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Last
TERCENTENARY COMMISSION OF THE STATE OF CONNECTICUT
QUI
SUSTINET
TRANSTULIT
COMMITTEE ON
HISTORICAL PUBLICATIONS
XLVII A Lawyer of Kent: Barzillai Slosson and His Account Books, 1794-1812 MABEL SEYMOUR
PUBLISHED FOR THE TERCENTENARY COMMISSION BY THE YALE UNIVERSITY PRESS 1935
This pamphlet is published also as Yale Law Library Publication No. 2, August, 1935:
TERCENTENARY COMMISSION OF THE STATE OF CONNECTICUT
COMMITTEE ON HISTORICAL PUBLICATIONS XLVII A Lawyer of Kent: Barzillai Slosson and His Account Books, 1794-1812
MABEL SEYMOUR With the collaboration of Elizabeth Forgeus"
I
O NE of the interesting historical documents in the Library of the Yale Law School is a manuscript daybook kept by a Connecticut lawyer, Barzillai Slosson of Kent, to record the legal business he transacted from the month of June, 1795, shortly after he had opened an office and begun practice in the lower courts, to the last of September, 1798, by which time he had attained the status of a local magistrate, a member of the General Assembly, and a practitioner in the Superior Court. The writer's reputa- tion for accuracy was a tradition of the Litchfield County Bar, and the fidelity with which his records reflect the conditions under which the Connecticut lawyer lived and practiced in the last years of the eighteenth century is beyond question.
The manuscript was presented to the Yale Law Li- I Assistant Librarian of the Yale Law School.
I
brary, through the intercession of Mr. Harrison Hewitt, by Mr. Otto J. Leonhard of Kent, who rescued it from the dust and rubbish of the old attic in which it had been lying for well over a century when he purchased the old Slosson homestead and set up the sign of the Flanders Arms under the maples its first owner had planted in 1739.
The record which this daybook presents has been sup- plemented by similar material in four other Slosson manuscripts which have come to light and have been made available by a temporary loan to the Yale Law Library through the courtesy of Mr. Leonhard and Miss Helen Bull of Kent.
II
MUCH of the significance of the Slosson manuscripts lies in the fact that the lawyer who wrote them practiced his profession in the community where he and most of his clients were born, and where the legal problems that arose were chiefly local and personal. In this connection it is worth-while to review the relationship of the Slosson family to the town, and to their fellow citizens of Kent.
Barzillai Slosson was born in Kent, Connecticut, De- cember 27, 1769, eldest of the ten children of Nathan and Elizabeth Hubbell Slosson, and third in descent from Nathaniel Slosson of Norwalk, who was one of the original proprietors of the town. His grandfather's home- stead, where he was born and reared, was in the district called Flanders, on the original allotment which Nathan- iel Slosson, "pitching for choice," had drawn in the first division of the township, and which, by the terms of the deed that confirmed him and five generations of his descendants in their title to this little piece of Connecti- cut land, he had covenanted to "subdue, clear and fence." When he first stepped foot upon that homestead, halting
2
his lean and footsore cattle beside the rough trail where a stake marked "21" indicated his "pitch," it was part of the wilderness that covered the Western Lands. But by 1769 when his grandson Barzillai was born, Kent looked upon itself as a prosperous and settled community. Farmsteads had been built, lands were cleared, pastures fenced, and orchards planted. Roads were laid out, and the Housatonic was bridged. The highway through Flanders came in from New Milford on the south, run- ning down the steep slope of Cobble Mountain, between the long lines of stone wall which John Mills had built across the mountain side above his house, and passing in front of the training ground, Captain Pratt's house, and the tavern, on its way north past the parsonage, and on up the valley. The long irregular space which it circled on the east, cut through by a stream from the Cobble, was in Barzillai's time the Flanders Green, and the center of most of the activities of the town.
Town meetings were held there, though most of the business that came up in them seems to have been settled well in advance by Nathaniel Slosson and his political henchmen, Ebenezer Spooner and John Mills, either in the taproom under the "shew-maker's shop," or before the fireplace of Slosson's kitchen. The tavern and posting house, of course, stood on the Green; as did the school, the parsonage, the smithy, that same "shew-maker's shop" which had progressed by easy stages, first to a tannery and then to a taproom. Not far away, where the little brown stream turned sharply at the foot of the hill on its way to the river, stood the mill, with the miller's house built against it on the highway. All the little local industries, fostered with such care at first, were now flourishing concerns. The taverns, of course, were the most prosperous: drovers and teamsters waited over to
3
feed and rest their cattle in the public meadows below the mill; travelers between New York and Boston put up and stayed the night; or if in more urgent haste, they rested there and took a pipe and glass in the parlor while they waited for the smith to set a shoe.
In 1774, when Barzillai was five years old, a new meet- inghouse was built on the little eminence of the Flanders Green across from Captain Pratt's and opposite the Slosson home. That same year Nathaniel Slosson, Bar- zillai's grandfather, now approaching his eightieth year, built a second house, on the site where his first one had stood and almost in a line with the new church on the Green. This house still stands, apparently as substantial inside and out, as it was on the day when the master builder who designed and made it laid down his tools. The entrance door, approached by broad, stone steps and entered through a porch ornamented with the beautiful detail which marks the group of old houses on Flanders Green, faced the highway where the first pioneer trail crossed it, and the lawn in front sloped down to the corner of the school lot opposite the tavern. The western windows of the house overlooked the meadows, the bend of the Housatonic, and the wooded mountains above. The eastern side of the house, with a second doorway and porch-lacking the fanlight and sidelights but otherwise quite as beautiful in its detail as the one in front- looked out across the Green to the church, to the Pratt house, and the blue overhanging hills beyond. The church is gone now, and the Green diminished by new highways; but the great maples that were planted around it by the original settlers are still standing, and the charm of the old houses, the dignified fitness of their structure to the landscape in which they were set, is a memorial to some unknown builder of colonial days.
4
Barzillai Slosson encountered no hardships in attend- ing school. The schoolhouse stood then where its suc- cessor stands today, in the hollow at the foot of the old Green, not a stone's throw from his grandfather's door- way. Later in his career when other lawyers noted "the unfailing correctness of his orthography and use of terms" he modestly passed on the credit to the Kent school. He was indebted to his mother, however, for the love of the classics which gave distinction to his work in Yale, and remained the great intellectual interest of a busy life. Elizabeth Hubbell had been taught Latin and Greek by her grandfather, Richard Sackett, minister of the Second Church of Greenwich, and she brought with her some of her grandfather's books when she married Nathan Slos- son and came to live with his parents at Flanders. If at any time Barzillai had needed more help than his mother was able to give, he could have found it at the parsonage, for the Reverend Joel Bordwell tutored many a country youth who was preparing for Harvard and Yale. No help, however, accounts wholly for the proficiency to which Judge David Boardman, writing of Slosson many years later, alludes :
in Greek and Latin I never saw his superior, except old Presi- dent Stiles, nor with that exception perhaps, his equal, unless it was old Parson Farrand of Canaan.2
III
THE circumstances under which Barzillai Slosson was admitted to Yale College can only be inferred. Promising students were often brought to the notice of President
2 David S. Boardman, "Sketches of the Early Lights of the Litchfield Bar" (1860), in Bench and Bar of Litchfield County, Connecticut, 1709-1909. Dwight C. Kilbourn (Litchfield, 1909), p. 47.
5
Stiles during his "itineraries" about the state, and he either examined them then or fixed a time for them to come to New Haven. This may well have happened in Barzillai's case, for the President, making one of these journeys in the early autumn of 1789, spent nearly a week in Kent. He was entertained there by the Reverend Mr. Bordwell, of course, and on Sunday preached for him in the church on Flanders Green. He visited the Indians at Scaticook, something no minister could have omitted, and inspected the Yale Farms. Those duties finished, he went to stay with Colonel Mills, whose house, loveliest of the old farmhouses of New England-now the home of Miss Mary Bacon, a direct descendant-stood on Cobble Mountain above the head of the Green. Here, located conveniently, he settled down to study the inscriptions on the "sculptured rock" near Kent. Since he remained in Flanders from the Saturday of one week to Friday of the next, he had ample time to examine a student. But whether he did it then, or at another time and place, it is certain that Barzillai Slosson was a student in Yale in 1790 when he wrote the following letter:
Revd President
I have been to the Rock, according to the President's Direc- tions, and have taken the most apparent inscriptions. There are some more on the Rock, which the Inclemency of the weather at the time I was there, prevented my taking. The inscription of the Paper marked, "No.I" is taken from the Southern side of the Rock, and is the most obvious of any on the Rock. Those on the Paper marked, Nº II, were taken from the Northern side; the position of the several Figures with regard to each other is not represented on the Paper; but each Figure per se accurately represents the Original, and is sepa- rated from the others by Lines drawn for that purpose on the Paper.
I have not yet been able to procure sufficient data for an ac-
6
curate map of Kent, but will hand one to the President when I return to New Haven.
I am, the President's most humble and obedient servant Barzillai Slosson3
It is interesting to note what Yale College was like when Barzillai Slosson began the work of the senior year in 1790. There were five buildings: the president's house, Connecticut Hall, a residence for the professor of divinity, the "hall, chapel and library," and a dining hall and kitchen. There was a faculty of five men: two professors, President Stiles and Dr. Samuel Wales, Livingston Pro- fessor of Divinity, and three tutors. In November the president recorded one hundred students in attendance; but in January, following "an unhappy Tumult," he diminished that number by the rustication of two un- fortunates.
Dr. Stiles was devoting a good deal of his leisure time that year, to his "beloved inscriptions," and to his grow- ing collection of maps, and Slosson seems to have made copies of some for his use. Slosson's own interest in history and geography may date from this time; one of his manuscripts, preserved in the town library at Kent, is a brief historical sketch of the township. With this in- terest in common his relations with the president must have been pleasant. He must have found much in com- mon, also, with certain members of his class; some of them-James Gould, later a colleague of Judge Reeve in the Litchfield Law School, for instance-were brilliant classical scholars, and many of them, like himself, were preparing to take up the law. In May, Barzillai competed in the "Dean's Examination," for the most coveted honor
3 Manuscript letter in the Yale University Library.
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of the college, the Berkeley Scholarship, and after a formidable examination-the candidates were examined publicly in the chapel, usually for five or six hours, in "Gr. Testa, Xenophon, Lucian, & Homer; & in Hor. Cic. de Orat. & Tusc. Quaest."-he received the award. Commencement in 1791 fell on September 14th. Twenty- seven candidates appeared for the bachelor's degree; most of them paid for their diplomas in dollars, as the President notes in his Diary; five of them, asserting what- ever social prerogative that conferred, paid in guineas, one in a "Half-Jo"; but Barzillai Slosson and two others received theirs gratis.
IV
WHEN Barzillai Slosson graduated from Yale College, there were but three professions which a young man could enter: the ministry, medicine, and the law. Four- teen men out of the twenty-eight in his class at Yale had chosen law as their profession and were deciding how to prepare themselves for its practice. That question had not risen to perplex earlier generations of New England lawyers, for until the close of the Revolution there was but one way to enter the profession. The law student of those days, we are told,
began by offering his services to some lawyer of note, and, if they were accepted, paid a fee of a hundred dollars, and began to read law books and copy briefs. In the course of two years he was expected to have become familiar with Coke on Littleton, with Wood's Institutes of Civil Law, with Pigott on Convey- ances, with Burn's Justices of the Peace, with Hawkins's Pleas of the Crown, with Salkeld's Reports, with Lilly's Abridg- ment, and with some work on chancery and some work on what would now be called international law. This accomplished, his patron would take him into court, seat him at the lawyers' table, whisper to the gentlemen present, and, with their con-
8
--
sent, would rise and ask leave of the Court to present a young man for the oath of an attorney. The Court would ask if the bar consented. The lawyers would then bow. The patron would vouch for the morals and learning of his young friend, and the oath would be administered by the clerk. This done, the new attorney would be introduced to the bar and carried off to the nearest tavern where health and prosperity would be drunk to him in bumpers of strong punch.4
By 1791, however, conditions were changing, and the Litchfield Law School founded by Tapping Reeve offered an alternative in the method of acquiring a legal educa- tion. Five of his classmates, having decided to take the new way, went to Litchfield and enrolled with Reeve. For some reason Slosson did not join that group; but he made what was perhaps the next best choice when he went to Sharon to serve as tutor in the Sharon Academy while he read law with John Cotton Smith, brilliant jurist, a member of the first Congress which sat at Wash- ington, judge of the Superior and Supreme Courts of Connecticut, and one in the long line of distinguished men who have been governors of the state. This friend and patron presented Barzillai Slosson, after he had completed the two years of study which custom pre- scribed for men of liberal education, to the Fairfield County Court, probably in November, 1793, that being, as Judge Boardman explains, the first County Court which sat after his clerkship expired. He remained in Sharon in Smith's office for some months, but his accounts show that he was in practice for himself when the Litchfield County Court sat in September, 1794.
Many lawyers entering the profession at this time were turning to the larger cities. Four of Nathan Slosson's
4 John Bach McMaster, A History of the People of the United States . . . 1790-1803 (New York and London, D. Appleton & Co., 1928), II, 279.
9
sons, born and bred in the same surroundings, became lawyers. Two chose to practice in the country: Barzillai at home in Flanders, and John at Redding. Two went to New York: William, who built up a large practice there, and Ezbon, who died soon after he was admitted to the bar.
Slosson was married January 1, 1795, a few months after he opened an office in Kent, to Mary, the daughter of Nathaniel and Mary Cass Hatch of Warren, and settled on the Green in Flanders, living first in Dr. Berry's house and later in the residence of Major Buell. They had two sons: John William (1795-1862), and Nathaniel Hatch (1798-1824). The former was a general merchant and conducted his business in what is now the rear wing of the Slosson house; the latter graduated from Union College, studied law with William Slosson in New York, and was admitted to the bar.
Of Barzillai Slosson's first year's practice only one detail is known. He collected some unpaid accounts for a hatter, William Richards, who handed over to him for that purpose the daybook in which they were entered. This daybook is a tall, thin, ledger-like volume, bound in boards and filled with hand-laid paper of substantial quality. Perhaps because the shape and size fitted it for the capacious pockets of the eighteenth-century great- coat, this sort of daybook was much affected by lawyers, and when he had concluded the business of collection and was making his final settlement with Richards, Slosson took over the book for his own use, paying three shillings for it and recording the circumstances of the purchase on the cover in characteristic detail. Richards' accounts, which rarely occupied more than a few lines at the top of the sheets, were crossed off, his own name inscribed on the first leaf with somewhat of a flourish, and that day being June 3, 1795, Barzillai Slosson began his entries in
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the "fair, handsome, and legible hand" which was reckoned among his accomplishments, but which became sadly corrupted before the last entry was penned in September of 1798. With the lapse of nearly a century and a half, the ink used for the manuscript has faded to a sepia tint, but otherwise the daybook reached the Yale Law Library apparently in as good condition as when the author laid it aside. The volume is still in the original boards backed with calf, no leaf is missing or torn, none dog-eared; and the writing, with its flourishes, its long s's, its abbreviations of Majr, Esq", &c, its notation of pounds, shillings, and pence, is still plainly legible.
When the entries of the daybook were begun in 1795, Connecticut was represented in the federal government by distinguished men who had been trained for the law and had practiced in the courts of the state: Oliver Ellsworth was on the eve of appointment as chief justice of the United States, Oliver Wolcott, Junior, was secretary of the treasury, Stephen Mix Mitchell and Jonathan Trumbull were in the Senate, and Joel Barlow, a special envoy to Algiers, was negotiating the ransom of American prisoners with the Dey. There was, however, no lack of legal talent at home. During the time covered by the daybook, one hundred and twenty lawyers were practicing in Connecticut, which, according to the census of 1790, had a population of only 237,946. Forty of these lawyers were members of the Litchfield County Bar, probably the most outstanding group in the state, in- cluding, as it did, Reeve and Gould of the Law School, the younger Wolcotts, Uriah Tracy, John Cotton Smith, John Sterling, and Kirby of the Reports. No young lawyer, entering the profession at that time and place, could have expected either a large or a lucrative practice. The accounts which Barzillai Slosson entered to his credit
II
during that first month total {17 212d. and out of that sum a number of small amounts were still to be deducted for officers' fees. Only once during the month did an entry reach the sum of a pound, and then it was the fee for a group of five cases. But, at that, Slosson and the genera- tion of lawyers to which he belonged were doing better than Oliver Ellsworth, chief justice of the United States, had done, since he earned but £3 during the first three years of his practice, and supplemented his pro- fessional labors with farming and wood-chopping, in order to support his family.5 The total, moreover, gives no very accurate impression of the volume of Slosson's practice. Modest as the sum appears to us, it represented a considerable amount of business, for legal contention at that time might be pursued at small expense, as the following entry in the daybook shows:
Bill of costs in the case of Anson Pratt vs. Eliphalet Richards, before Majr Hatch D Cents
Writ
O
60
Due to me
Travel
I 34
Attendance
O
34
Court
34
Exn
O
23
Due to me
2
85
But if Connecticut lawyers were poorly paid, they were patronized with great liberality: Jedidiah Morse, the "Father of American Geography," who was revising his famous work for a new edition when Slosson was begin- ning to practice law, summed up the character of his fellow-citizens in some long-remembered words,
5 Henry Flanders, The Lives and Times of the Chief Justices. (New York, 1875), II, 62.
I2
the people of Connecticut are remarkably fond of having all their disputes, even those of the most trivial kind, settled according to law. The prevalence of this litigious spirit, affords employment and support for a numerous body of lawyers.6
Jedidiah-himself no exception to the rule, for no one appealed to the law more readily than he-knew his Connecticut; and the daybook bears out the statement by the number and range of Barzillai Slosson's activities. He is attending trials, advising his own clients or assisting other lawyers in advising theirs; inventorying the Brick Shop; drawing leases, deeds, and bonds for deeds; attend- ing "all day arbitrations"; hiring Whitney's horse and riding "over the mountain" to Cornwall to examine the grandjurors' complaint against a client. He is making out partnership agreements; taking depositions; writing wills or searching for wills that were written by an earlier, but seemingly no less litigious, generation. He is going to Widow Mary Edwards' house to advise her in a bargain with John Hopson; viewing the timber-cut in a wood lot; surveying land; collecting doctors' fees; appraising a yoke of oxen; posting books. He is drawing bills of sale, at one time or another, for all the commodities of the state. He is riding to Washington to summon an unwill- ing witness in the cause of Kent vs Washington, when those two towns disputed as to the support of an in- digent; or drawing a warrant to transport that same indigent, who seems to have spent her declining years in a series of excursions from Washington to Kent and back again from Kent to Washington, as the selectmen of one town seized upon some momentary lapse in the vigilance of the other to shift the burden of her support.
Slosson became a justice of the peace for his native town in 1798, and served continuously in that capacity 6Jedidiah Morse, The American Universal Geography (Boston, 1796), 1, 453.
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until his death fifteen years later. His official duties did not interfere with his private law practice, however, and as the record of the daybook proceeds, it grows evident that he has found the way to build up a successful prac- tice. Called upon for assistance in a case, he is frequently given "an engaging fee"-notably in the Winegar cases which were to become the perennial of the Litchfield County docket and the source of steady increment to Slosson's account. The town of Kent begins to furnish him pretty regular employment in those characteristic lawsuits by which Connecticut towns carried on sisterly amenities with each other. The number and variety of the legal services which Barzillai Slosson rendered to his neighbors may be inferred from the number of writs which he drew up: writs of assumpsit, of replevin; writs for malicious prosecution, for assault and battery; writs of ejectment, of covenants made and for covenants bro- ken; writs of trover-trover for oxen, for iron, for Bost- wick's logs and John Hopson's mare, for a pair of and- irons; writs of trespass and of summons. An itemized account in the daybook, headed "1798 Acc't of my duties" is summed up at the foot of the page as follows:
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