posi
tion which Mr. Smith had previously occupied, and
in his character, much that disqualified him for
being a popular politician. He who for so many
years had filled the highest place on the bench, till
his form had become associated in the minds of the
people with the venerable majesty of the law, could
not, without losing something of their respect and
his own, come down to manage the thousand springs
which act upon the public mind. It may be ques-
22*

258 LIFE OF JUDGE SMITH.
tioned whether any one, who has been long and
eminently distinguished as a clergyman or judge, can,
as an active politician, continue to enjoy the public
confidence. For, in proportion to the purity of mind,
the loftiness of purpose, the sanctity of life, which
men have been accustomed to attribute to him, will
be the revulsion of feeling, when they see him de
scend from his high place, to mingle, like others, in
the vulgar fray. And he whose sole business it has
been for years to discover what is just, and to de
clare it with an authority from which there is no
appeal, cannot volunteer to come down into the
arena of political strife, and stand there as a candi
date for popular favor, without losing in his own
mind something of the sense of personal dignity and
self-respect. At the same time, the habits of his life,
just in proportion as they have lifted him above the
passions of the world, in the discharge of his sacred
duties, have destroyed in him that quick sympathy
with the popular feeling, by which he may adapt
himself to circumstances, and prepare his measures
and the public mind for each other. Here Governor
Smith was extremely deficient. As a statesman, he
could see clearly, and prepare with remarkable wis
dom, the measures best fitted for the public good ;
but as a politician, he had not the art of managing
men, and so of securing the adoption of his meas
ures. This he has himself expressed, with equal
sincerity and truth. " I have been," he says, in the
record of his private thoughts, February, 1825, "too
regardless of private fame, too heedless of personal
advantages ; have taken too little, indeed no pains,

LIFE OF JUDGE SMITH. 259
to secure to myself, by legitimate and honorable
means, a popular sanction of my conduct. I have
always had a general wish for public and private ap
probation ; but have always been too much, too en
tirely occupied, in the particular actions in hand, to
regard their bearing on popular opinion. The first
intimation I have generally had that the manner was
wrong, (for the actions were generally, and the in
tentions always good,) has been the advantage taken
by persons desirous of disparaging me in the public
estimation." In another place he has said : " It is not new to
me to be blamed by two opposing parties. As a
party man, it is an insuperable objection to me that I
can as easily discern the faults on my own side as on
the other. Now your true party man sees no faults
but on one side, and there all is in fault."
" A party must do the very thing we condemn,
prefer their friends to the public good. They cannot
retain power, or be stable, without gratitude to their
friends. The chain of friendship must be bright —
the difficulty is in retaining those for whom they can
do nothing. They must be liberal of promises, and it
is well if they for whom nothing is done be simple.
The knowing ones must be provided for, and the less
pure the conduct, the greater the clamor set up about
their own purity, accompanied with vehement accu
sations against their adversaries. They are sure of
belief in both ; a jury will not require much evi
dence, where they have an interest in the verdict."
To obtain popularity, or serve the people by such
means, was altogether beyond Governor Smith's skiU.

CHAPTER IX.
1810 — 1820.
MR. SMITH AT THE BAR — JUDICIARY ACT OF 1813 —
CHIEF JUSTICE  JUDICIARY ACT OF 1816  MR.
SMITH AGAIN AT THE BAR.
On ceasing to be governor, Mr. Smith returned to
the practice of his profession. He did not lose the
cheerfulness that was so remarkable a trait in his
character, nor had he ever the embittered feelings of
an ill-used or disappointed man. A gentleman,' who
afterwards reached the highest place at the New
Hampshire bar, and who was with Mr. Smith as a
student in 1810, gives the same account as aU others
who at any time were in his famUy, of his obliging
attentions to the young, and his uniform elasticity
of spirits. Yet I doubt whether he engaged in busi
ness or politics with as much interest and zest as
before he went upon the bench. This I infer from
single expressions in his letters to Mrs. Smith. —
' Joseph Bell, Esq., now of the Massachusetts legislature.

LIFE OF JUDGE SMITH. 261
" Keene, 24th October, 1810. I wish I loved
money, for then it would give me pleasure to earn
it ; but I do not, and nothing but a sense of duty
makes me labor in my profession." " Amherst,
12th October, 1811. I have not stood in need of
nursing, but have needed a great deal of soothing,
which nobody but you could give. Mrs. S. is very
well and very kind, but I wish with all my heart that
you were here." " Boston, 24th March, 1812. I
have lost my taste for politics, if I ever had any,
and here I hear nothing else. God grant that I may
be delivered from this body of politicians, and re
turn to my rest." But nowhere in his letters, writ
ten with the unrestrained freedom of perfect confi
dence, is there an expression that would indicate
disappointment, or a mind dissatisfied with his po
sition. His professional income more than equaUed his
expectations, and his faculties must have been tasked
to the utmost ; for in the same county with himself
were Jeremiah Mason, Daniel Webster, and George
Sullivan. These men were then in the full vigor of
manhood, and in the contests at the bar must have
furnished an extraordinary exhibition of forensic
power. Mr. Sullivan, the son of Gen. John Sul
livan, and for many years attorney-general of New
Hampshire, was a man of fine address, quick parts,
and flowing eloquence. It was a pleasure to listen
to the rich tones of his voice, as the sentences came
rolfing out with their full, regular and sonorous ca
dences. But he was as much inferior to Smith and
Mason in legal strength and knowledge, as he was

262 LIFE OF JUDGE SMITH.
their superior in the power to move the feelings of
a jury. The names of Mr. Smith and Mr. Mason
are, by those who remember those times, most fre-
quentiy mentioned together. They were powerful
combatants, less unequal than unlike. Both were
profoundly learned, but Smith the more accomplished
scholar ; both were profound thinkers, but Mason's
the more original mind. With perhaps equal in
dustry in the preparation of causes, the one fortified
his position with accumulated authorities, the other
trusted more to his native strength and the force of
reason. The one was copious in iUustrations, open
ing his views as in the broad sunlight, and explain
ing them tUl none could fail to understand ; the other
laid himself out in a few bold strokes, and with a
condensed energy of expression that seldom em
ployed a superfluous word. The one was a more
lucid expositor ; the other a stronger reasoner, and
possessing more masterly powers of analysis. In
cross-examining witnesses, Mr. Mason, whose skiU in
this respect was perhaps unequalled in this country,
laid his plans far back, getting all that he wished
before his design was suspected ; while Mr. Smith,
with piercing eye, watched his opportunity and darted
with sudden surprise on the unhappy man who was
laboring to conceal the truth. Yet either could ap
ply the other's method. Severity with the one smote
down its victim by a single blow ; with the other it
was oftener a cutting irony, from its exceeding sharp
ness hardly felt tiU the mischief was done. Wit, in
the one, had the pungency that only awakes a smUe ;
in the other, it was the ludicrous association or the

LIFE OF JUDGE SMITH. 263
joyous humor, that convulses men with laughter.
But here too, either could use the other's weapons.
In pathos, they were perhaps equally deficient ; and
equally remarkable for the contemptuous indignation
which they could excite against whatever was mean
or dishonest. As an advocate, each was ready to
take all the advantage of his adversary that profes
sional adroitness and the rules of the bar would al
low ; but they were both men of personal honor,
and of a proud, unbending integrity ; and as either
spoke of those high virtues, he seemed a fitting cham
pion and representative of his cause. Neither of
them laid claim to the charm or graces of oratory.
When they met at the bar, it was the stern encoun
ter of massive intellectual strength, in which they
dealt their heaviest and sharpest blows. In legal ac
quirements and logical skUl, they were the not un
worthy associates and antagonists of Daniel Webster ; '
' The first time that Mr. Mason and Mr. Webster ever met, was in a
criminal trial. Col.  , a man somewhat prominent in the demo
cratic party, had been indicted for counterfeiting. It was a desperate
case, since he had been detected, not merely once or twice, but many
times, in passing counterfeit money. He was so connected with his party,
that it was thought very important, on political grounds, to secure his ac
quittal. A subscription was accordingly raised to defray the expenses,
and Mr. Mason was employed to defend him. It so happened, that just
before the trial came on, the attorney-general — not Mr. Sullivan — who
was subject to fits of intemperance, was obliged to go home, and Mr.
Webster, who lived in the neighborhood, and knew all about the case,
was applied to hy the solicitor to act in behalf of the state. Mr. Mason
had heard of him as a young man of remarkable promise, but he " had
heard such things of young men before," and prepared himself, as he
would have done, to meet the attorney-general. But he soon found that
he had quite a different person to deal with. The young man " came
down upon him like a thunder-shower ; '' and Mr. Mason's client got off,
as he thought, more on account of the political feelings ofthe jury, than
from the arguments of the counsel.

264 LIFE OF JUDGE SMITH.
while in that combination of gifts which makes the
commanding orator, he stood with them, as he has
done everywhere else, like Mount Washington among
the other mountains of New England. Mr. Smith
has often said, that in single qualities he had known
men superior to Mr. Webster ; that HamUton had
more original genius ; Ames, greater quickness of
imagination ; that Marshall, Parsons, and Dexter were
as remarkable for logical strength ; but that, in the
union of high intellectual qualities, he had known no
man whom he thought his equal.
WhUe the New Hampshire bar was at that time
distinguished for its ability, the bench did not enjoy
in an equal degree the public confidence. The chief
justice, a man of strong, uncertain powers, in whom
was vested whatever of respect the court was entitled
to, was the only one among the judges of the supe
rior court, who had not evidently been appointed
from party considerations alone. Richard Evans,
who had been placed upon the bench by Gov. Lang
don a few days before he was succeeded by Gov.
Smith, had a sort of metaphysical talent, but no ac-
Mr. Mason was particularly struck with the high, open, and manly
ground taken by Mr. Webster, who, instead of availing himself of any
technical advantage, or pushing the prisoner hard, confined himself to
the main points of law and fact. Mr. Mason did not know how much
allowance ought to be made for his being taken so by surprise ; but it
seemed to him that he had never since known Mr. Webster to show
greater legal ability in an argument.
In drawing any comparison between Mr. Smith and Mr. Mason as
advocates, it should be borne in mind that, while the latter was actively
engaged at the bar more than forty years, the former, after spending
seven years in congress, gave the strength and enthusiasm of his man
hood to the duties of the bench, for which, more than for the bar, his
taste, abilities and attamments had peculiarly fitted him.

LIFE OF JUDGE SMITH. 265
quaintance with the law ; and Clifton Claggett, whom
Gov. Smith had repeatedly refused to nominate for
the bench, but who had received the appointment
from one of his democratic successors, belonged to
the profession, but was too weak a judge to be looked
up to by the bar with respect.
In June, 1813, the federafists being then in power,
an act of the legislature was passed, by which the
old courts were abolished, and every superior and in
ferior judge in the state was thrown out of office.
There were confessedly, in the old system, serious
imperfections, which were remedied by the new, es
pecially in allowing jury trials to be conducted by a
single judge, and in making provision for a law term,
but the main object in making the change undoubt
edly was to get rid of incompetent judges. It was
a bold stroke, not, in aU its extent, sanctioned by the
leading men at the bar, and directly at variance with
what, throughout the United States, had been the
avowed principles of the conservative party. There
was nothing on which they had professed to depend
so much for the stability of our government, as a judi
ciary which should be, as far as practicable, indepen
dent of popular or legislative interference ; and here,
by a single act of theirs, every judge in the state had
been displaced. If the object were to reform the
court, why not change it without removing the judges ?
If to remove the judges, why not remove them in the
way the constitution had provided, by address from
the legislative to the executive department ? Or
if both purposes were to be answered, why not let
each be done in the way which the constitution had
23

266 LIFE OF JUDGE SMITH.
pointed out? In a government like ours, there is
nothing from which we have more to apprehend than
the disposition on the part of the people to break
through established safeguards, in order to get rid of
some pressing but temporary evU. In their impa
tience under a present infliction, they forget the flood
of disorders that may be let in through a single breach
of the constitution. It is, therefore, particulariy in
cumbent on the leading men in the conservative
party to bear long with evUs, which must in time die
out of themselves, before they consent to do that
which may so much as seem to sanction such a course.
In this particular case, however, it must be remem
bered that as far as precedent could go to establish a
construction of the constitution, congress, in abolish
ing the United States' circuit court, and the legisla
ture of Massachusetts, in abolishing their court of
common pleas, had given ample authority for this act,
and that whatever might have been the course most
consistent with the principles of the federalists, their
opponents had no reason to complain of what had
been done ; since it was but following an example
which they, under similar circumstances, had most
heartily approved.
The judiciary act of 1813, was a thoroughly radi
cal measure, adopted by a party, who appear to have
been surprised at finding themselves again in power,
and who, by this act, began to open the way for their
final and decisive overthrow. The ablest lawyers,
who had seen the defects of the old system, and la
bored for some change as absolutely necessary, were
hardly prepared for such a change. The democratic

LIFE OF JUDGE SMITH. 267
party, who viewed the act as utteriy unconstitutional,
threatened a civU revolution in the state. On all
sides, it was considered impossible for the new court
to get under weigh, unless Mr. Smith would consent
to be the chief justice. To him it'was a source of
extreme perplexity and vexation. He heartily disap
proved of what had been done, and yet by consenting
to be placed at the head of the new judiciary, he
must expect to encounter all the difficulties, and to
bear all the odium connected with it. In a pecuniary
point of view it was a great sacrifice, since his income
at the bar was more than three times what it would
be upon the bench,' and his circumstances at that
time were such as to make this a matter of considerable
consequence to him. Governor Gilman was exceed
ingly anxious that he should accept the office, but could
get at first no definite answer. Mr. Mason, then a
senator in congress, in a letter to Mr. Smith, dated
Washington, July 6, 1813, says : " My only fear is
respecting your acceptance. I am confident the suc
cess of the system wUl depend on you. Should you
decline, I cannot see how it will get into operation.
.... I hope you will find no objection to accept
ing the office with the intention of retaining it per
manently. At all events, you must in my opinion
accept and hold it for a time, or prepare to see disap
pointment and confusion ensue  I will only
add that Mr. Webster and others here, entirely agree
with me in the wishes I have expressed on this sub-

' By the act of 1813, the salary of the chief justice was fifteen hun
dred dollars, that of the associate judges, twelve hundred.

268 LIFE OF JUDGE SMITH.
ject." In another letter, Mr. Mason says : " When
about a fortnight ago I sent you my advice respecting
your duty in a very important particular, I intended
soon to have written again. I had not vanity enough
lo suppose I should have much influence with you,
but I thought the course you adopted so important
to the community, that I could not refrain from ex
pressing my wishes. I see, by the public papers, you
have been appointed chief justice ; I hope I shall
soon see that you have accepted. Nothing else will
put down the clamor raised against the system.
Should you dechne I think I see danger of confusion.
I say this with the utmost sincerity. I have seen all
the newspapers, and been informed of the feehngs of
the democratic party."
In his reply to these letters, dated July 26, Mr.
Smith says : " I would hardly believe that anything
could have given me so much perplexity as this . . .
 (you may fill this up with any epithets
you choose) new judiciary act has done. Before I
received your letter I had come to the same conclu
sion you seem to have done.
" I need not state to you the pros and cons ; you
wiU easily conceive of them all, and it would be a
very long letter as well as a very dull one to state
them. It is only one year, and if it please heaven, I
may still have time enough to acquire the littie that I
need. " I verily believe our path is beset with difficulties
— our members in the legislature were chock full of
courage when they were at Concord, stuffing them
selves with brandy, and each other with big swelling

LIFE OP JUDGE SMITH. 269
words of their own importance. But when they got
home and came to be sober, the scene was sadly
changed ; they were most piteously frightened, and
others, including — et id genus omne, ingenuously
taking advantage of the panic, have seized those pure
vehicles, the Gazette and Patriot, and continue pour
ing out on the public, essay upon essay, paragraph
upon paragraph, alternately coaxing and bullying. I
sincerely beheve if they (the general court,) could
get back the act, they would see the devil have it
before they ever passed another such. Judge Liver
more is here and accepts. I have just received a
letter from Ellis, in which he proposes to embark on
the stormy sea, if I wiU."
The following letter to his old friend, Timothy
Farrar, explains his feelings more fully :
"Exeter, 26th July, 1813. Dear Sir: I could not
but be flattered by your letter of the 19th. There
certainly is no man, whose opinions would weigh
more with me, or whose wishes I should have more
pleasure in gratifying, than yours. Before I received
your letter, I had however determined on the course
I ought to take. ' I hope it will meet your approba
tion. For the greater and better portion of my life I
have pursued that course which the public were
pleased to direct, and it has always been to me more
troublesome and less profitable than the one I had
chosen for myself. When this same public were
pleased, three years ago, to say that they had no far
ther occasion for my services, I concluded that I
might safely calculate on the little of life that re
mained, as my own. At my age and with slender
23*

270 LIFE OF JUDGE SMITH.
health, it would have been presumptuous to have
counted on riches or length of days. My success has
more than answered my expectations, and I have
never entertained the thought of quitting the shade
which Providence seemed to have provided for me.
I found it necessary to pursue the business of my
profession a little longer, and it has not been irksome
to me. The responsibility attached to the office of
judge, and especially of chief justice, pressed heavily
on me when I had more strength and much greater
zeal than I have now. No man was ever more
sincere in his endeavors to fulfil the duties of an
appointment, than I was.
" You can form a correct opinion •of the difficulties
with which a judge has to contend. In looking back,
I see abundant matter for mortification ; but these re
trospections give me no pain, because I always in
tended well, and never spared any labor. I hope it
will not be thought vain to say, that when the public
and I fell out, I did not consider myself as owing
them anything. They had no claims on me, and I
was as desirous as they could be that our separation
should last forever. As to the past, I was disposed
with all my heart to offset any little slights or ill-
usage on their part, against the many errors (none of
them intentional) and imperfections they must have
discovered in me. But nothing was farther from my
thoughts than to open a new account. Under these
circumstances (and it would be taxing you too se
verely to state aU my objections to a renewal of
public life,) you can form some idea of the perplex
ity which this new judiciary act has occasioned me.

LIFE OF JUDGE SMITH. 271
A very bold step has been taken, in which I had no
agency, and as to which I was not even consulted.
It is a step, too, which I should not have advised
though two things have been gained by it of great
consequence, the trial of jury causes before a single
judge of the supreme court, and the chance of ob
taining better men than the old system was calcu
lated generally to give for the common pleas bench.
But the step has been taken, and if it does not suc
ceed well, it wUl do an infinite deal of mischief.
" I Ifave been given to understand, from several
quarters, that many people are pleased to suppose
that my services at this time are needed, and that, if
they are withholden, it will weaken a cause to which,
from sincere conviction, I have always given my
feeble support, and add strength to a cause already
too strong. If this experiment should not succeed,
it will destroy all hopes of any improvement in our
judicial system in our day. Except so far as regards
myself, there is doubtless weight in these observa
tions. At the same time it is equally true that I
cannot hold the office of chief justice with the salary
annexed to it. I have made such arrangements on
the score of expense, &c., as forbids it. I never will
consent to be dependent as a public or private man.
Besides, ever since the people of Massachusetts have
done their duty on this subject, I have persuaded
myself that; the honor of the state, their interest, the
nature of the office, its duties, to say nothing about
its dignity, require a much higher salary, one which
shall at all times command the services of those best
qualified. I have persuaded myself, also, that it

272 LIFE OF JUDGE SMITH.
may do some good to the state, and have some ten
dency perhaps in the end to procure better salaries
for others, if I avow these sentiments and act upon
them.. It is not necessary for the state, and as little
for me, that I should be a judge, but it is my sincere
desire that the office should be raised ; because I am
persuaded that the character of our judiciary will
rise with it. I am willing to be thought avaricious,
(which I am not,) and to be evUly spoken of, if it
wUl conduce to this end. I know this is not the road
to popularity, and I do not hke it the worse*on that
account. " Taking everything into consideration, I have
concluded for the present to accept the office and
hold it for a year. It is every way a sacrifice. The
pecuniary one I regard the least. If it please Heaven,
I shall have, after that, time enough to acquire in my
profession the small sum I need. Next year the le
gislature will have an opportunity of knowing and
expressing the public sentiment on the subject, and
every one wiU be convinced that my continuance is
of no consequence. In taking this step, it did not
escape rae that standing aloof at this critical moment
would expose me, among a certain class of men, to
the suspicion of acting under the influence of resent
ment for supposed ill treatment. I would make a
sacrifice at any time rather than incur such suspi
cions, though conscious I did not deserve them. But
the truth is, I feel nothing of all this. I wUl engage
at any time to forget ill treatment as soon as its
authors forget it, and to forgive it much sooner.
" I have said a great deal more than I intended,

LIFE OF JUDGE SMITH. 273
but the subject interests me, and there are few
people to whom one can speak unreservedly ; so that
you may think yourself well off that I have said no
more." Influenced by these considerations, Mr. Smith ac
cepted the office, with Arthur Livermore (the late
chief justice,) and Caleb EUis for associates. There
can be no doubt that he had a perfect right to ac
cept the office ; since whatever may be thought of
the act by which the old superior court was abol
ished, the legislature was unquestionably authorized
by the constitution to establish such new courts as it
might see fit. But Messrs. Evans and Claggett, of
the old court, regarding as unconstitutional the act
by which their offices had been taken from them, de
termined still to go on in the performance of their
judicial duties, as if no such act had been passed.
The democratic papers threatened to maintain by
violence, if necessary, the authority of the old judi
ciary, and private letters were received by Judge
Smith, urging him, if he would avoid a civil war,
to decline accepting the office. These threats, of
course, had no influence upon him. He felt the
delicacy of his situation, and, foreseeing, prepared
himself to meet the difficulties and embarrassments
that were to be thrown in his way. The first term
of the court was to be holden at Dover, in Strafford
county, and it was thought best that it should be
opened by Judge Livermore, as he had been chief
justice in the old superior court, and seemed to be
entirely satisfied with the present arrangement. On
Tuesday morning, September 7, he reached Dover,

274 LIFE or JUDGE SMITH.
at about nine o'clock, and finding his old associates,
Messrs. Evans and Claggett there, with the deter
mination of holding their court at the same time and
place appointed for his, he compromised the matter,
by agreeing that they should have the court-house in
the forenoon, and he in the afternoon. This com
promise seemed unnecessary, as the sheriff, clerk,
and other officers were on hjs side, so that when
Messrs. Evans and Claggett met, they had no grand
jury, and no means of carrying on the business of
the court. They, however, appointed a clerk, and
Mr. Evans delivered a long address, condemning the
late act of the legislature, and then adjourned till ten
o'clock the next morning. In the afternoon Judge
Livermore held his court, and, after the usual charge
to the grand jury, observing that he had a communi
cation to make to the people, he, to the astonishment
of all present, made a strong and vehement address
against the act under which he held his office, con
demning it as unconstitutional, and arraigning the
motives of the legislature that passed it, in terms
exceedingly harsh and severe. He then adjourned
the court till nine the next morning. In the morning
he agreed with Evans and Claggett that they should
take his hour and place, and he went to the meeting
house, where he continued from day to day, till they
had finally adjourned. During the second week, the
chief justice was present, and went on with the busi
ness of the court unmolested.
The next session of the supreme judicial court,
which was at Exeter, the third Tuesday in Septem
ber, was holden by the chief justice and Judge Ellis.

LIFE OF JUDGE SMITH. 275
Soon after they had taken their seats upon the
bench, Messrs. Evans and Claggett entered the court
house, and seated themselves, one on the right, the
other on the left, of the judges. The court was or
ganized, as usual, by the chief justice, although his
directions were all countermanded, and the sheriff
refused to obey any but the late judges. For in
stance, after the clerk of the court had, at the request
of the chief justice, administered the oath of office
to the jurors, Mr. Evans ordered his clerk to repeat.
the ceremony, stating that the oath just administered
was unauthorized and illegal. The chief justice ex
pressed an opinion that this course could not be tol
erated, and the jurors all refused to be sworn a
second time. When the chief justice rose to charge
the grand jury, he was interrupted by Mr. Evans,
who said, " Gendemen, the act recognizing the court
that is now about to address you, is unconstitutional.
We acknowledge that these men (Smith and EUis)
are judges by appointment, but not judges of the
superior court. They may have an inferior jurisdic
tion ; with this court they have nothing to do." The
chief justice then delivered his charge, after which
juries were organized, and the court proceeded to
business, the defunct judges keeping their seats in
silence. Judge Smith preserved throughout his usual
suavity of manners, yielding to the caprices of Evans
and Claggett, and permitting them to go through with
any " ceremony," as he termed it, " that they deemed
it incumbent on them to perform."
In the afternoon the judges, finding the court
room occupied, went into another pait of the house.

276 LIFE OF JUDGE SMITH.
and proceeded with the business before them, as if no
interruption had taken place.
In Hillsborough county the same farce was enacted,
and with very much the same results. Had Messrs.
Evans and Claggett been able men, supported, as they
were, by a powerful political party, the most serious
consequences might have ensued ; but, as it was,
their feeble and foolish efforts served only to bring
them into contempt. They lost the little hold they
had previously had upon popular sympathy, and their
appeals to the public did far more' to prove their
own incompetency, than the unconstitutionality of
the act by which they had been superseded.' Great
credit was due to Mr. Adams, the clerk, for his firm
and judicious conduct, without which the embarrass
ments would have been almost insuperable. The
forbearance, too, of the court, supported as it was by
their distinguished and acknowledged ability, made a
most favorable impression upon the public mind.
" It was the aim of the chief justice and Judge
EUis," said Judge Smith, in his account of the pro-

• At Dover, an honest farmer, having heard Mr. Claggett in a written
speech of several hours, laboring to prove the act of the legislature,
which deprived the state of his services as a judge, a gross and flagrant
violation of the constitution, observed, when he came out, that though
the good man had failed to convince him that the representatives of the
people had broken the constitution, he had satisfied him that he (the ex-
judge) was never quahfied for the ofiice, and that whoever had ap
pointed him, must have been as weak as himself, or very wicked. The
following trifling anecdote from the newspapers of that day, as well as
the above, may, like a mote in the air, show how the public sentiment
was then turning. A good woman, on being told, how Evans and Clag
gett persisted in holding their court, said, thej seemed' " very much
like her old hen turkey ; the eggs had all been taken away — still the
old fool would keep sitting, and sitting, Eind sitting."

LIFE OF JUDGE SMITH. 277
ceedings at Exeter, " to conduct with the utmost
mUdness, and to bear with any acts of rudeness, and
even insult, offered to their persons, as far as they
deemed consistent with the honor of the court and
the administration of justice. They were willing to
impute many things to ignorance and mistake."
After these ineffectual attempts to obstruct its pro
ceedings, the new court was aUowed to go on with
out farther molestation. A special session of the
legislature was called by Governor Gilman, at which
the sheriffs, who had refused to obey the orders of
the supreme judicial court, were removed from office,
but it was net thought expedient to pass any act with
respect to Messrs. Evans and Claggett. The old court
was left to die of inanition.
• Judge Smith had accepted his office with the un
derstanding that he should be permitted to give it up
as soon as the new judiciary system had got fairly
established, and in the summer of 1814 he was ex
ceedingly desirous of handing in his resignation.
But those in whose judgment he placed the greatest
confidence, were altogether averse to his taking such
a step. Judge Ellis, his intimate friend, whose clear
intellect was united to a character as spotless as falls
often to the lot of man, remonstrated against it,
both on account of his private wishes and his re
gard for the public good. Mr. Sullivan, Mr. Mason,
Mr. Webster, and indeed, almost without exception,
the whole bai.'were of the same opinion. Mr. Ma
son, in a l^ttl^- dated July 10, 1814, said: " I am
sensible ymir situation the past year has been un
pleasant and vexatious, and that the conduct of the
24

278 LIFE OF JUDGE SMITH.
legislature has been very provoking. I am, however,
of opinion, in which Mr. Webster concurs, that you
cannot, consistenUy with your duty to the public,
resign your seat. Your resignation would imme
diately throw the judiciary into utter confusion. By
another instance of folly in our federal legislature,
the council is so composed that no successor could
be appointed. The council would agree to nobody
the governor would agree to. The ghosts of Judges
Evans and Claggett would again rise, and re-act the
mad pranks of the last year. It is impossible to say
what would be the event. The scene would be
filled with nothing but disgrace, in which we should
all share. If you will permit yourself fairly to con
sider the consequences, I think you cannot come to
the determination of resigning. I never made loud
claims to any extraordinary share of patriotism. But
since you request me to consider what I would do in
your situation, I do not hesitate to say that, if in
your situation, and possessiug your talents for dis
charging the duties of the situation, I would not,
under existing circumstances, resign, the present
year. I think you cannot do it without endangering
your own character. Should you, contrary to my
wishes and expectations, determine on a resignation,
I sincerely fear that you, together with all good men
in the state, would soon have ample cause of re
pentance." These considerations were not to be resisted, and
although an attempt in the legislature to increase his
compensation had been unsuccessful, and he could
continue in office only at great personal sacrifice, his

LIFE OF JUDGE SMITH. 279
duty was too plain to be mistaken, and he remained
in his place. His course was distinguished by the
qualities which had before marked his judicial con
duct, and notwithstanding the circumstances under
which he had been appointed, he enjoyed the same
confidence as before on the part both of the public
and the bar.
In the spring of 1816, Judge Smith met with a
severe loss in the death of his intimate friend and
associate. Judge EUis. There was no public man to
whom he was more sincerely attached, or whom he
remembered as long ' as he lived, with warmer affec
tion and respect. In his charge to the grand jury in
1816, the chief justice gave an interesting sketch of
his friend's judicial character, marked by a deep and
solemn sense of what he and the whole community
had lost in his death.
In 1816, the republican party came again into
power, and having never acquiesced in the judiciary
act of 1813, as constitutional, one of their first mea
sures was to rescind it, and Mr. Smith found himself
again a practising lawyer. His business returned to
him, and he was able, in a few years, to lay up the
competency he had desired as a provision for old age.
But another generation had come forward at the bar,
some of whom took, perhaps, a malicious satisfaction

1 When nearly twenty years afterwards, a young man, whose Christian
name was Caleb Ellis, applied to be admitted as a henefieiary at Phil
lips Exeter Academy, Judge Smith asked, with a good deal of feeling,
if any but a worthy youth could bear that name, and acknowledged that
he could not help being, by this circumstance, prepossessed in favor of
the application.

280 LIFE OF JUDGE SMITH.
in goading and irritating as an advocate, one to whose
authority as a judge, they had been obliged to sub
mit. He had never been more able or a more for
midable opponent than at this time ; but he had spent
too large a portion of his life in a different station to
retain a keen relish for the warfare that belongs to
the profession. It may be, too, that there was no
great cordiality of feeling between himself and the
newly appointed court. On one occasion, a smart
young lawyer was indulging in the most unbecoming
abuse, commenting on his personal appearance, and
particularly on his old drab surtout, in a manner
which the court plainly ought to have rebuked. Af
ter bearing it for some time, Mr. Smith, in that tone
of cutting irony which he knew so weU how to use,
dryly said, " As the court consider this decent, I of
course, am bound so to regard it." It is easy to un
derstand how, under such circumstances, with the
feelings and habits which he must have acquired as a
judge, and the ill-natured allusions that were often
made to his former position, the ordinary practice at
the bar might have become exceedingly irksome to him.
Once, on coming out of the court-house, he said to
an old acquaintance, that if, on leaving this worid he
should be obliged, as a retribution for his sins, to re
sume the practice of the law, he should say with
Cain, " My punishment is greater than I can bear."
The following anecdotes, which are told of Mr.
Smith, savor more of the ready wit of the advocate
than the severe truthfulness of the judge. In a cause
which he was to argue, a man by the name of Haines
was an important witness on the opposite side, and

LIFE OF JUDGE SMITH. 281
many witnesses had been introduced to show that no
reliance could be placed upon his testimony. In
opposition to these witnesses, one Trueworthy Gove
Dearborn, a man of some littie consequence, testified
that Haines was a man to be relied upon. Mr.
Smith in his argument, speaking of the strong evi
dence against Haines's character, concluded by say
ing, " All who have ever known him, testify in the
most decided manner that he is not to be trusted,
except Trueworthy Gove Dearborn — a man just like
him." This was spoken in the most contemptuous
manner, and as if the witness were utterly unworthy
of notice, not a word was added. Mr. Dearborn, as
was natural enough, was exceedingly angry, and, de
termining to be revenged, went to Mr. Smith's lodg
ings, and told him that he should bear such insult
and abuse from no man, however elevated his posi
tion. Mr. Smith, with a most good-humored and
comic expression, replied, " What did I say ? You
testified that Haines was a man of excellent charac
ter, and I said that you were just like him."
Mr. Mason once told Mr. Smith that, having been
recently looking over the criminal calendar of the
English courts, he was surprised to find there so
many persons bearing his name, and asked how it
happened. " Oh," said he, " when they got into
difficulty, they took the respectable name of Smith ;
but it generally turned out that their real name was
Mason." Mr. Smith lost the last cause that he ever argued.
On coming out of the court-house, he said to some
one near him, that if that fool of a P  , (one of his
24*

282 LIFE or JUDGE SMITH.
witnesses,) had not sworn so badly, his client would
have got his cause. The remark was repeated by
some good-natured friend to Colonel P  , who af
ter several years, and being reduced to extreme pov
erty, called on Mr. Smith. Having enjoyed himself
very much during a long conversation with him, he
mentioned what he understood Mr. Smith had said
of him. Instantly, with a look of the greatest sur
prise, Mr. Smith inquired, " Now, Colonel P  , I
put it to you to say, does that sound at all like
me ? " " No, it does not, and I always maintained
that you never said it."
Whatever Mr. Smith may have found at this pe
riod of his life to vex and irritate him in the court
room, he never carried his troubles home ; and in his
practice there was always enough of serious and solid
labor to give full employment to his mind. He de
lighted to investigate cases which put into requisition
aU his knowledge and strength, and he was retained
in most of the important causes that came before the
New Hampshire courts. Of these, the famous Dart
mouth College case, was, undoubtedly, by far the
most important, whether viewed in relation to the legal
considerations and the serious consequences involved
in it, the interest it awakened in the pubhc mind,
the manner in which it was connected with the polit
ical action of the day, or the learning and abUity with
which the rights of the college were maintained.
President Brown, whose life of rare usefulness and
yet greater promise, was closed by an early death,
might well say, as he did in one of his last letters on
the subject to Mr. Smith, " Whatever depends on

LIFE OF JUDGE SMITH. 283
man, I know, is uncertain ; but from all I can learn
here and elsewhere, I have a great degree of confi
dence, that the cause is gained. Should this be the
event, (and indeed whether it be or not,) we shaU
always entertain a lively sense of gratitude to those
gentlemen, who ' have stood in the gap,' and so no
bly sustained the contest. And may we not forget
our obligations to Him, who has bestowed on our
wisest counsellors their talents, and by whom ' princes
decree justice.' " The college, in 1819, passed a
vote requesting each of the advocates, by whom their
rights had been so ably maintained, to sit for his por
trait ; but the funds of the institution were in such a
state that the intention was allowed to pass for the
deed, tUl, in 1835, it was carried into effect by one
whom the poor and the fatherless, and he that was
ready fo perish, will remember with grateful benedic
tions at that hour when, of all our actions, the thought
only of what we have done for others can bring con
solation or support.'
' The advocates ofthe college were Jeremiah Smith, Jeremiah Mason,
Daniel Webster, and Thomas Hopkinson.

CHAPTER X.
1820.
RETIRES FROM BUSINESS  FORTUNE  FAMILY —
TEMPERAMENT  OCCUPATION IN RETIREMENT. .
In 1820, having now reached the sixty-first year
of his age, Judge Smith (for though no longer hold
ing the office, he was always called by that tide,)
withdrew from the active duties of his profession, in
order to spend the remainder of his days in those
tranquU pursuits and enjoyments, which are the fit
ting close of a laborious life. Few men have retired
from business with more ample resources for a useful,
serene, and happy old age.
His health was better than it had been since he
entered upon public life. His fortune, the fruit of
his own industry and a judicious economy, through
many years of public and private usefulness, was aU
that he desired. In early Hfe he had been much in
terested in the business of his brother Samuel, a
man of great enterprise, who did more, perhaps,
than any other person, to introduce manufactures
into New Hampshire. For more than ten years he

LIFE OP JUDGE SMITH. 285
placed in his brother's hands aU that he laid up from
his profession. At a later period, when Samuel had
become exceedingly embarrassed in his affairs, he
volunteered, though expecting to suffer heavy losses
by it, to be surety for him to the amount of all that
he possessed ; and when his brother's affairs had taken
a more prosperous turn, in his final settlement, he gave
him outright ten thousand doUars, having never at
any time received a cent by way of profit from their
connexion. Mrs. Smith was, on the death of her
mother, entitied to a share of a considerable estate,
but nothing was ever received except the privilege,
and such her husband always considered it, of giving
her two sisters a home for ten years. But in their
domestic arrangements they had no foolish ambition,
and exercising, at all times, a careful and judicious
economy, they were able to lay up what was suffi
cient for their own wants, with something to spare
for charity.
In his family Judge Smith was particularly fortu
nate. Mrs. Smith, a woman of good sense, and of
a refined and delicate nature, though of a slender
constitution, was always a devoted wife and faithful
mother. Their son, William, born the 31st of Au
gust, 1799, was possessed of rare natural endow
ments, and, at the time when his father withdrew
from the profession, gave promise of distinguished
success. His life, if it could be given from its com
mencement to its close, would furnish a sad, but
interesting and instructive example to that large class
of young men, who, without fixed principles or con
firmed habits of industry, hope by birth, genius, or

286 LIFE OF JUDGE SMITH.
some rare combination of fortunate circumstances, to
win the prizes of life. He had unusual quickness
of parts, and whUe at Exeter Academy appeared to
great advantage in his studies. He entered Harvard
College when very young, and had not strength to
resist the unfavorable inffuences of the place, but
neglected his lessons, was preyed upon by evil asso
ciates, wasted his time and money, and without any
decidedly vicious habits, was twice suspended during
his college course, and finally took his unhonored
degree in 1817. His letters, written to his friends
at home during this time, show the deep wretched
ness of such a life. He was constantly resolving,
but without the energy to carry his resolutions into
effect ; suffering all the anguish of repentance, with
none of its better fruits, but repenting to-day, only
to fall and repent again more bitterly to-morrow ;
never losing his sense of right, his generous feel
ings, or his yearning after intellectual greatness,
but conscious all the whUe of powers to which he
was doing no justice, and of expectations on the
part of his friends, which he was cruelly disap
pointing ; yet weak in purpose, and on account of
that weakness doomed to give up all that he most
valued and desired. He had no taste for bad com
pany, but had not the manhness to resist and over
come its evil influences. His sympathies were too
quick for his safety, and though he appreciated and
enjoyed the best society, yet he was not secure an
hour when beyond its reach ; but through the infirmity
of his wUl, the strength of his social feehngs and his
love of approbation, was carried away by the cur-

LIFE OF JUDGE SMITH. 287
rent into which he happened to faU. His father
saw, with deep concern, how all this must end, and his
letters, a singular union of kindness and severity, of
wise counsel, tender affection, and sharp rebuke,
evincing that he was always ready to forgive and
overlook the past, as soon as any promise of amend
ment could be seen, show how deeply his feelings
were wounded, and how much more he cared for the
good of his child, than for any ambitious schemes
that he might have formed in connexion with him.
Near the end of William's first year in college,
his father, having heard of his neglecting his exer
cises, after speaking of the ruin that must be the
mournful but necessary consequence of such habits,
thus warns and expostulates : " Need I remind you
that you wiU not be the only sufferer ? I know that
errors in conduct are seldom single. They are a
fruitful family. The waste of money leads to asso
ciation with the idle and dissipated  It is
natural that I should see beyond the first act in this
drama, and it fills me with pain and mortification
I cannot describe, and which none but a parent can
fully understand. . . . Write to me freely, fuUy.
Let me see and know enough of your heart to hope
that the next year, if you should have a next, wUl
give me more pleasure than the last. It is not dis
graceful to you to need a faithful friend, but ex
tremely wrong to dechne that aid when oflTered, es
pecially by your most affectionate father."
The following letter to Mrs. Smith, will give some
idea of what he suffered.
" Dover, Tuesday evening. My dear wife : The

288 LIFE OF JUDGE SMITH.
unpleasant feelings I had when I left you, did not
forsake me on the road. I, even I, made a great
mistake, in taking a sleigh. The road was ten times
worse than I expected. ... I was near five hours
on the road, and travelled on foot nearly half the
way. This heated me, and the evening was sharp,
so that I took cold, and am rheumatic. But all
these things are not worth regarding ; they concern
myself only, and wUl soon be over. But my mind
is occupied with W. When I am from him, I do
not feel less grieved for the past and less gloomy as
to the future ; but it is of a different and milder sort.
If chUdren could only know what their parents feel,
when they see them travelling in a road which they
think leads to ruin, they would pause a little before
they ventured farther in a path with which they can
not be acquainted. I could forgive one fault, and
another, and another ; but a regular series from bad
to worse, takes away all hope. It is not yet, thank
God, come to that. But everything tends that way.
All that is wanting is time. If the heart is callous
at sixteen, what will it be at twenty-one ? If a small
paltry gratification outweighs a parent's authority,
displeasure, unhappiness ; if it leads to the sacrifice
of truth, honor, honesty, what will be the end
thereof, when the appetite increases and the power of
resistance weakens ?
" I know you wUl say, why indulge these melan
choly forebodings ? I do not willingly indulge them.
Gladly would I exchange them for more pleas
urable sensations. But what shaU I gain by shutting
my eyes and stopping my ears ? Do not deceive me.

LIFE OF JUDGE SMITH. 289
but give me reason on my return to hope. But I
must have reason, evidence. I cannot, if I would,
believe against evidence. It is not in my nature to
do so. I am too old to change ; I hope he is not.
Show him this. Ask him to give me a pledge, secu
rity for his good conduct. At present I will accept,
gladly accept, real contrition, and will trust to time
to prove it genuine. But then good works must fol
low immediately and continuedly. He wUI, perhaps,
wonder that I speak of his past conduct in such
severe terms. I see the future. I could forgive the
past. I thought I had a great deal to say, but I find
I have only one single idea. I can think of nothing
else. It is eleven o'clock at night. God bless you
all. Heaven knows that I ferventiy offer up this
prayer, and include W. in it."
After leaving college, William read law in his
father's office, being then perfectly correct in his
conduct. As it respects reading connected with his
profession, he was very negligent until about three
months before he was admitted to the bar, when his
father reminded him how short the time was before
his examination, and how ignorant he was of the
subjects on which he was to be examined. From
that time till his admittance, he applied himself with
diligence, and his father was astonished at the
amount of knowledge he acquired in so short a time.
No young man of his age was more generally popu
lar, and there was no one of whom higher expecta
tions were formed. He was frank and generous to
excess, winning in his manners, animated and inter
esting in conversation, reading with a surprising
25

290 LIFE OF JUDGE SMITH.
rapidity, yet remembering what he read, and having
always at hand a large and various supply of inter
esting knowledge, while his quick and active sym
pathies, with his entire freedom from anything hke
pride or haughtiness, found their way to the hearts of
the poor and friendless who might come within his
reach. He was a general favorite in society, and
was chosen a member of the New Hampshire legis
lature when only twenty-two years old, being, as his
sister said with becoming pride in writing to a friend,
one of the youngest members that had ever been
chosen to that office.
But the charm of Judge Smith's home, and that
which made it what it was to him, and those who
visited it for years, was his daughter Ariana. The
connection between her and her father was the most
beautiful that I have ever known between parent and
child. There was a perfect harmony, a sympathy
and union, such as we read of in books rather than
hope to find in real life. Their characters were
formed after the same model, save only that hers was
subdued by the grace and softness of her sex. They
read, conversed, travelled together, she engaging in
whatever might add to his comfort, and he rejoicing
as heartily in hers. She was born the 28th of De
cember, 1797. The unusual name she bore was in
herited through a line of grandmothers from a Bohe
mian branch of her mother's family. Existence was
to her a continued romance. She laughed, wept,
studied, went through the regular routine of house
hold cares, had her little weaknesses, was not without
some portion of female vanity, loved attention, and

LIFE OF JUDGE SMITH. 291
was not indifferent to dress, nor to anything in which
other girls took an interest, and yet she was like no
one else. Her personal appearance was pecuhar to
herself. Her clear white complexion, contrasting
with her long black hair and eye-lashes, her large
blue eyes, looking out with animatiou from a counte
nance always calm, indicating at the same time ex
citement and repose, were such as belonged to no
one else. Her voice, subdued and passionless, con
trasted singularly with the fervor of her words. Her
devotion to domestic duties, and particularly to her
mother through years of painful disease, might, but
for the peculiar elasticity of her mind, have worn
her down, yet to the last she was like one whose life
had been a perpetual sunshine. Her enthusiasm
might have betrayed her into indiscretions but for the
prudent self-control that never forsook her ; and the
rare good sense, that ran through all her conduct,
might have made her common-place but for the en
thusiasm of her nature. The great extent of her
reading, and the accuracy of her knowledge in the
more solid as well as in the lighter branches of litera
ture, might have made her pedantic, were it not, as
her father said, that she was more studious to con
ceal than to exhibit her accomplishments. •• She
had," he said,' when his heart was wrung with the
anguish of bereavement, ••'a mind intelligent and in
genuous, having learning enough to give refinement
to her taste, and far too much taste to make preten-
She had a feminine high-minded-
' Quoting, in part, from Moore's Byron.

292 LIFE OF JUDGE SMITH.
ness." " She often shined in conversation, but never
strove to shine." " As far as regards literature, she
never (in conversation) aimed at doing her best ; and
yet she was not indifferent to the opinion of her
father and her friends." Her almost passionate love
of society, and the attentions with which she was
loaded, when in the fashionable world, by those
whose attentions are most flattering to a woman of
sense and refinement, might have made her giddy ;
her love of nature, of rural life, and the simple inter
course of the country, might have made her shy and
timid, but for the genuineness of her feelings and
the simplicity of her character. " I rely," said her
father, " with entire confidence on your good taste
and discretion — two things oftener united than is
commonly thought." At a large party in the city it
might seem as if she had no heart or thought for
anything else ; but she gladly returned to the quiet
home, where almost all her time was spent, and there
appeared as if she had never been absent, or had
gone abroad only to bring back new treasures for the
enjoyment of her friends. Substantial books were
read, kind acts and serious duties performed, as if
they were only a pastime or amusement. Nothing
was ever said of them, and therefore her letters and
her usual intercourse with society gave only the most
superficial view of her mind. Her charities, hke the
charities of Heaven, came often without reveahng
the hand that brought them. She was equaUy at
home among different classes of people. In conver
sation with the most eminent and gifted she be
trayed no consciousness of self-distrust, and with

LIFE OF JUDGE SMITH. 293
the humblest she exhibited no marks of pride and
no appearance of condescension, but talked and
sympathized with them as friends. The woriian
who for several years had lived in the house as a
cook, she regarded not merely as a faithful servant,
but as a sister. The poor student at the academy,
bashful, unformed, and desponding, soon felt at ease
with her, and, learning to look with more respect
upon himself, began to feel new powers and new
hopes quickening within him. The remarkable fea
ture of her mind, however, that which stood out
above aU the rest, which threw its brightness over
her whole hfe, and which neither disappointment,
nor sickness nor sorrow could ever shade, was the
disposition not only to see all that there was of ex
cellence around her, but to view men and things in
the light of their virtues rather than through their
faults. Her thoughts and conversation were not in
fected by the sickly atmosphere, nor her spirit dark
ened by the sins, of society. She had too much
penetration to be ignorant of what was disagreeable
or wrong, but the evil she saw did not abide with
her, and left no mark either upon her countenance
or her mind. I do not remember ever to have re
ceived from her an unpleasant or unfavorable im
pression of any one ; and in all her letters, written,
as many of them were, with the most entire and
child-like unreserve, I have not found, except in a
single instance, a remark which could be construed
into anything like unkindness or a want of respect
for others. This charity which thinketh no evil, and
through which the soul, like a healthy eye, is kept
25*

294 LIFE OF JUDGE SMITH.
pure from outward touch, was not in her case a cher
ished principle, but rather an original endowment,
disturbed sometimes by momentary jealousies and
rivalships, by wrongs received or witnessed, but
quickly recovering itself, and going cheerfuUy along
its pleasant path.
Miss Smith had grown up like other girls, except
that she was educated almost without any formal
system of instruction. Sometimes a student in her
father's oflice would instruct her, and she spent a
short time at school at Portsmouth, where she was
not subjected to the uncertain influences of a board
ing-house, but enjoyed the kind and almost parental
hospitality of Mr. and Mrs. Mason. But while her
father was at home she was his constant companion,
reading the same books, interested in whatever con
cerned or interested him, her taste and character
formed more through his influence than through all
others combined. As a young girl, she might be
seen romping through the fields, riding upon a load
of hay, or assisting her mother, who was extremely
fond of gardening, and who, during the summer,
spent no small portion of her time in the open air,
adorning the grounds. Books, however, were Ari-
ana's especial delight, and when she first grew up,
her parents would say to each other, " What can we
do for this girl? What can we buy for her? She
cares nothing about dress as other girls do." But
this indifference to dress, and exclusive preference
for books, passed away as she mingled more with the
world. Ariana's letters to her young friends show an en-

LIFE OF JUDGE SMITH. 295
thusiastic and romantic attachment to her father.
May 11, 1820. " I particularly hke the end of May,
and beginning of June, to receive my friends, because
my father is then certainly at home." April 10,
1821. " My father leaves us next Monday, for many
weeks. I hope you wUl pity our desolate state, and
enliven us by frequent letters." July 17, 1821.
" My dear Mary, you don't know how much father
misses the fair hand that used to shower upon him
rose-buds last summer. He continues, however, to
wear a bouquet, which is regularly changed twice a
day  Coming out of church Sunday, and
looking round to see father, I recognized him by his
beautiful nosegay of pinks and rose-buds." May 23,
1822. " I am writing with a pen of father's. What
gallant and sincere sayings it would trace, if guided
by its master's hand ; but he is long since asleep, and
I must content myself with sending our plain and
unornamented thanks, love, respects, good wishes,
&c. to all your famUy." '
In 1809, Judge Smith had moved a littie out of
the village to an estate which he had recently pur
chased, and on which he continued to live more than
thirty years. It was a pleasant spot, with deep woods
in the rear, long fields and pastures extending above,
and the town of Exeter below ; a place of almost
perfect retirement, and yet near the abodes of men.

1 These extracts are all from letters to Miss Mary J. Holmes, daugh
ter of the Rev. Abiel Holmes, D. D., of Cambridge, and afterwards the
wife of Usher Parsons, M. D., of Providence. She died in the summer
of 1824.

296 LIFE OF JUDGE SMITH.
As time passed on, new beauties were constantiy
growing up under Mrs. Smith's care, and every tree,
shrub, vine and flower, the arbors, and the walks
leading back into an almost measureless extent of
wood, bore marks of her taste, and were the fruits of
her constant personal attention. The pleasantest part
of the house, and indeed of the estate, was the
library, a large room filled with books, which, while it
served as an office for the judge, was always, but
more especiaUy after he had given up business, open
to all the famUy and their visiters. Here the daugh
ter delighted to store her mind with knowledge ; here
the judge went through his severest labors, and here
their " idle hours " were " not idly spent," while some
new work of taste or fancy was read aloud, and the
reading often suspended to ascertain the exact mean
ing or pronunciation of some doubtful word, to search
for information that might clear up some dark aUu-
sion, or to make room for such remarks as were sug
gested by what they read.'
Such was Judge Smith's family when he retired

' No account of Judge Smith's family at that time would he complete,
which failed to make honorable mention of the cats, which varied at
different times, from one to five in number. The judge would take up
half an hour or more at the breakfast table, in detailing, perhaps, a long
conversation which had heen overheard among these interesting m-
males, describing sometimes their own troubles or loves, and sometimes
commenting on the motives and conduct of others. The humor of these
extempore fables was often irresistible, and not a little sly satire and
instruction as well as amusement, was administered by the sagacious
cats to other members of the household. From J. S. to his daughter,
January, 1818 : "The fifth member of our fireside party says, or seems
to say, that she wishes you at home, and regrets that she was not taught
to write, that she might communicate with you at Boston. So you see
you are kindly remembered hy all."

LIFE OF JUDGE SMITH. 297
from business, and very few are the households which
contain such materials for instruction and happiness,
or such resources for the autumn of life. There was,
withal, a sort of romantic interest, which I have heard
described by young persons, who occasionally visited
them from abroad, as perfectiy fascinating. " I first
became acquainted with the family," says a lady who
knew well how to appreciate them, "in 1818, and
made a littie visit at their happy home, which was
repeated in 1824, and the image upon the part of the
judge, of fatherly tenderness and conjugal reverence
as well as affection, of filial devotion in Ariana, and
of matronly composure in Mrs. Smith, united with so
intimate a blending of her own being in that of her
husband and children, as to render her almost uncon
scious of her separate existence, has remained indeli
bly impressed on my memory, as one of the loveliest
pictures of domestic felicity, which it was ever my lot
to witness ; while the judge's genial humor and flash
ing wit threw a halo round the scene, which illumined
it hke sunlight." It is believed that the following from
a venerable divine ' of great learning, ability and social
worth, would be a fair transcript of the feelings of
many, if not most, of Judge Smith's visiters. " The
delightful visit at your hospitable mansion, and the
rich feasting of the soul, ' from early morn till noon of
night,' three days, in succession, will not soon be for
gotten, whatever may be the future scenes through
which I have to pass."
Books were the great resource of Judge Smith's
1 The Rev. James Murdock, D. D.

298 LIFE OF JUDGE SMITH.
private hours. In the busiest period, he had always
found time for the cultivation of letters, and except
some of the poets, for whom he had little taste, no
department of literature was left unexplored. He
had great confidence in the ancient classics as a
branch of liberal culture, and preserved to the last a
keen relish for classical allusions and expressions. He
however attributed to them no miraculous efficacy.
" Greek and Latin," he said, " cannot give men sense,
if they have it not in their native language." He was
intimately acquainted with the whole field of English
literature, entering upon its lighter branches as a
pastime, and reading history with the eye of a law
yer, statesman, phUosopher and man. But of aU the
departments of knowledge, out of his profession, there
was none for which he had so strong an original turn,
and to which he had given so mucR attention as the
ology. Few professed theologians have so thoroughly
investigated the grounds of natural and revealed reli
gion, or the distinctive features of Christianity. Nor
was it merely as an intellectual study, that he had
looked into these subjects. Whatever may have
been sometimes inferred from his peculiar mode of
expression, he had always clear convictions of the
truth, and an unfeigned reverence for the principles
of our faith. Though for many years the member of a
church, he was never loud in his religious professions.
Indeed he was so disgusted by the levity with which
the most sacred of names, and the most solemn of
subjects are sometimes bandied about by religious
people, and he so shrunk from every semblance of
ostentation or cant, that it was not easy to see at once

LIFE OF JUDGE SMITH. 299
from his conversation or outward conduct how deeply
these things entered into his character.'
Judge Smith's temperament was one of unbroken
cheerfulness.'' He had gone through the assaults of
party violence, he had borne the honors, and some
times experienced the disappointments of public life,
but the prevailing sentiment, as he looked back on
the past, was one of cheerful satisfaction and grati
tude. He carried with him the experience of a long
life, and the memory of the great men who had left
the stage, but who were still companions of his
thoughts. Whatever he may have been in the keen
ness of personal rivalship or the heat of political strife,
he retained but slightly the sense of personal injury,
and towards many of his political opponents, cher
ished feelings of unusual kindness and respect. He
was not haunted by the consciousness of having sacri
ficed his sense of duty or the public good, to party
ends or personal ambition ; and to be at peace with
one's self, is a wonderful preservative of kind feelings
towards others.

^ In a letter to his daughter, August 5, 1810, he says, " I hope you at
tend church regularly, my dear. It is no matter what the form of reli
gion is, but it is absolutely necessary that we should have the substance,
and though going to church is not religion, it is one of the means to be
come religious."
^ These lines, taken from Judge Smith's common-place book, seem to
have been copied there, because they so well describe his own character :
" Then, for the fabric of my mind,
'T is mair to mirth than grief inclined ;
I rather choose to laugh at folly
Than show dislike hy melancholy ;
Weel judging a sour, heavy face.
Is not the truest mark of grace."

300 LIFE OF JUDGE SMITH.
Thus in the midst of abundance, with his family
about him, and his strength unimpaired, Judge Smith
withdrew from the labors and cares of his profession,
carrying with him to his retreat those intellectual
tastes and attainments which dignify the leisure and
adorn the retirement of age, and which, when joined to
a clear conscience and a religious trust, may furnish
inexhaustible sources of occupation, amusement and
thought ; enabling him, who possesses them, to be
StiU extensively useful to others here, and to prepare
for that world in which the distinctions, possessions,
and even the intellectual acquirements of the present
life shall be of small account.
Judge Smith gave some attention to agriculture,
and it took him two or three years to finish all the
professional engagements which he had upon his
hands. In addition to this, it was no small matter to
collect the debts that were due to him from different
parts of the state. The following extracts from busi
ness letters to various persons, in respect to small
sums which he had requested them to collect, show
how many other feelings mingled with those of the
collector. From a letter to WiUiam Gordon, Esq., the son of
his old and highly valued friend of the same name.
January 22, 1821. " But assuredly I have received
enough. The difference is not a compensation for
your trouble. Let this acquit you of aU demands,
and carry with it my respects to your good mother,
and thanks from myself for your faithful agency in a
few small things. I hope you wUl be faithful in more
important concerns."

LIFE OF JUDGE SMITH. 301
To tiie Hon. B. J. GUbert. Feb. 25, 1823. " Be
ing dead in law, I am settling up as well as I can my
business accounts, &c., whUe living. I send you
minutes of my fees, &c., in three actions. The sums
are entirely at your disposal ; fix them as they should
be. ... I am desirous, as you may well suppose, of
shuffling off this mortal coU and gross concern of pelf,
so as to have nothing left but to live intellectually,
and, I hope, with due reference to the next state in
the chain of being, which, to a man of sixty-three,
cannot be far off. I shall always cherish the kindest
remembrances of your acts and sayings, and the live
liest wishes for your happiness. Let there be no
black spot in your escutcheon. I am wonderfuUy
well, the better that I am no longer a sweeper in the
Augean stable, or any other stable. I sweep my own
nice, snug, watm room, surrounded by a goodly num
ber of excellent old, silent friends, whom I read and
enjoy much. Nothing would give me more pleasure
than to find occasionally one talking one, videlicet
yourself. Oh Baron, Baron, (non Roma) quando
te aspiciam,"
To Richard Fletcher, Esq., Feb. 25, 1823. " I need
not say to you, (one of the initiated,) that this is the
beggarly account of miserable remnants and sweep
ings of a lawyer's office. It proves the end is near,
nay, already come, and I am most wonderfuUy well."
To John Nelson, Esq., Jan. 4, 1826. " I have
been always in the habit of looking back at the
beginning of every new year. You will therefore
excuse my giving you this trouble. I have still many
shreds and parings scattered about, which I am
26

302 LIFE OF JUDGE SMITH.
anxious to gather, and form into a garment for the
winter of age."
To the Hon. E. S. L. Livermore. Feb. 6, 1826.
" Our friend lately assured me that all was weU on
the score of taxes, &c., but as he at the same time
assured me he was honest, and I might safely rely on
him, (cum multis aliis) I immediately began to feel
suspicious." [These suspicions proved just ; and in general is
there not ground for mistrust, when extraordinary
professions of sincerity or honesty are needlessly
made ?]
To H. G. CiUey, Esq. Jan. 1, 1827. " I have a
judgment against R. B. Senior. TJie old man de
chned dying at that time. His sons applied for
guardianship over him, to enable them to get his
estate sooner than by the course of nature. I re
sisted, succeeded, and they got away his estate by
other ways and means. I have also a note against
honest D. H. His hopes from death of father-in-
law are so far realized that the good old man is dead,
but as to all beyond, (I do not mean the effect of
death on the colonel, but on H.) I am in the situa
tion of the United States' circuit court. Jay and
others, as Sewall pleasantly told them, ' Your honors
mean well, but your honors don't know.' I have also
a note against N. D., another honest man of your
town, for money lent years ago. He pleads poverty.
the honestest plea he ever made. I have pretty
many other debts in the same doleful situation. Oh,
how I have been gulled by mankind ! But these are
all that honor Deerfield with their permanent resi
dence."

LIFE OF JUDGE SMITH. 303
A letter to Henry H. Fuller, Esq. may serve as a
specimen of Judge Smith's sprightiiness, as well as of
his remarkable minuteness in little things. " Dear
sir : I want two pairs of castors or rollers, to make
my bed move easily forward and back, and cannot find
such as I want nearer than Mr. Quincy's great city of
Boston, and cannot think of a less personage to pro
cure them for me than H. H. Fuller, Esq., counsellor
at law, &c. &c. They are not to be swivelled so as
to go zigzag. I am done with all zigzagging, twist
ing, turning, &c., having left the profession, and am
in the straight line of things, and want my bedstead
to move back and forward in such a line. I prefer
iron (cast) to copper or brass. I am, for the reason
aforesaid, done with all brass composition, &c. They
must be precisely on the plan of window-shutters,
only larger; particularly and essentially, the roller
must be at least an inch or an inch and a half, in
stead of a half inch in length ; the diameter, larger
or smaller, is of little consequence, and the gudgeon
of the roller is fastened (i. e. plays) in a projection
from the plate ; the plate screws on to the shutter or
leg of the bedstead. This fashion is preferred, be
cause it will not raise the bedstead more than one-
sixth of an inch, and, regarding the place into which
the bedstead is to be placed, I am limited in height.
It just occurs to me that I might at once have ad
dressed myself to my friend Deacon May, in sua
arte ; but then I must leave out fhe joke on brass,
&c., and, as Pilate said, ' What is written is written,'
to which I add, ' and sent to my friend, and from his
friend,' J. S."

304 LIFE OF JUDGE SMITH.
Judge Smith, though he no longer practised the
law as a profession, still kept up his interest in it.
Writing to Mr. Webster, in 1826, respecting Ed
ward Livingston's system of penal law for Louisiana,
he says : " I think much better of the plan of this
young state from the examination, than I had sup
posed I should. Indeed I think it does great credit
to Mr. Livingston's learning, talents, and industry,
and I have a strong desire to see and possess the
whole. It has occurred to me that you, probably,
have the same desire to possess these writings, and
can without much trouble procure them for me.
Since I have abandoned the law as a trade, I have
looked a little into it as a science, and, I verily
believe, have as much pleasure in it now as for
merly." This desire was communicated by Mr.
Webster to Mr. Livingston, who forwarded a copy
of his work, in its then imperfect state, to Judge
Smith, with the request that he would assist him, by
making " such suggestions as might occur to him on
its perusal, either for correcting its errors, or supply
ing its omissions." To this Judge Smith replied:
" A man of business can tell what he will do ; he
may safely promise. But a man of no business can
not^ safely promise that he will do anything, and stiU
more any particular thing at any given time. Thus
much I can say, I shall certainly read your work,
and carefully too. I have read it, like bills in con
gress, for the first time. If, on the second reading,
anything occurs which can possibly be useful to you,
I wUl note it. My knitting-work, as my friend
Ames used to express it, is to put down the New

LIFE OF JUDGE SMITH. 305
England law, where we have aUowed it to take the
place of the English." I am not able to say whether
any further communication was made, and indeed
the subject is introduced here only as an Ulustration
of the manner in which Judge Smith still kept up
the study, if not the practice of the science, to
which his fife had been devoted. He continued to
read the reports of interesting cases, and it was
always pleasant to him to follow out an ingenious
legal argument. It was a great satisfaction to him
to see another, nay a third generation, coming on and
showing themselves able not only to uphold, but to
advance the cause of jurisprudence. He seldom ap
peared in the court-room. The last time, I think,
that he heard a cause argued, was in Essex county,
Massachusetts. Happening to be in Salem, during
the session of the court, he went in to see how it
would compare with former times. He heard Mr.
Choate in one of his earnest and brUliantly logical
arguments, and, though the style of speaking was not
to his taste, he was satisfied that there had been no
falling off in legal ability since the best days of the
Massachusetts bar.
In 1824, the governor of New Hampshire wished
to make Mr. Smith chief justice of the court of com
mon pleas, that office being then vacant, but he was
not willing to engage again in public life.
As in the law, so also in politics, though no longer
an actor. Judge Smith still retained his interest, stu
dying the subject as a science, and watching the
course of events both in his own and foreign coun
tries. The remarks scattered through his common-
26*

306 LIFE OF JUDGE SMITH.
place-book, on the public men and measures of the
day, though often severe, were not, perhaps, more so
than justice required, and were always, I believe,
written without any personal feeling of unkindness.
I well remember the flash of indignation with which
he commented on President Jackson's policy, of
making the places of all subordinate officers to depend
on their political preferences. " I call up before my
mind," he said, " Washington asking the advice of
his cabinet in respect, for instance, to a district at'
torney for New Hampshire. One replies, ' A. is
undoubtedly an honest, capable man, but he has done
nothing for us, and his remaining there wUl have an
unfavorable influence on your reelection.' If any^
thing could have made that great man so far forget
himself as to draw his sword and thrust it through
another, it would be a suggestion like this." Gener
aUy, however. Judge Smith was rather entertained
than painfuUy affected, by the struggles and contor
tions of political parties, and his comments, whether
in conversation or in writing, were little more than a
species of amusement. For example, ^-
Quoting from Talleyrand : " The art of putting
men in their proper places is, perhaps, the first in the
science of government," he adds, " we do not al-
ways succeed — sometimes we send men to congress
whom we ought to send to the state prison — place
men on the bench whom we ought to set to the bar
— men are seen busily and laboriously thumping the
cushion, who ought to be thumping the anvU."
Speaking of Caligula's horse being made a consul.
Judge Smith add^ : " It was, perhaps, not an unex-

LIFE OF JUDGE SMITH. 307
pected appointment — things naturaUy enough led to
it — the time may come when we shaU be little
surprised to find a man elected governor who can
neither read nor write. The horse-consul had a col
league, and our illiterate governor may have a good
secretary, or ... . may take him in keeping, and
all go well."
" The government provided a place (a house,
&c.) for their governor, Mr. Prince, in 1665, about
two miles from the centre of Plymouth.' It was
called ' Plain-dealing ' — a very suitable name for
the governor's residence. How would the name suit
 ¦>

the place of residence of Governors 
Would not E  P  G  suit those govern
ors better, as leading to no particular inquiries how
far their official or private conduct bore resemblance
to the name of their places of residence ?
" The integrity of this dweller at Plain-dealing,
we are told, was proverbial. Is that the case with
 , &c. ? The dweller at Plain-dealing, (for I
love to repeat the name,) was also distinguished for
industry, energy, sound judgment, and his exertions
for a fixed and competent support of an able and
learned ministry. In many places a disposition pre
vailed, to neglect this important branch of public
instruction, or to employ incompetent teachers.
With the exception, perhaps, of industry, how wUl
the three great governors, indicated above, compare
with their brother of the smaller and more inconsid
erable community dweUing at Plain-dealing ? They
i Morton's Memorial.

308 LIFE OF JUDGE SMITH.
doubdess greatiy exceeded him in the length of their
messages, the number and ardor of their professions
of love for their dear constituents, and in the culti
vation of all the arts deemed necessary in these more
enlightened days, to secure a reelection. Their poor
simple brother seems to have relied altogether on in
tegrity and plain-dealing, and, strange to relate, was
more successful than they. It would be a curious
sight to behold a modern governor, like Prince, leav
ing bis acts to speak for themselves, placing all his
dependence for the favor of his constituents on his
goodness, on his integrity, industry, energy, sound
judgment, and uniform and constant endeavors to
diffuse through the community religious and moral
instruction. I ween many would wonder at the
sight, and be ready to cry, quis novus gubernw-
tor ! The aforesaid three governors would natu
rally suspect him of a trick."

CHAPTER XI.
1820 — 1829.
WILLIAM SMITH  JOURNEY TO NIAGARA  MRS.
smith's DEATH  ARIANA, HER SICKNESS AND
DEATH.
William Smith was, through life, an object of ex
treme solicitude to his father. He had hardly entered
the profession of law when, at the age of twenty-two,
he was chosen into the legislature, where he con
tinued for three years. From this time his thoughts
were given almost exclusively to politics. He loved
excitement ; and the sort of notoriety, that is so
cheaply purchased by ready talents and shining ac-
compfishments, without any great amount of knowl
edge, flattered at once his love of approbation and
his aversion to severe and long-continued labor. He
was brought into the society of the prominent young
men throughout the state, and was a great favorite
with them. But while he was congratulating himself
on his success, his father foresaw that such a life
must prove fatal to his hopes of distinction at the
bar, and finally leave him impoverished in mind and

310 LIFE OF JUDGE SMITH.
estate. He therefore did not cease to remonstrate
with him, and to urge him to lay deep the founda
tions of knowledge, and form habits of industry and
exactness, before he allowed himself to embark on
the perilous sea of political contention. " A young
man," he said, " of capabilities and promise is treated
with attention above his deserts ; he is rewarded
for what he is to be ; but when from imbecility of
character, indolence, or dissipation, he remains sta
tionary, or goes, or seems to go back, he is neglected
and left to himself. He has no longer any flattering
anticipations of the future. All the world see his fu
ture course, and already regard him as what he is to be.
I wish I had the power to picture to your imagination
yourself, after the world have discovered you are
to be nobody — a weak man who, if he still retain
the badge of a profession, is now in the rear of aU
his competitors. He never competed, so that every
fellow stepped before him, at first treating him with
a sort of good manners, but soon putting on the su
periority of mind over mind, of knowledge over
)rance." If ambitious, what object greater than to be
among the eminent at the bar ? " — " Without a
profession, what will you be when your patrimony is
spent ? " — " Importance of acquiring eariy instruc
tion in a profession — for example, law ; time neces
sary to master its intricacies." — " Those who begin
late, never become masters."
These, and other remarks of a similar kind, I find on
loose scraps of paper. As some men think aloud in
broken sentences, so Judge Smith seems to have had

LIFE OF JUDGE SMITH. 311
the habit of thinking with a pen, involuntarily
writing down what was intended for no eye but his,
and sometimes not even for that. The following
unfinished draught carries its own explanation with
it. It bears no date, but must have been written in
1823, or early in 1824. " I agree that it is ex
tremely natural that you should desire to be at Con
cord at this time. But I am opposed to the gratifi
cation of that very natural desire, because I think
it wUl be hurtful to your advancement in life. You
are now too much engaged in politics, and too httle
in your profession, and, if there is no change, I fore
see that the evil must increase, and the chance of
being a lawyer diminish. It does not require the
gift of prophecy to determine what will be the end
thereof. These two branches of study, or pursuit,
cannot both have your supreme regard. You may
be an active politician and a nominal lawyer. But it
is as certain as fate, that you will soon cease to be a
lawyer even in name. To me it is equally certain,
that on the best calculation you cannot live by pol
itics, and the chances are that you do not succeed.
Your profession is the only way in which you can
succeed, and you have yet to learn the law both as a
science and an art. I would not magnify the diffi
culties to be overcome, but sure I am they will
call for your whole strength, and if you do not very
soon set about the work, I would advise you to aban
don it, and do yourself the justice at once to avow
it. You may deceive yourself, but I see plainly that
your chances to be respectable in your profession are
less than they were two years ago ; first, because you

312 LIFE OF JUDGE SMITH.
are no farther advanced in law knowledge, I mean
technical law ; and secondly, less inclined to the
study, because more engaged in politics. If you do
not love the law at twenty-four, I see no reason to
believe you wUl at twenty-six, eight, or thirty. The
smaU sum expended on this excursion, and the time
spent, are nothing, absolutely nothing in themselves ;
but, as resulting from your inchnation and associa
tions and habits, they are all important. Cannot you
resist the inclination to dissipate ? Surely this is
merely dissipation. When is your power of resist
ance to acquire sufficient strength ? Will indulgence
ever beget self-denial ? When you set about the
law, you must grapple with it as a man contending
for life. You are absolutely unfitted for a dull, col
lecting, business lawyer. Well then ; you must be a
lawyer of the respectable class or none at all. This
visit has a tendency to locate you among the bustiing
politicians, and to fix your character as far as any
act, innocent in itself at twenty-four, can fix it. I
do not say that, this visit over, you cannot be a law
yer, but that without a miracle you will not. This
visit is a continuation of wrong-doing. It certainly
is not a step in the way in which you must find
honor and competence, if you ever find them. We
sometimes in imagination contemplate Mr. SuUivan
as leaving the bar — do you never ask yourself who
fiUs the vacancy? Do you ever say, 'is U I?'
Surely no — but I can tell who will. It wiU not be an
Exeter man. I own I am at a loss to account for
your want of perseverance in legal study. Do you
not find pleasure in it ? Depend upon it, it is the

LIFE OF JUDGE SMITH. 3l3
pursuit you are engaged in, added, perhaps, to some
thing of a natural want of energy of character,
which, and which alone, prevents. I have seen with
pleasure, that you could fix your attention and study
for a week together, and rejoiced, though I could not
approve of the objects of your pursuit. You have
a good, an accurate, retentive memory, not a slow
apprehension, at any rate a good, clear perception,
capable of acquiring, and, though I do not think
quite so well of your judgment, yet very capable of
improving it. You are capable of making a good
lawyer, perhaps a good politician. You are now,
trust me, decently furnished in the one, and quite
raw in the other. In all my experience, I have
never known pohtics confer law knowledge or pro
fessional distinction, but have known law knowledge
elevate the political man. The road to law is not
through politics, but aside, apart from it. It takes
away, but never gives. On the subject of politics, it
is material to state, that they unfit the mind for sci
ence of any sort, certainly for the severe science of
law, logic, or mathematics. As managed with us,
they whet and brighten some of the faculties, inven
tion, imagination, knowledge, of men and things —
the talent of diversifying, describing, abusing an ad
versary, &c., &c., but unfavorable to accuracy of
thinking, talking, writing, speaking. In our state
squabbles, a little knowledge, loose and general, is
better than a great deal of sound and correct know
ledge and information."
In the summer of 1824, WiUiam's prospects were
sadly overshadowed through an act of momentary
27

314 LIFE OF JUDGE SMITH.
passion, which filled him with grief, and his friends
with mortification and sorrow. I cannot learn, from
those who knew him best, that he was ever a man of
ficentious habits ; but his impulses were strong, his
powers of resistance weak ; in an evil hour he
yielded to temptation, and was forced to taste the
bitter fruits of transgression. He was overpowered
with shame and contrition. His father uttered no
word of reproach, but received him as a child, and
endeavored to inspire him with the hope of regain
ing what he had lost, by a life of fidelity and active
virtue. He particularly hoped to bring him back to
the neglected duties and studies of his profession.
In a rude fragment which remains of a letter written
at this time, he says : " My dear child, — for with all
your faults you must be dear to me, — it is my duty
to watch over you, and do all I can to conduct you
in the path of virtue and honor. You cannot be in
different to me. As a Christian, a father, and a man,
I must condemn the act which has occasioned your
present anxiety and trouble. But I see no baseness
in it. It was the affair of passion and sudden temp
tation. It betrays neither meanness, malice, delibe
rate wickedness, nor dishonor. When you have re
pented of it, as I am sure you have, and have re
paired the injury as an honorable man ought to do,
and girded your mind with prudence and resolution
to meet the consequences, and obviate their evils as
far as possible, you will then be as you were, and it
is in this state I would commune with you 
I think that I feel at this moment a thousand times
more anxiety for your character and success in life,

LIFE OF JUDGE SMITH. 315
than I did at your age for my own. I wish indeed I
had felt more in my own case than I did. My heart
was in the main right, and my views honest and hon
orable, and I had a considerable portion of ambition
to act well my part, and that that part should not be a
mean one ; and, though not then vain,'I had sufficient
confidence in myself, that, with unremitting industry
and application, I could be a lawyer, and have rank
among the best of them. But there never was a mo
ment when I thought of success as possible without con
stant application. If I could now go back to twenty-
five, the chief difference between the course I pur
sued and the one I wish you to adopt, would consist
in the manner in which I would exercise my talents.
I would be systematic, accurate, more attentive to my
manners, aim at accuracy and some ornament in
speaking, writing, and conversing. I would spend
less time in some branches of learning, and have
more for others. But to return from this digression,
the first thing is to form an estimate of your powers
of mind, your temper, particular disposition."
Here the sketch abruptly ends. I do not know
whether it was ever written out in full, and forwarded
to WUliam.
The offence committed was one which the com
munity are only too ready to overlook in a man.
To William's friends and to himself it was the source
of bitter anguish, — more especially to his sister, to
whom he was tenderly attached, and who, with aU a
sister's pride, had rejoiced in her brother's accomplish
ments and success. His position in society was not
permanently changed, and his father's apprehension

316 LIFE OF JUDGE SMITH.
was, that the impression might pass by without the
eflfect which it ought to have in turning his attention
more entirely to his profession. It was in the fall of
1825, that I, then a boy in the academy, first became
acquainted with William Smith. He was interested
in the students, attended the meetings of their so
ciety, and took a part in their debates, where he con
tributed not a little to quicken their literary enthu
siasm. His manners among us were exceedingly
attractive, his advice always judicious, and his influ
ence good. He felt for and encouraged those who
were struggling with adverse circumstances. I re
member one of our number, a destitute young man
from the country, who was prostrated by a long and
dangerous illness. William watched with him, saw
that he had whatever might contribute to his comfort,
and did not forget him when the delirium and weak
ness of disease were over. There was a gentleness
in his motions, a softness in the tones of his voice,
which, coming as they did from a kind heart, made
his attentions particularly grateful in a sick room.
He was of a generous, confiding nature, wUling to
give up what was for his own ease, and gaining the
confidence of those younger than himself, by letting
them freely into his own feelings and plans. And
their confidence was not abused; for, however he
may have fallen short of what he sought, he aimed at
what was high, and made them the sharers of his
hopes, not his partners in failure and defeat. I have
never known a man whose conversation was more
fastidiously pure, or who was more open to the finer
and better impulses of humanity. But, hke Burns

LIFE OF JUDGE SMITH. 317
and a thousand others of the same temperament, he
was weak, and therefore his life presented a series of
magnificent aspirations and mortifying disappoint
ments ; — of plans entered upon with an enthusiasm
which could not be sustained, and ending only in
small and sad results.
This weakness his father held up to him with all
the mournful consequences that must ensue. " It is
the common error of young men to aspire to be dis
tinguished, though they will not use the means ; to
be impatient to be everything at once. They hate
the thorny road. Ignorance will do well enough
for a boy from eighteen to twenty-five, rosy, healthy,
animated, lively, all bagatelle ; but it is moit unbe
coming in the middle of life, especially when the
owner of it happens by mistake to get into oflice, as
sometimes happens. It is dreadful in old age ; it
adds contempt to the feelings of the spectator. He
is now poor indeed ; all the revelry, gaiety, fun of
life is gone, and ignorance and hard features, aches,
pains only remain. In youth aU within was spirit, all
without gaiety. Now, all within and Vvithout is a
dreary blank. Depend upon it, the world will take
care to shun you. There is nothing in you they can
desire, and nothing they will desire. You must
depend on your resources, and having none, must
mentally go to the poor-house."
For a time. Judge Smith seems to have hoped that
the severe shock which his son had sustained, might
be the means of working a revolution in his charac
ter. But habits of persevering industry are not easUy
formed, even by the strongest minds, after so many
27*

318 LIFE OF JUDGE SMITH.
years of mental dissipation and indulgence ; and
where there is weakness to begin with, the reforma
tion, though not hopeless, is exceedingly difficult.
It would be wrong to infer, from what has been
said, that WUliam was an idler ; his time was filled
up with employment. The extent of his reading
was immense ; but usuaUy without method, plan, or
object, and therefore failing to impart wisdom or
strength. He wrote with facUity and with force,
taking always on moral and political subjects the side
which he believed most favorable to order, religion,
virtue, and all the best interests of society. A fourth
of July oration, an address before the Rockingham
Agricultural Society, an essay on raising by law the
means of supporting the ministry, remarks on the
assassination of Julius Caesar, with numerous news-
pai)er articles, some of which were extensively copied
through the United States, are among the writings
which bear honorable testimony to his mind and
heart. He began a history of Exeter, and made
extensive and laborious researches among original
documents. He was engaged on this his favorite
work, when interrupted by sickness, and, tUl within
a few weeks of his death, he cherished the hope of
resuming and completing it.
WiUiam's most serious faifing was an utter reck
lessness about money. It appears as if he had and
could have no idea of its use or value. His expenses
in coUege were unreasonably large. After he was
admitted to the bar, though he received liberaUy from
his father, he was constantly embarrassed with debt.
Nor did he learn from experience ; but the more he

LIFE OF JUDGE SMITH. 319
suffered, the more prodigal were his habits. This
touched his father in a tender point ; for if there was
anything on which he prided himself, it was a severe
justice and promptness in all his pecuniary engage
ments. Nothing could be more annoying than the
applications that were constantly coming to him for the
payment of his son's debts. But as the difficulty went
on increasing, he saw that the only way of stopping it
was, to let him suffer the mortifying consequences of
such conduct. He warned him of the course he should
pursue, but without effect. WUliam was soon ha
rassed and beset with creditors. His situation preyed
upon his spirits, haunted his dreams ; yet he went
on in the same thoughtiess expenditures, suffering,
repenting, but not reforming. As must always be
the case with those who allow themselves to continue
thus unfaithful to their pecuniary engagements, he
was not only harassed and tormented, but, without
intending it, guilty of injustice towards others. In
one or two instances, he applied to his own use the
money which he had received, as an attorney, for his
client ; and once he spent the money which he had re
ceived in trust as a guardian. The sums were small,
and, of course, he expected and intended to replace
them in season ; but he had not the power. Some
hint of these difficulties came to his father, and it
was the most cutting thing that he had been called
to endure. For a man with his ideas of professional
honor to see not only the honest tradesman deprived
of his due, but the orphan kept, even for a few weeks,
out of her inheritance by the guardian whom she
had chosen to protect her, and that guardian a son of

320 LIFE OF JUDGE SMITH.
his, was more than even his philosophy could bear
with patience. In a letter to his daughter he says,
" Oh that W. had any — the smaUest firmness of
mind ; that he could do and forbear according to the
dictates of bis judgment. I am sure I do not have
credit for the tithe of that delicacy and tenderness I
reaUy possess. When I saw Mr. Dow, Monday even
ing, alone, I could not find it in my heart, for fear ofthe
answer, to ask him if W.'s saying to his wards about
the loan of their money to him, were true. And he
could, young, do what I, hackneyed and hardened
in the ways of the world, could not even talk about.
Why should there be any doubt ? It is not much
worse to defraud a ward, a tender, confiding ward,
than a client, of his money — the word defraud is a
hard one, let it be ' work them out of it.'
" I fear I shall not, unless for special cause, be
able to see you this week, or till Sunday. Though
I do not pray publicly as I ought, yet in heart I sin
cerely pray that you may be enabled to do aU your
duty on this occasion, though much at my expense.
I cannot but hope, (perhaps the word is a little too
strong,) that with the return of bodily strength, W.
may acquire new vigor of resolution, new mental
firmness. Without some such hope the heart would
break. It gives me some relief to commune thus
with you. God bless you, my dear child and friend."
I find detached and broken sentences, written on
scraps of paper, sometimes in the midst of other
things, intended probably for no one to see, which
show how keenly he suflered. " To be a father, for
all purposes of pain, anxiety, providing, disgrace, &c.

LIFE OF JUDGE SMITH. 321
but not for filial care, soothing, honor, comfort."
" To avoid acts of folly and imprudence, it is neces
sary to taste the punishment that follows them."
" What a pity the boy could not foresee this to save
the man ! A little diligence then would have en
sured success.'.' " Not strong passions, but remark
ably weak powers of resistance — no rudder — light
wind carries him whithersoever it wiU." '' Some
thing or nothing — must be total, radical change —
present course ends in 0." " You may, if you please,
sneak through life very much like nine-tenths of your
fellow-men, and the scorn of the remaining one tenth,
the world certainly none the better for you, and you
none the better for existence. What if one cabbage-
plant the less ? " " Here lies a man who lived in vain,
the world none the better for him, he the worse for
the world." " If our young men are ruined because
born to expectations, the error is full of disgrace to
them." *' You will not study the law, therefore can
never be a lawyer. You will not pretend to have
studied political economy, the science of politics,
government, legislation, finance, taxation, revenue,
the financial system of the United States."
" ' I grieve to say his conduct has been such as
not to be justified even by his father.' And will a
father be easier satisfied than a stranger ? Harder
to justify to a father, says J. S." Those who have
read the preceding pages will not question the truth
of this, and it should lead us to receive, not without
some abatement, the estimate he has given us of his
son. For he compared him, not with other young
men, nor with what is usually attained, but with the

322 LIFE OF JUDGE SMITH.
high standard which he had set up for him, and which
he knew that his talents rightly employed would en
able him to reach. He did not make the aUowance
that should be always made, and which no one was
more ready to make in other cases than he, for
youthful inexperience and indiscretion, and has there
fore sometimes applied to acts arising from thought
lessness, epithets which should be applied only to
wUful and deliberate dishonesty.
But however severely he may have been tried at
times, the general cheerfulness of Judge Smith's
temper was unbroken, and his sources of enjoyment
rich and various. In the summer of 1825, he went
with his daughter to Niagara, Montreal, and Quebec.
She had never journeyed before, and her father had
never, I believe, been west of Albany. Everything
was new to them, and they went on exploring and
enjoying, with an almost childish zest and freshness
of interest. The light of their own joyous spirits
was thrown over whatever they met, and the smaUest
incidents not only amused them at the time, but were
hoarded up to enliven their more solitary hours. For
instance, " I ought," says Judge Smith, in his jour
nal,' " to have mentioned a civility we experienced
at Auburn, which gratified us at the time, and ever
since in the recollection. I directed the coachman
to stop on a rising ground, just above the vUlage,
that we might have a full view of it and the prison.
It was just opposite the seat of a gentleman. A.'s
' This, and other facts relating to the journey, are extracted from a
journal written out by Judge Smith, mostly after his return home, from
letters and his own recollection?.

LIFE OF JUDGE SMITH. 323
eyes ^vere soon attracted to his beautiful garden, and
she exclaimed, ' see the beautiful cherries.' The
gentleman, who was walking in his garden unseen
by us, called our coachman to him. He soon re
turned with three or four branches loaded with the
finest cherries. We bowed our acknowledgments
and went on our way, eating and rejoicing. How
many similar acts of attention we and our good coun
trymen omit, from a foolish mauvaise honte. We
determined thenceforth to stop every passenger, and
give him cherries in the season of them."
Judge Smith had a great taste for geography, and
especially for tracing out the exact localities which
had been distinguished for any remarkable actions or
events. Perhaps no spot awakened so many or such
various emotions as the battle-ground, which he had
not visited since he was there as a boy, bearing arms
in the service of his country. He says : " We
stopped to dine at Saratoga, the very spot where
Burgoyne surrendered to Gates. This circumstance
added something to the enjoyment of a good dinner.
In the afternoon we passed, at the foot of Bemis's
heights, the battle-grounds of the 19th of Septem
ber and 7th of October. At StiUwater, lower down,
I began to recognize the ground I had been over
when a boy, forty-eight years ago, and I cannot
describe the sensations. Whatever of good or evU
fortune I had experienced in the intervening years,
was present to my imagination. I wiU not say that
the retrospection was all delightful ; but I can truly
say the pleasant gi-eatly predominated."
Twelve or fifteen years before. Judge Smith had

324 LIFE OF JUDGE SMITH.
been delighted with Bishop Cheverus, when he heard
him preach to his fittie flock in a small church in
Maine, and on meeting him afterwards, was pleased
with him even more in his private than in his public
ministration. But he was not so favorably impressed
with the Roman Catholic ceremonies at Montreal.
" We were," he says, " particulariy in luck, in being
in at the death of one of the oldest of the clergy, as
it gave us an opportunity of witnessing the cere
mony, (I should say ceremonies, for they were many,)
of a Catholic funeral. It was in the cathedral, and
took up two or three hours. Our Protestant eyes
and ears were satisfied long before the close, but the
crowd did not allow us to retire, till his late rever
ence was laid quietly in his grave, in a corner of the
church. The nuns attended, and the place round
the altar was filled with priests. The prayers and
service, being in Latin, seemed prodigiously to
heighten the devotion of the Canadians near us. The
heat of the room was considerably augmented, by a
great number of wax candles set to burning in honor
of the day. A few devout ladies near us were so
fortunate as to obtain each one, at least a yard in
height. We had no claims to any such distinction,
and were obliged to atone for the privation, by stir
ring our fans briskly. . . . The Catholics, no doubt,
are equally sincere with us Protestants. In the arts
of devotion they seem to excel us. ' God was praised
by the best organ and choristers.' Lace, brocade,
and embroidery constituted the robes of the priests.
The choicest incense from Arabia caused a sweet-
smelling savor, and there were abundance of candles

i 1

LIFE OF JUDGE SMITH. 325
to enlighten. I fear we must allow that our devotion
is less fervent than theirs. Is reason an enemy to
devotion, or merely to the semblance of it ? We
of the sect of rational Christians, are charged by our
orthodox brethren with wanting piety. I hope the
difference, if there be any, is only in appearance.
Why should reason, in its largest measure, be un
favorable to true piety ? It does not become us to
say which, the rational, or the ignorant enthusiast,
renders the most acceptable homage to the God of
reason, but sure I am no man could sit three hours,
as I have done, in the Catholic church of Montreal,
where everything was addressed to the bodUy eyes
and ears, and go away without the most sincere con
tempt for the solemn mummery. I am certainly no
enemy to a liberal support to the teachers of religion
who are calculated to do so much good in society,
but here the clergy abound in wealth ; it is the flock
who are poor."
The Catholic was not the only kind of religious
service that faded to edify the travellers. " At Sara
toga we attended divine worship, and heard * * * *
preach himself above an hour, much to his own satis
faction." But the interesting people they met during their
journey, were what contributed most to their enjoy
ment, and in this respect they were particularly for
tunate. " On leaving Boston," Judge Smith says,
" we had a very pleasant ride, though it rained occa
sionally. The pleasure arose from meeting in the
stage ***** and ***** the former espe-
28

326 LIFE OF JUDGE SMITH.
ciaUy, a charming young married man,' has travelled,
is literary, communicative, and well-bred." At
Northampton, he " was (not unexpectedly) delight
ed with Judge Howe." On going from Northampton,
they " had an accession to their company, of a young
gentleman by the name of SneUing.^ He proved a
useful travelling companion, possessed a good share
of information, and certainly had no disposition to
hoard. I believe he was particularly pleased with
us, which did not serve to lessen him in our esti
mation." " We reached Caldwell, at the south end of the
lake (George), before sunset, and found an excellent
house, Mr. Baird's. A. with several ofthe company
took advantage of a fine evening, to visit the ruins
of Fort WUliam Henry, &c. I remained with the
landlord, who was as much to my taste as Squire
Weston's landlord at the Hercules Pillars, who had
all the news of the town, and could tell how affairs
went, knowing a great deal, since the horses of
many of the quality stood at his house. He asked
me, ' if I knew Mr. Emmett, the great lawyer of New
York ? ' I answered I had never seen him, but
intended to obtain an introduction when I reached
the city. He replied, ' you have seen and supped
with him this evening. Mr. E. is on his way, with

1 The accomplished author of " the Conquest of Mexico." Miss
Smith, in a letter to her mother, says, " Father and Mr. P. kept up a
constant interchange of wit and humor. It was the most entertaining
ride we ever took."
2 Author of " Tales of the North-West," a young man whose brilliant
promise contrasted painfully with his after-life.

LIFE or JUDGE SMITH. 327
his wife, to visit a daughter near Ogdensburg.' I
told him ' he must be mistaken ; that I was sure, if
there had been any great lawyer and orator at the
table, and especially if an Irishman, I should have
taken some note of him.' In a few minutes an
elderly gentleman, in a pretty ordinary travelling
dress and with nothing striking in his appearance,
and whom I recollected having seen at the table,
took his chair in the piazza, to enjoy the delightful
evening near us. Mr. B. gave me a look as much as
to say, ' this is the man.' I immediately began a
conversation with him, and was soon satisfied that
dress ' does not make the man, and want of it the
fellow.' I took care to lead him to topics I knew
would excite him. His countenance lighted up, and
he was quite lively and eloquent. In about half an
hour he retired to give some orders. On his return,
I told him I wished to introduce a person to his ac
quaintance, of whom he had never heard, and never
would again. On announcing my name, he imme
diately and cordiaUy took me by the hand, pretended
he had heard of me, and wished to know me. He
spoke of General Haines, and young Mr. Walker,
one or both had studied with him. I made the
proper acknowledgments, and we fell into the pleas
antest conversation imaginable about men and things,
the Irish and New York bars. South Carolina, United
States, &c. I was sorry that our arrangements de
prived me of his company. The next day he was to
remain at Baird's, and we to start for Albany. Judge
Spencer related to me the anecdote of Mr. Pinck
ney's attack on him, in the supreme court of the

328 LIFE OF JUDGE SMITH.
United States. They were on opposite sides in an
important cause, and one which Pinckney had much
at heart, and was desirous of winning by fair or
unfair means. In the course of his argument, he
ti-avelled out of the cause to make observations, per
sonal and extremely offensive on Mr. E. with a
view, probably, of irritating and weakening his reply.
Mr. E. sat quiet and endured it all. It seemed
to have sharpened his intellect, without having irri
tated his temper. When the argument was through,
he said, ' perhaps he ought to notice the remaiks of
the opposite counsel, but this was a species of war
fare in which he had the good fortune to have littie
experience, and one in which he never dealt. He
was willing his learned opponent should have aU the
advantage he promised himself from the display of
his talents in this way. When he came to this
country he was a stranger, and was happy to say that
from the bar generally and the court universally, he
experienced nothing but politeness, and even kind
ness. He believed the court would do him the
justice to say, he had said or done nothing in this
cause, to merit a different treatment. He had al
ways been accustomed to admire, and even reverence
the learning and eloquence of Mn Pinckney, and he
was the last man from whom he should have expected
personal observations of the sort the court had just
witnessed. He had been in early life taught by the
highest authority, not to return railing for railing.
He would only say, that he had been informed that
the learned gentieman had filled the highest office
his country could bestow at the court of St. James.

LIFE OF JUDGE SMITH. 329
He was very sure he had not learned his breeding in
that school.' ' The court, bar, and audience were
delighted. Mr. Pinckney was apt to be occasionaUy
a little overbearing."
On their way home in the steam-boat from New
York to New Haven, Judge Smith was so fortunate
as to find Mr. HoflTman, of Baltimore. " Here again
the introduction was out of the common way. A.,
in passing the baggage-room, saw the name on a
trunk, and informed me of the circumstance. We
immediately set about examining the persons, coun
tenances, &c. of the passengers, and happened to fix
on the right man. When shortiy after, he took a
seat near me on the deck, I observed that, having
reason to believe Mr. Hoffman of Baltimore was on
board, I had fixed on him as the man. He bowed
assent, and said it would gratify him to know who
it was that did him the honor to notice his person.
This seemed too reasonable to be denied. We soon
became acquainted, and spent the greater part of the
time in conversation together. He is remarkably

' Mr. Pinckney afterwards made the most ample and generous ac
knowledgment. "The manner," he said, "in which- he (Mr. Em
mett) replied, reproaches me hy its forbearance and urbanity, and could
not fail to hasten the repentance, which reflection alone would have pro
duced, and which I am glad to have so public au occasion of avowing.
I offer him a gratuitous and cheerful atonement — cheerful, because it
puts me to rights with myself, and because it is tendered not to igno
rance and presumption, but to the highest worth in intellect and morals,
enhanced by suth eloquence as few may hope to equal — to an inter
esting stranger, whom adversity has tried, and affliction struck severely
to the heart — to an exile, whom any country might he proud to'receive,
and every man of a generous temper would be ashamed to offend." —
Wheaton's Life of Pinckney, p. 600.
28*

330 LIFE OF JUDGE SMITH.
weU-informed, and even learned for a young man.
He made me better acquainted with Pinckney than I
was before. He knew Harper well. We had enough
to talk about in the Maryland bar, the supreme court
of the United States, and the most modern books of
law. He had read Dane's Digest, and gives a very
bad account of it. He thinks it faulty in arrange
ment, in matter, language and manner." '
But nothing that occurred during the journey gave
Judge Smith so much pleasure at the time, or so
much satisfaction afterwards, as the acquaintance he
formed with ChanceUor Kent, for whom, as a lawyer
and a man, he had entertained the most profound
respect. Their meeting was on this wise, as de
scribed in Judge Smith's journal. " We reached
Schenectady about seven, there to take the canal-
boat. When we took our seats at the supper-table,
we found on the opposite side, a gentleman and two
very young ladies. His person indicated more years,
but his manners put him on a par with the ladies.
A gentleman on the same side with us, accosted him
as Mr. Kent ; surely it was not the great Chancellor
Kent ; he was not old, but too old for that gentle
man's son. It might be a brother, at any rate, he
was a frisky chap, much sail and little ballast. The
gentieman and his ladies left the table, as we did,
soon after, and A. whispered me ' that was Chancel
lor Kent, you may be sure.' I stoutly denied it, and
should never have been convinced, had not the same
figure, with his two ladies, popped again upon us in
' In this opinion Judge Smith entirely concurred.

LIFE OF JUDGE SMITH. 331
the entry, and A. introduced me as Judge Smith.
He seemed almost as incredulous on the score of my
personal identity as I was of his, (not I presume from
the same cause.) We both yielded at last, and he
introduced his daughter and his niece. With one
consent we all began to lament that our engagements
must instantly separate us, though both bound to the
same place, Utica.
" We reached Utica about sunset, had our baggage
sent to Shepherd's inn, a very good one, and had no
sooner sat down than we were called on by Chancel
lor Kent and Judge Piatt. We had proposed spend
ing the next day at Utica, and Judge Piatt urged us
to spend it at his house with the chanceUor and his
family. This was too much in unison with our wishes
to be declined  We dined at four o'clock,
and spent our time very agreeably. The Kents and
we at nine went on board the canal-boat, and the
next night at midnight, parted at Weed's Bason, they
proceeding direct for Buffalo, and we for Oswego.
Nothing but the absolute necessity of visiting our re
lations on the Susquehanna could have separated us ;
we were all acquainted at once, and I am sure strongly
attached on all sides. The ladies preferred quitting
the boat with us, and taking a carriage for Auburn.
Here we saw the chancellor in his true character of
simpUcity and the most kindly affections ; his judg
ment led him one way, and their inclination another.
His desire to oblige them held him long in suspense.
It was clear we must part soon, and I could not but
join him in the argument. The ladies at last ac
quiesced, and we parted to meet no more tiU our
arrival at New York."

332 LIFE OF JUDGE SMITH.
[At New York, several weeks afterwards :] " I
caUed on the chancellor, and spent the forenoon with
him in his library. He did the talking of course, and
I played the game of listening. Some of my friends,
to whom I have mentioned it, have not hesitated to
say that I played badly for want of practice.' The
ladies insisted that Ariana should make her home
with them, which was quite agreeable to her. I gave
them much the greater part of my company, and
never spent two days more pleasantly or profitably."
" July 28, we took the stage for Exeter, and were
so happy as to find our friends very well, and not
expecting us. It was one day sooner than the time
we had prescribed for ourselves at setting out, eight
weeks. We were happy to find ourselves once more
at home, and did not a little applaud our resolution
in having ventured on so long a journey, now suc
cessfully brought to a close, a thing that wiU give us
pleasure as long as we live. We had traveUed
twenty-three or twenty-four hundred miles, and had
seen all the most interesting places on our route, em
bracing the northern section of the United States and
the adjoining country. We set out with the determi
nation of being pleased, and were of course not dis
appointed. It is no doubt true that those who set
out on their travels with the determination to find
fault, may safely count on success. We were uni-

1 Judge Smith, many years before, spending the night in company
with Chief Justice Parsons and other lawyers, at a public house, was
late in making his appearance in the morning, and inquiry being made
what could have become of him, " Oh," said Judge Parsons, " he is in
bed resting that  tongue of his."

LIFE OF JUDGE SMITH. 333
formly treated with politeness, and in many cases
experienced the most delicate and friendly attentions.
We made no claims, set up no pretensions, and I be
lieve uniformly experienced an increase of attentions
in the various companies into which we were thrown,
as the time of our sojourning together drew to a close ;
so that modesty as weU as honesty is the best policy
in a traveUer, and I would heartUy recommend it to
all my friends on their travels. I incline to think the
general practice is the other way, and that modest,
unpretending people at home frequently set up claims
and make extravagant demands abroad, as tending
to beget an idea of their great consequence.
" We were by no means sparing of ourselves when
anything was to be done or seen. At the same time
we were never in a hurry, made no point of being at
a particular place at any particular time, or of travel
ling in one mode rather than another. We used
steam-boats, canal-boats, stages, and hired private
carriages, as was most expedient at the time. When
the labors of one day fatigued us, we took care to
rest the next. I experienced no inconvenience from
the indulgence of my natural disposition to enter
freely into conversation with all persons and on all
subjects. Amusement, and, what is more impor
tant, information and increase of knowledge, is to
be derived from the conversation of every individual
whatever, with whom one may be thrown into a natu
ral train of communication. For ourselves, we can
say, that we never found ourselves in company with
the stupidest of all possible companions in a stage
coach, without finding that, in the course of our con
versation with him, we had some ideas suggested to

334 LIFE OF JUDGE SMITH.
US, either grave or gay, or some information commu
nicated in the course of our journey, which we should
have regretted not to have learned, and which we
should be sorry to have immediately forgotten.
" It was not uncommon to find in these casual con
versations, that there was some person, sometimes
many, with whom we were both acquainted. This
created something of a tie, and prevented us from
feeling towards each other as perfect strangers. It
was our uniform practice to sit down at every meal at
the ordinary. We saw all the company. In this
way we made many agreeable acquaintances, useful
to us on our journey. And I would recommend to
travellers to go in very smaU parties, and to associate
as little as possible with each other. These large
parties are the duUest things imaginable. I can even
imagine   and   , with their
sprightly wives and  , at the end of three
days' travelling together in the same carriage, and
keeping by themselves at the public houses, — dull
enough, in aU conscience, to satisfy the bitterest
enemy of gaiety and bagatelle.
" I cannot conclude this conclusion to our excur
sion, without dissuading invalids from undertaking so
long a journey. They are in much greater danger of
losing the little health they may happen to have, than
of acquiring any fresh stock. Variety of company,
novel and striking scenery, the picturesque, the sub-
hme, or the beautiful, wUl add nothing to the enjoy
ment or pleasure of the real invalid. This kind of
misery, that of iU health, languor and pain, does not
love company, and company does not love it."
The two years after this journey were marked in

LIFE OF JUDGE SMITH. 335
Judge Smith's famUy by no important events, but
were years of quiet, domestic enjoyment. Mrs.
Smith's health, which had been slowly declining for
a long time, was now such that she seldom left the
house, except during the mUdest of the summer
weather, to observe in their progress the little im
provements in gardening, which had furnished so
many hours of refined and pleasant occupation. She
was in that delicate condition, which leaves one's
friends never entirely free from soUcitude, and which
often does so much to soften the family intercourse,
and to cherish a tender, watchful, confiding affection.
No daughter could be more devoted than Ariana
during this time to her mother. She was almost al
ways at home, to free her from every care, and to do
whatever could be done to alleviate her sufferings,
which were mostly those that spring from weakness,
and, above aU, to soothe and cheer her mind. These
attentions were not undervalued, but the affections of
the wife and mother increased as she drew near her
end. In the last letter she wrote, which was to her
husband and daughter whUe they were on their tour
to Niagara, she says, " I wish you could see your
garden this evening — it is delightful; but I cannot
help feehng that the divinities of the place are away,
far, too far for comfort. Oh ! my dear husband, do
not let me see in your letters that you do not enjoy
yourselves, for never did any one make such sacrifice
as I have done. It seems to me I should like even to
hear you talk to the cats in your loudest tones." And
there was something very beautiful and touching in
William's attentions to her, who, in all his difliculties

336 LIFE OF JUDGE SMITH.
and errors, had never, for a moment, permitted the
tenderness of the mother to be lost in the severity of
the judge or teacher. She continued slowly failing
tiU the morning of the 19th of June, 1827, when she
quietiy fell asleep. The progress of disease had been
so constant, her withdrawal from life so gradual, and
so long looked for, and death was so plainly a wel
come guest, that it came gently as a summer's cloud,
and her friends could hardly mourn their loss with
out impiety to her.
The autumn after her death, WiUiam, who, till
then, had lived under his father's roof, removed to
Portsmouth, and opened an office there. The next
spring he was attacked by a violent lung fever,
which, after continuing some weeks, left him with a
heavy cough, exhausting night sweats, and some of
the surest indications of consumption. As soon as
he was able to bear the journey he was taken home,
where his sister, who had been with him during the
fever, continued stUl to perform the duties of a most
faithful, tender, and devoted nurse.
Just at this time the Exeter bank, of which Judge
Smith had been the president from its commence
ment, was broken open, and nearly thirty thousand
dollars stolen from it. Here was a new field of
action, and, in the capacity of thief-catcher, he was
absent from home several weeks. He never, per
haps, displayed more adroitness than in this expe
dition. The robbers were cunning and experienced
men, shrewd and reckless, with no fear of the state-
prison, but perfectly wiUing to spend a few years
there, if, at the expiration of the term, they could be

LIFE OF JUDGE SMITH. 337
left in possession of their buned treasures. They
had all been convicts before, and their leader, Mal-
bone Briggs, though, in the eye of the law, only an
accessary in the case, had been three times in the
state-prison, and of his seven sons, six were said to
have been graduated at the same school. Judge
Smith had no great difficulty in getting such evi
dence, as to satisfy himself that they would be con
victed, but how to get back the money was the hard
question. For this purpose he went several times to
New York, visited Briggs's house during his absence,
where he had several confidential interviews with
Mrs. B., who seemed not unwilling to be freed for a
short time from the severe dominion of her master.
He had frequent conversations with the prisoners,
and at last, making no. other promise than that their
confessions should not be used in evidence against
them, he succeeded in getting their secret, and se
curing to the bank nearly all that had been lost.
A few extracts from letters written to his daughter,
during this expedition, are introduced here, princi
pally for the purpose of showing how fondly his
mind turned always towards her. Indeed, he said
that he found himself constantly using expressions,
which he had used thirtyyears before in correspond
ing with her mother. " My dear Ariana : your letter
of Sunday evening was very, very good and kind,
and cheered me mightily. I am glad such senti
ments are in you, and that they came out. God
bless you  I am glad this wUl reach you Sat
urday. It will come fresh from your best friend,
and you wiU readily imagine, better than he can ex-
29

338 LIFE OF JUDGE SMITH.
press, the love he bears you, and always has and
ever wiU." July 5. In New York. " I shall see
your friends, the Smiths and Kents, I hope ; but a
man pursuing thieves feels so like a catchpole, that
he has little pleasure in seeing friends or joining in
amusements. But I shall tak' a luke o' them. I
hope you have Mr. Brown with you, and that your
time will pass not unpleasantly. Young people
should do all the travelling. I have less and less
enjoyment in it every day, and experience a loneli
ness I never felt before. The world and I form two
great divisions, more unequal in number than your
friend's two classes — saints and sinners."
July 28. " How good and happy a thing it is that
I have no anxiety about affairs at home. When
anything very pleasant occurs here I wish for you,
but the general balance is the other way ; the suffer
ing exceeds the pleasure, and therefore I am glad
you are safe, and I hope happy, superintending the
affairs of your small family. I am in a crowd all
the time, and long for your shady, cool walks, books
. and airy rooms. . . . Nothing can be more gloomy
and solitary than my life here. . . . Business is cer
tainly unsocial, and New York a desert to a New
Hampshire man, trying to lay his hands on Exeter
bank bills. Surely our Exeter people are the stupid
est of the stupid. . . . But all this only proves my
temper is a littie ruffled ; but I shaU soon recover,
and be in charity with all men. It rains every day
here. . . . Adieu, my dearest Ariana. Be happy;
you must be so, for you are good, and not in pursuit
of thieves and Exeter bank bills. So prays J. S."

LIFE OF JUDGE SMITH. 339
Through the autumn of 1828, William was very
feeble, never leaving the house, and spending the
greater part of his time in his chamber. Ariana's
attention was divided between her father and brother,
the day being usually passed in the sick room, and
the evening in her father's study. A newly married
couple could hardly be more assiduous in their atten
tions to each other, or take more delight in each
other's society. Works of fiction, history and phi
losophy, contributed each a share to their instruction
and enjoyment. Reading afforded matter for con
versation, and conversation gave new life and zest to
reading. Sometimes, though rarely, a game of piquet
was allowed to take the place of books, and mimic
kings, queens and knaves usurped the stations and
played the parts of their more important prototypes,
who fill the pages of history and romance. The
memory of the friend who had so recentiy gone from
among them was gratefully cherished, and threw a
softening influence over their lives. No subject was
so frequently or so warmly dwelt upon in their even
ing intercourse as the devotedness of her former days, .
and the patience and resignation of her last hours.
It seemed almost as if she were still one of the com
pany. In this manner the autumn passed. There was
little hope of William's recovery, but nothing was
omitted by his father or sister that might contribute
either to his present comfort or future amendment.
Late in the fall Ariana was seized with a violent cold.
No serious consequences were apprehended, and it
was allowed to pass like other colds. Her usual du-

340 LIFE OF JUDGE SMITH.
ties and pleasures were not interrupted, and her mind
lost nothing of its natural quickness and vivacity.
The whole winter passed away, and stUl there was
no improvement. The true character of the disease
yvas not suspected. But her father was not alarmed.
His affections were so concentrated on her, whom he
had already looked forward to as the last that should
remain to him of his five children, that it did not oc
cur to him that she also might .be taken. He quieted
his own apprehensions, but not the disease, which
was making slow but fatal inroads on her constitution,
closing the avenues and exhausting the fountains of
life. Early in March, as the spring birds first began
to appear, she withdrew to her chamber, and soon a
few moments in the day were all that she had strength
to spend, except upon her bed. The feelings with
which she was borne along through her sickness, are
happUy expressed in words which I find copied by
her own hand. " It has dften been said that a slow,
wasting disease of the body, must press heavUy upon
the soul, which sees its departure from the friendly
world approach step by step, and counts as it were
the leaves of bloom which drop one after another.
When, however, no distorting pains interfere, and
when the departing one does not love too much that
which is called life, nor hate too much that which
is called death, it may not be so bad as is imagined.
If we drink the last flask of a noble wine with a pleas
ure which we did not know before, why not also
these last drops of the earthly being ? In thus glid
ing quietly downwards, we meet with few of the cares
and shocks of this lower world ; we have Uttle more

i i

LIFE OF JUDGE SMITH. 341
to do than to pluck its flowers ; a foretaste of the
disembodied state is breathing around us ; those who
love us have more thought and more affection for the
departing one ; and those who do not love us we
more lightly and easUy pardon, regardful of the text,
' Forgive as we would be forgiven,' as well as mind
ful of the short time which we have to pUgrimage
together ; and when a tear flows from the eye, it
flows almost as visibly as seed pearl into the fife of
paradise. Whoever has experienced such gentle
suffering wUl not deny us his assent  "
When the warm weather came, there appeared no
improvement or rehef, but rather a sinking and wast
ing away. Like some young and beautiful plant,
that droops we know not why, her strength, without
any adequate cause that her physicians could dis
cover, gradually left her, tiU at length it was found
that the same disease which had taken the mother,
and was now taking the brother to his grave, had
seized also on her. No suspicion of the nature of
her iUness was entertained by her friends tUl three or
four weeks before her death. She knew that she
must die, but expressed no wish to live except for
her father's sake. There were no professions or part
ing words, but just enough to let him know that she
understood her situation, and was prepared to go in
peace. " It is," said her father, in minutes taken at the
time, " exceedingly painful to look on a beloved ob
ject, of whose life you entirely despair. The occa
sional pleasant looks, and smUes, and lively conver
sation cause a most melancholy emotion. In this
29*

IfT-i-^

342 LIFE OF JUDGE SMITH.
case I am persuaded that the dear sufferer has no
hopes at such moments more than the beholder. The
emotion is a mixed one ; you rejoice and grieve —
hope for an instant springs up — your judgment is
employed in repressing it. You are reminded pow
erfully of the value of what you are just about to lose
forever. You rejoice at the apparent ease, comfort
and exemption from suffering, but feel that your joy
is fated, to last but for a moment, and speedily to be
succeeded by suffering and death."
She once said to her father, " How many times have
I formed schemes of the future, when I was to take
care of you, nurse you, amuse you ! How many
thousand little comforts I have planned for you ! "
But conversations like this were too interesting for
her. Judge Smith never felt at ease in the sick
room, even of his daughter. His life had been spent
amid other scenes. His feelings were kind ; but he
had not the soft and pliant manners, the calm self-
possession and repose which are so important to the
sick. She was unwUling also that he should witness
her sufferings. William, whose health had been
slowly improving, was a more gentle and unexciting
companion, and was more with her. She sank qui
etly away, and when she slept, her countenance
seemed fike that of a delicate young girl in some
pleasant dream. In her wanderings, there was, as
her father said, no expression of fear or dread, no
indication of anything disagreeable, but all was peace-
fuf and serene. On Monday, the 15th of June, she
dictated a few words for her brother to write down.

LIFE OF JUDGE SMITH. 343
to her dearest friends. On Friday, the 19th of June,
the anniversary of her mother's death, just at sunset,
she asked to be carried to the window, and looking
out as she knew for the last time on the earth and
sky, she was touched and melted by their exceeding
beauty. " Such softness of coloring," she said, " such
intermingfing of shades, such a variety of green ! "
But her eyes were soon to open on richer glories than
God has made to shine from these his lower works.
The next day, at the same hour, it being towards the
close of the last day of the week, she was caUed away
to spend an eternal Sabbath in a world where pain
and sickness shall be felt no more.
It had been one of those lovely, transparent June
days, when the earth seems in a peculiar manner emr
braced by the fostering heavens. The air was filled
with fragrance, and the sun just going down, as the
physician informed Judge Smith that his daughter
was dying. He arose, calmly begged the clergyman
of a neighboring town, with whom he was convers
ing, to excuse him, and went to her chamber. No
word was spoken, and the beautiful composure with
which she died, her spirit passing away gentiy as
the perfume of evening flowers, threw around her
departure a charm, which took from death all its
terrors. For a moment, as he afterwards said, though no
one perceived it at the time, her father rebelled
against the Providence of God — it was but for a
moment. He talked of her freely, calmly and cheer
fully. A stranger would not have known from his
appearance, that anything unusual had taken place.

344 LIFE OF JUDGE SMITH.
Indeed, to some who did not understand his charac
ter, this self-possession seemed so unnatural, that
they feared his mind was giving way, whUe by others
it was attributed to a Stoic insensibility. But he had
meat to eat, which they knew not of. He asked the
clergyman who attended her funeral to " give thanks
that she had been spared so long," and as he fol
lowed her body to the grave, supporting the son on
whom he should have leaned, he was enabled to look
up, and view as but a point the days or years which
might separate him from her. Indeed it was hardly
a separation. " I have known," he said, " what
implicit confidence is — what it is to love another
better than myself — to see my own good quaUties,
if I may speak of such things, exist in another, in a
more amiable, graceful, attractive form. In truth,
dweUing on and contemplating her perfect character,
constitutes my whole pleasure. She must be happy
hereafter, who has been so good here, and she wiU
live with me as long as I live."
During her sickness, the thought of her suffering
tried him severely. " It is painful," he said, " ex
ceedingly so, to watch the progress of phthisis in a
beloved object to the final close. How gradual !
every step marked with additional weakness and
pain. If the patient has hope of a favorable termi
nation, the rational beholders can have none. We
(the beholders) can endure the pain, (so to speak,)
when we foresee, or think we foresee, a favorable
issue ; but without that,- it seems to us death and
something more, an unnecessary infliction, like tor
menting a condemned person, and then executing

LIFE OF JUDGE SMITH. 345
him. But the Christian believes this Judge does not
wiUingly inflict pain. There is some end to be an
swered by it, though he knows not what it is. His
faith and trust in the divine goodness alone can check
the rising murmurs. But even these cannot ease his
pain, a father's pain at such a sight."
But soon these painful impressions passed away,
and his thoughts of her, if sometimes accompanied
with a feeling of loneliness, were aU pleasant. The
entries in his common-place book, sometimes quoted
and sometimes original, are an index to his state of
mind. " ' It were a duU house ours, were we to lose
Anne.' " Alas ! Monday, 7th September, 1829."
" A. E. S. ' The memory of love is to me far
more than a living love is to others — there is no
passion so full of tender, of soft, of hallowing asso
ciations, as the love which is stamped by death.
To lose this would be dreadful.' October 12,
1829." In a letter to his niece,' Mrs. Walker, Judge Smith
said : " I thank you for naming your daughter for
my beloved one, now no more. I know weU that
the number is very small who knew the dear de
parted as I knew her. Except yourself and a very
few others, none could know how very dear she was

' Sarah, wife of James Walker, of Peterborough, and daughter of
Judge Smith's brother James, a woman greatly beloved hy all who
knew her. She had assisted in taking care of Ariana,. during the latter
part of her illness, and was with her when she died. There was no one
out of his immediate family to whom Judge Smith was more tenderly
attached. She and her uncle died of the same disease, and within a few
weeks of each other.

346 LIFE OF JUDGE SMITH.
to me, and how large a measure of my happiness
depended on her, after the death of her mother. It
is the recoUections of her, (what she was,) that now
cheer me on my journey, and I hope and believe
they wiU continue to do so to the end. So far from
murmuring at my irreparable loss, for such it truly
was, I am grateful to the Giver of every good and
perfect gift, that she was lent me so long. I most
heartily join with you in the wish, that your's may
prove as great a blessing to her parents, and that she
may survive you both — a greater good I cannot con
ceive of — may it be yours."
Years after, when his domestic circumstances had
entirely changed, he carried with him the same ten
der remembrance of his daughter. In 1836, he says,
quoting partly from " The Doctor," a book in which
he greatiy delighted : " Grief had acted upon her
heart like the rod of Moses upon the rock in the
desert — it had opened it, and the well-spring of
piety gushed out. When the agony of bereavement
had passed away, the intensity of J. S.'s affection
became a source of consolation. A. E. S. became a
purely ideal object, more, not less dear to his heart."
' The idea of her life shall sweetly creep
Into his study of imagination.
And every lovely organ of her life
Shall come apparelled in more precious habit,
More moving, delicate, and full of life,
Into the eye and prospect of the soul,
Than when she lived indeed.' — Shakspeare.
It may be that the sketch which I have given of
Miss Smith is too highly colored, and that her true

LIFE OF JUDGE SMITH. 347
image has become, in a measure, transfigured in the
mind of one who knew her only when a boy ; whose
acquaintance with her began, on her part, with kind
actions, and ended in kinder wishes ; with whom the
impress of her mind and person has gone as a bright
reality, and whom her death first taught how serene
and beautiful a thing it may be to die.
A plain marble head-stone marks her grave. The
inscription upon it was prepared by her father ; the
Latin being slightly altered from Bishop Lowth's ex
quisitely written epitaph upon his daughter :
Ariana Elizabeth,
daughter of
Jeremiah and Elizabeth
Smith.
Born 28th December, 1797.
Died 20th June, 1829.
Cara, vale ! Ingenio prasstans, pietate, pudore,
Et plusquam natae nomine cara, vale !
Ariana, vale 1 At veniet felicius cevum
Quando iterum tecum, sim modo dignus, ero.
This world was not the world
for thee.

CHAPTER XII.
1829 — 1830.
WILLIAM SMITH  HIS SICKNESS  GOES TO MISSIS
SIPPI  HIS DEATH.
During the summer after his daughter's death. Judge
Smith's time, and his thoughts, so far as they could
be spared from the dead, were occupied with his son.
He took several journeys with him, — among them,
one to the White Hills — consulting the ablest phy
sicians, and, under their advice, making the most of
the favorable season of the year. In September,
William left home, to try the effect of a milder cli
mate. He went first to Washington, thence, by a
private conveyance, across to Wheeling, and down
the Ohio to Cincinnati, where he spent a month or
more with his cousin, Jesse Smith, a man distin
guished as a physician, and who a few years after
fell a victim to his professional zeal and fidelity, dur
ing the prevalence of the cholera. From Cincinnati
he went down the Ohio and Mississippi, to the plan-
. tation of another cousin, Robert Smith,' in whose
1 The son of Judge Smith's brother Robert, who died in 1795.

LIFE OF JUDGE SMITH. 349
family he spent the winter, receiving every kindness
and attention that might serve to cheer his mind, or
alleviate his bodUy suiTerings. It was a sore trial for him
to be obliged to leave home under such circumstances.
Writing from New York, September 27, he said : " I
can assure you, my dear father, that I felt more sad
when I left you, than I ever did before. My ride to P.
was one of mournful recollections. If the objects of
my travel are accomplished, we may yet be very
happy together. But whatever the event may be, be
assured that I do hold myself firmly bound unto you,
to leave nothing undone which will have a tendency
to improve my health and my character. If I return
to you in better health, I am determined that you
shall find me improved in mind." Philadelphia, Oc
tober 4. " How I wish that I was to spend the win
ter wijh you. How sad I feel in places where I
once should have felt so gay. I think a thousand
times a day of my dear mother and sister, and as
often of you."
His journey over the mountains to Wheeling, was
exceedingly exhausting, and must have left him
much worse than it found him. But at Washington,
and elsewhere, he took great interest in political
affairs, and in whatever was characteristic of the
people and the country through which he passed.
His passage down the Ohio was slow, and, amid a
crowd of travellers, he was sad and solitary. But at
LouisvUle an old friend and townsman, Nicholas Gil
man, at some personal inconvenience, joined him, and
travelled several days in the same boat. William, in
a letter to his father, acknowledged his obligations to
30

350 LIFE OF JUDGE SMITH.
this " most kind and aflfectionate nurse," and Mr.
GUman said of him, " I have never met with a sick
person so uncomplaining. He was aU gratitude for
my attentions, and it afforded me great happiness to
be of any relief to him, so far from home — so sick
— playmates from chUdhood up. Our talk of home,
of by-gone days, made me feel and act towards
him, &c."
WiUiam's letters to his father are full of a tender,
affectionate, and melancholy interest, recurring often
to their lost friends, and to those whom he had left
behind. January 11, 1830, he said : " I have been
reading Middleton's life of Cicero, for the third time,
and was struck with the resemblance between your
affliction and that of C. ' TuUia was about two-and-
thirty years old, at the time of her death, and, by
the few hints which are left of her character, appears
to have been an excellent and admirable woman ;
she was most affectionately and piously observant of
her father ; and, to the usual graces of her sex hav
ing added the more solid accomplishments of know
ledge and polite letters, was qualified to be the
companion as well as delight of his age.' It is not
strange that Middleton adds, as the greatest calamity
which could befall him, the ' loss of such a daughter,
in the prime of her life, in the most comfortiess
season of his own.' He sought for consolation in his
library, and he found not consolation, but alleviation
of grief in that forgetfulness, which devotion to inter
esting intellectual pursuits creates. It is our duty
to act towards the dead whom we loved, as towards
the living — to remember and to forget them. When

LIFE OF JUDGE SMITH. 351
we recall them to recoUection and bring them, as it
were, down from heaven to earth, it should not be in
the heat of the day ; but they should come as the
angels of old did, when they visited the earth, in the
peaceful and calm shades of the evening. I have
no doubt that Dr. Abbott gains from continuing in
active life, not merely from its effect on the mind
or body, (for he gains by keeping up his phy
sical system, which, unemployed, he might suffer to
run down,) but for its effect in alleviating his grief
for the loss of his son — a son who deserved to be
grieved for long, and who seemed to want nothing of
the angel but the wings.
" The kindness of my friends continues unabated.
In kind and judicious counsel, Robert is a father,
and in affectionate nursing, a sister and mother. In
one respect my case resembles that of our dear Ariana,
who said, you know, that it should be recorded on
her monument that she ' died of the kindness of her
friends.' Would to heaven that I could enjoy her
calm patience, her holy resignation."
Centreville, January 23, 1830. " I am very anx
ious to hear of Colonel Walker ' and famUy. When I
was in the crisis of my fever at P., Colonel Walker
called to see me, but was refused admission, as every
one else was. ' I am sure,' he replied, ' he will see
an old friend like me.' I directed them 'to invite
him to come up. He came and sat down by my

' Colonel Seth Walker, one of the kindest of men, for many years
Register of Deeds in Rockingham county. He died in 1332. " 1 have
shown," says J. S. to W. S., "your letter to Colonel Walker ; it brought
tears into his eyes — your mention of him and his family."

352 LIFE OF JUDGE SMITH.
bed, and for some moments said nothing. Just
before he rose to leave me he took my hand, and
expressed his belief in my recovery in language so
encouraging, and his wishes for my recovery in words
so warm and affectionate, as to make the blood rush
through every vein. I was somewhat overcome by
the interview. But when I got over that, the recol
lection of it gave a nerve to my system, and I then
said, that from that time I dated the beginning of my
recovery. Let me hear of him."
In a letter to his father, dated February 7, he
says : " That spirit of liberality, which you have
always shown towards me in money matters, and I
should say especially in them, if 1 did not perceive
the operation of the same spirit in all other matters
between us from the beginning, &c." ... "I spend
many hours of every day with you. I look in upon
you when at study. I am with you, in full sym
pathy, during your hours of sad reflection." Feb
ruary 20. " P. S. — Sunday, P. M. I have just
come across an odd volume of Seed's sermons, and
have read two of them with delight. ... Do you
remember the discourse on a particular Providence,
containing just enough of argument for the ingenious
thinker, and enough of glowing exhortation for the
warm-hearted Christian ? " In reply, J. S. says :
" Your character of Seed's sermons is just. I have
the same odd volume, and think just so of the ser
mon on a particular Providence."
Judge Smith's letters to his son were, of course,
mostly taken up with the little items of domestic in
telligence, which are so grateful to those who are

LIFE OF JUDGE SMITH. 353
away from home. They also show what were his feel
ings, and how he employed his time. " Nov. 5, 1829.
I have returned to the task of hunting up the acad
emy lands with no other guide but old deeds, two or
three hundred accounts, minutes, &c  I am
not sanguine as to success, but, to tell you a secret,
I must have employment. My unemployed hours
are heavy. I have one subject only to exercise my
thoughts upon, and that unfits me for the living.
Everything I see and hear is so unlike 
I think, as at present advised, I shall not spend the
winter at the Tremont house, but in my own comfort
able home."
It was a winter of heavy pecuniary embarrass
ments and failures in Exeter, and this brought upon
Judge Smith, as president of the bank, and treasurer
of the academy, no small increase of labor. After
giving an account of these reverses, he says, " You
can conceive of the exercise of tongues here — all
wag. Littie of all I have stated is generaUy (accu
rately) known, but enough to set that little machine
a-going  It is a solemn business, transferring
the funds of the bank from the late to the present
cashier. * * * * himself seems to feel it so." —
" Strange that people cannot see a little way into
the future." . ..." It seemed very odd to me to
return every night for a fortnight of this rough
weather, take my meals all alone, and have not a
mortal to speak to of the thousand things daily and
hourly occurring."
6th February. " I am very well. Proof ¦^ — no
thing but shame prevented my doing the duty of
30*

354 LIFE OF JUDGE SMITH.
cashier. The public would have cried out, avarice !
and appearances would have been against me. The
world cannot know how much I love employment.
How can our young men love idleness? To me it is
inconceivable. If the evidence were not before my
eyes, I should doubt the fact. Do you not feel as if
you would like to be register of deeds ? "
1st March. " I wish you had the book I have just
finished — Second Series of Tales of a Grandfather.
They are excellent ; the most interesting parts, from
I. James VI., 1603, to the union of 1705, are served
up in Sir Walter's best manner  He unites
simplicity, good taste, wit, impartiality, boldness, can
dor, shrewdness, sound judgment, a philosophic spirit,
&c. These volumes have amused me much, as much
as Old Mortality. He is a shrewd Scotchman. Hea
ven grant he may hold out my time. When I am
gone, he may go as soon as he will  These
Tales of a Grandfather wUl do something to promote
the morality of government. Would that they might
teach our small New Hampshire rogues good man
ners. You know the election is now going on, which
reminds one strongly of good breeding — lucusanon
lucendo." "... I am in no danger, I think, of writing a
history of Exeter, or any other history. I have not
been so much engaged for many years as in the last
three months. Providence seems to provide work
for me, knowing, I suppose, that it is good for me.
I verily think it is so. It is a great objection to the
grave that there is no work there."
22d March. " It is too late in the day to talk

LIFE OF JUDGE SMITH. 355
about the moral character of the candidate. Moral
character is a good thing, but has little or nothing to
do with an election. One likes to have one's con
nexions and friends moral, but one's governor, it is
toute autre chose  Your cousins [deaf and
dumb] have sent you and me each two pairs of fine
woollen hose, spun and knit by themselves, with a
pretty letter. E. says, Ariana used to knit for her
father, and now that she is in heaven, she and her
sisters determined in this to supply her place. If
they live good and virtuous lives here, she has no
doubt of meeting her in heaven.' ... I need not
tell you that I am very well. If I could only get rid
of meals and evenings, I should do weU, provided I
had plenty of business to do. If I could step into
your house now and then, I should be glad. I sup
pose you would gladly return the visit. We must
each do the best we can as it is. I hope, after an
other winter and spring in Mississippi, you will come
to us with confirmed health, and will help the good
here to maintain their ground against the bad. God
bless you, prays yours always, J. S."

' Judge Smith always took a warm interest in these nieces, and did not
forget them in his last sickness. They were educated at Hartford, and
once, as I find in a memorandum made by Judge Smith, when on their way
home, were met by a Connecticut lawyer, who had the foUowing conver
sation with one of them in writing. " Do you love your enemies ? "
Ans. — "I ought to love my enemies, but sometimes I forget." " Did
Christ die for all sinners '? " Ans. — " For all that trust in him. None
benefited by his death but those who believe and trust him." A lady
present wished the following question to be put. " Is the power of
Christ equal to that of the Father ? " The gentleman at first declined,
as touching on a doctrine of scholastic divinity, and beyond their reach ;
but, on being urged, he put it. Ans. — " Jesus Christ has no power, hut
what is derived from the Father."

356 LIFE OF JUDGE SMITH.
24th March. " I lodged at the same house with
J. R., beginning the practice at D. He must, I think,
ad'Vance slowly ; he has more talents than he seems
to have. If  would lend him a fittie owlish
wisdom, it would profit him. He may make a
lawyer. The matter is stUl in dubio with  ..
He is wanting to himself, having the capabUities. A
few years settle every man's case, rank, standing. I
understand the jury (the world) have given in their
verdict. Possibly he may review. ... I had some
curiosity to see how the fall in Exeter and of Exeter
would aflfect you. Time wUl cure the breach, and
perhaps mend our condition. It is always a great
point gained to know our true condition, and ship off
our foolish pride. But none of these things move
the dull and heavy  . Strange that he does not
at once march up and take the Sheridan oath, ' It is
in me, and by  it shall come out.' "
After the first fatigue was over, the Mississippi
climate seemed to be of great service to Mr. Smith.
In a letter dated 27th December, he says : " I have
had delightful rides on horseback. It is impossible
for you to imagine the happiness I felt as I cantered
over the plantation paths, through woods abounding
with the most splendid evergreens I ever saw, and
my ears filled with the music of sweet singing birds.
As I rode, life seemed to come to me in the smeU of
the fragrant pines. I do not mean to exaggerate
when I say, that thrills of returning health ran
through my whole system, so exquisite as almost to
occasion faintness." In the last letter that he ever
wrote with his own hand to his father, (Feb. 21,) he

LIFE OF JUDGE SMITH. 357
says, " I have gained in one month and two days no
less than five pounds of good sound flesh, which I
have laid out in ornamental work." The next letter
that his father received was written By William's
physician, and left no reasonable hope of his re
covery. It contained these lines, dictated by WU
liam. " My dear father : you know what satisfaction
it would give me to be able to write to you, at this
time, with my own hand ; but you know, too, just
what the sentiments would be, which a letter written
under the present circumstances, would contain. I
hope that a change will shortly take place for the
better. May God bless you and me, and prepare us
both for his holy will and pleasure concerning me."
To this Judge Smith replied. April 10. "My
dear William : 1 have Dr. Magoun's letter, post
marked 15th March, and Robert Smith's, same date.
I need not say how they affect me. I have not, I
hope, neglected you in my prayers. Heaven knows
with what earnestness and sincerity I have prayed
for your recovery. I can join you from the bottom
of my heart. ' May God bless you and me, and
prepare us both for his holy wUl.' At this time, as
you say, it would give rne a pleasure I cannot ex
press, to have a letter in your own hand, though I
can well enough imagine what it would contain, and
would not have you spend any strength in writing.
I am very, very glad you are with your cousin, and Dr.
M. your nurse. . . . Though 1 have no fears that you
will lack any nursing and attentions, it would stUl
afford me the highest satisfaction, your situation will
allow me, to be with you. Two months ago I se-

358 LIFE OF JUDGE SMITH.
riously thought of setting out, but your altered ac
counts rendered the journey unnecessary. I cannot
but hope that the account of you from Dr. M. wiU
prove to have been the effect of the return of your
complaints for a short season, and that this wiU find
you better.
" God grant the next letter may teU me so. In
the meantime, I pray God to bless you, and to give
you strength and fortitude in this time of need. Your
affectionate father."
Whatever of lingering hope may have remained
was soon lost. Twelve days before the date of this
letter, another had been written by Robert Smith.
" Your son WiUiam has left us. He expired this
morning at a quarter before six. The last words he
spoke, which was a few minutes before he Hied, were
to request me to bury him beside my two httle boys."
From Judge Smith to Mrs. Walker, AprU 23,
1830. " What we feared has come to pass. Wil
liam is no more. The account comes to me from
Robert, immediately after he expired, which was
Monday morning, 29th March. The letters of the
two preceding weeks had, in some measure, prepared
me for this event, but we are never fully prepared.
Indeed the event of the 20th of June, of which you
were a witness, returns fresh upon me. No words
can express how precious her sympathy would now
be. When he was first sick, two years ago, and
she quite well, we thought it not improbable that we
both might survive him. Alas ! I now alone remain.
It is a great consolation to me to believe that poor
WiUiam, in his last days, was among friends, kind.

LIFE OF JUDGE SMITH. 359
sympathizing friends, and had the excellent nursing
of his old friend. Dr. Magoun, who proposes re
maining in Mississippi."
In another letter of the same date, he says : " May
you never experience what is now my case, the sad
thought of having outhved all who love you."
The rapidity with which thoughts the most diverse
flash upon the mind, in the intensity of its emotions,
is one of the strange facts connected with our na
ture. There is a mild and soothing sorrow, which
we dwell upon with fondness, and in which we cher
ish only those images and impressions, which har
monize with the general sadness of our feelings. But
there is a sense of bereavement so intense, that the
mind, as if to forget its desolation, turns away invol
untarily to its accustomed occupation, and, by a sort
of mechanical force, fastens itself there, pursuing
for a time, almost unconsciously its usual train of
thought. The above letter was written on Friday.
On Saturday Judge Smith made this entry in his
common-place book : " Junius said, ' I weigh every
word,' and every alteration is a blemish. His style
was correct and elegant. Sir Walter Scott does not
stop at any word ; he weighs the sense, and conse
quently is full of errors in language, and beauty of
sentiments and composition." On Sunday the fol
lowing note was read in the church where he wor
shipped : " Jeremiah Smith desires prayers that the
recent death of his son, the last of his family, in a
distant state, may be sanctified to him, and that this
thrice-repeated stroke of Divine Providence may serve
to prepare him for his departure hence, whenever the
summons shall come."

360 LIFE OF JUDGE SMITH.
Judge Smith, to Robert Smith, of Mississippi.
May 1, 1830. " My dear nephew : I have received
your letter of the 29th of March, written a few min
utes after WiUiam's death. Your and Dr. Magoun's
letters, for the two preceding weeks, had, in some
measure, prepared me for the sad tidings. I have
delayed writing for some days, expecting a letter giv
ing a more particular account of his life for the last
three weeks. There is a melancholy satisfaction in
learning the state of the poor suflerer in the last
scene ; how he met that enemy who is sure to con
quer ; the exercises of his mind ; his confidence in
his Maker, when aU earthly help fails, &c. His sis
ter exceeded anything I ever witnessed. She seemed
wonderfuUy supported, perfectly resigned and sub
missive to the wUl of God. It is not strange I should
now recur to her last moments. How precious would
her sympathy now be to me !
" I am alone in the wide world, ' a single column,
unpropped and nodding to its fall.' I cannot find
words to express the satisfaction it gives me to be
heve, that WUliam had every attention, kindness and
comfort, after he reached your house. It could not
save his life, but it must have eased his pain and soft
ened his couch. In his letters he spoke in grateful
terms of your and your wife's uniform kindness to
him, and I know Dr. ^I. must have been aU that we
could desire."
In a letter to J. H. Morison, after using the same
figure of a single column, &c., he adds : " But it is
far from my intention to be misanthrope or cynic, if
I can help it, or to let the aforesaid column hurt any

LIFE OF JUDGE SMITH.

361

body in its descent, as descend it must, and that ere
long. But I am yet very weU, and more happy, or
rather less unhappy than I feared."
In his common-place book he wrote, June 12,
" ' Be not solitary, be not idle,' the last I can com
mand." " I have certainly enough of that perUous
stuff that weighs upon the heart."
It was not, perhaps, tiU after the death of his
daughter, that Judge Smith had begun to appreciate
fully the character of his son, and to feel towards
him all the tenderness of a father. In one place,
after quoting the words " we can only have one
mother," he adds : " It seems to me I could only
have one child. Forgive me, W." Judge Smith
was not given to regrets, but is not this an affecting
confession of partiality, with an acknowledgment that
it was not right ? '
" I five," he said, " in solitary majesty ; in oriental
seclusion, in the realm of sUence and the land of
oblivion ; left at large to pursue my own designs,
whatever they may be." " I hope," he said again,
borrowing the expression, I befieve, in part from
Oberlin, " that I -bear my losses of dear friends as I
ought, not from that lightness or elasticity of mind
which flies from all painful thoughts, not from that

' There is something quite touching in what I find written in half
sentences, as e. g. " JJ* ' A falling house, with a single column left,
(and that tottering to its fall).' Iphigenia's dream. The single column
in the dream was Orestes, here, I.
' Wo unto him who leads a lonely life
From children and from kindred banished far,' " &c.
31

362 LIFE OF JUDGE SMITH.
hard and hardening philosophy, which submits with
sullen pride to what is inevitable, but from an entire
submission to that Providence which, having made aU
things in goodness, orders them in mercy."
On looking over what I have written, I fear that I
may have given too unfavorable a picture of WUliam
Smith. His faults were the striking incidents in a
life, whose virtues, belonging to its every day current,
cannot be so described as to fill out in his biography
the space they occupied in the daily course of events.
It has been a painful task to dwell on his infirmities.
But when I remember how they caused his day,
which dawned with so much promise, to close in
darkness before its time ; when I call to mind how
bitterly he mourned over the errors, through which
his early hopes and the expectations of his friends
were blasted, and how solemnly he warned others
against them ; I feel it to be a duty, which his kind
and generous spirit requires of me, to add his to
the thousand examples already existing, of a noble
mind, with all the advantages of education and so
ciety, given in vain, from the want of a strong and
steadfast purpose in life. If the great assembly of
the gifted young, who have thus wasted time, for
tune, character, health, hope, and life, could be per
mitted to come back, with Robert Burns at their
head, and exhibit all that they have suffered, in order
to warn those who, with the same rash confidence,
are entering now upon the same career of folly and
of ruin, I can conceive of no spectacle at once so
touching and so sad.
It is a great satisfaction to be able to introduce

LIFE OF JUDGE SMITH. 363
here the testimony of one ' who, in antiquarian zeal
and knowledge, was inferior to no man in New Eng
land, and whose death, whUe yet in the vigor of life,
was a public calamity. He had for some time cor
responded with WUliam Smith on historical matters ;
and in June, 1830, wrote to Judge Smith : " My
acquaintance with your son was very hmited, but
enough to convince me of his genius and talents,
and to lament that such brilliant powers should be
forever extinguished. As a member of the Histo
rical Society, much was expected from him, and, had
he lived, much would doubtless have been realized.
It is much to be regretted that he did not complete
his History of Exeter, as the ardor and zeal with
which he entered on the work, the extended and
liberal plan he had contemplated, the wide range of
his inquiries and researches, insured one of the most
perfect local histories that have appeared in our sec
tion of the country. I hope the materials he col
lected have been left in such a state, that they may
yet be arranged, and presented in the form of a his
torical deduction. Without dweUing on this subject,
I would most respectfully suggest the propriety of
having something of him preserved in the form of a
memoir ; something which shall appear in a future
volume of' the collections of a society, of which he
was one of the founders, and an active member.
One object of our society is to preserve memorials of
our associates who have finished their course on earth.
I cannot but; hope that you will favor the society
> John Farmer.

364 LIFE OF JUDGE SMITH.
with some sketch or something more, which shall per
petuate his memory."
The foUowing obituary notice, drawn up by a
friend,' who knew WUliam Smith weU, and who
could appreciate his exceUent qualities of mind and
heart, may serve as a fitting close to this melancholy
chapter. " Colonel Smith was a gentleman of early
and much promise in professional and political life
— having been admitted to the bar at about the age
of twenty-one, and returned as a member of the le
gislature of New Hampshire in his twenty-third year.
He represented Exeter with fidelity and abUity, for
three successive terms. His health, constitutionally
delicate, had been gradually faUing for two or three
years prior to his decease. He was induced lo try
the effect of a mUder climate in ameliorating his dis
ease, and the result of a winter's residence at the
west seemed, for a time, to be very favorable. But
the hopes of his friends have been blasted, and the
only remaining tendril that wreathed around the soli
tary pillar of a noble house, has been severed from the
stately column it was designed to have strengthened
and supported." ' George Kent, Esq., of Concord, N. H.

CHAPTER XIII.
1830 — 1834.
JUDGE smith's studies  LECTURES ON THE PURSUIT
OF KNOWLEDGE  SECOND MARRIAGE  SAYINGS
AND LETTERS.
Judge Smith was now left entirely alone. His do
mestic affections, which were among the strongest
feelings of his nature, had nothing to rest upon. I
was with him much in those his times of tribulation,
and do not think he ever knew what it was to pass a
desponding day. The outward current of his life
flowed on almost as brightly as before; for, if the
lights of his home had been withdrawn, more of the
light of heaven rested upon it. Much is to be attri
buted to the natural elasticity of his mind, and more
to his religious convictions. But how many devout
men break down under such circumstances, purely
because they find nothing to do, which has interest
enough to engage their attention ! They muse upon
their sorrows, till they have no heart for anything
else. They shrink from society, and society shrinks
from them. The solitude, which Providence had
31*

366 life of judge smith.
made to last but for a season, is thus enlarged and
perpetuated by the selfishness of their grief; their
faculties fail for want of exercise, and the sad rem
nant of their days is burthensome to themselves and
to aU about them. Judge Smith did not, for a single
week, give up his usual occupation. He continued
in the pursuit of knowledge with all the freshness of
his youthful affections ; and considered it, as we
have already seen from his letters to William, a mer
ciful dispensation which had greatly increased his
labors in business. " Did you never," he asked,
" feel and enjoy the pleasure of ease after labor, and
the pleasure arising from the reflection that you had
done something to increase the stock of your intel
lectual and moral powers, or even your wealth ? "
Labor, as well as virtue, was to him its own reward.
He settled his son's affairs, which had been left in a
perplexed and embarrassed condition, and paid his
debts. He examined and arranged all his and his
daughter's papers. In 1828, he had succeeded Gov.
Gilman as a trustee of PliUlips Exeter Academy, and
soon after was appointed treasurer, which made it his
duty to draw up an annual report of the funds of the
academy. Owing to the disordered state in which he
found them, he examined their history from the be
ginning, inspecting carefully all the records and other
papers which had been accumulating for nearly half
a century. This required of him more than a year
of solid labor ; and his reports might be recom
mended as models, uniting with accuracy and clear
ness in minute detaUs, those sound and comprehen
sive principles, by which the aflfairs of such an insti-

LIFE OP JUDGE SMITH. 367
tution ought to be administered. It was a subject
which he had greatly at heart as long as he fived.
He was much interested in the popular movements
for the diffusion of useful knowledge, which, begun a
few years before in England, had then just reached
this country. He went through quite an extended
course of reading on the natural sciences. During
his daughter's sickness he had read several treatises
on consumption, and now, with the eagerness of a
young man, went into the whole subject of physi
ology, but particularly that portion of it which is
called animal mechanics. This science, not less than
the most magnificent and stupendous of all sciences
— that which treats of the heavenly bodies — led
him to bow in reverence and humility before the Al
mighty Creator. The weakness of our own frames
was to him an evidence of the divine wisdom and
goodness, through which they had been formed.
" The liabUity to pain and injury," he said, " only
proves how entirely the human body is formed with
reference to the mind, and to a state of trial and dis
cipline ; since, without the continued caU to exertion,
which danger and the uncertainty of life infer, the
development of our faculties would be imperfect,
and the mind would remain, as it were, uneducated.
It is one thing to make a naachine for the purposes
of the body only, and another to make a machine
for a body with a mind and soul. Weakness and
liabUity to injury, therefore, imply no imperfection in
the frame of our bodies. A deep contemplation of
the subject will evince the incomparable perfection
both of the plan and execution. The body was in-

368 LIFE OF judge SMITH.
tended by our all-wise, all-good and merciful Cre
ator to be subject to derangement and accident, and
to become in the course of life more and more fra-
gUe, until, by some failure in the frame-work or vital
action, life terminates. That the soul may live, this
tabernacle of clay must be dissolved and perish."
Geology he examined with the same feeling of de
vout admiration. " It brings us," he says, (and I
quote his words to illustrate his habits of thought,
rather than because they are original, for they were
probably borrowed, in part at least, from some of the
treatises which he had been reading,) " into intimate
acquaintance with the noblest objects and phenom
ena of nature — with the grand features of mountain
scenery — their towering summits — their eternal
snows — the abrupt waterfall — the river now tumb
ling and foaming through a narrow gorge, now
gently rippling over an expansive valley, now wind
ing through wide alluvial plains to the bosom of the
mighty ocean — with earthquakes, volcanoes, and
the flood which drowned the ancient world. What
mighty changes have been produced in the earth by
these! — now rounding a pebble, now laying the
foundation of future islands and continents. The
constant progress of animated existence, ever varied,
but ever adapted to the circumstances which attend
it ; — who can contemplate without religious awe and
veneration, the arrangements, whether of the organic
or mineral worid, (the sure marks of a First Cause,)
acting by uniform, invariable laws, bringing order
and utUity out of the seeming elements of chance
and confusion ; connecting the peak of the mountain

LIFE OF JUDGE SMITH. 369
and the bottom of the ocean in one chain of mutual
dependence, and rendering the whole subservient to
the existence of that abundance of life and enjoy
ment, for which all has been beneficently contrived."
In the winter of 1830-1, Judge Smith zealously
engaged with several gentlemen of the vUlage in
getting up something like a Lyceum in Exeter, " less,"
as he said, " with a view of teaching others, than of
stirring them up to teach themselves." He gave the
first lecture, and the last, of the course. He spared
no pains or labor in the preparation, and transcribed
more than once or twice the greater part of what he
wrote. " Speaking of myself," he said, " I set down
the labor, which my small part in the concern im
poses, as nothing. Indeed, I am persuaded that there
is nothing better for a man, all the days of his
life here upon earth, than labor spent in a good
cause ; and such I believe this to be. It would give
me pleasure to aid my young fellow-townsmen in
acquiring a competence of this world's goods, and far
more to aid them in gaining that which is better
than riches — useful and practical knowledge. The
man who has the ability to give this aid in any the
smallest degree, and withholds it, is criminal. The
aged especially owe it to those who have just entered
on the journey of life, through which they have
nearly passed, to fit and prepare them for what they
may be called to do or to suffer ; above all, to point
out to them the dangers that beset their path, and
show them the road to usefulness, both as it regards
themselves and their country.
"It is not a narrow sentiment to love our own

370 LIFE OF JUDGE SMITH.
town, our neighbors and the friends that surround
us ; to wish that they may be particularly distin
guished and spoken of with applause. To do good, we
must confine our labors to a circle where our exer
tions will be felt ; that is, to a small one. I have no
particular desire that our houses or furniture, our
equipages, our dress, should be finer than those of
others, or that we should be richer than they. AU
this is mere appearance — the outside of things ; but
to see our townsmen better educated, possessing more
knowledge, better fitted to act well their several parts
in hfe, and withal possessing better manners, more
temperance and sobriety, more virtuous habits — this
is a consummation, a state of things devoutly to be
wished. ^ Life is surely worth more, in such a society,
than in such as we commonly meet with. Who
would not choose to five and die, when his time
comes, in the midst of such a society ?
" There is an age when it is unseemly to go to
school, but there is no period of life when it is un
seemly to learn ; and most true it is, that after all that
coUeges and schools can do for us, the greatest part
of the work of education must be done by ourselves,
if done at aU. We finish our college education but
to begin our studies. He has done well in the short
period of academical life, who has acquired a taste
for letters, and a capacity to acquire knowledge.
" My design in this lecture is to lay before you a
general view of the wide field to be entered upon and
cultivated by you, as your opportunities may allow, or
your inclinations prompt ; and suggest some consid
erations to induce you immediately and in earnest to

LIFE OF JUDGE SMITH. 371
set about the cultivation of your intellectual powers,
that you may qualify yourselves to be useful and re
spectable members of society, and what is far more,
provide for yourselves' a source of pleasure and hap
piness, while engaged in the active business of life,
and when that is over, comfort, solace and respecta
bility in old age."
This was a subject in which Judge Smith's whole
heart was engaged. The love of knowledge, which
had dawned like the star of his destiny on his early
youth, shed its benignant light on his declining years,
and cheered his pathway to the grave. " I have all
my fife," he said, " been so ignorant as not to know
the value of ignorance. I think with Goethe, who
once said with a smile, ' I have always found it good
to know something.' "
" I am afraid," he continued in his lecture, " that
the wide field I have opened to your view may, in
some less bold minds, serve to repress and intimidate,
rather than excite to exertions. They see so much
to do, so great and arduous labor to be performed,
that they are ready to forego all the rewards, however
great, it promises. Many a traveller faints at the
view of the towering Alps — mountains piled on
mountains ; he is content to remain aU his life in the
valley below, rather than attempt the difficult ascent.
I would not conceal from you the difficulties that lie
in the path of knowledge. Indeed I am acquainted
with no good thing attainable without labor and toil.
Man was made to labor, and I sincerely pity him who
finds nothing to do. ' Dii laboribus omnia vendunt.'
The gods do not give, but sell everything to industry.

372 LIFE OF JUDGE SMITH.
But at the same time, I am persuaded there are
few who set out in earnest to acquire knowledge or
any other good thing, that may not count on success.
' Seek and you shall surely find,' is as true of know
ledge as of the pearl of infinitely greater value. Be
sides, the knowledge I recommend to you, is not of
the abstruse kind, lying at the bottom of a well, and
to be fished up only by curious machinery, and by a
few favored individuals. Literature is a republic,
and every man may aim at the highest place. The
most useful knowledge lies near the surface ; and that
is the case, (so good and so bountiful is heaven,) with
all good things for man here upon the earth. We all
know we have minds as well as bodies, and that the
mind is the more excellent part, and susceptible of
the purer and more refined enjoyments ; why then
should we not lay up a stock for its use and enjoy
ment, in all times to come ? You may rest assured,
my friends, that the heart cannot be enlightened, if
the understanding is left in darkness ; nor the intel
lectual part be healthy, while the moral nature is un
sound.. " But some are ready to say, ' I am not blessed
with genius, and without genius it is impossible to
get knowledge.' I have had occasion, in my time,
to remark innumerable mistakes on this very subject.
By genius, is to be understood that peculiar structure
of the mind inherited from nature, which possesses
uncommon strength, particularly in the faculty called
invention. Many suppose the man of genius a being
sent into the world, ready made up, for everything
great, and almost superhuman. He acquires know-

LIFE OF JUDGE SMITH. 373
ledge, pretty much as the possessor of Aladdin's lamp
acquired riches, a splendid palace, and a fine princess
for a wife. The genii, answering to our genius,
could not procure him the princess to wife, but it
brought him riches and the fine palace, and the wife
came of course. He had only to rub the old lamp,
and in a twinkling aU he desired was his ; it was
brought by his genii. I have known a good many of
these great geniuses at school and at college. They
were supposed never to study, or studied nobody
knew how or when. They struck out great things
at a single heat. Now in sober truth these same
geniuses were mostiy idle, irregular fellows. They
scorned all labor and aU restraint. I have lived to
see the beginning, the middle and the end of most of
them that started in life when I did ; and I must say
that the young men of no genius, in college language,
that is, of common minds and industrious habits, gen
erally excelled these soi disant geniuses in scholar
ship, and when the business of fife commenced, and
the prizes were to be contended for, the geniuses
commonly broke down early, and the prizes were
won by a different class of men.
" I do not deny that there is a difference in the
minds of men. Some acquire knowledge more easily
than others. I have myself known a few — some of
them intimately — not exceeding, perhaps, seven or
eight in the whole, who seemed to get knowledge
without eflfort ; pretty much as Colburn solved his
questions in arithmetic, by a sort of intuition — a
summary mental process. But we err in calling ec^
centricity genius. It is quite a different thing. Elo-
32

374 LIFE OF JUDGE SMITH.
quence is not genius. This word should be used to
characterize only the highest endowments of mind.
" Set aside a few real geniuses, and a small num
ber to whom nature seems to have allotted less than
their fair proportion of inteUect, and aU between may
boldly enter on the career of knowledge, and contend
for the prizes, which society awards to the successful
competitors. I have heard the idle and the slothful,
who meanly shrunk from the contest, ascribe their
faUure to the want of genius, when I knew it owing
to the want of exertion. If it were not invidious, I
could name the men. I have no hesitation, there
fore, in saying that the fiterary men of my acquaint
ance are indebted for their fame to labor, and not
genius. Viewing man as he comes into the world,
with faculties susceptible of cultivation — as the clay
in the h^nd of the potter — it is not so much genius
which has made one man to honor and another to
dishonor, as culture, and that is but another name for
labor and exertion. So that every man is indebted
chiefly to himself for his knowledge and learning,
whatever they may be. Generally speaking, they are
procured, just as competence or wealth is procured,
by honest industry and unremitting labor. The zeal
of the aspirant urges him on from one to another,
believing nothing done, so long as anything remains
to do.
" Some of you niust have observed young men in
salT'i ''''^^^'''^ood, nay, in the bosom of the
same family, one ra 11^ J . ¦ i
above the point of . ^^"^"'' ^"^ '"°''^''" '"''''^
iu the race of life anT "'^- '^^^^ '^^'^ '°^'''"'
' " y°^ have seen the genius sink-

LIFE OF JUDGE SMITH. 375
ing in the scale of learning as well as character, and
the mediocre plodding on in his slow but sure way to
the temple of science, and at last reaching the emi
nence — the pride of his family and friends, and no
less so of his country. I am confident that I do not
go too far in affirming, that extraordinary intellectual
powers as often prove the hindrance, as the procuring
cause of learning. Short steps, take enough of them,
wUl carry you safer to the pinnacle, than long strides
from which there is always danger of stumbling and
falling to the bottom of the ascent. The best genius,
after all, is that ardor of mind which prompts to ap
plication. Apply, and you are safe ; remit your exer
tions, and it is easy to see the end thereof, your
genius to the contrary notwithstanding. It is of the
nature of mind as well as body, that its powers should
enlarge and improve by exercise, and grow torpid by
sloth and inactivity.
" The excuse, then, of want of genius or capacity,
generally fails. To me it is clear that, in this favored
country, all who have common powers of mind with
a sound body, have the means of acquiring a compe
tent share of learning. I do not go so far as Sir
WiUiam Jones. It was a favorite opinion of his, that
all men were born with an equal capacity for improve
ment. Still it must be admitted that their means are
not equal. Some are favored with leisure for intel
lectual pursuits ; with books, philosophical apparatus,
with instructers ; while others are obliged to toil for
their daily bread, and so have comparatively little
time to spare for the cultivation of their minds — are
without books, and without instructers. The one

376 LIFE OF JUDGE SMITH.
class have advantages denied to the other. What
then ? On the score of leisure, have not the most
laborious their leisure hours ? They may not be
spent in dissipated company, or in the haunts of in
temperance ; but they may be wasted in idle com
pany, or, what is not much better, doing nothing.
Let every man take an account of his idle hours, and
he will be surprised at the sum total — at twenty-one,
years, and at forty, many years. There is no period
of life, when the cultivation of the mind should cease
to be an object. Whether we shall enter on the
next state of existence with the intellectual cultiva
tion attained in this, I know not ; but sure I am that
it is good for a man to possess an improved and cul
tivated mind, rich in moral and intellectual stores, all
the days of his pilgrimage here upon the earth.
" But books and instructers in sufficient numbers
are wanting. Then make the better use of a few.
I am very sure, from careful observation, and from
some experience on the subject, that the multitude
of books does not of itself give even book know
ledge, sfill less insure careful reading, and make
learned men. If one mind be in danger of starving
for want of books, another is in danger of surfeit
from too many. I have not forgotten my early
days ; my lot was cast in a part of our country,
and at a time, when, except the best of all books, a
single volume, there was almost Uterally none. I
have walked miles to borrow — not novels, for there
were none — but a volume of history or biography.
The long walk and the scanty food procured only
served to whet my appetite the more ; so that before

LIFE OF JUDGE SMITH.

377

I had reached home with my treasure, valuable for
its scarceness, I had literaUy devoured the greater
part of its contents.
" If time would allow, it would be in my power to
show how others, under difficulties such as neither you
nor I have had to contend with, have acquired great
learning and fame — have given to themselves an
education of the very best kind. They first felt in
their souls a thirst for knowledge, an ardent; un
quenchable desire to acquire it, and then set about
the work in earnest, — with all their minds and all
their strength. They conquered, though opposed by
a host of enemies — want of leisure, want of in
structers, want of books, want .of money, sometimes
want of health — some even suffering imprisonment
— some engaged in uncongenial and distracting oc
cupations ; obliged to contend against the force of
opposing example, the discouragement of friends and
relations, and withal, knowing, as regarded some,
that the better part of life was spent and gone.
These unpropitious circumstances have all, separately
or in various combinations, exerted their influence
either to check the pursuit of knowledge, or prevent
the very desire of it from springing up ; but all in
vain. In many cases the opposition only served to
carry the aspirant stUl higher and farther in the de
lightful road.
" Perhaps, indeed, we err in setting some of these
things down as hindrances. I verily believe, from
my own observation, that the tendency of poverty,
for example, to crush, is a far less hindrance to a
strong mind, than that of wealth, ease, powerful
32*

378 LIFE OF JUDGE SMITH.
friends, &c. to corrupt. What is got through diffi
culties overcome and obstacles surmounted, acquires,
from that very circumstance, a new and enhanced
value. There is as much and nearly the same dan
ger, in receiving a sugar-and-water education, as in
receiving none at all — in the humors which follow
froin being under-worked, over-fed, and from false
indulgences, as in the feverish exhaustion that ac
companies over-work, under-feeding, and neglect.
Young says, ' Pride was not made for man.' We
believe leisure and indulgence, as littie. We have
all seen, even in this country, a little of the tendency
of hereditary fortune to corrupt and to damp the
ardor of mind necessary to acquire knowledge, so
that we are prepared for the saying of Lord Kenyon
to a rich friend, taking his opinion of the probable
success of his son at the bar, — ' Sir, let your son
forthwith spend his fortune, marry and spend his
wife's, and then he may be expected to apply with
energy .to his profession.'
f I had intended to conclude this lecture with a
few biographical sketches of self-educated men in
Europe and in our own country. But it would be
cruel to task your patience any longer. I ought
rather to thank you for your patient attention, and
pray you to pardon my over-earnestness on the sub
ject, — a favorite one with me, — the dUigent em
ployment of time, — not in amassing wealth, for that
is our besetting sin, but in the cultivation to the
utmost of our intellectual and moral powers. These
sentiments and feelings I have long cherished, and
instead of decreasing, as I approach the goal of life,

LIFE OF JUDGE SMITH. 379
they grow with my growth in years, and strengthen
with my bodily weakness and decay."
In the same lecture, with an implied reference aU
along to the daughter, whose life had been so beauti
ful an iUustration of his remarks, he said, " I would
express my most ardent desire, one I have long felt,
— now, alas ! whoUy disinterested — that the style
of female education, in the books they read and the
sciences they study, should be somewhat raised and
improved — made a littie more scientific and intel
lectual than it now is. The present state of society,
and the business that now occupies females, give the
sex more time at their disposal than formerly ; and
he must be less conversant with women, or less for
tunate in his acquaintance than I have been, who
can for a moment doubt their capacity for the high
est degree of mental culture and improvement. I
have been an instructer of youth of both sexes, and
found it as easy and assuredly more pleasant, to
convey knowledge to female pupUs, than to those of
my own sex. And, speaking in general terms, their
advances in education have been superior. Though
women have no occasion to cultivate the sciences for
a profession, they are necessarUy the companions of
professional men, and the sweeteners of their toils.
Now, also, I speak from experience ; and it is not
hazarding much to say, that conversation with edu
cated men requires mental cultivation. . . . What
educated man would not desire a companion for his
understanding, one who could appreciate his know
ledge, and, what is more, purify and refine it ? Dr.
Johnson has said in his way, ' It is a miserable thing

380 LIFE or JUDGE SMITH.
when the conversation can only be, whether the
mutton should be boiled or roasted, and probably
a dispute about that.' If there are, however, men
who would prefer an uneducated woman, there is no
reason to fear that, after all our endeavors, a sufficient
number will not remain. I would by no means de
preciate accomplishments, but we must remember
they are the ornaments, not the objects of fife.
There should be something solid to ornament. Surely
a little genuine true science is a better and a more
enduring good. It will last longer than taste in
dress, singing, dancing, drawing, or playing on a mu
sical instrument. I admit accomplishments add grace
to the beauty and vivacity of youth ; but when the
beauty, and vivacity, and youth are gone, they are
not quite so graceful, and they are at all times of
small value, according to the domestic estimate. The
charms of youth should be succeeded by the wisdom
and knowledge of age.
" Every woman, it has been quaintly said, should
either look well or talk well. One of the most^agree-
able fruits of knowledge, is the respect and impor
tance it imparts to age. It requires an effort to re
spect an ignorant old man ; and the case of an igno
rant old woman is not much better. I have often
heard it said that learning tends to make women pe
dantic, affected, and fond on all occasions of display.
My experience, and a most intimate one, is quite the
other way. I have found women more given to con
ceal than to display their knowledge. This charge of
pedantry is, I believe, often made, not because the
accused shows too much learning, but because the

LIFE OF JUDGE SMITH. 381
accuser is conscious he himself has too littie. After
aU, it is the very superficial education which is the
most likely to be ostentatious. I see no contradiction
between a well-educated female mind, and true
modesty, gentleness, and propriety of manners and
conduct. " We sometimes hear it said, that the true theatre
for a woman is home — the sick chamber — and that
it is most honorable for a woman not to be spoken of
at all. A good nurse, and a domestic woman, are to
be sure two very good things ; but why should either
be the worse, accompanied by the highest mental
cultivation ? I doubt whether it be in our power to
prevent women being talked about. The evil, if there
be any, must be in what the talk is. I think Mrs.
Barbauld, Mrs. HamUton, Miss Hannah More, Miss
Edgeworth, Miss Sedgwick, and many whose names
will readUy occur to you, have no complaint to make
that they are talked of." '
Judge Smith's second lecture was taken up mostly
in carrying out some of the suggestions contained in
the first. He spoke of the pleasures of knowledge,
and of the power by which it has led men on through
discouragements and trials. This part of the subject
he Ulustrated after the manner of the Library of En
tertaining Knowledge. Among those whom he had
personally known, he mentioned Noah Worcester,
" a shoemaker before and when he was a clergyman,
and who attained no mean distinction ; Roger Sher-

1 Some of these suggestions, it will be seen, are taken from Sidney
Smith.

382 LIFE OF JUDGE SMITH.
man, another shoemaker, who educated himself, 'and
whom it was a great treat to hear converse ; Dr.
Nathan Smith, who, without family, connexions, for
tune, patrons, education, raised himself by his own
exertions to the highest rank of physicians and sur
geons in our country. He educated in a short fife
thousands. Where and by whom was he educated ? '
We have another countryman, a native of Massachu
setts also, who deserves to be mentioned at the same
time with Frankin ; I aUude to Dr. Nathaniel Bow-
ditch. I remember the boy when he left the Salem
town school, at the age of ten. A few such men
would ruin our high schools and universities. I
might name William Wirt, who has attained the
highest rank in the profession of the law, among the
self-educated men. It so happened, that in the vari
ous scenes of my life, I became acquainted with his
early condition in the world. It is not easy to say
in which he most excelled other men, in goodness or
greatness. His knowledge was grafted from the tree
of life, and all its fruits were good.
" It must be admitted that knowledge does not
always make its possessor virtuous and happy. But
the tendency of intellectual culture, is to purify, civil
ize and elevate, and I do not believe many instances
can be found, of men who have struggled with diffi-

1 Judge Smith, although not related to Dr. Smith, was thought by
many to resemble him in his personal appearance, and was sometimes
mistaken for him. Once in New Haven, a gentleman addressed him as
Dr. Smith. " Yes," he replied, " I am Dr. Smith, and a very clever
man, but not the man you take me to be." Judge Smith had received
the honorary degree of LL.D. from Dartmouth College in 1804, and
from Harvard University in isor.

LIFE OF JUDGE SMITH. 383
culties in acquiring knowledge, and so must have
acquired habits of industry, diligence, self-govern
ment, self-denial and deep meditation, who yet have
remained bad men. How can he possibly continue
a slave to the coarser gratifications of sense, who has
tasted the refined pleasures and enjoyments of an
enlightened understanding ? A clarified mind is most
likely to be accompanied by a pure heart. There
may be distinguished scholars who are bad men ; but
we know not how much worse they would have been,
but for their knowledge and love of knowledge. I
am persuaded knowledge is at the same time directly
power, and indirectly virtue, and generally productive
of happiness. Who will say the same thing of riches,
of honors, of sensual pleasures ? What amusement
is so innocent, and at the same time so cheap as a
book. I know there may be corrupting books ; yet
I believe, generally speaking, they are far less so than
dissipated and idle companions. Did you ever know of
a person towards the close of life, amid all his regrets,
grieve at the time devoted to useful studies, feel
knowledge a drag on the heaviness of old age, or who
would exchange it for anything but true virtue and
the pure joy of heaven ? "
These lectures gave pleasant and profitable em
ployment to many otherwise solitary hours. Early in
the winter. Judge Smith said to a friend, " As the
winter sets in, and shuts out visiters, I am obliged to
draw on such resources as I have at command. My
health is quite good, and I do not despair of a reasona
ble share of enjoyments." He said in a letter written
29th January, 1831, a few days after the first lecture

384 LIFE OF JUDGE SMITH.
was dehvered, "I have been very busy — never I
believe more occupied in my busy life, but though
occupied, it has not been with people I love, or those
who love me. How delightful it would have been
to have you these long and cold evenings. My only
pleasure has been from books. A littie pleasant chat
is a fine accompaniment to reading." To another
friend, he said : " I have been very busy, and of
course happy — am now returned to reading, and of
course not very miserable. What a dreadful world
would this be, if it were not for the troubles we
have ! "
From a letter to Miss Elizabeth Hale, 14th March,
1831. " Friday evening I returned to Exeter, to my
no home. Even you, my dear Elizabeth, with aU
your imagination, cannot enter into my feelings on
such occasions. Home with you means father, mo
ther, brother, sisters, friends ; but in my vocabulary,
it means only a house — there is no association.
' Alas ! nor wife, nor chUdren more shall he behold,
nor friends, nor sacred home.' I must not complain
of the dispensations of Providence, and I do not. I
have a reasonable share of fortitude, and bear the ills
that flesh is heir to, as well, I believe, as most people ;
but I am at least capable of receiving happiness, and
want some earthly object to engross my mind, affec
tions and attentions, and to bestow on me what she
can." To Miss Hale, June 4, 1831. " I am not solitary.
A favorite nephew ' at Franklin, is on a journey of
' The Hon. Robert Smith, now a representative in congress from Illi
nois. He was the son of Judge Smith's brother John.

LIFE OF JUDGE SMITH. 385
two months to the westward, and has deposited his
household gods with me, in the vacant niche on my
altar — his wife — a sensible, well-educated, lively
and affectionate woman. I take the good the gods
have provided for me most thankfully. I must show
her to you, and you must love her, but not so much
as I. You know I am blessed with a disposition to
enjoy the good without repining, because it is not so
permanent as I could desire."
The summer was spent not unhappily, and the au
tumn put an end to his solitary condition. On the
20th September, 1831, he was married to Elizabeth,
daughter of the Hon. WiUiam Hale; of Dover, New
Hampshire. We trust it will be long before it is pro
per to speak of her with ttie same freedom with which
we have spoken of all who, a few years before, had
belonged to Judge Smith's household. Through her
influence, his home once more resumed its former
cheerfulness, and the eleven years that remained were
among the happiest, if not the most Useful of her
husband's life. He seemed to have recovered what
he had lost in his' daughter and wife, and the mild
influence of their memory was not less dear, nor less
fondly cherished, because associated with her who
had now succeeded to their place.
The feelings with which Judge Smith entered on
this new relation, may be inferred from the prayer
which he wrote at the time : " O Lord, we thy ser-
vants^have npw entered into a new relation to each
other, the holy estate of matrimony. We humbly im
plore thy blessing upon us, that we may faithfully
perform the vow and covenant betwixt us, and may

386 LIFE OF JUDGE SMITH.
forever remain, as long as we live, in perfect love
and peace together, always living according to thy
holy law. Teach us, by thy good spirit, to bear with
each other's infirmities, to love each other with a
pure, fervent, and sincere affection, next in degree to
that we owe thee. Grant us, if it please thee,
health of body and soundness of mind, and enable
us to promote the joy and to alleviate the sorrows of
each other ; to love our parents, relatives and friends,
with increased affection ; and finally grant, O Holy
Father, that this new and most intimate connexion,
by thy special blessing, may minister abundantiy to
our comfort and happiness here on earth, and above
all, serve the better to prepare us for a happy immor
tality in thy kingdom above.* Through Jesus Christ,
our Lord." '
To Mrs. Walker, September 2:2, 1831. "I be
lieve I have now a good companion for the short
remains of my mortal life. She is too young and
too good ; but she will be likely to grow older, and
probably in such company worse ; but, as I shall
grow better in her society, we shall approach nearer

1 A note to the town clerk, September 2, is characteristic. " I am
about to marry, and want your aid in some of the preliminaries.
The lady would be glad not to be tormented before the time, and there
fore wishes the publishment as private as possible, so that the gossips
may do their wondering and gossiping all at once. Let me beg the
favor of you to keep this entirely to yourself tiU the 20th of September,
and I will reward your silence ; give me publishment, and 1 will see
that it be managed according to law." To Miss Hale, about the same
time : " I am not aware that the public know anything, as yet, of our
plan. Let them remain in ignorance till the 20lh. Then I promise them
a holiday. I ttiink they will suspend all other business, and lend them
selves entirely to us. How flattering ! "

LIFE OF JUDGE SMITH. 387
to each other, and thus the inequality the world
complains of in the match wUl gradually diminish ;
and I sincerely hope, at some distant day, she will
follow me to heaven. There is nothing to be said,
after this, but that I should, at the same distant day,
be glad to see you there, and in the meantime, sin
cerely wish you all manner of felicity. We — I am
glad that I Can now say we — shall be glad to see
you at our home — I hope I have now a home —
and your good husband, as soon as your convenience
wUl admit. I must depend on your breaking this
matter to sister Morison and family, in the most dis
creet way. To the rest of our friends you need use
less caution. You may say, I could no longer have
supported the solitary and desolate situation in which
Providence had placed me, especially after a door of
escape had been opened."
To Mrs. Sarah P. B. Smith, of Illinois, he said :
" I am no longer the desolate, solitary, duU, old stu
pid uncle you parted with a few weeks ago ; but a
young, sprightly, married man, just entering on the
active scenes of life." " Of all men, I was the last
made to be alone. My heart, the best part of me.
is still young. It always has, and I am pretty sure
always wUl, love female excellence of every kind."
From this time there were few incidents in Judge
Smith's history. The current of his life was smooth,
and with no striking variations in its course. It was
not like the African stream, which is lost in the wil
derness ; but as it went on, it was imperceptibly
enlarged, growing deep and broad and calm, reflect
ing the still over-arching heavens, from which its

388 LIFE OF JUDGE SMITH.
waters had come, and the littie flowers which, on its
borders, were drawing from it their daily food. His
life, not divorced from the stern virtues which had
marked his character, and which still knew how to
make themselves felt, was made up mostly of those
sUent charities, the retired thoughts and affections,
which flow out so gracefuUy in the daily intercourse
of home, in looks and tones which cannot be trans
cribed, in words which, when preserved, like the
last year's flowers, give but a poor idea of what they
were, and in acts ^^¦hich might seem too trifling to be
detaUed, or which lose their charm when brought out
from the privacy in which and to which they were
born. None but those who had the privilege of
spending some time in his family, could fairly under
stand his character ; and it was curious to see how
the feelings of these, especially the young who were
thus brought in contact with him, \vere sometimes
changed. He whom they had been accustomed to
think of as a severe judge and censor, delighting to
make the peculiarities of others the objects of his
keen and merciless satire, proved, to their great sur
prise, to be a man of real tenderness, one to whom
they could go in the utmost confidence, sure that all
proper allowance would be made for them, and that
if their general purposes were right, their httle fol
lies and excesses would be treated with every indul
gence. I have never known a man to whom I
should be less wiUing to propose anything dishonor
able or unjust, however it might seem to be for his
advantage ; but if overtaken by even a serious fault,
there was no one whose confidence I should be more

LIFE OF JUDGE SMITH. 389
ready to seek, or by whom I should be more sure of
being kindly received. There was nothing of that
supercihous condescension, with which good men
sometimes view the errors of the weak, and which, to
a quick and sensitive mind, is more painful and re
pulsive than any severity ; since in its assumption of
rectitude it is certainly mingled with pride, and pro
bably covered over with hypocrisy. He sometimes,
indeed, made himself and his friends merry at the
expense of the world ; but he had nothing of the
moroseness of age, of disappointed ambition, or a
Pharisaical virtue. The sportive humors of a child
could not be more free from bitterness than his wit.
His nearest friends were most likely to be its objects,
especially those who were able to defend themselves.
For instance : His wife said reproachfully to him, as
the horse was drawing them up a steep hUl, " My
father always walks up all the hills." " So did my
first wife," was the reply. " There," said Mrs.  ,
giving him some trifle, " that is in return for your
abuse." " Yes," said he, " you are like the sandal
tree, that sheds its sweetness on the axe that cuts it
down." " Then you intend to kill me, do you ?
When do you mean to do it ? " " Not tiU you are
good ; I think you can't have better security for your
life." [A few of his humorous sayings are here inserted ;
but when read in a book they give no just idea of his
wit.] " Don't you see I am acting the pig — gnawing
the cob from which you have been cutting the corn."
J. S. " You are very much at home in the character,
certainly." 33*

390 LIFE OF JUDGE SMITH.
" He is reserved, cunning — like an old, empty
trunk locked up. What is the use of locking it,
when there is nothing in it? "
" I saw ' for sale ' written on his forehead, the mo
ment r set my eyes on him." Being at another time
asked about this same man. Judge Smith replied,
in shrill and humorous tones : " If there is an honest
man in the world, it is he." Another distinguished
man, who had read law in Judge Smith's office, be
ing accused in the public papers of having betrayed
his confidence, by making improper use of secrets,
which he had got from him while a student ; the
judge laughingly said, " That cannot be true, for I
never had any secrets for any one, and certainly no
confidence for him to betray."
" Mr. P. has too much the spirit of self-vindica
tion. He keeps alive what would soon die of itself,
and magnifies the lies of his enemies."
"  have acted like the devil.

i. e. like themselves ; but they shall not rob me of
my enjoyments ; I wiU be happy in spite of them."
" On that night could not the king sleep, who
commanded to bring the book of the records of the
Chronicles, and they were read before the king."
" Judicious enough. The journals of our legisla
tures, reports of committees, and speeches of the
members, would be still better opiates." " 
 has common sense and a disposition to chi

merical scenes ; the former lies dormant, the latter
is in full operation." " When I find a woman siUier
than the fashion, I pity her, and can't help feeling a
littie contempt for her." "Drive away folly, but

LIFE OF JUDGE SMITH. 391
not merely one kind to let in another." " ' Asmo-
deus was seated by my side, reading a Sunday news
paper, his favorite reading.' Strange employment
for a devU."
" Is it true that lawyers seldom make wills of their
own ? If the fact be so, does it not arise from the
many foolish wills of others their practice makes
them acquainted with ? " Judge Smith once refused
to draw up a foolish will. " What ! " said the man,
with surprise, " have n't I a right to make such a
wUl as I please ? " " Perhaps you have ; but I have
a right to decline being the instrument of your folly."
He always spoke with commendation of that clause
in Govemeur Morris's wUI, in which, after naming a
certain sum for his wife, so long as she remained his
widow, it adds, " and six hundred dollars more per
annum if she should marry again. '^
" Have you got the rheumatism, my dear ? It
seems to me you stoop more than common." " Oh no,
that 's my modesty ; it is only my modesty that makes
me stoop, — though I confess it took a different turn
in Washington. He was erect."
Judge Smith, used to tell, in a very amusing way,
a story to illustrate the folly of an author's giving
away his works. " Judge Thornton received from
his minister a copy of a sermon that he had just
published. In a few days the minister called, and
asked if he had read it. ' Yes.' Lie No. 1. ' How
did you like it ? ' ' Very much, indeed.' Lie No. 2.
' But,' taking up the pamphlet, ' the leaves are not
cut.' 'Ah — Oh — I—, I borrowed it before you
sent this.' Lie No. 3.

392 LIFE OF JUDGE SMITH.
" May 5, 1833." (I use Mrs. Smith's words.) " The
seringas, after a long delay, began to display their
white blossoms. Judge Smith announced it, by say
ing ' last night the seringas had a meeting ; the
seventh vice president in the chair ; only five secre
taries were present, vi'hich made them fear how they
should get on ; but at length one put the question,
whether they should delay blooming a little longer,
or come out the next morning ; the latter proposition
was finally carried by an overwhelming majority.'
This was justly ridiculing the unnecessary multiplica
tion of officers and forms, now so common. Per
haps there was no morning in which the breakfast
table was not enlivened by some such jeu d' esprit,
and often far better. Alas ! that there is no way to
catch and make tangible the aroma of such wit.
Breakfast was his favorite meal ; he liked it long,
and good and social ; he would like to have emulated
Lord George Germaine in punctuality — his lordship
always entering his dining-room while the clock was
striking the dinner hour — but bore with his wonted
good humor, either the too much haste or too much
delay of the operatives. When I say that he liked
his breakfast good, I do not mean that he touched
the verge of what he loathed, an epicure ; but that
he had not that stupid indifference which is discour
aging to good housekeepers."
E. H. S. " It may be truly said of you, when you
are carried to your long home, that you have raised
more laughs than any body witiiin fifty miles of you."
J. S. " Why yes, dear, what you say is very
true, for those who could not laugh with me could

LIFE OF JUDGE SMITH. 393
laugh at me, so I 've been very, fortunate." This
badinage was not without a mixture of truth ; for
Judge Smith used to intimate, that in laughing at
others he broke no Scripture rule ; he only did as he
was perfectiy wiUing to be done by. Indeed this de
light in the ridiculous was a famUy trait, and never
seemed to give oflfence ; brothers and sisters, uncles,
aunts and cousins, were sure to have every littie pe
culiarity ridiculed, and placed in the most exagger
ated point of view. They thought themselves de
scended exclusively from the Scotch, but one cannot
help suspecting, that they must either have gained
some pure Irish blood, by some remote intermarriage,
or else that the very air of the Green Isle had in
fected them with its characteristic love of fun. One
might go farther and say, that it was not only a
family trait, but that it pervaded the first settlers of
his native town. Judge Smith, speaking of their
decidedly religious character, said that they went to
church on Sunday, practised all that was good in the
sermon through the week, and laughed at all that
was ridiculous in it ; and verUy we can find some
excuse for them, when we hear quoted such a prayer
as that of the Rev. Mr.  : " Shake this people
over the pit of hell, but do not, O Lord, let them faU
into it."
That Judge Smith related an anecdote showing off
some weakness of his own, as freely as that of an
other, is iUustrated in the account which he delighted
to give of his interview with R  , the tory book
seller, at Philadelphia. Always in pursuit of books,
he called at Mr. R.'s bookstore, and on his inquiring

394 LIFE OF JUDGE SMITH.
for some rare book, " Sir," said Mr. R., " I perceive
that you are a man of letters." Valuable books were
produced, offers of procuring others from his brothers
in England were made, and the young member of
congress doubtless drawn in to buy more books, and
give larger prices than he had intended. He told
this to his travelling companion, Mr. Ellsworth, as he
was returning to the north. Mr. Ellsworth stated
that exactly the same compliment had been addressed
to him by Mr. R. on his making a similar inquiry ;
but that the words, " Sir, I perceive you are a man
of letters," did not make him alter his plans, nor en
tice him to buy a single book, that he had not pre
viously intended to buy.
Judge Smith had sometimes the mortification, or
what to others would have been the mortification, for
he cared nothing about it, of having what he had said
as nonsense and meant for such, reported as wit.
Something of his characteristics, his modes of think
ing, and his quiet, but not inactive life, may be
learned from his private letters. If they relate to
small things, let it be remembered that these smaU
things, in the unguarded moments of domestic retire
ment, are what indicate the true character. " I feel,"
he said some months after his marriage, " as if the
old state of things had returned, and the ills that flesh
(old flesh especially) is heir to, had been so obliging
as to keep away for a season."
To Mrs. Smith, 22d December, 1832. "Your
room is comfortable, and your husband as happy as
he can be without you ; but I am Swedenborgian
enough to believe you are by my side, and strange to

LIFE OF JUDGE SMITH. 395
say, I have no desire to talk nonsense to such a pre
sence. In aU senses, real and spectral, I am your
most affectionate husband."
To Mrs. Walker, 12th March, 1832. "Your old
acquaintance and friend, Mrs. F. wiU not be long
with us. I fear she will not see June, a fatal month
for our house. She is in an excellent frame of mind,
perfectiy resigned. AU her children, especially A.,
have been with us through the winter."
To Mrs. Walker, 30th March, 1832. « Your and
our friend, Mrs. Furbur, left us for a better world
Tuesday evening, and was buried yesterday. She
suffered considerably for some days, but the state of
her mind was delightful, her patience held out to the
end. Whatever of intellect and heart she possessed,
seemed in exercise without any display ; she was, as
we trust, fully prepared, perfectly resigned, and has
made a blessed exchange of worlds. We left nothing
undone, to smooth her dying piUow. Her father (a
very good man) and mother happened to come on
Sunday. Eleven of the family, including her four
children, were with us at the funeral. And a Free-
wUl Baptist preacher, (her denomination,) preached a
very good funeral sermon, from the text, ' A good
name is better than precious ointment, and the day
of death than the day of one's birth.' She has in
deed left behind a reputation which might be envied
by many of superior abUity ; she seemed to me anx
ious to follow the example in dying as in living, of
our dear departed fiiends. She could hardly have
chosen better models."
The " old acquaintance and friend " here spoken

396 LIFE OF JUDGE SMITH.
of with SO much feeling, had been several years a
cook in the famUy, and had endeared herself by her
gentleness and fidelity at all times, but more espe
cially in times of sickness. She left a son, Joel Fur-
bur, about ten years old, whom Judge Smith kept
with him out of regard to his mother. He was an
unpromising chUd, and for some time it was doubtful
how he would turn out. As soon as he was far enough
advanced in his studies to join the academy, the judge
took him in, as one of his own family, defraying all
his expenses, and offering, when the time came, to
give him a college education. This he declined, and
after remaining in the academy three or four years,
he decided to go to seek his fortune in the west.
Judge Smith provided him with funds, and with let
ters bespeaking for the young man the good services
of his friends in St. Louis, atid as he was leaving
home, (October 10, 1840,) put into his hands a pa
per, suggesting the principles by which his fife should
be guided. This departure of one who had come
under his roof a little child, who had so long been the
creature of his kindness, and who was now going out
into the wide world, without established principles, ex
perience or friends, was an event that touched his feel
ings, and gave rise to much thought and conversation
as to the probable success of the experiment. Joel en
gaged first in a dry goods store, then as a teacher in a
school, and then, under the influence of strong reli
gious convictions, began the study of divinity, with
the Rev. W. G. Eliot. His character was blame
less ; he secured the confidence of those who knew
him, and was treated with great kindness by the

LIFE OF JUDGE SMITH. 397
friends,' to whom Judge Smith had commended him.
In 1842, his health faUed ; he set out for New Eng
land, hoping once more to see his early benefactors ;
but at the end of the first day's journey, after leav
ing Pittsburgh for the east, he was put on shore from
the canal-boat, as too feeble to go farther, and there
died, so entirely among strangers, that it was only by
Judge Smith's parting letter, which was found upon
him, that his friends and the place of his residence
were known.
To Mrs. Walker, May 31, 1833. " My dear Sa
rah : J. H. M. gave us the first information of the
death of your mother, and the probable death of sis
ter Morison. Though he came away on Wednesday,
he had not heard of the event. I can sincerely sym
pathize with you on these dispensations of Provi
dence. Both were good women, and leave those
behind them who wUI long cherish the remembrance
of their worth. I am not ignorant of the sweetness
of such recollections ; they soon cease to be at all
painful. Our departed friends are now happily se
cure from the pains and afflictions incident to life,
and safe in that rest which remaineth for the virtuous
and the good. You cannot fail to have pleasure in
reflecting on the many kind acts you have done to
your mother and aunt. I have always been wanting
in such good deeds. In this account, I fear the balance
is sadly against me. It is impossible not to feel for the
loneliness of the husbands. You must, I think, take

> Particularly by Judge Smith's nephew and niece, Mr. and Mrs.
Cavender. 34

398 LIFE OF JUDGE SMITH.
your father. S. M  excels Job and Moses in
patience and meekness, and as his daughters seem
happy, and no doubt are so, he will get well through
the remainder of life."
To Mrs. Smith, Exeter, September 17, 1833.
'• Should you believe it, my dear Elizabeth, the
house is, and has been still ¦ — no noise, or loud talk
— all quiet ; this must be, because I do not talk
when you are absent, or there is a reformation in the
kitchen. But then we are exceedingly dull, and aU
longing for your return to enliven us. I fancy we
are rather idle. Apropos of indolence, Mr.  , and
of industry, !Mrs.  , with their son, called after
dinner yesterday ; it was about half after two, and I
neglected to ask them to dine. I verily believe they
had not — I now recollect they looked hungry. I
invited them to stay all night, but they were bound
for Portsmouth. Judge  r-, with his son, also gave
me a call, and spent half an hour, whereupon I
praised his wife, which seemed to make him a little
jealous. If you do not return soon, I shall be over
run with women. Two other women honored me
with a call, under pretence of seeing you. I shaU
soon be asvain as  . If you do not come soon,
I shaU. lose the gift of speech altogether. It was re
marked last night, at the bank, that I was quite
silent. Do you spend your time pleasantly ? Are
you useful to your mother, and adding to your own
health and strength? Then stay, and let us get
along as we can. Your health is of more import
ance than aU we. You see by my speaking of wo
men, and not ladies, that I am retrograding, aiid

LIFE OF JUDGE SMITH. 399
losing what I could ill spare. The shadow of the
degrees on my dial of life, is gone backward two
years ; and I am as when you had compassion on
me, and pitied my loneliness, and comforted me.
But StiU I say, do not come if you are gaining health.
I will forego present for future good, and especially
your good. I have read Jay through, with increased
delight. I would recommend it to your father. I
am now in Piickler, and he grows dull, at least so it
seems. I doubt whether he is trustworthy, which is
no small objection to travels. I have also been look
ing over my business concerns, bringing up lee-way ;
so you see your absence, though grievous, produces
some good fruits. But I would not be too rich in
good things in which you are not ; therefore when
you can, without leaving any duty undone, come to
your own husband — thank heaven."
To Mrs. Smith, December 7, 1833. "It is my
duty to love and care for you, and think of you all
the time, and to dream of you when asleep. All
these things I have done, and I hope you wUl only
think of me and home, in the intervals between the
pleasures and enjoyments your visit must afford you.
But I have not been miserable, the house is exceed
ingly quiet. If you do not return soon, I fear we
shall all lose the gift of tongues. Eliza is all soft
ness, and Jane as stiU as a mouse. If you come
soon, you wiU have aU the talk — can I state a
stronger motive? I have almost finished Peck's
trial, and am delighted, not with the managers, but
with Meredith, a PhUadelphia lawyer, and above aU,
with Wirt, who is truly clever and eloquent ; you do

400 LIFE OF JUDGE SMITH.
not envy me this pleasure. It is only the gleanings
of the field, after harvest. But now I recollect
you enjoined the reading on me. I should have had
much pleasure in reading many passages to you. I
have invited your usual company for tea this evening.
The guests will, I am sure, miss you, and so shall I ;
for your duties wiU be awkwardly performed. I
have not yet heard from Portsmouth ; but my mind
is made up, and nothing can disturb its quiet. StiU
it is very possible I may not find it so, when the
news comes. I can truly say I am as much con
cerned for your friend's success as my own, or our
own." To Mrs. Smith, May 26, 1834. " My dearest
wife : You are a dear good woman, always devising
good things for your friends, and (if it were possi
ble such a woman could have any enemjes,) doing
good by design, and sometimes without design.
When Joe] appeared, at mid-day, I was suffering
marvellously under your old friend Major  . He
had begun more than twenty stories, was in the midst
of them, had finished none, sometimes advancing
and sometimes retreating ; he had work cut out (you
know he was formerly a tailor,) to last through the
day. In this time of need, enter Joel with your
letter. I seized it with real and affected joy, told
the major it was from you. He took the hint, rose,
and began his exit ; he did not stop more than ten
times before his final departure. Your letter, there
fore, found me, or rather procured for me, the high
felicity of relief from suffering. I was happy, very
happy. I am glad its contents increased my pleasure.

LIFE OF JUDGE SMITH. 401
Your mother is in more than usual health. L. is
about house, your father in a fair way to do weU.
Let your next letter give me a good account of your
self, and the measure of my joys wiU be full, even if
the major should return. I am sincerely glad you
are at Dover, because I am sure my loss wiU be more
than overpaid by the happiness you wUl confer on
others. TeU L. to be careful of her health. It is of
more value than many gardens. 1 shall hear from
Boston and Peterborough to-morrow evening ; tUl
then adieu. Be careful of your own precious health,
and whUe you make others happy, do not forget the
happiness of my best and only friend."
To Mrs. Smith, 31st May, 1834. "My dearest
wife : I have just sent to the oflice, and am glad to
find no letter from you, — not because you do not
always write well and affectionately, and afford me
the greatest pleasure, but because it must give you
some trouble, and I would have you at all times con
sult entirely your own health and happiness, and the
happiness of the friends with whom you are. I
Would have these absences devoted to yourself and
parents. I know very weU you wiU reverse the order,
and read parents and self. Well, my dearest, have it
your own way. Youi silence also proves that all is
going on well at Dover. We are unusually good
here, and the house continues very quiet. I cannot
answer for the matter of economy. I find myself a
little too much pressed with a better and a fuller table
than I desire. I find this damp weather, as I always
have, meriting John F  's pronunciation. I do not
go out to it, but it comes to me with a vengeance ;
34*

402 LIFE OF JUDGE SMITH.
and Morpheus takes the occasion of your absence to
treat me Ul. If he is kind to you I shall forgive
him. Take care, my dear wife, of your own precious
health. Perhaps you may have forgot (as your niece
sometimes forgot to love her enemies,) that health is
a great blessing. I don't know that it would have
occurred to me if Susan  had not made me a
very long visit (don't envy me,) and was so good as
to remind me of it."
Judge Smith was never more alive to aU the great
concerns of society than at this period, and certainly
his mind was never more active. " The great enemy
of the mind," he said, " as to decay, is rust. Rub
bing brightens, as rubbing an old brass vessel. Who
can know after, that it is old? It is as bright as
new — the fashion may be somewhat different." He
had the rare faculty of exercising his mind on passing
events, and taking a warm interest in whatever was
deserving of attention, without permitting himself in
any way to be drawn in so far as to disturb his equa
nimity. " I am," he said, " an indifferent spectator
among the chUdren of men. I take no part with or
against any man. My account with the world is
closed, and yet I am disposed to indulge no spleen,
much less to hate mankind." This, in its large sense,
which was that in which he intended it, was true.
As a public man, and in connexion with public
affairs, his account with the world was closed.
Though things often went in a way he did not hke,
it gave him no anxious thoughts. Writing in 1833
to a lady, who was full of solicitude about such mat
ters, he said, " I am not so good a patriot as you ;

LIFE OF JUDGE SMITH. 403
have felt no anxiety about the republic. I do not
think weU of the master or crew. If they run the
ship on shoals, like my countryman I comfort myself
by reflecting that I am only a passenger." That is,
having done aU that he could, he felt no longer any
responsibUity, and therefore no apprehension of evil.
What a vast accumulation of unhappiness would be
lifted up from the world, if his example in this re
spect were universal ! As the destiny of mankind
did not rest on him, he chose not to be borne down
by its weight. To a boy very anxious about the part
he was preparing for a public exhibition at the
academy he said, " Do your best, but if you should
not succeed, you may console yourself by the thought
that possibly the cause of learning may not suffer."
There is in this remark more wisdom than appears
on the surface. We of this generation think more of
the results of our actions than of our fidelity ; and,
in making ourselves answerable for that which be
longs to the providence of God, are impatient be
cause of the tardy development of the divine plan.
In our vain and presumptuous efforts to accomplish
the work of centuries in a day, we forget the more
important but less conspicuous duties that are as
signed to us.
Judge Smith always practised a strict economy.
" The best motive I know of," he said, " for saving,
is to have something to give." And the giving of
money, without knowing or much caring how it was
used, he considered a very suspicious kind of charity.
He did not altogether like the modern way of doing
so much through charitable associations. " I fear,"

404 LIFE OF JUDGE SMITH.
he said, " we shall soon have so many societies to
promote charity, temperance, religious instruction,
&c., that we shall lose all individual concern in these
benevolent objects. They will soon be managed en
tirely by corporations — bodies without souls. We
shall retain our party feelings, and at the same time
commit our benevolence to the presidents, vice-pres
idents, and executive committees. It would be easy
to show that corporate charities wUl soon eat out per
sonal almsgiving ; and there can be as little doubt
the sums actually given will do less good, wiU reach
fewer deserving objects. The expenses ofthe admin
istration wiU be more wasteful, and the selections less
judicious — there will soon be corporate beggars."
The variety of subjects on which he took an inter
est was remarkable ; and his incidental remarks had
often the point and force of apophthegms. " Carry
but few clothes ; you can always know a foolish
woman on her travels, by her wardrobe." " The
way not to think too ill of the world, is not to think
too well of it." '¦' Who knows women better than
shop-keepers ? If I were going to choose a wife
among the city young ladies, I would escort them in
their shopping excursions." " Over-activity is a
very high offence in the president of a college,
principal in an academy or common school-master,
and, above aU, in a clergyman. There is, there
can be, no peace in a parish cursed with such
a busy-body." " We err more frequently by doing
too much than too little ; the latter is the better and
the safer excess of the two." " It requires genius to
understand genius in others." " The question is.

LIFE OF JUDGE SMITH.

405

whether we shall govern our feelings, or be governed
by them. Persevering diligence is necessary for the
former ; few therefore succeed." " Forced gaiety is
never exhUarating ; the anxious and sorrowful com
municate from the countenance rather than from the
tongue." " With aU its faults, I like the Memoirs of
R. L. Edgeworth; he lived so charmingly and so
usefuUy with his famUy, so pleasantiy for himself, and
so instructively for them." " There can be no hurry
in obtaining accurate, thorough knowledge." " Oh,
that we had good preachers ! I almost envy the en
thusiasts who are ravished by foolish sermons."
" There is a happy contentedness which some men
possess, and which is indispensable to the cheerful
enjoyment of life. I am happy to believe that I was
never entirely destitute of this valuable disposition of
mind. I have seen some who had so much of it,
that it served to damp their ardor for improvement."
" My sleep last night did me good, as it doth the up
right in heart." " He who acts on principle, consist-
entiy, regularly, commands esteem, and can hardly
fail of success, especially if he is moderate in his de
sires." " They who are so cautious as to say no
thing objectionable, seldom say anything good." To
scholars : " Don't content yourselves with making
patchwork out of the thoughts of others. Have
ideas of your own. Other people's intellectual trea
sures are no more to you than their wealth. You
may be poor in the midst of riches. Boldly march
up to the fountains of knowledge as a hero does to the
cannon's mouth." "I envy you your constant and
full employment. This is better than a whole fife

406 LIFE OF JUDGE SMITH.
of ease and leisure. This last is the tedium vit(B.
There is no continual feast; it is the occasional
banquet which afl'ords the most exquisite delight."
" Dying exclamation of Brutus : ' O, Virtue ! I sought
thee as a substance, but 1 find thee an empty name,'
virtue without religion." It having been mentioned
to Judge Smith, as a remark of Dr. Channing's, that
the foliage of every different tree, when agitated by
the wind, produces a sound peculiar to itself, he re
plied, " That is a beautiful thought ; I delight to see
an attention to such things. A love of flowers, trees,
and natural objects, in general, is a proof that all is
right about the heart." " Anxiety is very unreason
able in a heathen ; and I am sure it is a thousand
times worse in a Christian." " Is there no vanity in
saying, no man bears sorrow better than I do ? not,
I trust, from a want of feeling, but from principle.
What is our philosophy, and, still more, our religion,
good for, if they do not serve us on such occasions ? "
" There is trouble, ' mea virtute me involve ; ' shall
we forever be found astonished at the failure of men
and banks ? We see only the outside of things."
" To be good, learned, and happy — the first are in
our power — quaere as to the last." " I am clear in
it, that humility is the foundation of aU religion." " I
have been quite unweU twice this winter. Surely it
is not necessary to give an old tenant at wiU, like me,
notice to quit. We have the offer from our Lessor of
a perpetuity in a better inheritance." Repeating the
words, "When shaU I sleep to wake no more?"
he added, in language more becoming a Christian,
" When shall I wake to sleep no more ? "

CHAPTER XIV.
1834 — 1835.
LECTURES ON WASHINGTON, FRANKLIN, JUDGE PAR*
SONS  NEW ENGLAND JURISPRUDENCE.
" I HAVE the conviction," said Judge Smith, in the
language of Sir Egerton Brydges, " that life is yet
altogether joyous to me — perhaps more satisfactory
and even more delightful than in the efiervescence of
youth and strength of mature manhood. My eye is
as delighted with the grandeur and variety of inan
imate nature, and my heart is as open to all the vir
tues and friendships of human society." These words
might serve, as a motto for the remainder of this me
moir. His whole nature was never more alive, nor
his faculties more vigorous or interested in a greater
variety of objects. Happy in his home, his fortune
and his intellectual possessions, he seemed more than
ever desirous that others should participate in the
blessings which a kind Providence had bestowed upon
him. He exercised an enlarged hospitality. He
gave away in charity usually a tenth and sometimes
more than a sixth part of his income. He loved to

408 LIFE OF JUDGE SMITH.
have the young with him, that, enjoying their society,
he might at the same time amuse and instruct them.
His library was always open for his friends to consult,
and in the lending of books his practice corresponded
with his words. " Nothing," he said, " is so offen
sive as locking up books. The light of no man's
lamp was ever yet diminished by allowing another to
kindle his by it. What man ever regretted the free
use of his library to poor scholars ? It would prove
him altogether unworthy of such a treasure. It is
very true that the free use of the library would in
time wear out the books. Time without any use
wUl, in a great degree, produce the same results.
Books were made to be used, and of course worn
out." Judge Smith lectured in many different towns, and
in all his lectures, whatever the subject, there was
one paramount object. They were all prepared for
the young, and with the earnest wish to awaken and
strengthen in them the love of industry, a desire for
inteUectual improvement, and above all, a reverence for
moral and religious principle. Those who have read
the last chapter, have seen how this object entered
into the first lectures that he prepared. In 1834, he
delivered a lecture on the private life of Washington,
and another on Franklin. They were not for the
learned. He engaged in no curious historical in
quiries, and brought out none of the gossiping details,
with which his personal intercourse with Washington
must have furnished him, and which might have given
a sort of factitious interest to the performance. His
purpose was too serious for that. He endeavored to

LIFE OF JUDGE SMITH.

409

hold up to the young those great and distinguished
men, and to impress upon them the principles of
thought and action through which they had become
great. " The private character of Washington," he
said, " is the subject of my discourse. It is not my
intention to speak of him as a hero — the leader of
that army which carried us triumphantly through the
war of the revolution, nor to treat of his civU admin
istration, no less glorious to himself than to his coun
try. I was favored with a near view of Washington,
in his high office, during the greater part of it, and
at its close. I now see him standing for the last time
in the midst of the representatives of the people of
the United States, making his last pubhc address.
It was a spectacle full of subhmity and grandeur.
His communication was by speech, face to face, not
by written message, as the less impressive usage now
is  How natural that the representatives of a
great people should attempt to disclose some of the
emotions the occasion could not faU to awaken ! . . .
Of the body which made the answer, only six now
remain, Gallatin, Livingston,' Madison,' Macon,' Jack
son, and last and least, the person who now addresses
you. " But leaving the general and the statesman, it wUl
be my endeavor to. draw from the private life some
useful instruction applicable to us all, and especially
our young men. Maupertuis, in concluding his char
acter of Frederic the Second, says, ' many a private
man might make a great king, but where is the king

' Now dead.
35

410

LIFE OF JUDGE SMITH.

that would make a great private man ? ' Washington
was an exception. When you saw him in office, you
would pronounce him in his proper sphere ; but when
you beheld him in private life, you would at once
allow that office had not exalted him, stUl less cor
rupted him, as it does too many of our race."
Judge Smith then goes on to speak of Washing
ton's modesty and humUity. " I am not sure that to
these he was not much indebted for all the great
qualities that distinguished him from other men ; for
his low estimate of himself did not prevent his accept
ing, in urgent calls of duty, high, arduous and diffi
cult offices, though the distrust of his abUities, and
his innate modesty, always led him to retire when
ever his services could be dispensed with 
He made no claim to belong to the higher order
of men of genius — the men who see the light of
truth before it becomes manifest to the rest of
mankind. Even as the sun illuminates the hiUs
while it is yet below the horizon, the highest minds
are the first to catch and reflect a light, which, with
out their assistance, must in time be visible to those
who lie far beneath them. Light did not come to
Washington sooner than to others, but he made a
better use of it when it did come. He walked by it
and he made the most of it, whilst too many others,
in the midst of the light shed by genius, walk in dark
ness. It was wisdom accessible to all, that wisdom
which dwells with prudence, not genius, which is too
apt to dwell with imprudence, that promoted Wash
ington and brought him to honor  That same
prudence and modesty kept his head from becoming

LIFE OF JUDGE SMITH. 411
giddy in the highest office, whilst his superiors in age
and dignity occupied lower grades. He maintained
at all times a strict watch over himself, as strict as
over his men, to see that both acted well their several
parts. " The same modesty and humUity prevented his
putting himself in the way of receiving those flatter
ing attentions, which are so eagerly coveted by the
vulgar great. When he put on the country gentle
man, he put off the general and commander-in-chief.
It was not his practice to fight his battles over again,
and entertain his company with a recital of the great
scenes in which he had been the principal actor. He
rarely spoke of the war, and still more rarely of him
self. His talk was of agriculture and rural affairs,
of what would best improve the face of the country,
its facilities of intercourse, the understanding, the
morals and manners of its inhabitants. A few years
afterwards, when he was called to enter upon the
untried office and duties assigned him by the unani
mous voice of the nation, he did not suffer this trans
cendent mark of public approbation to disturb the
just balance of his modest mind. Like a wise and
good man, as well as humble Christian, his first offi
cial act was ' to supplicate that Almighty Being who
rules over the universe, who presides in the councUs
of nations, and whose providential aids can supply
every human defect, to enable him to execute with
success the functions allotted to his charge ; ' and he
quitted office with the same modest and humble opin
ion of himself with which he entered upon it."
Next the lecturer speaks of Washington's coolness

412 LIFE OF JUDGE SMITH.
and firmness — " Not the courage which is so com
mon a virtue in military men as to be scarcely de
serving of praise. . . . When Washington was once
satisfied which way the path of duty pointed, he did
not hesitate a moment longer, he boldly marched to
his object. He was not hasty in forming his resolu
tions. He was cool and collected. He was the very
opposite of rash. It was his habit from early life and
in every business of importance, to open his mind to
all the lights bearing on the question, and impartially
to consider them, and then decide, and firmly adhere
to that decision, till his judgment was convinced of
its error. He did not waver — halt between two
opinions. He showed his modesty and diffidence in
forming opinions, and his inflexible firmness in carry
ing his well-formed judgments into execution. There
is a striking proof of his forbearance and fortitude
that deserves to be mentioned. I weU remember
that early in the revolutionary war, Washington was
censured for what was called the evacuating and re
treating system of his mUitary operations, and some
went so far as to impute it to want of courage and spirit.
You may be sure he felt, strongly felt, the injustice and
cruelty of the charge. It was in his power to have
vindicated himself at any moment by showing the
true state of his army, its actual numbers, far less than
supposed, its discipline, or rather its want of disci
pline, its equipments wholly unfit for ofl^ensive opera
tions. Among his wants were even arms and am
munition. But his duty to his country, devotion to
the cause, required the concealment of aU these
things from his countrymen, that the enemy might

LIFE OF JUDGE SMITH. 413
not know them. And Washington was magnani
mous enough patiently to suffer reproaches in what
most nearly concerns a soldier's honor, for the safety
and well-being of his country. Time, and even his
enemies, now do him that justice which his country
men then denied him." Washington made no pre
tensions to extraordinary courage. " A report was
at one time circulated, to magnify his courage, that
he had been heard to say, ' that he knew no music
so pleasing as the whisthng of bullets.' When asked
if he ever said so, he replied, ' If I ever did, I
must have been a very young man.' I doubt much
whether any man that ever heard this species of mu
sic would incline to say, ' da capo, let us have that
tune over again.'
" I can by no means agree with the modest Wash
ington in his estimate of himself, that he inherited
from nature inferior endowments. They were highly
respectable, and of the kind that fitted him to be a
leader. Washington's coadjutors might have applied
to him the injunction of the apostle Eliot to Dr. In
crease Mather, a century before. ' Brother,' said the
venerable man, ' the Lord has blessed you with a
leading spirit, as he did Mr. Mitchell, who has gone
unto him. I pray, brother, lead us in our exercises —
do for us all the good you can.'
" Washington was endued with a wonderful saga
city, in judging correctiy of others, and was particu
larly successful in drawing forth their talents to the
best advantage for the pubhc, and, I verily believe,
never in all his life caUed to office an unqualified
person, unless where, after the most impartial scru-
35*

414

LIFE OF JUDGE SMITH.

tiny, he was himself deceived. He selected the best,
the public good his guide and aim. As to dismissing
a qualified man from office, that he might fill his
place with one less qualified, to gratify any selfish
motive, it was just as impossible as that he should
have taken a bribe from the enemy, or sold his coun
try for thirty pieces of silver.
" His means of education, and his early stock of
acquired knowledge, what is called learning, could
not have been great. But his habits of inquiry, from
early life to its close, were remarkable. He was
never satisfied with investigating. He had the calm
ness and temper of mind best fitted for deliberation.
Some men cannot deliberate ; they act, honestiy if
you will, but from impulse, and sometimes, alas ! that
impulse given by cunning, interested and designing,
and oftentimes, the meanest and worst of men. To
conjecture in any given case, what such a statesman
wUl do, you must first calculate the impelling force,
or the influence he is under. Washington acted from
himself. " I am inclined to think that, on a careful analysis
of the mind and heart of Washington, sound judg
ment and sound discretion were the most remarkable.
He was discreet, and his conduct regulated by prin
ciple in early life, at a time when youth is almost
privileged to be rash. I incline, also, to the opinion,
that judgment and prudence in youth are not so un
common as is generally supposed. Edmund Burke
used to say, that those who did not possess prudence
early, were apt to miss it late ; and if I may be par
doned the seeming vanity of saying I agree with Ed-

LIFE OF JUDGE SMITH. 415
nhund Burke, I would say my experience and obser
vation confirm the remark.
" It is impossible to know much of Washington's
public or private life, and be ignorant that his pas
sions were naturaUy strong, and that there was a
quickness in his sensibility to anything apparentiy
offensive, and upon a few occasions it required the
full force of his strong mind and good principles,
early implanted and carefully cultivated, to give him
the mastery over himself. Such victories were, per
haps, as difficult as any he achieved. TUl he had
conquered himself, he never could hope to obtain a
strong victory over his fellow-men. No man more
largely shared their confidence in every situation in
life. Who can sufficiently estimate the value, to his
country, of Washington's name ? That we should
pass safely through the war of the revolution, that
the constitution of the United States should be
adopted, that our neutrality, amid the terrible scenes
of the French revolution, should be maintained, and
that we should advance so rapidly to greatness and
strength — who can say that any or all these great
events would have happened without a Washington ?
Who believes they could have happened, if Wash
ington's influence had been cast into the opposite
scale ?
" To the smaU number of our race, who seem to
be born, not for themselves but for their country, and
who fulfil their destiny by a succession of great and
good actions, all tending to the best good of the
country that gave them birth, Washington's name
must now be added. He, and I trust his country,

416 LIFE OF JUDGE SMITH.
are safe. His cause has been tried, verdict given,
and that judgment passed which is never to be re
versed 
" I have presented before you some of the dis
tinguishing traits of Washington ; but his character
is not the result of any one or more of them, taken
singly and alone. Other men may have possessed
equal modesty and humility, as much valor and cour
age, fortitude, patriotism, greater endowments from
nature, and a far more finished and complete educa
tion, equal prudence and discretion, equal mastery
over their passions, equal disinterestedness, as httle
vanity, and as great devotion of heart to their Maker
and of life to their country. But who has united
all these qualities of the head and heart in due
measure and proportion, so as to make one complete
and almost perfect whole ? The virtues of other
men are like scattered stars, appearing here and there
on the face of the heavens. But Washington's, the
galaxy or milky way, a great assemblage of stars,
exhibiting an uninterrupted brightness. In his cha
racter is seen, not so much the display of any one
virtue, as the possession of them all united — the
most difficult as well as the more easy ; the good
and the useful, presiding, animating, governing, and
sometimes restraining the rest. For our very vir
tues sometimes require the curb of prudence and
religion. " How was it that a man like Washington, with a
genius not superior to thousands of his countrymen,
with an education below the average of educated
men in that eariy day, who had been hardly out of

LIFE OF JUDGE SMITH. 417
his native province, and while in it, for several suc
cessive years, encountering the hard service and
perils of Indian warfare — an unpromising field of
education — without a master to teach him the art
of war, devoted to agriculture, and the every-day
duties of hospitahty and good-neighborhood — how
is it that such a man could fiU so great a space, do
so much good, perform such difficult and arduous
duties, such as no other man in any age or country
has ever yet done ? I do not profess to be able to
resolve these questions entirely to my own satis
faction ; they are too hard for me, and I am con
strained to repeat, Vvhat I publicly . said thirty-four
years ago, on the occasion of his death : ' When the
Almighty, in his Providence, intends the accompfish-
ment of some great and glorious work upon earth,
he raises up fit instruments among the children of
men to accomphsh his ends ; and surely this was an
occasion worthy a divine interposition.' "
I am aware that there is little that is new in
these remarks ; but they cannot be too often or too
earnestly enforced. The whole lecture, as it was
delivered, seemed like a satire on the politics of the
day ; and indeed what could more severely rebuke
the manoeuvering partisans of the times, than the
character and example of Washington ? " For he
was honest and sincere in politics, where many men,
God knows why, think they may accommodate their
pohtical opinions to their interests."
" Suppose the law of our nature should be re
pealed, and this great and good man should be suf
fered to rise from the grave, and revisit that city.

418 LIFE OF JUDGE SMITH.
called by his name, and the country once so dear to
his heart. To whi^h of the great parties would h
attach himself ? AU pretend to be his disciples, and
to walk in his footsteps. It is dangerous to pursue
the suggestion. Here let me stop. Each ot my
hearers may safely and sUently furnish an answer for
himself." . .
In this lecture Judge Smith related an incident
that occurred while he resided in PhUadelphia, dur
ing Washington's presidency. " An Italian adven
turer, with some skill in sculpture and the fine arts,
waited on Washington and HamUton, requesting
each to sit for a cast or marble bust, and for per
mission to set them up in the halls of their respective
dwellings. It was distinctiy understood by all the
parties, that it was wholly the afl'air of the sculptor,
and as a mean of recommending his art, and obtain
ing employment. The basts were finished and set
up, and seen by all visiters at these great houses, and
had their share of admiration. All this was very
well and as it should be ; but it occurred to the wily
Italian that, with his stock of impudence, he could
make these same busts the occasion of spunging
some money out of these great men. He first ap
plied to Washington, and demanded two hundred
dollars, as a moderate price for the work he had done
for him. Washington considered it as a gross im
position, and rejected the claim, teUing the artist
he might remove the bust at any moment he pleased!
HamUton, viewing the matter in the same light,
nevertheless borrowed the money and satisfied the
claim."

LIFE or JUDGE SMITH. 419
As this anecdote shows Hamilton only in his weak
ness, it is but an act of justice to add Judge Smith's
fuU and deliberate opinion of one whom, in spite of
his infirmities, he was accustomed to speak of as a
most upright, disinterested man, and the ablest of all
the statesmen who took a part in forming the consti
tution of the United States. He believed that there
was no one on whom, whether in civil or mihtary
affairs, Washington depended so much ; and always
spoke of him as the life and soul of Washington's
administration. In a letter to John C. HamUton,
14th AprU, 1836, Judge Smith said, and the same
views he often expressed in conversation, — "Your
father was the least vindictive — no, that is not the
proper word — he was the most magnanimous of
men, and the last to press a vanquished enemy.
When attacked by calumny, or in any other way, he
instinctively faced the foe, and was sure to throw
down his weapons of defence when the purity and
honesty of his character were proved or admitted.
What has been said of Fox (there was a strong re
semblance in mind and heart between the two men,)
eminently belonged to your father, that no human
being was ever more free from the taint of malignity,
vanity or falsehood. No man had more ardent and
affectionate friends than both. Both statesmen (a
praise that does not belong to the class,) were made
to be loved. Your father carried frankness and
openness perhaps to excess. He scorned all artifice,
wore no disguise, and was by far the least selfish of
all the children of men I ever knew. He was, in
deed, all for the public, and nothing for himself. I

420 LIFE OF JUDGE SMITH.
hope you wiU be able to delineate his character with
the utmost exactness, stating it just as it was. Any
thing like exaggeration would be an equal offence
against duty and good taste. And yet this is a com
mon fault among biographers. But you have no
common character to deal with. Your difficulty wiU
not be in the lack of materials, but in their abun
dance and richness.
" You must, I think, depend almost entirely on the
written remains of the time. I have been sensibly
struck, in looking over the ayes and noes on the
resolutions of censure in 1793, to find myself the
only, living member who voted against the resolu
tions. But, by the way, I have not heard of Ben
son's death. Two only, I believe, Macon and Madi
son, remain of the little adverse squadron, in number
twelve — the same number that voted against Wash
ington's administration on the answer of the house to
his last speech. They would not even pay a civU
compliment at parting. There was a propriety in
thus coupling the two names of Washington and
Hamilton. It was their good fortune to enable each
other to do the most good. Their friends and ene
mies were generally the same ; the former had the
greater number of false friends, and the latter the
most devoted.
" The length in point of time and the busy life I
have led, do not allow me the pleasure of communi
cating things which in any degree can aid your laud
able and pious design. I can only heartily wish you
success. "I shall never forget the first time I saw your

LIFE OF JUDGE SMITH. 421-
father, then a young man. It was at the camp on or
near the Hudson, I think in 1781. He seemed a
visiter. I spent the evening in the same public house,
unknowing and unknown, about twenty-one. The
company seemed highly respectable, and the conver
sation turned on the topics of the day. I was struck
with the conversation talents, ready and entertaining,
and with the superior reasoning powers of one who
seemed to take the lead ; it exceeded anything I had
before seen, and even my conceptions. When the
company retired, on inquiry I found it was Col.
HamUton I admired so much."
It so happened that Judge Smith gave his lecture
on Washington at Lowell, at the same time that Pro
fessor SUliman was lecturing there. As he was going
up the steps of the hotel, after his return from the
lyceum, Mr. Silliman, who foUowed immediately after,
said with earnestness, " Judge Smith, every line of
your lecture went directly to my heart." " It could
not have gone to a better place," was the reply, as
prompt as it was graceful.
Imperfect and disconnected as these extracts from
the lecture on Washington have been, our sketch
of that on Franklin must be still more so. " Every
act," he said, " and every saying of this great man
is a text upon which a good practical discourse might
be written." " The secret of his success was that
he was ever awake, and suffered no opportunity of
improvement to escape him. At the same time he
did not neglect his business and calling." " When
you look at Franklin, at sixty and seventy, and find
him standing before kings, where Solomon says the
36

422

LIFE OF JUDGE SMITH.

diligent may hope to stand, and, what is far more,
the intimate and valued associate of patriots and
sages, the learned phUosopher and the able statesman,
you wonder and admire. Is this the poor, friendless,
Uliterate printer's boy, who had no one to take him
by the hand and lead him up this diflBcult ascent, to
this proud eminence ? But your wonder ceases,
when you trace his successive steps in the journey of
life. You find there is nothing miraculous in the
case ; all is natural. To the bounty of Heaven he
was indebted for a sound mind in a sound body.
The rest, under Providence, was all his own."
" On the subject of religion, I would by no means
propose Frankhn as a model for young or old. His
notions were crude, and by no means well-considered.
His religious notions evidently grew better as he
grew older. He seems, in more than one place in
his autobiography, to insinuate that free thinking
had produced no good fruits in himself, and had
worked badly in others whom he had taken some
pains to indoctrinate. He says the great uncertainty
he found in metaphysical reasonings disgusted him,
and he quitted that kind of reading and study for
others more useful. He was wise in this ; it might
have ruined him."
" As an editor, Frankhn carefully excluded all libel
ling and personal abuse, which he observes, of late
years (more than half a century ago) has become so
disgraceful to our country. What would he think if
he lived now, when we have calumny without wit,
served up in a style as coarse as the matter. Frank
lin was a scholar, wrote pure, elegant English, and

LIFE OF JUDGE SMITH.

423

took an active, decent part in the politics of the day.
His paper now would receive no encouragement, I
fear. Does this prove that we have made advances
in good taste and in good morals ? Perhaps, how
ever, we are unjust when we charge the whole evil
to the bad taste and wicked propensities of the editor
and publisher. If there were no receivers of stolen
goods, there would be no thieves ; so if no listening
ears for calumny and slander, we should have fewer
lying tongues and poisonous pens."
" Franklin mentions, in his autobiography, having
narrowly escaped, soon after his apprenticeship com
menced, two great evils ; the first, that of being a
poet. He thinks he would have made a very indiffer
ent one, and I see no reason to differ from hini in
this opinion. The second was a taste for polemi
cal divinity, disputing about religion. It is not easy
to conceive of a worse aliment for a young, susceptible
and imaginative mind ; feeding on husks to the body,
isnothingcomparedto.it." But we have not room even for short extracts like
these. The lecturer earnestly commends to all, the
careful study of Franklin's Life and Works, as he
had before with more earnestness recommended
the Life and Correspondence of Washington.' The
lecture closes with an account of the famous Hutch
inson papers, which produced such an excitement
here and in England. Hutchinson and Oliver, it
will be remembered, had, in private letters, been

• By Mr. Sparks, of which » part only had then, (1835,) been pub
lished.

424 LIFE OF JUDGE SMITH.
urging the British ministry to adopt stronger mea
sures for the subjection of the colonies. These let
ters came into Franklin's possession the latter part
of 1772, and were by him forwarded immediately to
Mr. Cushing, speaker of the Massachusetts assembly ;
but with a strict injunction, conformably with his en
gagement with the person from whom he received
them, whose name he was not at liberty to disclose,
that the letters should not be printed, nor any copies
taken, but merely shown to some particular persons for
their satisfaction only. Judge Smith, after giving some
account of these papers, and of the insult to Frank-
fin, the 29th of January, 1774, says ; " I was then a
boy at school, but well remember the effect it pro
duced on the public mind. I have no doubt it served
to brace up many a doubting mind, and nerve many
an arm for the combat which quickly followed." The
whole account is too long to be copied here ; but the
closing remarks on the conduct of Dr. Williamson,
who boasted of having procured the papers for Frank
lin, and of the patriots of Massachusetts, for the use
they made of them, deserve to be borne in mind by
all public men. " There are circumstances," he says,
"' which would lead us to doubt the accuracy of Dr.
WUllamson's story. I was well and intimately ac
quainted with him, and have no doubt that he was
capable of doing the act as related. But be this as
it may, I do not find myself quite able to approve the
act. According to his own account, he practised a
deception, and the difference between teUing a lie
and communicating or acting one, is hardly worth
regarding. Indeed, the fie direct is the more manly

LIFE OF JUDGE SMITH. 42§
of the two ; deception in any form is not a high-
minded vice. For the same reason, the conduct of
the late Governor Hancock and some others, in this
transaction, as it has been stated, seems far from com
mendable. You recollect the letters were forwarded
by Dr. Franklin, in strict confidence that no copies
should be taken, yet they were copied and printed.
It was thought the public good required it. I befieve
the pubhc good requires nothing which is not honest
and honorable. When the letters were read in the
house, all felt the desire to see them in print ; but
how to evade the conditions, not to take copies or to
print, was the problem to be solved. Three courses
lay before them ; first, strictly adhere to the terms ;
second, boldly violate them, and publish ; third, evade
the restrictions by some ingenious trick. The latter
course was adopted. The restriction as to taking
copies, was predicated, it was said, on the idea that
no copies had been taken anywhere. Mr. Hancock
rises in his seat and produces copies of the letters,
a,nd one account says, declaring that they had been
sent to him from England ; another, that it was so
stated by others. Hancock's copies were doubtless
taken here, and to be used as they were in fact used.
All now agreed that the restriction was virtually re
pealed, and the condition no longer binding ; the
letters were already public, and there was no harm
in adding a little to the publicity. The trick satisfied
the scruples of all, and the newspapers had the let
ters. " I do not say that all concerned intended to act
a base part ; I know that with honest politicians, if
36*

426 LIFE OF JUDGE SMITH.
there be now any such class, strong party feeling,
vehement party zeal, are apt to weaken the force of
conscience, and counteract the sense of honor, or at
least to pervert the judgment for a while, and lead it
to approve the doctrine, that the end sanctifies the
means. And we have sometimes had the pain to
see a man applauded for a political manoeuvre,
which in truth ought to have consigned his name to
infamy and dishonor. On the occasion which has
called for, and I hope justified these remarks, an
honest man, and especiaUy if he happened at the
same time to be a Christian, would have said, ' It
would seem, in my judgment, useful to publish these
letters, for the good it will do. Hutchinson and
Oliver have justly merited our reprobation, but it
cannot be done without a breach of confidence ; it
must not, therefore, be done. Heaven, if it intends
to save us, wUl send deliverance from some other
quarter. If we perish, we perish. If we lose our
country and our freedom, let us at least preserve our
faith and our honor.' "
The lectures which cost Judge Smith the most
labor, and which would have been most likely to sur
vive, as a lasting monument of his ability and learn
ing, were never completed, nor indeed brought to
such a state of forwardness as to be of any service
to others. They were on the jurisprudence of New
England, a subject in which he had always been
interested, and to which, as appears from some of
his papers, he had paid particular attention some
years before he left the practice of his profession, it
being, as he said in his letter to Mr. Livingston, his

LIFE OF JUDGE SMITH. 427
" knitting-work to put down the New England law,
where we have allowed it to take the place of the
Engfish." In 1816 he said, " I am inspired with
zeal to examine New England histories, memoirs,
records, with a view to her jurisprudence." He
began to prepare them in 1836, and left behind many
sheets of notes and references ; but only a few pages
were written out in full.
" I propose," he said, " to make some remarks on
the science of jurisprudence. I shaU confine my ob
servations to the laws of New England, as she was
before the separation from Great Britain ; and here
Massachusetts will be chiefly regarded. She is justly
entitled to this distinction, on account of the priority
of her settiement, and still more on account of the
superior character of her first and present inhabit
ants. I shaU hope to be pardoned, if I indulge
freely in observations and remarks not strictly, per
haps, connected with the New England jurispru
dence. This science embraces the constitution, as
well as the laws of the country or place, and, limited
to New England, it comprehends the nature of her
connexion with, and dependence on, the parent
state. The common law she brought with her, as
her birthright ; and the statutes and ordinances she
framed for herself. Restricted to the narrowest
limits, the subject is an exceeding broad one, almost
entirely new, and would call for more time, more
study, and far more talents than I possess.
" It is impossible here not to be reminded of the
loss, an irreparable one it must be felt by all who
would prosecute these inquiries, in the death of Mr.

428 LIFE OF JUDGE SMITH.
Parsons. He died in 1813. He had made consid
erable progress in his studies before the war witii
Great Britain. He was highly favored in a most
able instructer, and at his death was certainly better
skilled in the New England law, than any other man
on either side the Atiantic. It is much to be re
gretted that he left behind him so littie of the great
stores of the law peculiar to New England, which
his dUigent and discriminating mind had been col
lecting and digesting for nearly half a century. It
was my good fortune to become acquainted with
this truly great man and learned lawyer at the
time I commenced my law studies ; I cannot suffer
this occasion to pass, without expressing my heart
felt acknowledgments of his kindness. He was ever
ready to assist such as manifested a desire for in
struction. This part of his character, I believe, has
not had that justice done to it which, in an eminent
degree, it deserved. I will not say that Theophilus
Parsons was the greatest lawyer that ever lived ; but
I risk nothing in saying that he knew more of the
New England law, which existed whUe we were
British colonies, than any other man that has lived,
or perhaps that ever shall live. Some of his learn
ing has been preserved in the reports ; but much the
greater part of his, and nearly all that of the law
yers and judges that went before him, is now irre
trievably lost to the community.
" It is a great error to suppose the New England
common law, properly so called, from the advances
made in aU branches of knowledge, is of no import
ance in New England at this day. For what is the

LIFE OF JUDGE SMITH. 429
common law of which we speak ? It is made just
as the English common law was made ; a collection
of the general customs and usages of the commu
nity ; maxims, principles, rules of action, founded in
reason, and found suitable to that first condition of
society ; if not created by the wisest and most
favored, sanctioned and approved by them. Here,
every member of society is a legislator ; every
maxim, which by long usage acquires the force of
law, must have been stated, opposed, defended,
adopted by rulers and judges, slowly and at first
timidly, but so acceptable that all approve. If the
custom be of a more doubtful class, again debated,
criticised, denied, but finally confirmed and estab
lished. These principles, after aU, may not be wise
and salutary maxims ; but they have all the wisdom
that the people of all classes (every man having
precisely the weight and influence he deserves,) can
give them. Farther advances in knowledge and ex
perience may demonstrate their unfitness and in-
utUity ; then they will be modified, and silently
changed. The legislature can abrogate this law, as
they can the rules of their own making. But it
would be well for the people if they would first take
the trouble to understand it. No man acquainted
with the common law can look into our statute-book,
and not see that the framers of the statutes, in many
cases, were ignorant that the common law contained
precisely the same provision ; and in many cases, a
provision different and better adapted to the wants of
society. The new law must be repealed at the next
session, because not congenial with the manners, ha
bits, sentiments, feehngs and wants of society."

430 LIFE OF JUDGE SMITH.
May not what Judge Smith has here said of Judge
Parsons's knowledge of the New England law, be
applied now to himself ? It is one of the melan
choly thoughts, connected with the death of such
men, that they carry with them so much knowledge
of a kind that cannot be restored. Belonging to a
period reaching so far back, and growing up under
influences which never can exist again, they acquired,
almost without an effort, in the study and practice of
their profession, information which no research, after
they are gone, can gain with anything of the same
full understanding.

CHAPTER XV.
1835—1838.
JOURNEY TO THE SOUTH AND WEST  LETTERS 
ORPHAN CHILD  INTERCOURSE WITH CHILDREN
 WIT.
Judge Smith's occupation at home was much the
same as it had been for several years. He saw more
company and had in his own house more variety than
at any time before. In 1833, he had taken William's
daughter, then eight or nine years old, into his family.
Besides her, he had usually in his family another Uttie
girl, a niece of Mrs. Smith's ; and generally some
young lady still farther advanced, whom both he and
his wife took great pleasure in helping forward in her
education. There was also Joel Furber, of whose
short life a sketch has already been given. These
young people, of course, attracted others of their own
age. There were few houses, in which were to be
found more of the hfe and merriment of youth, and
the youngest among them all, he who certainly con
tributed most to their diversion, was the white-headed
old man, who had seen the snows of nearly fourscore

432 life of judge smith.
winters, and who, more than forty years before, had
been not unworthily associated with the eminent men
of the nation. Usually, when the old man goes out,
a restraint is taken off; but it was not so there. The
loudest peals of laughter were an evidence of his
presence ; and during his absence it was felt that no
small part of the animation of the house was gone.
To Mrs. Smith. " Boston, Jan. 3, 1836. I have
been to the theatre two nights. ' It 's a lie.' It is
not, but sober truth. At the first ' I was the princi
pal actor ; at the second, called the Tremont Theatre,
Mrs. Wood (the late Lady Lenox,) as Amina in La
Somnambula, — I was charmed. Everybody says I
grow younger, and I partly believe it ; for no opera
ever pleased me more. . . . No man can be in
Boston without thinking of money. Boston grows
grander and grander. It increases in everything but
humility. I verily think, at least hope, my stock wiU
enlarge. ... I have dissipated as little as possible ;
but this is a tempting place, and I must quit it. I
must overcome temptation in Sterne's method, by
running away. You may expect me Thursday, and
loving home better than ever, and chiefly its princi
pal charm. Apropos of wives,  is soft and
gentle to his good wife. He seems almost a new
man. How useful sorrow is in this world of ours !
May you have none of it. Strange conclusion from
my premises. Man is a strange creature in reason
ing as weU as in going to theatres."

1 The Odeon, formerly the Federal-street Theatre, where he had heen
giving a lecture.

LIFE OF JUDGE SMITH. 433
To Mrs. Smith. "Exeter, AprU 19, 1836. 'On
looking back for thirty years, I see too many faults in
my own fife to be mindful of the faults against me.'
Now, if you do not apply this to me, it will serve to
convince me that I am not humble enough. Truly,
it is going a little beyond me. I see some faults of
my own in the retrospect, but some also in my
friends, a very few excepted. Sir James Mackintosh,
too, goes beyond me when he says, ' * * * has a
distaste for me. I think the worse of no one for
such a feehng. I often feel a distaste for myself.
Quaere — should I esteem my own character in an
other person ? ' Are you, my dear wife, as good and
as humble as Sir J. M. ?
" You know we did not greatiy admire M.'s Life
of Sir Thomas More. M.'s son says, ' He wrote it
con amove, and has produced one of the most pleas
ing and instructive pieces of biography in the English
language. There are few works in which the moral
ends of biography are better answered, or from. which
the reader rises more pleased and improved.' If the
young fellow of Oxford is right, you and I must
resign the chair of criticism. Are we too fastidious ?
• " You perceive this is the anniversary of Lexing
ton battle — sixty-one years ago. My remembrance
of the feehngs of the time, and even the state of the
weather — the beautiful and forward season — is ex
tremely vivid. All this proves two facts ; first, that I
am a great patriot, and, secondly, a close observer of
nature, and, I can add with stUl greater truth, a great
admirer of you, though you can boast of httle more
than half the years of this by-gone event.
37

434 LIFE OF JUDGE SMITH.
" I don't know how it is, Elizabeth ; but I am
more regardful of health when you are absent ; I am
more abstemious and take more exercise, and yet I
would not have you stay away on this account, unless
you wiU engage to do likewise."
"Wednesday, 6, A. M. Up at 5 — have not
strutted, but swept my hour on the stage — venti
lated the room, and am ready to say good morning
to you on your couch — am about to finish Sir
James. " I enjoy Sir James the less for your absence.
Your interruptions serve only to enhance the plea
sure. What is the reason that there are so few
books, which please me so well at the end as at the
beginning ? Is it that the author tires ? "
To Mrs. Smith. " Saturday noon, April 23. My
dear Elizabeth : Mrs. W. says, ' Write to Mrs. S.,'
and you know how readily I obey commands of your
sex. It is my defight to do their wUl. I was cheer
ed, an hour ago, on finding my door open, and enter
Mrs. Walker. I have read two or three chapters to
her out of Sir E. Brydges' autobiography ; very en
tertaining. She has consented to dine with me, so
that you see I am in a fair way to be happy. I hope
that the only cause which can prevent your being so,
does not exist — the suffering of your friends.
" It is a fortunate thing for me that most things
amuse me. Mr.  entered last evening with a
groan at the hall door, and gave me an hour in har
mony therewith, and left me very happy. ... I find
Sir E. B.'s book entertaining ; am glad I bought it.
This is just the time I need such refreshment. I am

LIFE OF JUDGE SMITH. 435
in the midst of examining a knotty law case. It does
not trouble me ; but it is well to have good intervals.
I see a storm a brewing, but value it not. Mrs. W.,
to whom I have just read so far, says, ' What spirits
you have ! ' Why not ? Heaven has been good to
me ; why should I not be cheerful and happy ? To
know that you are so, would add something to the
mass." In the summer of 1836, Judge Smith, with his
wife and Miss  , made a journey, by way of
Washington and the Virginia Springs, to Kentucky
and Ohio. " At Washington," he said in a letter to
his friend and neighbor. Dr. Benjamin Abbot, " I
saw a good deal of the two houses of congress. The
senate answered my expectation ; but I. H. had not
then quit. I was made acquainted, as far as the time
would allow, with most of the members. I must say,
the house of representatives fell below my expecta
tions, which certainly were not high. A vast number
of the members have the cacoethes loquendi the nat
ural way. I am not an enemy to good speeches ;
the most of those I heard were of an inferior quality,
and never did I see so little attention. Indeed, there
could not be said to be any hearer except myself,
and, if you wiU pardon a bull, I could not hear.
This state of things must end in some way. B.'s
dumb legislature is a thousand times to be preferred.
I think, just at this time, the house is not in favor
with anybody. I have not seen their friends, if they
have any.
" The country is grand ; but the government not
so good as the people."

4-36 LIFE OF JUDGE SMITH.
To J. H. Morison, Washington, 23d May, 1^.36,
'• I am bound for the capitol. It is said there is to
be a flourish of trumpets this moming in the senate —
the trumpeter, Mr. Preston, of South Carolina, and
the subject relating to the independence of Texas,
now that she has conquered Santa Anna. This is
believed this morning. Surely the age of miracles
has not passed away. She will soon be admitted
into the union. What, think you, wUl be the influ
ence of New England among forty states, in 1S56?
Take away Webster and one or two others, and what
is her influence now r "
May 25. "J have been twice to the president's —
like him. He cannot reason — had an argument
upon instructions. He is all wrongs — holds to the
Virginia doctrine — is unconvinceable. Frobatum
est ; [for] my arguments faded."
Judge Smith was pleased with the attentions he
received from the prominent men at Washington ;
but the most gratifying incident in his joumey was a
visit to Mr. Madison. When in congress together,
and afterwards through the active part of their pohti
cal lives, they had taken different sides, and were
strongly opposed to each other. For a time, at the
close of Washington's, and the commencement of
Adams's adnoinistration, their political feelings were
such, that there was no personal intercourse between
them. . But in the latter part of his life, Judge Smith
always spoke of Mr. Madison as a man of great mo
desty, learning, abifity and moral worth. He believed
that Mr. Madison had been at one time too much
under the influence of Mr. Jeflferson, whom he never

LIFE OF JUDGE SMITH. 437
ceased to consider as an able, but crafty, visionary,
unscrupulous politician. They had not met for nearly
forty years.
At Orange court-house, Saturday, May 28, " Af
ter much difficulty procured horse-cart, two dray
horses, passenger and driver, each sitting on a kitchen
chair, to carry me over the road to Charlottesville,
four miles, and then one mile to Mr. Madison's, —
passed through gate, wheat and rye each side, to
front of lawn — house showy — grand piUars in pro
jection — introduced myself to Mr. Todd, Mrs. M.'s
son. He said his mother would be glad to see me,
and so it proved. She gave me a friendly and hearty
welcome. We went back forty years ; she remem
bered me as much as I did her. Mr. M. had been
very Ul — too much so to see company, but said [he]
would see me — found him on couch and much as
Mr. V. B. had described him to me — no body —
aU soul — powers of mind good — memory — aston
ished to find him so much like forty-five years ago in
the tones of his voice, though more feeble — turn of
expression — talked weU — said, glad to see me —
he and Mrs. M. had always noted the newspaper ac
counts of me, and had the kindest feelings — had
always considered me as acting from principle, and
therefore always cherished towards me the first kind
and friendly feehngs. I frequentiy proposed to with
draw, but he expressed a desire to detain me —
wished to hear me talk. I reminded him of our first
acquaintance, when [I] was his scholar, courting his
conversations, and thanking for his kindness. Though
he does not talk politics, he expresses opinions on
37*

438 LIFE or JUDGE SMITH.
political subjects and men, but with the caution and
mUdness always natural to him.
" They urged me to stay to dinner — three — but
I excused myself, and took leave after two hours.
He desired his respects to Mrs. S., and regretted, as
did Mrs. M., she could not come  He spoke
highly of Mr. W. and Clay."
Mrs. Smith, in her journal, adds to these minutes,
which were hastily taken on the journey ; " Judge
Smith returned delighted with his call — found Mrs.
Madison still handsome, hospitable and elegant, and
Mr. M., though much emaciated, weak, sick and lying
on a couch, stiU all himself in memory and mind.
J. S. spoke of the Lyceum lectures he had been giv
ing ; Mr. M. intimated that they would not only be
useful to those who heard them ;. but hkewise serve
as a pabulum to his own mind. He was so thought
ful as to offer letters of introduction to Mr. Levy, the
present possessor of Mr. Jefferson's Monticello, and
to Professor Tucker of the university of Virginia.
These letters were written by Colonel Todd, and
then brought to him and received his approba
tion." From Judge Smith's Diary, 9th of June. " A few
miles after starting, we found ourselves stuck fast in
a slough on the side of a hill. The men passengers
got out and did what they could. Mr. H. escorted
the ladies a mile or more to the post-office. I re
mained much exhausted and sick in the stage. It
started and in a very few rods capsized, and I was
buried in the ruins, considerably bruised in my left
shoulder and head. I was soon dug out, and ac-

LIFE OF JUDGE SMITH. 439
quired much renown for my silence and patience, two
virtues as doubtful as any I boast of."
To Mrs. Walker. « White Sulphur Springs,
Greenbrier county, Virginia, June 16, 1836. My
dearest Sarah : You were always dear, and now in
the midst of the AUeghanies are dearer than ever.
.... The higher we ascend, the better we love one
another. So be it ; for this is the greatest earthly
good. Did I inform you at Washington, that, by
the advice of Mr. Clay and other wise men, we had
abandoned the Mississippi. I limited our tour to
Lexington, Frankfort, Louisville and Iijdiana, return
ing through Ohio.
" I expect little from the waters of these famous
springs ; but the air is delightful in these regions, and
the exercise a little more than we could desire. I
cannot describe the roads better than by saying, it has
rained the last twenty days, and our way, which lies
over rocky hills and mountains, is the passage for the
torrent — no bridges — the soU (in all not mountain) is
red clay, and might now be moulded into bricks with
out any change, of color. Our team can neither
draw us up the mountains, nor out of the sloughs ;
but the views are grand — everything new and sub
lime. We do not regret our fatigues — are always
ready to encounter fresh . ones. We are constantiy
making new and often agreeable acquaintances, and
are laying up food ' for many years to come.' How
like this is to the language of the man that buUt the
greater barns ! The conclusion must apply almost
literally to some of us ; but I hope not to all. I
wish you were with us to help us to enjoy. How it

440 LIFE OF JUDGE SMITH.
would multiply all our pleasures 1 . . . . I have no
painful anxieties about home, not even about our
friends in old Exeter ; they are all safe under the
keeping of the great and good Keeper."
In passing through Virginia, Judge Smith's atten
tion was of course often called to the subject of slav
ery. " Met Mr. P., of Georgia. He is right on the
slave question, — says they are well treated and
happy, and better every way than our New England
lower order, and as capable as whites of intellectual
cultivation. Still he is an enemy of slavery, and
more so than the New England men, who come from
the north and work them harder than the natives —
wishes the New England abolitionists would point out
a cure for the evU."
From a letter to Dr. Abbot. " Slavery here as
sumes its most favorable aspect. I do not say it is
charming and delightful, but it is extremely mild. I
have heard many Virginians regret that Dr. Channing
could not spend a year in the ancient dominion. They
admire the man, but not his book on slavery. I agree
with them in both." Dr. Channing had spent a year
in the " ancient dominion," and remembered all his
life the kindness which he had received from slave
holders ; but neither this, nor the mUd treatment of
the slaves, could close his eyes to the monstrous injus
tice of buying and selfing human beings who had been
guUty of no crime.
Judge Smith returned from his journey in good
health. " I cannot but think," he said, " that I have
gained some knowledge in my tour, which, if it do
not profit others, will increase my own enjoyments.

LIFE OF JUDGE SMITH. 441 # '
This is selfish ; but does any one wonder that old
men are so ? The worid are much disposed to con
sider them as already out of it."
Private letters are almost the only memorials of the
next year.
To Miss Lowe. " Exeter, August 1, 1836. Your
letter, my dear Mary, was a very good one, both in
matter and manner. I engage, if you persevere, that
you wUl soon be among the best letter writers. But
care and pains are indispensable. I know these are
not pleasant to a girl just entered her teens ; but I
know, also, that the fruits are excellent. ' Deus ipse
hand facilem esse viam voluit ' — you are a Latin
scholar, you know. Take my word for it, my dear
Mary, you wUl in due time have your reward. I
take a great interest in your success in life, and espe
cially at this period, when you are forming a charac
ter, which may last as long as you last — longer than
I shall live to witness it. I am sure you have the
capabUities, and need nothing but your own exer
tions. At your time of life I made many mistakes,
and wasted much time, but idleness and inattention
were not among the number of my youthful errors.
I was happy in a daughter, who was in these things
aU I desired. I know full well the import of the
words, when I say that it is in your power to make
your parents exceedingly happy, by merely making a
good use of your time and of your talents, which are
very good ; but they wiU avail you nothing without
cultivation. Your heart is also, humanly speaking,
good ; but the best mind and the best heart wUl prove
no blessing, unless you do your part. I do not mean

442 LIFE or JUDGE SMITH.
to flatter you, Mary, but rather to encourage you in
the right improvement of your time and talents. The
path of life is not all strewed with roses ; there are
thorns and discouragements and sacrifices to be made,
but there is also abundance of pleasures to be en
joyed — great and enduring pleasures. I sincerely
wish you a fuU share of these."
To Miss EUen Smith. " Exeter, November 3,
1836, Thursday evening. I was delighted to find,
by your letter, that your father was well, and re
quired no waiting on. It has always been my opin
ion, and experience has served to confirm it, that old
people are naturally (I hope not necessarUy) disa
greeable. Everybody that can, shuns them ; those
who owe them duties must pay them. But surely
what is done from a sense of obligation must be in
finitely less agreeable to the receiver, than what flows
from love and the kindly affections. How strong,
then, the motives not to be over-exacting, and to draw
as littie as possible on the fund of filial duty, but
rather to deserve more than they are wUfing to re
ceive even from children !
"Providence has wisely ordered, that old people
should have abundant leisure to make themselves
amiable. They have little else to do. I have, be
sides, little doubt that the bienseances as well as the
moral affections are cultivable, that any man may
grow in the love-inspiring virtues, as weU as in the
moral. " It gave me great pleasure to see that your good
father's bodily and mental powers were so very good.
I can hardly give him credit for sincerity in the esti-

LIFE OF JUDGE SMITH. 443
mate he puts upon them. This over-low estimate 
not very common with the Smiths — cannot surely
have been intended as an apology for indolence,
making no efforts to improve ! Human nature is said
to be too prone to indulgence. Age, then, may be
suspected. But whatever our powers now may be,
they surely will diminish by non user ; such is the
order of Providence. In all this, I must be under
stood as addressing you, who I hope wUl one day be
old. It is true you are very well now, and I love
you dearly, but at the same time I have no objection
to your being stUl better, and at finding myself
obliged to love and esteem you still more.
" I am quite well, and hope you will keep me so
by writing us often ; and when we are tired of that,
visiting us and abiding with us, till we grow heartily
tired of each other. Till then I am sincerely yours."
To Miss Lowe. " Exeter, April 20, 1837. We
have been just reading in Sparks's American Biogra
phy, (Vol. VII.) Miss Sedgwick's Memoir of Lucre-
tia Maria Davidson, who died when a little older than
you are. She had great talents, but with less would
have been loved by all who knew her. We intend
Jane shaU read it, and be what she was ; but post
pone it till you come, that we may have two Miss
Davidsons instead of one. There is a fine young
man just come to the academy from Buffalo. He
looks a fittie like a certain relative of mine about his
own age. I know well this will have no influence
in hastening your return ; but I am sure you will
like him. His father places him in some measure
under my care, and I want some discreet person to
aid me."

444 LIFE OF JUDGE SMITH.
To Miss Hammond. " May 6, 1837. How I
long to have last autumn return, and you in your old
seat ! I think I may then defy any one to show a
happier circle — a small one indeed, but kindred
spirits, loving and being loved. Earth can give no
more ; indeed, this must be one of the joys of
heaven." On the 14th of July, 1837, new interest in life was
given to Judge Smith by the birth of a son to bear
his name.' " At this moment," he said in writing to
a friend, " there is not a speck in my horizon, and I
only want some dear friend, by which I mean you,
to rejoice with me."
To Miss Ellen Smith. " Exeter, 30th November,
1837. My dearest Ellen : When I sought your cor
respondence and friendship, (for uncle and niece are
nothing,) I did not know their value. Perhaps as
many on full knowledge prove better, as those that
prove worse on trial. This is a good view of human
nature, and I cherish it. Among my blessings, (and
they are not few or smaU,) I reckon you, my dear Ellen.
You must live and be happy as long as I live, and as
much longer as it may please God. I was not quite
prepared for the news of S. M.'s '^ death ; but for some
time I have not thought he would continue long.
The chief value of his life was for his daughters.

' From the Family Record, in the hand-writing of J. S. " Friday,
July 14, 1837, 1 P. M., filius natus fuit, quem Deus a malo defendat;
baptiz : a Rev. J. Hurd, 22d October, 1837, nomine Jeremiae, anglice
Jeremiah." 2 Judge Smith's brother-in-law, Samuel Morison, father of three deaf
and dumb daughters.

LIFE OF JUDGE SMITH. 445
They particularly need a father or brother. Their
friends must supply their places. I wish I was nearer
to them. Living in the viUage, as they must, it is indis
pensable that some trusty person should provide them
fuel and provisions. I am sorry, my dear Ellen, for
this new draft on your benevolence. I know nobody
whose society will do them so much good as yours
and Nancy's, and nobody more disposed to contribute
to the happiness of others. I almost envy two such
fellow-laborers in making others happy. A blessing
must attend those who serve such pure-minded and
excellent girls. Their mother will look down from
heaven her thanks. My Elizabeth regrets the dis
tance between her and her favorite nieces. When
the pleasant season comes, she will hope for a long
visit from them — their comforters and helpers.
" Elizabeth and Jeremiah are as you would wish.
The boy is a source of pleasure to me far exceeding
my anticipations. I pray heaven it may continue.
You know I am not one of those whose future
prospects are gloomy. ' Enjoy the good the gods
provide you,' is a good Christian as well as heathen
maxim.' "
To Miss Hammond, 19th December, 1837. " I
am engaged in my intervals of leisure, in reading
Southey's Cowper ; and admire the man and the
work more than ever. When the pleasant season
comes, you must come, my dear Sarah ; ' all that is
here is thine, together with the hearts of those who
dwell here.' We wUl read Cowper's Life and Task
together, and meditate upon them till we three be
come as good as he. I did not intend to be guilty
38

446 LIFE OF JUDGE SMITH.
of rhyme, but to deal in sober truth, which is in har
mony with all my feelings at this moment."
6th March, 1838. " I have continued reading
Cowper, and admire bim more and more. His let
ters — I have read them aU — compare weU with
Horace Walpole's.' If this were fifty years ago, J
should almost hope to imbibe some of his spirit.
Don't think I mean his morbid distemperature of
mind ; a despairing frame of mind is of all things the
most remote from my nature. I am always, if not
happy, at least free from the glooms, see things in
their best light, and when trouble comes, as come it
will, bear it the best way I can.- Cowper was, by
nature, gay and lively, wiUing and capable of min
gling in the joys and sorrows of his associates ; but
there may have been at the bottom a little of the
leaven of insanity, and it was sadly inflamed by his
religious creed, and the training under his ghostly
director. I admire his letters more than his poetry,
though some of that is very good ; and it adds much
to my enjoyment of Cowper, that Elizabeth goes with
me, and beyond me. She has something of his or
thodox faith, whereof I have none,"
In December, 1838, there was received into
Judge Smith's family an orphan child, and, says
Mrs. Smith, " the recollection of his patience and
gentieness towards that fittie girl, are redolent of the
odor of perfect charity. She was not quite four
years old ; the delicacy of her health made it expedi-

1 To his niece, J. S. says : " C.'s letters I rank next to Horace Wal
pole's ; that is, second in the world of letters."

LIFE OP JUDGE SMITH. 447
ent that she should sleep where there was a fire, and
from a dislike to inflict on domestics the labors grow
ing out of a deed of charity, she was finally estab
lished in Judge Smith's chamber. She was restless,
and a very bad sleeper ; but at no time did he com
plain of this annoyance, and never once did he pro
pose her removal to another room. On the contrary,
the sight of her seemed to double the enjoyment of
his own comforts. When he saw her put to bed at
night in her comfortable flannel night-gown, or dressed
in the morning before the cheering wood fire, he
would look at her with so much pleasure, and exclaim
again and again, ' a brand snatched from the burning,
a brand snatched from the burning ! ' Her father
having died of delirium tremens, and her mother be
ing a common street drunkard and beggar, it was
hoped that early culture and freedom from tempta
tion would keep off this dreadful taint ; and she al
ready gives promise of being a useful, energetic and
honest domestic."
Judge Smith had quite an uncommon power of
interesting children. A lady, at whose house he was,
asked her daughter, about three years old, to go to
another room for her father. " I wUl," she said,
" when Judge Smith is not here." A little fellow,
just beginning to talk, was so entertained by him that
every time he paused, the chUd called out, " Man talk
more, man talk more." Another little girl wUh
whom he had been playing and talking some time,
being asked to go out with her mother, said " No,
no ; I want to stay here. I want to hear what he
wiU say next." In his talk and by his gestures, tones

448 LIFE OF JUDGE SMITH.
and actions, he presented the most ludicrous combina
tions and contrasts. But it was only those children,
who had a quick perception of the humorous, and
who could distinguish as by instinct, what was said
in jest from that which was said in earnest, who could
understand him. I remember the utter astonishment
with which he was listened to by a fittie boy who had
been brought up in the literal observance of the truth,
and whose moral sensibUities were of course unfavor
ably affected by such conversation.
His intercourse with the young generally had no
tendency to increase their reverence for conventional
forms, or the idols of society. And occasionally his
manner of speaking of the best observances and men,
was such as to throw an air of ridicule round them
in the minds of his associates, before they had
learned, in his more serious moments, or from a
more intimate acquaintance, how deep and real
was his respect for them. This trait, which, from
its liability to be misunderstood and perverted, is
not to be recommended for imitation, has belonged
as a characteristic to some not only of the most up
right, but the most devout of men. No one ever
possessed it in a greater extent than Thomas Fuller,
the author of the " Worthies of England," and with
all his levity of speech, nay, through it all, where
shall we find a more sincere and beautiful spirit of
religious reverence, a more truthful and hearty respect
for the good men of his own and all former times ?
The language of Sir Thomas More upon the scaffold,
must savor of irreverence and impiety to those who
can see refigion only in solemn looks and toaes ; but

LIFE OF JUDGE SMITH. 449
where was there ever a more devout or devoted
spirit? And old Hugh Latimer, who could not help
punning as they were preparing him. for the stake,
found no subject too sacred for the cheerful, mirthful
and humorous flow of his devout and Christian soul.
It might have been irreverence in another to talk
as these men talked, under circumstances of such
awful solemnity ; but in them it was only the exercise
of a gift, which they had received from God, and
which they rejoiced to employ in his service. No
one, I think, can read Izaak Walton's Lives, or gain
admittance into the sanctuary of George Herbert's
poetry, without seeing how much of that wit, which
some would condemn as levity, may enter into the
conversation of the most holy men, and how grace
fully it may minister even at the altar of their devo
tions. But there is no gift of the mind which, especially
in its connexion with any religious duty, is more a
stumbling-block to some well-meaning, and even sen
sible men. Religion among us has been taught to
clothe herself in a sanctimonious garb, rather than in
the beauty of holiness ; social respectability walks on
stilts, and unless treated with a formal respect, tum
bles to the ground. We are, with the exception of
owls and monkeys, the most serious people on the
face of the globe. Our very amusements have an air
of seriousness, and, as on the Athenian coin, the im
age of an owl is required tO' give us currency in soci
ety. ¦ This owlish wisdom and solemnity, with all the,
empty pretensions that are sustained by them. Judge
Smith regarded with aversion and contempt.. It was
3S*

450 LIFE OF JUDGE SMITH.
in reference to them that he said, " I know the wodd,
and despise it. I say this not from pique ; for I
have personally no complaints to make ; but from
conviction that it is just and merited." " One thing I
must confess, I have now in my old age less deference
for the opinion of others than I had in eariier life ;
not that I think better of my own wisdom, but less
of that of others ; I do not think more of myself, but
more for myself." There was no way in which he
so much exercised the keenness of his wit, as in ex
posing the foolish claims to distinction, (whether for
famUy, wealth, learning or station,) that men are con
stantly setting up. It was his especial delight to pull
off the masks which hide so much emptiness and
vanity. At the same time he was no Cynic, nor did
he doubt the existence in the world of high attain
ments, and great and noble qualities. He was quick
to recognize, and glad to acknowledge and respect
them. The innocence of chUdhood, the purity and
confiding tenderness of woman, the manly virtues
which dignify the statesman, and still more, the hum
ble graces which adorn the Christian's life, were sub
jects on which he delighted to dwell, not as abstrac
tions, nor as the product only of a former age, but as
quahties which he had seen and known, and which
were still to be found among men. No one could
be less a misanthrope, or farther from cherishing that
barren skepticism incarnated in Voltdire, which grins
at human virtue, and withers the soul in which it
dwells. Nor was he like Goethe, in whose clear and
passionless mind the follies, vanities, hopes, virtues,
vices and crimes of man may see themselves as in a

LIFE OF JUDGE SMITH. 451
glass, which continues itself untouched by sympathy
for human weakness or suffering, with no yearning
for human affection, or longing for a divine love. He
was however, almost entirely free from anxiety, and
it might probably be said with truth that during the
last twenty years of his fife, he never lost an hour's
sleep from the apprehension of evU, whether of a
public or private nature.

CHAPTER XVI.
1838 — 1839.
JUDGE smith's old AGE  YOUTHFULNESS OF FEEL
ING  HABIT OF COMPARING THE PAST AND PRESENT
 INTEREST IN NEW BOOKS ; IN THE YOUNG ; IN
EDUCATION  INTERCOURSE WITH YOUNG LADIES
 LETTER TO MISS ROSS.
Judge Smith had now entered his eightieth year.
For seven or eight years after he left the bar, his
" crazy machine," as he called his body, had been
steadUy mending, and, tiU after the lapse of nineteen
years, his constant good health was interrupted by
fewer ill turns than during any period of his active
life. His mind had lost nothing of its strength, nor
his feefings anything of their elasticity and freshness.
His eye kindled as brightly, his humor played as
sportively, his sense of enjoyment was as keen, and
his power of imparting it as ready as in the prime of
his manhood. His nature, disciplined by suffering,
and then cheered by an unlocked for amount of hap
piness, had been greatly softened ; and his passions,
instead of subsiding, as they too often do, into the

life of judge smith. 453
fretfulness of an imbecile and comfortless old age,
were gradually transmuted into affections which grew
more pure and confiding as he approached his end.
In fact, as was said of another, " he never deterio
rated ; like the setting sun, when his course was
over, he departed in full majesty."
He undoubtedly owed much to his natural temper
ament and constitution, but far more to the spirit and
habits which he had taken so much pains to culti
vate. As he always woke bright because he went to
sleep bright, so his fresh and joyous old age was but
the product of what had gone before. First and
greatest among the sources of happiness which he
had cherished, was his unwavering religious trust,
" Surely," he said, " people really and truly under the
influence of rational principles of religion, must be
happy. Some people's refigion fails to regulate their
passions and affections. It does not produce all its
good fruits ; it is not quite practical enough." In a
letter to his wife, then absent from home, he says,
" I am lonely because reading (just now) engages my
mind and heart less than in days of yore. I shall re
joice to see dear Ellen, but have no ground to ex
pect her. Sometimes the best things come unexpect
edly upon us. 1 think my forte is taking patiently
whatever comes, and bearing well inevitable evils.
They are then less evils, and may even prove bles
sings in disguise, and all sorts of blessings are wel
come. Do not shorten your stay on our account.
Remain as long as you are sure you soften pain or
confer pleasure, and be sure to come to us in good
health."

454

LIFE OF judge SMITH.

Writing from Boston, he says, " I have suffered
nothing but pleasure. My taste for the great has,
and my love for the good has not, diminished; so
you may safely trust me abroad for a few days.
The day is eminently delightful ; I hope you enjoy
it. Is it not criminal to suffer the good things of
heaven to fail of producing the happiness intended ?
All this only proves that my feelings at this moment
are of the pleasurable sort. I wish they were trans
ferable ; then yours should be at least in equUibrio."
These are extracts taken almost at random from his
letters, to show the contented, and (may I not say)
the Christian spirit, that ran through his life, and
which, by its quiet cheerfulness, protected him not
less from the little annoyances, than from the great
calamities which he had known.
As an old man, he was not exacting or complain
ing. He had had his day, and was willing to be set
aside. " It is not easy," he said, " to deal with two
generations of men. Sufficient for one man is one
generation. How rarely an eminent statesman, lawyer
or politician, maintains his high standing beyond
thirty years ! Why do we blame the world for
turning old age and infirmity adrift, and retaining
the young and the active, who can serve them
better ? " " How natural that the old should not be
beloved ! They are every day gradually withdrawing
their confidence, and it is confidence, unsuspecting
confidence, which begets love." Quoting from Lady
Mary Wortiey Montague the words, " I don't know •
how I look, as it is eleven years since I saw my figure
in the glass, and the last reflection was so disagreea-

LIFE OF JUDGE SMITH. 455
ble, that I resolved to spare myself such mortifications
for the future, and shall continue that resolution to
my life's end," .he adds, " Strange that a woman of
sixty-eight should be ashamed to show a wrinkled
face. We are to avoid the infirmities of age, but not
be mortified at them." " Where," he asked on his
eighty-second birth-day, " where is the world I knew
fourscore years ago ? If Methuselah had been on the
stage when William the Conqueror landed in Britain,
he might have been alive now, to tell us all about
WUliarn and his successors."
Judge Smith never fell into that too common vice
of age, exalting the past at the expense of the pre
sent. He gratefully acknowledged that he saw pro
gress in almost everything ; in the arts and sciences ;
in our benevolent institutions ; in legislation and the
administration of justice ; in the general aspect and
condition of the country ; in furniture and dress ;
and he believed also in virtue and knowledge. " It
would be something new," he said, " to speak of im
provements in dress; but since gentiemen, and, I
may add ladies, have been more engaged in storing
the inside of their heads with knowledge, a less ex
pensive and more simple mode of adorning the out
side has prevailed."
" I remember to have seen, when a student at law
in Salem, a letter written a century and a half before
by a member of the family, who enteiprised and
happily achieved a journey to Boston. He had been
so good as to relieve the anxiety of his friends by a
line from the half-way station at Lynn, saying all was
yet weU, and his hopes sanguine of a successful ter-

456 LIFE OF JUDGE SMITH.
mination of the journey, and promising to write as
soon as relieved from its fatigues. This letter was a
fulfilment of the promise, and made doubly welcome
by the information that aU their friends and relations
in the capital had been blessed with good health.
He gave his friends in Salem a rich treat in the ac
count (which indeed constituted the bulk of the
letter) of the Thursday Lecture, from which he was
just come ; who preached, the text and heads or
principal divisions, with the more important subdi
visions, and the uses for examination and improve
ment." " The transition from roads and carriages is natu
ral to the farms, fences and houses of the persons
who have occasion to use them. On all these sub
jects in our country north of the Delaware, I can, as
early as the close of the revolutionary war, speak
from some actual knowledge. There were some
good farms, and some good farmers ; but these only
served to show in a worse light the general aspect of
the country. The agricultural books were mostiy
English, better calculated to mislead than instruct ;
farming knowledge was merely traditional, and of
course mixed up with the ignorance and prejudice of
a more rude state of society. I shaU never forget the
appearance of Varlo's Husbandry, which was brought
in a wagon or horse-cart from Pennsylvania, preceded
a few days by the agent with his subscription paper.
The gentlemen round Boston, and some few in Ports
mouth liberally subscribed. When the book came,
it was soon discovered to be the compilation of an
ignorant adventurer, got up to sell. There was then

LIFE OF JUDGE SMITH. 457
no American Farmer or New England Farmer, no such
treatises as those by Deane, Peters, Bordley, and
many others now in everybody's hands. The gen
tlemen farmers of that day rather brought disgrace
on science than recommended it. Their farming,
remarkable for nothing but the expense, was justly
ridiculed. All things are now changed. No man
can ride through the country without being cheered
on his way by the sight of good farms, well cultivated,
and no less gratified by the intelligence and skill of
the cultivators."
Judge Smith saw even greater improvements in
more important matters. " Among the charities of
this charitable age, there are some every way worthy
of honorable mention ; hospitals for the sick and lu
natic, asylums for the bhnd, and schools of instruction
for those whom heaven, in its righteous dispensations,
has deprived of the gifts of hearing and of speech.
When I take up a newspaper, and find a rich man
remembering the forgotten,' and hearing the cry of
the dumb who cannot speak for themselves, I am
ready to thank God that I hve in a Christian world.
" It is said we like the things of our youth. It is
not so with me. I prefer the present times in most
things. While we Uve in the world, we must take
ih some degree the color of the world as it moves
along. The Persian epitome of the history of man,
' they were born, they were wretched, they died,' is
not true of us. They were born, they daily advanced
in civUization, virtue and happiness, they died and

1 Burke.
39

458 LIFE OF JUDGE SMITH.
were transferred to a new region, where more perfect
enjoyments awaited them. Can we improve in every
thing but morals ; in all things without, but nothing
within ?
• " The little we have sketched suffices to show the
perfectibility, or rather the improvability of our race.
What though we cannot here reach the sunpmit ?
There is a pleasure in climbing, especiaUy where
every step increases the extent of the prospect, and
adds sonrething to the rational enjoyment' of life.
Little you and I can do, but the least mite [cast by
each] into the treasury of knowledge wUl add some
thing- to the general stock."
This was Judge Smith's habitual way of comparing
the past and the present, and it is easy to see how
much, it must have added to his cheerfulness, as he
found himself borne along so far upon the stream of
time. He did not allow himself to fall behind, but,
in his intellectual and social habits, kept up with the
world. He knew, except through translations, very
little of the Continental literature of Europe ; but
kept himself well acquainted with what was going on
in England and the United States. He read the
principal reviews, and added to his library the most
important works as they came oqt. Many rare and
curious books, which he did not care to purchase,
were furnished for his perusal, through the kindness
of his friends ' in Boston, and Cambridge. He en-

1 He was greatly indebted for favors of this kind to .Mr. Charles Folsom
and Mr. Joseph E. Worcester. Writing to one of them for some work, he
says., " If it. cannot now be had (at the bookstores,) I should be glad to
get it on loan from some rich man who has read, or who never reads his

LIFE OF JUDGE SMITH. 459
joyed reading over again the books he had read in
youth.. "I am reading," he said in 1839, "Lady
Mary Wortiey Montague's Works, the new edition.
It delighted ' me half a century ago ; re-perusals of
such works always give me double pleasure — new
and old." But he also enjoyed works that were en
tirely new in their modes of thought and expression ;
as for instance, the works of Thomas Carlyle. He
read " Sartor Resartus," when it first came out, and
found himself as wise as before. But he saw that he
was dealing with a man of genius ; and though he
never became reconciled to the style, his numerous
quotations from- " the History of the French Revolu
tion," show that he had at ' length learned to enjoy
exceedingly the wit, the pungent satire, and vivid
descriptions of that eccentric, but original writer.
His Reviews, as they came out, he enjoyed still more.
"I continue," he says, "the reading of Carlyle's Sir
Walter Scott. The pleasure increases, and I hus
band it as weU as I can, reading but a page or two
at a time. I have taken up Emerson's Concord,.' and
admire it mightily. I shall profit by it." Bancroft's
History he read with interest, but his common-place
book contains severe comments on its doctrines ; not
more severe, however, than his animadversions on
some of the other popular literature of Massachusetts ;

hool?s ; '? and many books were in this way lent to him. His. own
lihrary. Which had' been carefully selected, contained rather more than
four thousand volumes, and cost about ten thousand dollars.
' An Address at the Centennial Celebration at Concord, Massachu
setts, bji-Ralph Waldo F.merson, *hich Judge Smith considered much
the best thing of. the kind that he had then seen.

460 LIFE OF JUDGE SMITH.
particularly some of the orations and reviews which
were so much admired in their day, but which he
regarded as inflated specimens of oratory ; wanting
in purity of taste, and stiU more in sound, practical
judgment. In literature, as in society, there was no
thing which he could not better endure than mere
empty show. He liked works of amusement, and
was wUling to read nonsense, provided it were will
ing to pass for nonsense. But the solemn common
places, which are every man's property by right of
possession, swelling out in a fine drapery of words,
and passing themselves off as something new and
great, were his utter aversion. So too, much as he
loved to foUow an ingenious process of thought when
there was substance in it, he had no respect for the fine
theories, which, whether got up for self-adulation or the
reformation of the world, make such a din in the ears
of our modern society. They gave him, however, no
uneasiness. The world had not been built, nor did
he believe it could be destroyed, by such means.
Thus in his studies he found food for daily thought ;
and instead of lingering, as the half-forgotten relic of
a former age, he went along a living man in the
midst of a living world. " I have felt," he said,
" nothing of that tedium which persons accustomed
to the activity of public or professional hfe frequently
feel in retirement." Having the best thoughts of past
and present times within his reach, he could always,
when other resources faded, retreat to his library,
and there forget himself. " We have had," he wrote
to his wife, " no company, and sometimes I have been
solitary. I then turn afresh to my book again. O

LIFE OF JUDGE SMITH. 461
blessed books ! What would fife be without you ? A
sofitude indeed." In another letter he says, " Rejoice
with me at this reasonable rain. • It is quite refresh
ing to your Ex;eter fields, I enjoy reading such days
exceedingly. I hope they have plenty of good books
in the other world." So he went on to the end, as.
eager in the pursuit of knowledge, and finding as
much enjoyment, and, with his richly stored mind,
more instrurction in books, than when, as a boy, he.
went, 'after his day's work was done, three or four
miles on foot, to borrow some stray volume which he
had heard of.
Judge Smith's interest in the young was one of
the most beautiful features of his character. His
¦ love of children, his power of interesting them, and
his intercourse with the younger members of his own
faniily, have been already spoken of; and mention
has been made of his attention, when oh the bench,
to. young men just entering the profession. In his
situation as president and treasurer of Phillips Exeter
Academy, which, offices he held from 1828 to 1842,
lie was broiight a good deal into connexion with the
students, and it was always a great pleasure to him,
to encourage and help forward those who were dis
posed fo make the most of their advantages. For
several years he used to have some half a dozen
student's, to dine and take tea with him once a week.
He always rejoiced to see in his house a lively, in
telligent boy, and entertained him with as ' much
vivacity and politeness as if he had been a man of
his own age and standing. His house became, there
fore, a favorite resort for many young men. An ex-
39*

462 LIFE OF JUDGE SMITH.
tract from the letter of one ' who had then just en
tered the academy, and whose early death has fixed
its everlasting seal on a life of peculiar beauty, shows
the feelings with which many came from his house.
" This week has been the longest I ever spent. I
think, from the time father left tUl Saturday noon,
I have not kept the run of the days of the week ;
but thought they would never get to a stopping-
place. When I came from school Saturday noon,
after being frightened out of my wits by so many
strange faces and dignified looking teachers, and
found father gone, and Mr. M. gone, and not a single
famUiar face, every body and every thing looking
strange and unnatural, and feeling too that I cared
for nobody, and nobody cared for me, I must say I
felt more homesick than I ever expected to be. I
was really rejoiced to see a mosquito, although he
did come to bite me ; he looked like an old friend,
and I was more glad to see him than I ever was to

1 Robert Swain, bom at New Bed ford, -February, 1823; entered Har
vard University in 1841 ; died at Harrisonburgh, Va., the 15th of June,
1844. It was my privilege to know him through years of intimacy, first
as a pupil and always as a friend. His character, chastened and puri
fied hy a life of sufiering, but at the same time a happy life, presented
an assemblage of virtues exquisitely blended, and unfolding, as death
approached, into an almost celestial beauty. He had, what is perhaps
the rarest of all endowments, that simplicity of mind and heart, which
is so inseparably connected wiih purity of taste, soundness of judgment,
and rectitude of conduct, and -n-hich, when joined to a dehcate mental
organization, and shining out through the lowly and lofty graces of a
religious faith, is among the fairest of all the beautiful things which
God has placed upon the earth. His life was one of continued progress ;
each year witnessing some new and brighter manifestation of character ;
till his whole spiritual nature had become so developed, that, though he
died at the age of twenty-one, his death could not seem untimely to
those who knew him best.

LIFE or JUDGE SMITH. 463
see a mosquito before. But in the afternoon I went
to walk in the woods, and coming back stopped in at
Judge Smith's to pay my tuition, and found that an
excellent place to cure homesickness — they were all
so kind and pleasant, and such a remarkably pleasant
house and grounds ; and then I suppose Mr. M.
would say the young ladies were so agreeable. At
any rate, I have not had an attack of the disease
since, only occasional touches now and then. Yes
terday afternoon I spent at the judge's too. He in
vited George H., who rooms with me, and whom I
like very much, C. H., another boy who boards at
this house, and myself, up there to dinner. We
spent the afternoon and evening very pleasantly.
The judge is the most entertaining old man I ever
saw." Judge Smith's patience in the prolonged visits of
stupid young men, or of boys who, from a feeling of
diflidence and awkwardness, could not get up to go
away, was of the most exemplary kind. I remember
one in particular, a heavy, dull fellow, with good in
tentions indeed, but none the more lively on that
account, who used to caU often upon him, and who
never seemed to know when to depart. He was
poor, and had the most persevering wish to get an
education. As a trustee of the academy. Judge
Smith uniformly voted against assisting him from the
funds of the institution ; but he submitted to his
visits, gave him all the advice he could, furnished
him with money, invited him (as he was boarding
himself,) to come often to his house at meal times ;
though he was all the while dissuading him from his

464 LIFE OF JUDGE SMITH.
attempt to get that sort of education, for which
nature so evidentiy had not designed him. He hon
ored his perseverance, and felt for him ; but could
not in conscience encourage him . in his undertaking.
It was always particularly Judge Smith's- delight to
aid young rnen whom he' found struggling with the
narrowness of their means in the pursuit of know
ledge. He, who prepares these pages, is but one of
those who, when poor, friendless, and inexperienced,
were permitted to lean on him, and who wUl not
cease to bless God for such a friend at such a tinie.
It was not what he gave, liberal and timely as were
his benefactions, that awakened their gratitude. The
manner in which he did it made them feel, not as de
pendents on his charity, but as children admitted to
his confidence, ' and receiving these tokens of his
affectionate regard. The richness of his instructions,
descending into the minute branches of learning,
which at the beginning are so essential to the future
scholar ; the ease with which he entered into the
feelings of the young,- charitably sympathizing even
with their extravagances ; the delightful conversations
by which he introduced them to the great men of a
former generation ; the intense desire for knowledge,
virtue and an honorable distinction among men,
which was kindled by their intercourse with him ; —
these higher obligations, which every ingenuous mind
lejoices to acknowledge, hardly permitted them -to
feel the sense of pecuniary obligation, which so' often
injures both him who gives and him who receives.
There was no subject in which Judge Smith
through life, but especially towards its close, took so

LIFE OF JUDGE SMITH. 463
decided an interest, as the education of the young.
One of his earliest efforts in his native town was to
improve the public schools. We have seen how ear
nestiy, as a judge, he endeavored to impress upon
the community a sense of their importance. In his
later lectures, the diffusion of knowledge and virtue
among the people was still the subject uppermost in
his thoughts. But he was not one of those narrow
men, who would build up our academies and common
schools at the expense of the higher institutions of
learning ; and, notwithstanding the shining excep
tions that are given, he did not believe it wise to
enter upon the studies of a profession without a
college education. To a young man prepared for
the sophomore class, but rather advanced in years for
entering college, who asked him whether he should
not begin the study of the law then, he replied,
" Without a thousand times more knowledge of you
than I possess, I could not advise. Your age is
against the college course. If your object at the bar
is money, then the sooner you enter the better ; little
preparation is necessary. If content to carry your
professional character to a moderate height only, you
may do very weU without college. If your aim is to
be a lawyer in deed as well as name, — to be a libe
ral, scientific expounder of the law, and to enjoy it, —
you can hardly have too much preparation. Six
years of preparatory studies before the study of a
profession, are little enough. I should prefer three
years' coUege and three years' law studies, in almost
any country office, to five years of the latter, even at
the Cambridge Law School. Twenty-five is a good

466 LIFE OF JUDGE SMITH.
age to commence practice ; it was mine, and I- think
early enough. But after all, you must be your oyvn
adviser. The mark you aim at in life must decide.
I have no doubt you can be what you wiU."
With his deep interest in the education of the
young, particularly of those in destitute or inoderate
circumstances, it was to Judge Smith a source of
great regret, that the expenses at Harvard University
should be so great as almost necessarUy to exclude
such young men from its advantages. It does- seem
both unreasonable and unjust, that an institution en
dowed with funds to the amount of more than half
a mUlion of doUars, should set so high a price on its
instructions, that its charities, (and all its funds are
charities,) can be of use to few except the sons of
rich men. The great body of. those who seek a lib
eral education, the sons, for instance, of intelligent
farmers and mechanics, are thus in a great measure
shut out from its waUs, and the coUege is deprived
of the presence and example of those, who, bringing
with them less expensive habits, and having every
inducement to improve themselves, would kindle the
zeal of others, and give character to the institution,
and who, returning home when they had finished
their course, would awaken through the country a
new interest in behalf of the college. Its well-being,
thus identified with the cause of education through
out the community, would soon come to be more
generally cherished and advanced. Instead of being
a sort of high school for the sons of rich men in Bos
ton and the neighboring towns, it would become a
true university, entertaining, with an enlarged hospi-

LIFE OF JUDGE SMITH. 467
tality, those who have only character, talents and a
thirst for knowledge to recommend them; and by
means of them dispensing its instrtictions through the
whole land. On none would the influence of such a
state of things be more happy than on those classes
who now usually resort to it for their education. In
taste and knowledge, in its instructions' and intellect
ual requirements, such an institution can hardly raise
itself too high above the community at large ; but it
can hardly open its arms too wide to receive and
cherish aU, of wha,tever class or condition, who would
avaU themselves of its advantages. If its present
funds cannot be so applied as to lessen the evil at
Harvard University, is it not a matter worthy to be
commended to those who would be among its best
benefactors ?
Judge Smith was so much interested in this mat
ter, that, when without -children, it was his intention
to leave a considerable part of his estate for the foun
dation of scholarships at Harvard University.' About
a year before his death, he wus applied to through a
common friend, by a gentietnan of large means and a
larger heart, for advice respecting the endowment of
an academy, in the hope that it might " render essen
tial service to some poor boys of future time." After
' His plan was to leave, say, an annuity of one thousand dollars for.
.six scholarships — this sum not to be doled out as a reluctant- or
degrading charity, hut as a reward -and encouragement to the most
deserving arhong those who might not otherwise he able to support
themselves. At th« Abbot Festival, it was proposed by many of Dr.
Abbot's pupils, to-endow a scholarship of this kin(J to be called by his
name. No more fitting monument could be raised to the memory of an
honored instructer. May it not yet be done 1

468 LIFE OF JUDGE SMITH.
specifying some particulars which it is not worth the
while to introduce here. Judge Smith said, as appears
from a rude draft of his letter, " I would not have it
limited to the blood or kindred of the donor, or to
natives of particular places, but to bright boys within
certain ages. My experience is in favor of fourteen
to twenty. I wish Mr.  would extend his views
beyond charity scholars, in and during their stay in
the academy, and do, on a large scale, what I once
intended on a small one — found several scholarships
in Harvard College ; the academy trustees to select
from their students at the beginning, and the college
to have a voice in continuing them. This is the best
of all charities ; the object the best and the most use
ful, and the most hkely to be faithfully executed.
" It would add, I really believe, to my joys in
heaven, if haply I may find myself there, to look
down on a number of fine young men, increasing in
knowledge and virtue on my honest earnings. This
good feeling sometimes almost excites regret, that
other objects command the whole of my scanty
means. Have the goodness to express to Mr. 
my best wishes for his health and happiness here and
hereafter, and to believe me, as in the many by-gone
years, your sincere friend and obedient servant."
The sort of interest Judge Smith took in young
ladies, may be seen in part from his letters already
given. The three, to whom he was most attached,
and with whom he corresponded most freely, were
Miss Ellen Smith, the daughter of his brother Sam
uel ; Miss Lowe, a niece of Mrs. Smith's, and Miss
Hammond, of Boston, a young lady whom he first met

LIFE OF JUDGE SMITH. 469
whUe on his journey to the south in 1836, who was
afterwards the intimate friend of Mrs. Smith, and
came more than once to watch with the judge during
his last Ulness. No kind of social intercourse can be
more pleasant, or more useful to all concerned, than
this union of youth and age — the old man cheerfully
imparting his gathered stores of wisdom, and enriched
in return by that which softens his austerity and keeps
ahve his better nature. He becomes, then, in his
affections, like the evergreen on which, as the old
leaves drop off, new leaves are formed, and it contin
ues crowned with greenness through the year. Some
further idea of what this intercourse was, may be given
by further extracts from Judge Smith's letters.
To Miss Ellen Smith. "Exeter, 14th March,
1839. My dear Ellen : I am sure you wUl be sorry
I have so good excuse for not writing. I have been
for the last ten weeks more than usually indisposed.
My cough in the first half was quite distressing. It
is now quite gone ; but I am less relieved than at any
former period within my remembrance. My cheer
fulness did not forsake me. I longed for you to
nurse me, partiy on account of your own merits, and
partly because it would relieve Elizabeth, who had
too much on her hands. The dear Jeremiah burnt
both his hands on the cook-stove sadly ; he bore it
like a man, and is now quite well and happy. Eliza
beth has been much as usual, but is now a good deal
indisposed. Mary Lowe has come to our relief, and
we shaU all, I hope, do quite well very soon. How
have you spent the winter ? I hope not unpleasantly.
I believe you are happy on less means than most
40

470 LIFE OF JUDGE SMITH.
other people. By means, I must refer to externals,
for in the better sort of good things you abound. A
disposition to be pleased, especially when we have
plenty of duties to perform, is, next to religion, the
best of heaven's gifts.
" I long to hear particulariy of our Peterborough
friends, and you are my only reliance. Your last
letter was admirable in gossip and kindness ; and re
member you must not change, on perU of incurring a
diminution in my love. I am pretty sure I should
be the greatest sufferer. I have heard it said that
age blunts our kindly affections ; I do not find it so.
" I forget whether you were particularly acquainted
with my favorite Eliza Odiorne. She has lately lost
her lover — was at Amherst, Massachusetts, at the
time. I hear she bears it well — like a woman —
the phrase will, I hope, get into use.
" This is a very stupid letter, but don't, dear El
len, ascribe it to loss of mind, and especially of heart
youward. I wUl do better the next time. With
my love to your father and mother, and the Miss
Morisons, believe me your affectionate friend."
To Miss Ellen Smith. " Exeter, Monday, May
27th. You are not to suppose, dearest Ellen, that I am
not thankful for your letters, because I do not immedi
ately answer them. The neglect, assuredly, never arises
from want of love for you. I owe you for two let
ters : this proves my willingness to be in your debt ;
yet this is the only sort of debt I am •wUling to owe.
Every expression of your regard gives me pleasure ;
and this is one of the few things whose value in
creases by repetition. How kind it is in Providence

LIFE OF JUDGE SMITH. 471
to give me such a correspondent, when so many friends
and relations are gone to distant places !
" I flatter myself it wUl give you pleasure to know
that I am in the enjoyment almost of my usual
health ; but a littie more sensible than formerly, by
how slender a tenure I hold this greatest of earthly
blessings. I must regard it merely as a present good
— enjoy it as such, ready at any moment to part with
it. It would be unreasonable in me to expect rugged
health at this day. I wish your father's was as good,
and as much better as you could desire. I am glad
to hear that your mother is so well. At this moment,
EUen, it would give me great pleasure to look into
your cottage on the hill-side. I could say a thou
sand things not important enough to commit to pa
per. But in such trifles consist many of the pleasures
of life : you need not be much surprised, if in the
course of the three or four coming weeks, you should
see your aunt and myself in Peterborough. There
is nothing in which we (Elizabeth and myself) agree
better than in love for you.
" Would you were here, Ellen ! We promise our
selves fine weather after the cold and dull we have
had — come and help us to enjoy the good. We have
had no blossoming in the garden ' to speak of.' In
general, I am as littie dependent on the weather as
most men ; but owing perhaps to the remains of in
disposition, I have felt it a littie. I could, perhaps,
in that weather, have enjoyed a little French or Latin
with you.
" Have you heard that your friend Miss  is
going to instruct in an academy at  ? and it is

472 LIFE OP JUDGE SMITH.
said the situation was procured for her by Mrs.
Walker. Is there to be no end to the good deeds of
that woman ?
" Mrs. S. thinks you would find Mad"- de Stael's
French Revolution in for a good book. We
have it in French and English — separate books,
which are at your service, if not to be found with
you. Possibly Mr. Leonard may have the work. I
have been reading the Pickwick Papers, by Dickens.
He keeps me excited all the time. He is my knit
ting-work ; but I do not recommend the book to you.
You wUl read Oliver Twist with pleasure, and Nich
olas Nickleby, when all out. I recommend the first
volume of Washington's works — Sparks. It is his
Life, and I think exceedingly well done. Mrs. S. is
engaged in reading Taylor's Home Education, and is
much pleased with it ; from the passages she reads
to me, I agree in the commendation. There never
was a time when advice as to the choice of books
was more necessary ; there are so many, (and floods
of trash) in circulation. Need I say, dearest Ellen,
that I take pleasure in conversing with you, and that
I give full credit to your polite declarations, desiring
me to write long letters. I need not say that Eliza
beth and Jeremiah, Jr. send their best love, and that
I am yours, very affectionately."
About the middle of June, 1839, Judge Smith
went in a chaise with his niece, Mary S. Lowe, to
Hanover, which of course took him through nearly
the whole extent of New Hampshire. It was a road
which he had often traveUed in foi mer days. —
" What ravages," he said in a letter to his wife, dated

LIFE OF JUDGE SMITH. 473
June 21, " twenty years have made among my friends
and acquaintances on this route ! Well may we say
' I would not live alway ! ' I believe I find it as easy
to make new acquaintances as most people, but even
with me, tempora mutantur. ' Blessed is he that ex-
pecteth nothing, for he shall not be disappointed.' "
Two days later, from the same place he wrote : " I
have escaped an unlooked-for calamity. Last even
ing a committee from the senior class waited on me
at Dr. Lord's, requesting an address to the students,
&c. I declined on the pretence of want of time,
health, &,c. ; in truth, want of something to say, and
a littie awkwardness at this day in the saying of that
nothing. Whether I satisfied the applicants or not,
I can't say, but I am sure I have made a saving of
character. I was in some measure governed by my
regard for you and Jeremiah, to save you from the
mortification, twelve years hence, when you come up
hither to enter the boy, of hearing the address dispar
agingly spoken of. There 's a prudent man for you."
E,xtracts from a letter to Miss Ellen Smith. "Ex
eter, July 3, 1839, Wednesday. Mary and I had a
delightful ride on Monday. It delighted me to travel
on the new road — an exceUent one — and Mary
to see the greatest display by the sides of the road of
the laurel in fuU blossom, the largest bushes covered
with tops of beautiful white and pink. We saw, for
miles, enough to fill your large church twice over.
You need not believe me ; I am afraid I should credit
nobody's true account. Mary loaded the chaise, and
her only regret was, that she could not take them all.
We reached Derry in good season, and the next
40*

474 LIFE OF JUDGE SMlTEf.
morning had a pleasant though warm ride home.
We found the family very well and very happy.
Jeremiah knew and kindly received us — never
better. If you were with us, the measure of our
happiness would be complete, bating the dear Eliza
beth's absence.
" Mary wUl stay, I hope, till the mistress comes.
So far all good ; but 1 find myself a good deal indis
posed and a little feverish, and have just sent to Dr.
Perry for something to make me well.
" I do not know that I ever enjoyed more tranquU
pleasure on an excursion in all my life. I almost
believe I have a good tolerant spirit. How much
Mary may claim as the procuring cause, I cannot
say ; I am sure my dear Ellen may claim a good
share ; and may it continue so to the end of the
chapter, whether the same be longer or shorter. I
cannot but rejoice that I enjoy so much from the
good things in my aUotment, and suffer so little from
the annoyances and evils of life. ... I am not sen
sible of any great faUure in these respects ; but in
the capacity for bodUy labor, the case is different.
A little exertion fatigues me."
" Thursday morning. How I pity the poor, lonely
old bachelors. After forty no man should be single,
nor woman either. Do you know I am puzzled to
account for Mr. B.'s visit at your house Sunday even
ing ? Coupling that with the house, contiguity, &c.,
I am in a maze.
" We have lost Mary. Her brother wrote her to
attend a picnic at South Berwick to-day, and she
could not resist. Ednah would be there. For
Ednah, read some favorite beau.

LIFE OF JUDGE SMITH. 475
" I write, dear Ellen, because it gives me pleasure.
I can hardly hope it will give equal pleasure to you ;
but if it gives you any, it is more than worth the
trouble. This is not a proper word. But there is no
mistake in saying, I am your sincere and affectionate
J. S."
In the summer of 1838, Judge Smith delivered a
centennial address in Exeter, at the close of its second
century. He had spent upon it much time and labor.
" It was," he said, " never a favorite with me. I
have not been disappointed to perceive that the
hearers have adopted the same opinion." It was
probably (for I have not seen it,') too much taken up
with details for a popular discourse. The next sum
mer he was requested to deliver an address at the
first centennial celebration in his native town. He
had been born within twenty years of its earliest set
tlement, had been personally acquainted with most of
its original inhabitants, and had more knowledge of
its history than all other men and documents com
bined. In his reply he said, " I have given much
consideration to the request your letter contains, with
a strong desire to gratify my earliest and most con
stant friends ; but feel myself constrained, as well
from considerations regarding them, as myself, to
decline. I have little confidence in my own physical
strength for such a service, and at any period of my
life should have required a much longer time than is
aUowed for preparation. This is a case where there
1 After having been nearly seven years in the hands of a printer, it is,
I understand, to appear at last in the Collections of the New Hamp
shire Historical Society.

476 LIFE OF JUDGE SMITH.
may be too much seniority," &c. In a letter written
a day or two later, to Miss Ellen Smith, he said :
" I can remember the time when nothing would have
promised me more gratification than such a service ;
but Peterborough has departed from me and from its
place, never to return. I hope the Grand Monadnoc
will have the goodness to keep its place as long as I
live." Most of the generation with which he had
been connected, and all of those to whom he had
looked up as his seniors, were now gone ; and it
must have been a melancholy task for him to stand
amid strangers in his native place, to discourse to
them of those his early friends, who had now, except
a few feeble and gray-haired relics, all passed away.
I insert the following letter, as indicating the sort
of feeling with which Judge Smith looked back upon
the past, and especially on account of the subdued
and tender interest which it shows he still took in the
family connexions of his first wife.
To Miss Margaretta A. Ross. " Exeter, July 29,
1839. My dear sister: I am glad to find myself
seated at my table in the library, resolved to acquit
myself of some portion of the debt I owe you. You
have been very good in writing so many kind letters,
and I evil and apparently unthankful in not oftener
acknowledging them. This has not, however, arisen
from want of affection and esteem for you and my
friends with you. I fear I am growing worse as I
grow older. I was not in former times, say before the
last twenty years, a negligent correspondent. I then
quitted business, and am, I fear, since less punctual ;
but for the future I will try to do better. You must

LIFE OF JUDGE SMITH. 477
not impute my neglect to your new sister. Her in
fluence is all the other way. I assure you she knows
a great deal of your family, and esteems you all,
especially the female part, as you would desire. I
have been, as you know, in the habit of preserving
the letters from my friends, and have some drafts and
copies of my own. My whole correspondence with
your dear sister Eliza is on file, and so with Ariana.
I wish it were larger ; for it is exceedingly precious
to me. I have also very many letters from relations
and valued acquaintances, male and female. During
the last winter and spring, Ehzabeth and myself spent
aU our leisure days in reading them. It was pleasant
to us both, and Mrs. S. is now the better informed of
the two in my past life and in the history of your
family. You, even you, can hardly conceive how
perfect she is in the peculiar character of our late
sister, H. M. R. You know how weU and minutely
and impartiaUy, too, she describes things ; and woe to
the subject of her letters, if they happen to have any
fauhs. It is a chance if we do not hear of them.
She and her daughter Elizabeth, that used forty-
three years ago to sit on my knee, died, I think,
before my dear Ariana. If her sons partake at all of
her energetic character, they must succeed in life."
After some details respecting his infant son, Judge
Smith adds : " You are aware that I am upon the
eve of fourscore, and do not expect to see him edu
cated ; but he is in good hands, divine and human,
and I have no anxieties on this or any other score.
The same kind Providence that has watched over the
parents wUl not forsake the child. I wish you could

478 LIFE OF JUDGE SMITH.
see him ; I am sure it would give you pleasure. You
have not probably forgot the dear child who was
drowned in the Littie River, Oct. 14, 1808. I can
sympathize sincerely with your sister and niece in
the deaths of beloved children, and most of aU, with
Mrs. Stewart in the death of her only child Elizabeth ;
and though her death happened twenty-four years
ago, she still lives as freshly in her mother's remem
brance, as my daughter, who died ten 3'ears ago, does
in mine. I know not whether it is peculiar to me,
but all my recollections of Ariana's person, character,
and whole being, have ever been sweet, and I hope
salutary to me.
" I suppose you have not heard of Mrs. Tenney's
death. She was born April 7, 1762, and died May
12, 1837, in her seventy-sixth year. The present,
as did the former Mrs. S., highly esteemed her.
You have not forgot that our neighbors did not do
her justice. She was always in the habit of intimacy
with us ; towards the end her visits were frequent,
and there was no abatement in her powers of mind.
Her sickness was but of a few days' duration, and
she met the last enemy as a Christian should. She
had joined our church probably after you left. The
Doctor' died twenty-one years before her. Now
that I am speaking of deaths of fiiends, I would add
that of John Rogers, the cashier of our bank in your
day. He died two years ago of general debility.
Was it you or Nancy that went ^vith me to Roches-
' Dr. Samuel Tenney, a man of talents and integrity, and particularly
interested in scientific pursuits. He had been a representative iu con
gress, &c.

LIFE OP JUDGE SMITH. 479

ter, thirty mUes, with Miss M. E  and N. G-

the latter to meet her lover ? He is now a judge of
the supreme court in Maine, a rich man. The Mrs.
TUton, of Rochester, to whom the visit was made,
died about two years ago, without children — a valu
able woman. Miss Emery stiU remains in the state of
single blessedness, with a lively, cheerful temper, and
prudence, which makes a small sum, chiefly of her
own earning, adequate to her support. She is now
one of my Elizabeth's most intimate friends.
" Our village is so changed in twenty years, that
you would hardly know it. It is much improved in
appearance, society, and comforts. I wish you could
have a walk in our alleys, garden, &c. You know
your sister defighted in planting ; we have plenty of
shade, chiefly of her making. Our household is not
very large. M. J. S  , who claims descent from
the late W. S  , is just fifteen. I took her into
the family seven or eight years ago. She is in the
way of getting a very good education, is a handsome
and bright girl. My object was to repair, as well as I
could, the injury done by her father. You may judge
somewhat of Mrs. S.'s disposition by her kindness to
this young lady.
" Mrs. S.'s nurse in her last sickness, and house
keeper, and who died in the famUy, an exceUent
woman, left a son, now sixteen. I have sent him to
the academy. He is a bright boy, and I hope wUl do
well. My three deaf and dumb nieces are occasion
aUy with us, and are charming, well-educated women.
Mrs. S. is fond of society ; we are seldom without
agreeable visiters. I did not allow myself to live

480 LIFE OF JUDGE SMITH.
above my income, even when without children. In
that situation I intended to found two or three scho
larships, for the maintenance of scholars at the univer
sity. You wUl not understand from this that my
means are large. I never coveted riches, and what I
have is the income from my profession, interrupted
by serving in congress and on the bench. I have
been always an economist, and would be so if I had
my life to lead over again. My feelings towards you,
Mrs. S. and Mrs. R., are such as I endeavored to
express in my letter of 1833, and I shaU be glad to
receive at all times the most unreserved communica
tions from you. Give my best love to the other two,
and accept for yourself my kindest and most affec
tionate regards, in which Mrs. S. most heartUy joins
me."

CHAPTER XVII.
letters  advice to JOEL FURBER  JUDGE SMITH
SELLS HIS PLACE AT EXETER  RESIDES IN DOVER
 RELIGIOUS VIEWS AND CHARACTER  LAST ACTS
 SICKNESS  DEATH.
Judge Smith got through the winter of 1839-40
without any recurrence of the attack from which he
had suffered the winter before, and found himself in
the spring unusually well. In a letter to Miss Ellen
SmUh, after speaking of the death of a child in
whom they were interested, he says — " We seem to
live in a world where sorrows and joys are intermix
ed, and perhaps the one is as necessary as the other.
. . . How are yoiir good father and mother ? Are
we never to see them again ? As the circle of friends
narrows, our interest in those within increases, so
that we have the same portion of kind feelings to
soften the rugged scenes of life. ... It is said we
love our friends best when they are dead ; their thou
sand merUs then break forth, &c. I don't know how
this may be. I am not sure we don't love them best
at a distance. Their merits take a prominent place,
and their faults sink in the distance, and yet how can
41

482 life of JUDGE SMITH.
this apply to you who have no faults, and are besides
always present with me, and whom I love equally, at
aU times and in all places ? I believe we are made
up of contradictions. However that may be, without
contradiction and without paradox, I am, as always,
your affectionate friend, J. S."
Extracts from letters to Mrs. Smith. " Exeter,
June 18, 1840. I received (in a visit to Boston) all
the attention I would allow, and enjoyed the rides all
round exceedingly. You know I love the earth as
well as its productions. I love the vegetable as weU
as the animal kingdom, in an inferior degree, how
ever." June 24. " My friend  and his wife,
from the insane hospital, have just gone. She seems
the more rational of the two, and is a very pretty
woman. They are very poor, and I pity them, and
have done my best to make a few hours of their
life as pleasant as possible." June 27th. " The last
part of your letter, — •' I am quite comfortable this
morning, and feel that I am getting better,' — is very
good ; but you do not know how much you lose.
Our place is beautiful — never better. You will lose
a year ; but I suppose you are saying, ' Elizabeth,
thou hast many years in store,' &c. Heaven grant it
may be so. Jeremiah is very well — happy as a
prince. We get along very well. If either of my
three favorites, Mary, Ellen, or the dear Sarah, were
only to come, I should be too happy. But I wUl not
let my enjoyments depend too much on others, and I
recommend the same to you. I have no doubt we
can, if we wUl, cultivate this spirit of independence.
You think I have too much of it ; experience has

LIFE OP JUDGE SMITH. 483
taught it me. It only means non-dependence on
the weak and wayward. There is no danger from
dependence on the wise and prudent few." " I hope
my friend did not use my name in his applications to
your friends. He spoke of taking Dover in his way
home. I suspect the spunging was his sole object.
God forgive me ; but I never liked beggars. I do
not see why he cannot earn his living. His style of
asking is that of a practised beggar."
" August 3. I attended church this forenoon, and
apply myself this afternoon to Robert Hall. The
dead man preaches better than the living one. My
printed sermons are always far better than any I
hear. This is one of the few subjects in which I am
willing to differ from you, because I would not lessen
your enjoyments  4th. I think I shall go
through the whole volume ; and yet such reading
tends to make me less satisfied with the preaching
and society of less gifted men. . . . He was certainly
a man of genius. How few such in his profession !
And how fortunate that it is so ! They are not safe
guides, and cannot be happy with a stupid people,
which truly characterizes the bulk of mankind."
To Mrs. Walker. " Sept. 22, 1840. A few days
only have passed since we heard of the death of your
much loved son. From the reports of his case that
had reached us, we were not taken by surprise.
Ever since we understood his case, we have felt in
tensely for you and all the survivors, but most for
you. The closing scene must have been to you a
merciful, though a painful one. I have not forgot
my feelings on a similar occasion, and I hope your

484 LIFE OF JUDGE SMITH.
better heart does not, as mine did, for a short time,
indulge in murmurs against the hand from which
these calamities come. We must not attempt to scan
the causes of these severe afflictions, but content our
selves with the belief that all is wise and just and
good. It is wisely ordered that your own reflections
wiU gradually bring the comfort and consolation you
need. A friend can sympathize, and that is not
without its uses ; but the afflicted soul must bear the
sufferings alone. I pray God you may have the con
solations which he can, and friends cannot, bestow.
You will soon learn to appreciate as a comforter the
excellent worth of the object taken from you, and the
resignation and Christian feelings of the dear sufferer.
We must, and so I thought in my case eleven years
ago, believe in the influences of the Divine Spirit on
the mind of the dear sufferer. Without this, it is
impossible to account for what you must have wit
nessed in your son.
" But, dear Sarah, though we cannot bear your
afflictions, we are desirous of having you with us,
that we may do all we can to alleviate them. The
bustle of the summer is ended and gone ; we shall-
soon part with Joel, who goes to St. Louis in three
weeks ; our famUy wUl be small, and we have room,
plenty and quiet. Elizabeth's health I think better,
and she is relieved from her attendance on her
mother, who is now much better. My own health
was, I think, never better, and it is no part of a wise
or a religious man to let these good things pass unen-
joyed. I can think of nothing to add to mine so
much as your society."

LIFE OF JUDGE SMITH. 485
Joel Furber, who is referred to in this letter, and
of whose short life a sketch has already been given,
left Exeter for St. Louis, the 10th of October, 1840.
The. paper of advice which Judge Smith gave at that
time to this fatherless and motherless boy, is so full
of wise instruction, the fruit of many years' experi
ence, and is marked by so warm and kind an interest,
that I insert it here entire, both as a guide to other
young men, and for the honor which it throws back
on him who wrote it.
To Joel Furber. " In May, 1837, from respect to
the memory of your mother, and from an opinion that
your capacity was a good one, I determined to give
you an academical education. I thought, if you
made a good improvement of your time, you might
in two or three years get such an education as might
enable you to go through life in a respectable situa
tion. I did not intend to pledge myself for the fu
ture ; all was to depend on the discoveries time might
make. Hitherto you have not disappointed my ex
pectations, and the time has now come when your
age and education fit you to enter on the world.
' " I shaU furnish you with testimonials of character
and with letters to my friends in the west, to assist
you in finding employment, and with advice tUl your
own knowledge and experience may be sufficient to
guide you. And here it may be proper to say that
your chief dependence under heaven must be upon
yourself. Persons of your age, though not generaUy
wanting in a good opinion of themselves and the
world, seldom realize how little friends are disposed
to do, or indeed can do, to promote their success in
41*

486 LIFE OF JUDGE SMITH.
fife. It is in finding employment, or in what regards
the first step, they wUl be found useful. When your
character and disposition are fairly developed, you
must rely on these to procure you business, and
friends ; too much recommendation and assistance
are sometimes productive of evU instead of good. A
little suffering — difficulties to be overcome — a fittie
mortification from the indifference and neglect of
friends, are sometimes better than their opposites.
"It is indispensable that you start in life with a
correct estimate of yourself. Be sure not to think of
yourself ' more highly than you ought to think,' and
that as regards your personal, mental and moral qual
ities. If you err here, you are sure to be corrected,
and may perchance suffer a little mortification in un
dergoing the discipline of the world's school. It may,
however, do you a great deal of good. It is not my
meaning that you should err on the other hand, and
think too meanly of yourself, and of your powers of
mind, and moral strength. This would discourage
and weaken your efforts. In the journey of life you
wUl need aU the strength you have, and you must feel
that you have it. A low estimate of self might dis--
courage, and a high one beget presumption — both
are alike to be avoided.
" Depend upon it, that vulgar thing caUed labor,
pains, care and diligence, gives better security for
success in the world — indeed, for the acquisition of
everything good, than abifity and learning. In your
academical life you must have seen something of this
value of application ; the register is no index to the
minds and talents of the scholars. The high marks

LIFE OP JUDGE SMITH. 487
are given not to capacity, but to labor, attention and
diligence in study. The world also keep a register,
and adopt the same rule in marking. I hope you
wiU aim at ' 8s,' ' and ' highly creditable.'
" You will find the advantage of the modest self-
estimate I recommend, in the very outset of your
career. It will lead you not to despise employment
as too low for your capacity and merits. Depend
upon it, when you have exhibited to the world the
evidence of your fitness for the highest employments,
you wUl have them. But supposing your estimate of
self to be a proper one, there is another error I have
seen discreet and sensible young men fall into. I
mean the too great hurry to seize the prizes — the
rewards of labor before they are earned. I would
have you earnest, zealous, ardent in the acquisition
of all the good you propose to yourself. You should
have praiseworthy objects always before your eyes,
and diligentiy pursue them — you must never weary
in well-doing, but at the same time you must moder
ate your expectations, and remember that a sanguine
temper of mind is likely to end in mortification and
' disappointment, and so discourage exertions.
" No good thing is obtained without time. The
best things are of the slowest growth. This is the
order of nature, and you can hardly expect nature
wiU change for your special accommodation. I have
myself observed that those who hasten to be rich and
learned, in the end are poor and ignorant. ,
" But there is another thing in which I am not
1 The highest mark at the academy.

488 LIFE OF JUDGE SMITH.
without suspicions of you. I mean an unsteady,
wavering temper of mind. You may have obstinacy
enough when you happen to be in the wrong, but
have you firmness and perseverance enough when in
the right ? I have known persons -not wanting in
judgment, but who were constant in nothing but
changes — ever adopting new courses of business —
trying them for a short space, but not giving them a
fair trial, and then abandoning them for some new
project. This is a very great as weU as a very com
mon error, and accounts for many of the failures in
life I have witnessed. Be slow in adopting your
plans — carefully observe their working, and perse
vere in them tUl your judgment is clearly convinced.
I have seen a laborious and painful life wasted — all
for the want of a little more ' patient continuance in
well-doing.' " I have recommended to you a just opinion of
self — rather too low than too high — but the case is
different as it regards the opinions you form of others.
Here it is better to err on the other side. Charity
and politeness require you should think favorably of
your acquaintance ; and where you cannot do this
be sure to keep your thoughts to yourself. This tem
per of mind is perfectiy consistent with personal inde
pendence and decision of character. You must on
no account sacrifice these. There is a satisfaction in
them which the wavering, and unsteady, and infirm
of purpose can never know.
" As a youth, your deportment, as far as I know,
has always been distinguished for modesty and civil
ity, especially towards the aged. When I see the

LIFE OF JUDGE SMITH. 489
reverse, as I often do, I augur ill of the youth : and
have seldom seen him grow into a respectable man.
" It is, perhaps, strongly enough expressed already,
that I would have you active, industrious, wide awake.
You have hitherto hardly had an opportunity to test
your active powers, mental or bodily. I hope you
have a good share of them. There is now a call for
them. You must now depend on yourself, and be
assured if you sleep you perish. You wiU at first
find yourself a little awkward in your new situa
tion — no one to advise — to remind — to direct —
no arm but your own to lean on. I have seen young
men so situated, pursue different courses : one class
girded themselves for the race — put out aU their
strength, and though from inexperience committing
many errors, yet daily rising in the world, and finally
attaining a high character and a respectable place in
society ; — the other class, from timidity, love of idle
ness or from something worse, soon sinking into dis
grace, and becoming members of that class, who
prefer living upon others, to earning a living for them
selves. Idleness is the ruin of more young men than
any other sin that besets them, or than all others put
together ; indeed, it is not long a single vice. It
draws after it a thousand others. The idle feUow
must have company, and his companions wUl be sure
to be idle fellows like himself The excitement of
drinking, if excitement it may be called, will soon be
resorted to, and every other kind of dissipation wiU
soon be added thereto. When I hear you are idle- —
destitute of employment — are rambling about from
place to place under pretence of seeking it, I shall

490 LIFE OF JUDGE SMITH.
have before my mental eye a complete map of your
whole hfe. I shaU see the end of the man. in whose
welfare I have taken so deep an interest. It must
needs be that you wUl come in contact with the dissi
pated. Shun them as you would persons infected
with the plague. You must have seen in the acad
emy many young lads of good parts, who have suf
fered disgrace from this cause alone. It has always
appeared to me wonderful that idleness should seduce
any one. To me it has seemed ever odious and dis
gusting. A lazy man is my utter aversion.
¦'•' On reading this to !Mr=. Smith she desires me lo
add to the catalogue of ' the evitanda,' the dangerous
practice of running in debt. She would have you
avoid debts as you would any other kind of servitude.
I have known many ^vho might justly ascribe their
ruin to this practice. It includes (and I would have
you exclude) all kinds of speculation. Get what you
get by honest labor and honest business. A littie
thus gotten is better than a mickle got by specula
tion. This has always been my way of thinking. I
believe I never speculated to the amount of a single
dollar, for which I desire to be thankful to a kind
Providence. ¦'¦' I recommend to you early to acquire the habit of
economy, whether your gains or means be great or
small. Indeed, in this way a smaU estate answers
all the purposes of a great one. And connected with
this, I would have you cultivate habits of order and
care in aU your business and concerns. The way to
grow rich is not by earnings, but by careful keeping
and prudent spending.

LIFE OP JUDGE SMITH. 491
" I have said nothing of religion and good morals.
Attention to them is indispensable. You cannot do
without religion ; and if, haply, you find the right
sort, your morals cannot fail to be pure and good.
" I can only add that as to these loose hints, drawn
up without any regard to order or method, I expect
Uttle from them. I rely much more on your own
good sense and good habits to conduct you in the
paths of wisdom and prudence.
" If you have any desire to repay the little I have
done for you in the last fifteen years, there is no way
in which you can do it so much to my satisfaction as
by continuing to act wisely and discreetiy for your
self. " Be an honest and virtuous man, and I shall be
proud of you, and continue to pray that God may
bless you and preserve you here and hereafter. 1 st
October, 1840."
To Mrs. Smith. " Tremont House, Boston, 16th
May, 1841. Sunday, P. M. My dear wife: Mr.
F. called immediately after dinner, and deprived me
of the afternoon service. He is just gone, and I de
vote half an hour to thee. I am sure it is spending
my time well, for there is no evil connected with so
pure a subject. I heard an exceUent sermon this
morning from Mr. G., on the evUs and dangers of
wealth, and rejoiced that I was safe on that score. I
am not sure I should maintain my integrity when
tempted by riches  I find not a single com
panion in this great house of eighty or a hundred.
The city is as quiet as the grave. These two days
have refreshed me mightUy, and I am very, very well.

492 LIFE OF JUDGE SMITH.
.... I find I have lost all my ambition. I used
to desire to make a favorable impression on my Bos
ton friends. Now I am quite indifferent — not that
I love them less, but myself more. I believe age is
selfish. There is little to stimulate desire ; but I do
not love you the less, and shall appreciate Exeter the
more from this little excursion."
To Miss Ellen Smith. "Exeter, 29th October,
1841. Only think, dearest Ellen, I have not seen
you for a whole year, and how great a proportion
does this same year bear to my whole life to come.
The tables of fife give a fraction only above three
years, and it may prove less than three days. I beg
you would consider this seriously, (for it is a serious
thought,) and act accordingly. I suppose there is
nothing strange in the fading away of my desire for
locomotion. I certainly intended to visit Peterbo
rough in the autumn. The indisposition of my friends
with you, as well as my own prevented, and I have
now half persuaded myself that all old creatures are
best at home. Perhaps my conclusion, that there
fore you must come here, is not strictly warranted by
the premises. I have a fancy that I am most agree
able at home. Come then, my dearest EUen, and
make us happy, if only for a month. Leave all your
duties and cares with Sarah. Your modesty wiU not
allow you to think these duties will be worse dis
charged. The more I see of her, the less I should
be inclined to fear it. It is, besides, selfish in you to
engross all these amiable virtues. Let all your friends
participate in your enjoyments. A good lawyer
would make more of the argument. Think of the

LIFE OF JUDGE SMITH. 493
pleasure you would give Mrs. Smith and Jeremiah,
and how useful your society would be to Jane."
" I ought, my dear sir," he said to another corres
pondent, 13th November, 1841, "long since to have
acknowledged your letter. This duty has often been
in my mind, but its effectual performance depended
on another thing, and that has been neglected. It
jg indeed a poor excuse for neglecting this, and yet,
somehow or other, when we have two connected du
ties to perform, we are apt to neglect one because
we have neglected the other, and feel easier under a
double than under a single fault."
In a letter to Mrs. Smith, written about the same
time, after mentioning some unkind words which had
been spoken years before, he adds : ". Provoking this,
and now remembered. Would it not be for the
peace of the world to have an act of oblivion passed
every six years, corresponding with our statute of
. limitations ?  was to deliver a caucus speech,
&c. How much good temper have I gained or kept
by the little interest I have taken at all times in poli
tics. I suppose I could not have done it, if I had
not taken a great deal of interest in something else,
that was, my profession and a moderate provision for
age and famUy."
To Miss Lowe. " 22d January, 1842. My dear
Mary : I was sick, and you visited me not.
" The contrast. Three days ago, when alone in
my room, and engaged in adorning myself, my
eyes on the glass, a female figure entered, and
seated herself on the other side of the table. I sup
posed it was Jane, dressed for the village, and wait-
42

494 LIFE OF JUDGE SMITH.
ins for my commands ; but a second glance showed
a figure and dress of higher pretensions — the person
a stranger. My curiosity was a littie excited, and I
addressed the beautiful unknown. She spoke in a
disguised voice. I begged her to remove the veU,
which she did, and behold S. S. H. stood before me.
She had heard the day before that her friend, the
Judge, was sick ; her call was the consequence. She
found her friend relieved from the first indisposition,
but =0 blind with sore eyes, that he could hardly see
the bright vision before him. She returned the same
evening. •'¦Marv was 'intending to write sooner; doubts
whether she will be able to stay away three months
longer ; her time is now wanted to read novels to Miss
C.,' &c. These are my female friends. Your sex,
you know, is a thousand times more compassionate
than mine. For your, read some of your sex ; for
example, Ellen the good. ' I was up this morning
long before the sun, that I might write you before the
mail goes out. I regretted exceedingly to hear that
you were afflicted with another of your severe colds.
How much 1 wished to be with you, and particularly
at a time when I could be useful to those I love.'
Was it not Mrs. ^I. who said ¦' there is a difference
in women ? ' I wUl not offend asrainst mv judgeship
by a hasty decision. The appearance of things, as it
regards affection, is certainly £igainst my Mary. But
no doubt, (at least I am willing to believe so,) she
has good reasons for her conduct. I have been reaUy
and truly sick, and my eyes yet leave me entirely at
the mercy of Elizabeth and Jane for food for the

LIFE OF JUDGE SMITH. 495
mind. They are very, very good, but both afllicted
wUh bad colds."
To Miss Hammond he wrote, January 24 : " How
shaU I thank you as I ought, for your visit of
Wednesday ? If good acts carry their own reward,
you must be doubly happy. I am, in consequence,
quite weU, with the exception of two eyes, that have
already seen their share of earthly good."
On the 7th of February, 1842, Judge Smith sold
his place in Exeter, possession to be delivered the
1st of AprU. To some of his friends, it was hard to
think of the alienation of an estate which had been,
in their minds, associated with him for so many
years, and made sacred to them by the memory
alike of the fiving and fhe dead. He thought him
self indifferent to the change ; but in this respect I
do not think he understood himself. In a letter
written a few days before the bargain was concluded,
he said : " Everything goes on as it should. The
nights are not quite so weU. I do not sleep. The
meditated change in domicil, in spite of my fixed,
stayed, and approving judgment, wiU, against my
wiU, keep me awake after the first sleep." His
reasons for what he had done, are best given in his
own words. In a letter to Miss Hammond, February
10, 1842, he said : " My dearest Sarah : I need not
attempt to say how much I am gratified by yours of
the 8th, this moment received. I was at the time
about to sit down to write to you, and tell you what
I had just done ; something of importance to me,
and more to my Elizabeth. The law (of nature)
says, that my lease of life must expire soon, very

496 LIFE OF JUDGE SMITH.
soon ; and wisdom, divine and human, says ' Set thy
house in order, for thou shall surely die.'
" You know I am happy in my dwelling, and that
I desire no change, especially when you are in it ;
certainly none on my own account ; but it would be
a great shame in me not to have the most lively, as
well as the most kind regard, for those of my family
who will doubtless survive me. Solely and entirely
on their account, I have sold my house and farm,
and am to surrender possession the 1st of April com
ing. ' To what place are you going ? ' I hear my
Sarah ask. I cannot tell. To a hired house (the
apostle, you know, lived in his own hired house,)
here ; and in due time a snug little cottage in the
village, to my native place, or to Elizabeth's native
place and her father's house ; so far is decided. To
which of the three, 1 have left entirely to Elizabeth,
and I have no doubt she will decide wisely. To
me place is indifferent, so it be with my nurse and
child." To Miss Ellen Smith. " Exeter, February 20,
1842. My dearest Ellen : This is not a letter, but
a few lines to explain to you the reasons of my
selling the house over our heads — to quit 1st April.
It was not because I was dissatisfied with it — it was
exactly what I had made, and exactiy to my mind —
but solely because I thought it would trouble those I
leave behind. For the same reasons I left it entirely
to Elizabeth to say, where she would nurse me in the
short remainder of life, and for the present she fixes
on a part of her father's house at Dover, and thither
we go in about four weeks. The other alternatives

LIFE OF JUDGE SMITH. 497
«
were to build a small house here or at Peterborough.
This is the second wise thing I have done in my long
fife. The first was to leave off business at a proper
age (sixty) ; and this, to consult at a slight expense
to myself, the interest and happiness of those dear
to me, now and in all time to come. This removal
wiU, of course, detach me from the bank and the
academy, and leave me nothing to do but to visit
you often at P., and, I hope, welcome you often at
Dover. " You, my dearest Ellen, are one of the few whose
approval of every step I take I desire. I am sure
you wUl understand my motives, and I shaU grieve if
you do not approve of my small sacrifice of my
present happiness to the greater good of wife and
child. I am not sure there is any sacrifice ; for,
phrenologically speaking, I have no bump of locality.
" Have the goodness to show this to the good
Mrs. W., and such other of my friends who take an
interest in my doings, and are so good as to believe
a man may act on such motives. If I have com
mitted an error, it is of the judgment ; selfish mo
tives have had no influence in this fifth and last act of
my life. God bless you, my dear Ellen."
In a letter to J. H. Morison, begun the 23d and
finished the 28th of March, he said : " I am at the
Swamscot, in my own hired room, since yesterday,
when I gave Elizabeth, Jeremiah, Ann and Lizzy
Saul (a favorite domestic,) to the cars for Dover,
never to return, except as visiters, to Exeter. The
fires vyere extinguished the same evening, and a
watcher placed in the house, to wait the arrival of
42*

498 LIFE OP JUDGE SMITH.
J. L. CiUey, the new owner, who, with his family,
entered into full possession this morning. As our
worthy old acquaintance, the Puhlic, are generally
ignorant of the motives which govern the poor cul
prit at their bar, and of the circumstances of the
case, . is it to be wondered they generally judge
amiss ? I have sent a memoir justificatif to Peter
borough, addressed to my friend Ellen. If I had the
rough draft before me, I would merely copy it for
you, whose good opinion will be an object of desire,
when houses and lands are gone.
" The tables of life give me only an equal chance
for two or three years. I have no reason to doubt
they wiU be happy years anywhere on this globe of
ours. Locality I have none ; but it occurred to me,
it would be cruel to leave Elizabeth and her son (then
of seven,) in a house and on a farm, which to neglect
is to ruin, both in looks and value ; tormenting the
possessors, while the process of deterioration is
going on, and the loss of the house and farm carry
ing with it the probable destruction of their other
inheritance. I easily persuaded myself that it was
my duty to sell my dirty acres myself, vest the pro
ceeds in the safest way I could, and live, in the Eng
lish style, on our income, surrendering to younger
men my bank and academy duties. While I re
mained in Exeter, I could not easUy do so. Hitherto
I have not been sensible of any material lack of bu
siness capacity ; but that may come at any moment,
and must come soon. It is quite time to reduce
the points of contact with the world as far as pos
sible.

LIFE OF JUDGE SMITH. 499
" Mrs.' s.'s father and sister, ever since Mrs. Hale's
death, last June, have needed Elizabeth's aid. There
is an excellent house, large enough for us all, and Mr.
Hale says I may fit up a room to my own liking, and
dwell there in peace and comfort, surrounded by my
old and well-tried friends upon the shelves.
" I never was an anxious man, and as the world
recedes I shall not court it, but content myself with
being a looker-on. Your old friend  , lately
died, much reduced in his moral and religious man ;
his latter days were spent in the struggle to increase
his estate, by vexing his poor neighbors. I have no
desire to increase my little substance. It is enough,
and I wUl try to enjoy it as an octogenarian ought.
I have been governed in these late movements solely
and entirely by a sense of duty. I need not say I
am happy ; for you know how happy the perform
ance of duty makes us all. I never stepped out of
my house with more pleasurable feelings than I did
Monday evening, or more in charity with all the
world, no way anxious about the few days to come.
I am almost ashamed to say how few are my doubts,
as to the remnant of my long life. ' I have set my
house in order.' "
Judge Smith had now removed to Dover, and
found himself pleasantiy established there. He en
deared himself to the members of the family ; his
intercourse with Mr. Hale was exceedingly pleasant
to them both, and his society was sought and valued,
especially by the young. In the language of one '
' The Hon. John P. Hale, whose independent and manly course, in
respect to the extension of slavery, by the annexation of Texas, must do
him infinitely more honor than the possession of any oflice.

500 LIFE OF JUDGE SMITH.
who saw much of him at that period, " There was a
beautiful moral sublimity in the spectacle, exhibited
bv the sage of a preceding century, who had coun-
seUed with Washington and his compatriots. aU long
since entered upon their reward, about the momen
tous interests staked upon the experiment of putting
in operation the moral and political machinery of a
new government, relaxing and unbending his giant
mind; lo join in the innocent pleasures to be found
in the society of the young, without abating aught
from the real dignity of his character."
An article on the judicial appointments of John
Adams, which appeared about this time in the Bos
ton DaUy Advertiser, and written, evidently, by one
eminently quahfied to write on such a subject, is
marked by so true and affectionate a spirit, that I
cannot help inserting here so much of it as relates to
Judge Smith, though I do not know the name of the
author. After speaking of Elijah Paine, John Mar
shaU, Bushrod Washington, John Davis, and WUham
Cranch, aU of whom had been placed upon the bench
by the elder Adams, it goes on thus : " There is yet
among the fiving another object of Mr. Adams's re
gard, and of his selection for judicial place, whose idea
brings to many who have long known him a rushing
crowd of grateful and affectionate feelings. He was
in congress in Washington's time, and one of his
greatest admirers ' this side idolatry.' The daily
companion and bosom friend of Ames, the cotempo-
rary of Madison and Giles, of Boudinot and Bayard,
of the Pinckneys; and Laughfin Smith ; and the
famUiar associate of King and Cabot. I mean Jere-

LIFE OF JUDGE SMITH. 501
miah Smith, of New Hampshire ; and let it be said
to her praise, that she early discerned his worth,
and gave him her -confidence. Richly did he re
turn honor for honor, and distinction for distinc
tion. If the recent and the present cannot be
looked upon with satisfaction, let him, and let
others, feed on the rich recollections of the past.
Having been district attorney for New Hampshire,
he became, by Mr. Adams's appointment judge
of the circuit court, and held the place during the
continuance of that tribunal, and afterwards for
many years chief justice of the state. He is now
enjoying, at advanced age, life, and literature, and
law, with as much zest as others who have not
numbered half his years. You and I saw him, not
many years ago, in a circle and on an occasion which
called forth the exercise of his powers, and deeply
affected the sympathies of all around him. I have
witnessed nothing superior to the pathos with which
he then addressed us. Indeed there is nothing
which strikes the human eye and the human ear,
nothing that touches every deep-toned key of the
human heart, more than ' an old man eloquent ; '
eloquent with high truth, eloquent in the manifesta
tion of the rich fruits of experience, and in the vale
dictory character necessarily belonging to all he
says ; eloquent in nervous, manly, strongly conceived
thoughts, uttered with glowing warmth, though by a
voice -not free from tremulousness, and with an eye
sparkling through the moisture of age. Such he
then appeared to us ; and if we may not hope to see
him again, under circumstances so aflfecting, yet let

502 LIFE OP JUDGE SMITH.
US hope to meet him in more private scenes, in
health and spirits, and in the perennial flow of
that wit and pleasantry which so much distinguish
him. A grateful junior may say to him, ' guide,
protector, friend,' serus in calum redeas. " '
I have purposely deferred speaking of Judge
Smith's religious investigations, opinions and char
acter. He had been educated as a Scotch Presby
terian. His parents, his religious teachers, his early
associates, and the college at which he was graduated,
were of that denomination. He seems to have been
set apart by his friends for the ministry, and on many
accounts that would have been the profession of his
choice. He early committed to memory large por
tions of the Scriptures, and the favorite studies of his
youth as well as of his riper years, were on theologi
cal subjects. He was not unacquainted with the great
divines belonging to the early age of the English
church ; with Hooker, ChiUingworth and Jeremy
Taylor ; but the writers of a succeeding generation,
though less comprehensive in their intellectual grasp,
were more to his taste. He was famUiar with the
works of Tillotson, and South, and Seed, and Seeker,
and acknowledged his obligations for the important
aid he had received from King's Essay on the Origin
of EvU. Sherlock, he used to say, was too ingenious,
and Horsley too learned for him ; the discourses of
Porteus he read with pleasure, and Blair's Sermons,
by their purity of style and sentiment, made up in

1 Since writing the above, I have heard the article attributed to Mr.
Webster.

LIFE OF JUDGE SMITH. 503
some measure for their want of strength and sofid
instruction. Bishop Butier, however, from his clear,
strong, unanswerable reasoning, and his profound
knowledge of human nature, and the laws of God
as unfolded in harmonious correspondence through
his word and his works, was the divine whom he
preferred to all others, and down to the latest period
of his life, he continued to read his sermons again
and again, and always with new admiration.' While
in congress he heard Dr. Priestley's Lectures on His
tory, and was deeply interested in them, though I do
not think that he valued Priestley very highly, as a
writer. Thrown into public life at a time when so
ciety throughout the civilized world was shaken to
its centre, and all the old landmarks of belief were
held up to contempt by those who would themselves
be regarded as the light of the world, he read the
works of unbelievers, and though sometimes charmed
by their fascination of style, he subjected their rea
soning to the cool, impartial, searching scrutiny of a
judicial process, applying to the evidences of Christ
ianity, the severest rules of testimony. With him,
as it had been with Judge Parsons, after a similar
examination, the result was a clear, undoubting con
viction of the truth and genuineness of the gospels.
But the more he thought and studied on religious

' Judge Smith quoted with approbation this remark : " Everybody
should read Bishop Butler's Analogy once a year till he can understand
it, and once a year afterwards to enjoy it. You talk of the wealth of
the Church of England, but if all the revenues of the See of Durham
from the Conquest were accumulated in one vast sum, the whole would
be of less value than that inestimable work."

504 LIFE OF JUDGE SMITH.
subjects, aided in his inquiries by the ablest vrriters,
the more comprehensive was his creed, and the less
importance did he attach to any peculiar form of faith
or worship. He had been charmed by the youthful
and sainted eloquence of Buckminster. His souf was
moved to its depths, and lifted up as into a purer
atmosphere, by the writings of Channing. He used
often to teU of hearing him preach many years ago
on humility. '¦ When he announced his subject,"
said he, ¦• I thought that I was safe ; that it might be
a very instructive sermon to others, and entertaining
to me. But in a few minutes^ to my surprise, I found
that I must plead guilty to that count in the indict
ment, though very sure that it must be the only one.
But as he went on, I was obliged to give up point
after point, and at last came away mortified and
humbled at the consciousness of my own pride."
Not long before his death, he happened to remain at
the communion service, which was administered by
Dr. Channing, and "' whether it was." he said, " some
thing peculiar in my feelings at the time, or in the
expression of him who broke the bread, I had never
before so entered into the spirit of the service." He
was also delighted both in public and private, with
Bishop Cheverus, of the Roman Catholic church,
whose self-denying and devoted labors for his " few
sheep in the wilderness," he had witnessed while
spending several weeks on business in the lower part
of Maine. He remembered as long as he lived the
interest with which he had hstened to a sermon by
the Rev. Dr. Alexander, of Princeton. He was
greatly entertained by the preaching of Dr. Beecher ;

LIFE OF JUDGE SMITH. 505
and though he could not assent to all the doctrines
it contains, held in high regard the Book of Common
Prayer. In speaking of the Burial Service, he once
said, that to have it read at his funeral was almost
enough to reconcile one to dying.
Judge Smith believed that there was, in the death
of the Saviour, a significance not only deeper than
that which is attached to the death of any other
teacher from heaven, but different in kind. As to
the nature of Christ, he dissented equaUy from those
who consider him only as a man, and those who wor
ship him as God ; agreeing with MUton in regarding
him as the greatest of created beings, " the first-born
of the creation of God." In his theological opinions
generally, I think he more nearly agreed with the
matured views of Milton, than with those of any
other writer. He belonged to the true catholic
church, and was ready to acknowledge any man as a
Christian brother, who received the Scriptures as his
rule of faith, and who strove to mould his life by
their spirit. " Yes," he was accustomed to say to
zealous but narrow-minded young men, " that is all
very well. It is the way for you to go, if you so
believe in your heart. But it is not the only way."
And as he grew in years, and his faith was purified
and strengthened by trial, he became stUl more cath
ohc in his feelings, attaching more importance to
Christian fidelity, and less to the formulas of creeds,
and the rules of church discipline. Just in propor
tion to his acquaintance with their practical effects
was the low estimate he put on all ecclesiastical tri
bunals, and particularly those existing in New Eng-
43

506 LIFE OF JUDGE SMITH.
land ; where men come together on business wholly
foreign to aU their studies and pursuits, with no fixed
statutes, no authoritative decisions, no established
usages or fundamental principles even for a guide,
and knowing neither how to examine witnesses, nor
what sort of testimony to admit. " I have heretofore
supposed," he said in one of his latest letters, " that
nothing could happen to place the New England
ecclesiastical judicial character lower than I esteemed
it ; but I find in the lowest deep a lower deep."
No one could more respect the institutions and
ordinances of religion, or acknowledge more sincerely
the necessity of a religious character and faith. But
religion he did not regard as something apart by
itself It must, he thought, be inferred from the gen
eral tone and complexion of the life. If its power is
in the soul, it will breathe out and make itself felt.
He believed it a progressive principle, growing from
day to day, especiaUy through trials and sorrows, and
subduing the whole man — thought, affection, con
duct, wiU — more and more to itself So he believed,
and no one, I think, can read his life in a truly Christ
ian frame of mind, without recognizing something of
this spiritual progress in his own character. Let any
one compare, for instance, the letter of consolation
which he wrote on the death of his brother Robert,
in 1795, with that which he wrote to Mrs. Walker,
on the death of her son in 1840. The one is very
well ; such a letter as an intelligent man, who had
attended to the subject, might write ; but the other
no one would have written, who had not felt in his
own heart, a divine consolation and strength. In

LIFE OF JUDGE SMITH. 507
like manner his affections were aU softened, enriched
and meUowed as by the influence of a higher and
better spirit. He had been supported through the
heat and burden of the day ; his religious trust added
its brightness to the cheering prospects that welcomed
him home to his retirement from his active duties ;
and when the heaviest domestic calamities, one after
another, in quick succession, fell upon him, till he
was stript of aU his friends, and left a solitary old
man, his cheerful confidence in God showed that the
consolations of a religious faith came to him not as
strangers, but as friends whom he had long enter
tained and loved. Only one other test now remained,
and to that he was rapidly hastening.
On the 26th of AprU, (1842), his brother Samuel,
who, from the failure of his inteUectual faculties, had
for several years been but the wreck of his former
self, was set free from his sufferings by death. In
the letter which the Judge wrote to Ellen, dated Do
ver, 29lh April, 1842, he said, " I need not teU you,
my beloved friend, that your mother, sisters and your
self have my deep-felt sympathies on this melancholy
occasion. I am obliged to use the same words others
use ; but I beg you will believe that my feelings to
wards you and the famUy are not of the common
kind, and are such as I have seldom before experi
enced. They are such as my love for you cannot
but inspire. I am not ignorant of your great labors
and sufferings, and have been extremely anxious lest
your strength should fail. It must be a source of
heartfelt gratitude to my EUen, that Providence has
enabled her to fulfil all her duties. What daughter

508 LIFE OF JUDGE SMITH.
has done so much ? Your retrospections must be of
the purest and most enduring kind. When the pain
ful part ceases, may the pleasant go on increasing to
the end. There are moments now when I regret
that I have been absent from Peterborough so long.
We must draw closer together as time diminishes our
number  Believe me, though sick in body,
present with you in spirit, and always your most aflfec
tionate uncle."
Judge Smith visited Peterborough in June, and
returned from his excursion in excellent health.
Writing to a friend soon after his return, he said,
" You have heard me speak of, and indeed have
seen my niece, EUen S. Domestic affliction did not
make her less interesting. . . . Who can love
sons as they do daughters? Not I. No dispa
ragement to Jeremiah. You see I have Mrs. H.
and her six daughters (C. no less a daughter for be
ing a good wife,) in my mind and in my heart.
May it ever be so. A bad heart would be mended,
and in time changed, in such society. But may
none such enter this pure sanctuary of love and all
that is good and amiable."
The last time I saw Judge Smith was early in
July, 1842, when I .spent a day or two at Dover.
He seemed in excellent health, and never with his
wits more about him. There was perhaps no man
living, who had at his command more local and per
sonal anecdotes, or more of the knowledge not to be
found in books, particularly in relation to events, or
to the men who, whether on a large or a small scale,
had figured in our country from the middle of the

LIFE OF JUDGE SMITH. 509
last century. He seemed never to forget what he had
once known, but remembered, with extraordinary dis
tinctness, minute particulars in the family history of in
different persons, with whom he had littie or no per
sonal acquaintance. The most remarkable thing in
his memory was that it not only went back, and
called up, as from the dead, events in which he had
been interested, or subjects which he had studied
years before ; but recaUed as vividly recent impres
sions and what he had recentiy read. I found him
in the cars at Exeter. On arriving at the depot
in Dover, there were two or three young ladies wait
ing for him, and before reaching home he was joined
by perhaps twice that number, who had come out to
meet him. He appeared in excellent spirits ; in a
new place indeed, but with those to whom he was
warmly attached ; "surrounded," as he said, " by his
old and long-tried friends upon the shelves," seem
ing perfectiy at home, " in charity with all the
world," and " in no way anxious about the few days
to come." There was no diminution of interest in
books, and in talking of such as he had recently
read, there was evinced no faUing away of memory,
nor was there an indication of failure in any of his
faculties, bodily or mental.' "He was quite wil-
Hng," he said, " to be cipherized," and he fell into

1 "A little before his last illness," said Mrs. Smith, "J. S. for the
first tune asked me to nib his pen for him. Sometimes, within a few
years, a sudden film would come over bis eyes. The same is mentioned
of Mr. Roscoe, within, I think, two or three years of his death. We do
not attend enough to these indications of the breakmg up of the consti
tution." 43*

510 LIFE OF JUDGE SMITH.
his new way of living with as much ease as if he
had been twenty-two, instead of eighty-two.
In a letter, dated July 13, he said, " I am quite
well and happy in reading Dr. Emmons's autobiog
raphy. I think my forte is allowing myself to be
happy in the way Providence pleases, and not insist
ing on choosing the way and manner for myself"
The next day, in reply to a letter from Mr. Sparks,
asking " whether Washington ever wore a wig," and
giving him some valuable historical information, he
said, — " Dear sir : It would give me great pleasure
to be able to put an end to the doubts on the wig
question. I was in the habit of almost daUy seeing
Washington, from 1791 to 1797 ; staid a night at his
house in April in the latter year, and it never en
tered my mind that the great man did not wear his
own hair. No man was ever more attentive to dress,
or had better taste. The earlocks were generally or
always dressed, frizzled and powdered. I can re
member when this was the fashion. I am a careless
observer of particulars, as it regards the face, eyes,
hair ; I never could testify as to the color of eyes.
My impressions are decidedly all anti-wig.
" I rejoice at your success in collecting materials
for a history of our revolution. I hope you wUI lose
no time in working them up, that I may have the
pleasure of reading the work. With much respect
and esteem, I am, dear sir, your obedient servant."
From a note to his wife a few days later : " We are
as silent as the grave, to which some of us are hasten
ing. ... I must devote next week to business, but
intend to do aU things with moderation ; for in truth

LIFE OF JUDGE SMITH. 511
my task is easy. I have never suffered things to
dam up. ... I am lonely, but not unhappy."
His private affairs were all arranged as he thought
would be best for his wife and child. He resigned
the office (which he had held thirty-nine years) of
president of the Exeter Bank. Mrs. Smith was
staying at Lee, and in the latter part of the week he
went from Dover to Durham in the cars, thence
walked to Lee, a distance of two or three miles,
passed the day with her, was all gaiety and anima
tion, and returned in the evening the same way.
After his return, he said, in what proved to be his last
letter to his wife, " You know Monday is my day
for Exeter. I am busy in my preparation for my last
official act. Heaven bless you and Jeremiah, prays
your husband."
On Monday he went to Exeter, to meet the
trustees of the academy, and on his return was so un
well that he wrote the foUowing letter — the last he
ever wrote : " To the Trustees of PhiUips Exeter Aca
demy. Gentlemen : I find myself at length com
pelled to abandon the hope of meeting you on
Thursday, and accordingly now resign both my
offices of trustee and treasurer. I had intended to
accompany my annual accounts with statements and
remarks, as my manner has been, and if sufficient
health shall be indulged me, wUl take the earliest op
portunity of doing so.
" I shall ever retain the liveliest sense of the kind
ness, courtesy, and I may add the confidence, I have
at aU times experienced in connexion with you. I
pray heaven to guide you in all your future delibera-

512 LIFE OF JUDGE SMITH.
tions, and that you may continue to execute your
sacred trust with diligence and fidelity."
Wednesday a physician pronounced his disease a
slow fever. For two or three weeks he was able to
be dressed, and sit up part of the day ; many times
every symptoiD would be favorable, and then again
new and distressing pains would arise. His suffer
ings were exceedingly acute. But he did not com
plain enough to make his case fully known to his
physician, and his humor remained with him to the
last. Mrs. Smith having once been called below to see
some one whom he thought more flippant than pro
found, said on her return, " He promised not to
detain me, but he did, and I verily befieve, that when
he begins to talk, his tongue runs so fast he cannot
stop it." " It may well run fast," said the Judge, " it
carries little weight."
On the 15th of August his brother James, of Cav
endish, Vermont, the father of Mrs. Walker, died at
the age of eighty-six, and eleven days after he was
followed by Mrs. Walker herself ; the woman so
dear to Judge Smith, so beloved, so rich in all the
best affections and charities of a Christian life. On
the 29th of August, Judge Smith's only surviving
brother, Jonathan, a man in whom all the elements
were most kindly mixed, for many years a pillar of
the town, and who had seemed as much a part of it
as its hiUs, was suddenly taken away. It was some
time before Judge Smith was informed of their death.
But one day, when he seemed unusually strong, and
made some inquiries about Mrs. Walker, he was told
that she was gone. He seemed moved, but agreed

LIFE OF JUDGE SMITH. 513
with Mrs. Smith, that no one could do so much for
others without destroying her own life. He then
asked about his brother Jonathan, and, on being told
that he was no more, he replied with much emotion,
" Well, he was a good man, and lived to a good old
age. I wish I was lying in the quiet grave with
them." He afterwards expressed his thanks, that
Mrs. Walker's father stiU had a son to watch by him,
and when told that he too had been taken, he re
plied with earnestness, " Good ! blessed be God."
From the beginning, even when the symptoms of
his disease were not particularly alarming, he seemed
to have a strong presentiment that he should not re
cover. Once, on his wife's reading to him some
thing ofhis which she had just written down, he said
with great solemnity, " Perhaps this is the last saying
of mine that you wiU ever record." Two or three
weeks before his death he sent for her in the night,
and said, " Elizabeth, you will find me much altered ;
I am going very fast, and I want you to thank God
for it."
During his illness he was tried by excruciating
pains ; but no one heard from his lips an impatient
word. One night, while suffering severely, and after
having said but little for some time, he repeated dis
tinctly, and with that perfection of emphasis for
which he was so remarkable :

' God of my life, look gently down ;
Behold the pains 1 feel ;
But 1 am dumb before thy throne,
Nor dare dispute thy will."

514 LIFE OF JUDGE SMITH.
To the domestics, who waited upon him, he show
ed always a sense of gratitude for their kindness.
" May God reward you," he said, " for your atten
tions. I wUl do what I can." He had no fear of
death. " I have long," he said, " considered myself
a minute man, like the soldiers in our revolutionary
war, ready to go at a moment's warning." Death
was famUiar to his thoughts, and not to be viewed
with alarm, but as the beautiful dispensation of God.
On being asked, the morning before he died, whether
he had any fears, he replied, " no, no."
Mrs. Smith was prevented by a fever from being
with him the last two or three days of his life.
When his nurse, a devout Methodist, repeated to
him, a few hours before he died, the oft-repeated
words.

" Jesus can make a dying bed.
Seem soft as downy pillows are,"

he four times made a motion of assent, and when
she completed the stanza,
" While on his breast I lean my head.
And breathe ray life out sweetly there,"
he again, though he could not speak, incfined his
head four times, and smiled with evident pleasure.
He died Wednesday evening, September 21, 1842.
His head had just been lifted up ; he looked upon
his friends with a placid smile, which seemed like a
parting benediction, and went away so quietly that
no one knew when he ceased to breathe.

LIFE OF JUDGE SMITH. 515
" WeU over is a good thing," was the last comment
signed by his initials in his common-place book, and
it might have been inscribed upon his tomb. Having
finished his active duties, he had retired from the
world, to live for a time in the affections, in the know
ledge gained through his long experience, in his
serene temper, and the heart-felt experience of the
divine goodness. Before these resources had begun
to faU, he was called away. Calm and peaceful was
the going down of his autumnal sun, and when it
was set, rich and golden memories lingered round its
path. There is, in truth, nothing sad in the beauti
ful and fitting close of a life so filled out and com
plete in all its parts. And yet how many are the
feelings that are touched, as we bid farewell to one
of the last of those great men, who laid the founda
tions of our government, and so manfully upheld it
in the first days of its peril. May there never be
wanting others of like character and strength to stand
by it in every hour of its need !
Judge Smith's aversion to show he carried with
him through life, and wished it to be avoided in
everything connected with him after death. Accord
ing to his request, his body was buried in a space
which he had left between the graves of Ariana and
hermother. On a plain marble head-stone, " neither
better nor larger " than those which he had procured
for them, is the following inscription, prepared by his
friends, Daniel Webster and George Ticknor :

516 LIFE OF JUDGE SMITH.
HERE REST THE REMAINS OF
JEREMIAH SMITH:
IN EARLY YOUTH,
A VOLUNTEER IN THE CAUSE OF THE REVOLUTION,
AND WOUNDED AT THE BATTLE OF BENNINGTON;
AFTERWARDS,
A REPRESENTATIVE IN CONGRESS BY THE CHOICE OF
THE PEOPLE OF NEW HAMPSHIRE,
AND AN ABLE AND EFFICIENT SUPPORTER OF THE MEASURES OF
WASHINGTON ;
A DISTRICT ATTORNEY OF THE UNITED STATES, AND
JUDGE OF THE CIRCUIT COURT, BY THE
APPOINTMENT OF WASHINGTON'S SUCCESSOR ;
IN YEARS YET MORE MATURE,
GOVERNOR OF NEW HAMPSHIRE,
AND
twice its chief justice ;
He was, at every period of his life, well deservikg of his
country by his courage, his fidelity, and his devotedness to
the publick service ; edualled by few in original power, prac
tical wisdom, and judicial learning and acuteness ; surpajssed
in the love of honor, justice and truth, by none.
He WAS BORN AT PETERBOROUGH, NOVEMBER 29, 1759, AND LIVED
IN Exeter from 1797 till a few months before his death, at
Dover, September 21st, 1842 ; always most loved in those cir
cles op domestick affection where he was best known, and
always a Christian, both by his convictions and by the habits
of a life protracted, in extraordinary cheerfulness and EN
ERGY, TO ABOVE FOUR SCORE AND TWO YEARS.

i'-'f::'):\'

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