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Chapter 8: early professional life.—September, 1834, to December, 1837.—Age, 23-26.

A young attorney's ‘first case’ is always with him a wellremembered event, and Sumner's happened to have some points of public interest.1 Suffolk County had then a Commonwealth's attorney, from whose strong gripe it was hard to wrest any prisoner; but Sumner was fortunate in this attempt at a rescue. A few weeks after his admission to the bar he engaged, as a volunteer, in the defence of one Waylen, indicted in the Municipal Court under a statute for sending a challenge to one Alessandro Gherardi,—a case which probably came to him through his father's connection with the jail. He was associated with George S. Hillard, who was admitted to the bar in April of the previous year. The grounds of defence at the trial were, that the paper sent by the defendant was an invitation to a conference, with a view to a satisfactory adjustment, rather than a challenge; and that the defendant's surname ended with an n, instead of an r, as written in the indictment. The trial occupied part of the day, Oct. 13, 1834, and resulted in an acquittal. A newspaper of the next day said: ‘The defence was conducted with much ability by Messrs. G. S. Hillard and Charles Sumner. This is the first essay of the latter gentleman, who is said to be more deeply read in the law than any other individual of similar age.’2 Sumner, as his preserved minutes show, argued at length, citing numerous authorities on the question of misnomer and the construction of the statute. He reviewed with his characteristic fulness the celebrated duels in English and French history urged that they were peculiar to men of fashion, and rarely [147] resorted to by persons of humble life, like the accused; and contended, therefore, that his client's language should be construed as intending only an amicable meeting.

Early in November Hillard and Sumner became associated as partners, and rented two adjoining rooms on the second floor of the Brooks Building, then recently erected, being Number 4 Court Street, at the corner of Washington Street,—the site of the present Sears Building. Sumner occupied the room next to the hall, and Hillard the rear one. He kept one or the other for about twenty years, so long as he remained at the bar.

Number 4 Court Street gathered at this period several lawyers, since well known, and some who were destined to a permanent fame. On the same floor with Sumner and Hillard were Theophilus Parsons, Rufus Choate, Theophilus and Peleg W. Chandler; and later John A. Andrew, afterwards Governor of the Commonwealth. On the third floor were Horace Mann, Edward G. Loring, and Luther S. Gushing. When Hillard left the building, in 1856, having previously removed to another room, he wrote in verse a graceful ‘Farewell to Number Four,’ which called forth some happy rejoinders.3

Sumner and Cushing4 rented together a single lodging-room on the third floor of the Brooks Building. Sumner took his meals at a restaurant—Kenfield's, on Wilson's Lane. Some two years later he changed his lodgings to the Albion, and dined there or at the Tremont.

The culture and friendliness of Hillard and Sumner attracted many callers,--not only the other tenants of Number 4, but, besides them, Judge Story, Greenleaf, Cleveland, Felton, Park Benjamin, and George Bancroft. Greenleaf deposited his ‘writing-desk, table, and chair’ in the office, calling it ‘our office.’ Here, when he came to the city, he usually called upon his two friends, and met the clients whom he served while he was professor. Whether many or few suitors came to the young attorneys, they at least had rare enjoyment in their fellowships.5

In Feb., 1835, Sumner defended successfully, in the Municipal Court, a party indicted for a libel. Failing on his law-points,— an alleged defect in the indictment and want of jurisdiction in [148] the court,—which he strongly urged, he made a vigorous opening to the jury on the truth of the article complained of and the motives of its author, and discussed at length the law of libel.

The following December he was counsel, as junior, with Theophilus Parsons,6 for the plaintiff, in the case of Pelby v. Barry, tried in the Supreme Judicial Court before Mr. Justice Morton,7 —a novel action exciting public interest, in which the plaintiff sought, by applying the rule governing the relation of master and servant, to recover damages against the defendant for enticing Miss Kerr and other actors from his service.8 He made quite a full opening argument, covering, as was usual with him, a wide range, which included a review of the drama, and particularly melodrama, this being the specialty of the actors enticed by the defendant; bespeaking the favor of the jury for his client, as the weaker party, and entreating them not to indulge in any prejudice against him because of his profession. The jury disagreed, and the entry, ‘neither party,’ was made on the docket.

Sumner's first appearance before the Supreme Judicial Court at law-terms was in 1837. He was junior counsel in the argument of two causes, one heard in March relating to a mortgage of personal property,9 and the other, in June, being an action of tort for wrongfully putting a party's name on certain medicines.10 He was called into the former case by Richard Fletcher, and into the latter by Theophilus Parsons,—two friends who watched with interest his professional career. He prepared a brief for Mr. Fletcher in a case involving the question, whether an agreement to procure a certain location for a railway-station is void as against public policy, and suggested the point on which the case was decided.11

Among his papers is an elaborate opinion, written in 1835, which reviews at length the authorities on a question arising under the law of watercourses,—whether the proprietors of mills [149] at Lowell on the Merrimac River, which is fed by the waters of Lake Winnipiseogee, have a right of action against parties who divert for mill-uses the waters of Merrymeeting Pond, which flow into the Lake.

In June, 1835, he was appointed by Judge Story a commissioner of the Circuit Court of the United States,12 and a year later was admitted to practice in that court.

Sumner, at this period, succeeded as well as the average of young lawyers; but he did not, like his classmate Hopkinson, step into a lucrative practice, nor obtain the business which, with his laborious studies and many friends, he had expected. His docket was a slender one even for those days. He was too much absorbed in amateur studies to become a shrewd and ready practitioner; and his mind, while so employed, was the less inclined to the petty details of an office. His engagements at the Law School, yet to be mentioned, for the first three months of each year—the busiest season for a lawyer—seriously invaded the regularity of office hours, keeping him at Cambridge every alternate day at some seasons. Clients are quick to detect such departures from the professional routine, and prefer some painstaking attorney who is always to be found at his desk. Sumner, not meeting at once with the success which he had hoped for, confessed his disappointment to his intimate friends. But while with continuous devotion to the profession he would have doubtless attained a very respectable rank at the bar, it may be questioned whether he had the qualities which draw to a lawyer ‘litigious terms, fat contentions, and flowing fees.’ According to tradition, he weighted his arguments with learning where only a skilful handling of testimony would have been most effective; and was not gifted with the quickness of perception which is as essential in the court-room as in the field. His tastes and qualities of mind fitted him rather for a position as judge or teacher, where his chief duty would be the exposition of the principles of the law. But he expressed no discontent with his profession, and certainly had no thought of leaving it. His enthusiasm in the study of jurisprudence as a science was unabated.

In Jan., 1835, he began to give instruction in the Law School in the place of Judge Story, who was absent at Washington on official duty. Judge Story wrote to him, Feb. 9,— [150]

‘I rejoice that you have gone through the ordeal of your inauguration, and fairly through, and are now acclimated in the Law School. I never had any doubt upon the subject. Your success (for so I learn from Mr. Greenleaf) has been complete and every way gratifying. I hope that this is but the beginning, and that one day you may fill the chair which he or I occupy, if he or I, like autocrats, can hope to appoint our successors.’13

He rendered the same service in the winters of 1836-37, and in the last-named year had the chief responsibility for the school during the absence of both Judge Story and Professor Greenleaf,—the latter being engaged at Washington as counsel in the case of The Charles-River Bridge v. The Warren Bridge.

Like the two professors,

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