USA > Massachusetts > Bristol County > Our County and Its People: A Descriptive and Biographical Record of Bristol County, Massachusetts (Volume 2) > Part 1
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Our country and its people
Alanson Borden, Boston History Company
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oogle
VERI
TAS
HARVARD COLLEGE
LIBRARY
IN MEMORY OF JOHN HAYS GARDINER CLASS OF 1885
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OUR COUNTY AND ITS PEOPLE
DESCRIPTIVE AND BIOGRAPHICAL RECORD OF
BRISTOL COUNTY
MASSACHUSETTS
PREPARED AND PUBLISHED UNDER THE AUSPICES OP
THE
THE
FALL RIVER NEWS AND TAUNTON GAZETTE
WITH THE ASSISTANCE OF HON. ALANSON BORDEN OF NEW BEDFORD
THE BOSTON HISTORY COMPANY, PUBLISHERS
1890
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AR
JUN 22 1937 LIBRARY
Gardiner fürif
3
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642
OUR COUNTY AND ITS PEOPLE.
Healy. Joseph, 1868-63. Hodges, John R., 1857.
Holder, Thomas F., 1872.
Hood, Francis B., 1868-60, 1871.
Howard, Albert (., 1864-65. 1867-6K.
Kelly, Jeremiab, 1878-79.
Leonard, Daniel, 1856. Marvel, Philip M., 1866-68, 1874-75. Mason, John, jr., 1856. McManus, Peter, 1870-80.
Morton, James M., 1861, 1865, 1808-09, 1878. ('Hearn, Robert, 1889-03.
Palmer, George W., 1870-72.
Pooler, Seth, 1868.
Searle, Charles F., 1866-67, 1889-72.
Slade, Jonathan, 1868-85.
Slocum, Mark A., 1857. Stewart, William W., 1884-87.
Vickery. Caleb B., 1854.
Waring, William J., 1883-85.
Winslow, Benjamin F., 1837-60, 1862.
Winslow, Smith, 1855.
Wood, William F., 1868.
Wrightington, Stephen C., 1858-69.
CITY ENGINEERS. Borden, Philip D., jr .. 1880-08. CITY PHYSICIANS.
Abbott, Jobn 11., 1870-81.
Hartley. James W., 1842-4H.
Kelly, Michael, 1891-03.
Learned, Ebenezer T., 1860-61.
Leary, John II., 1880-90.
Smith, Isaac, jr., 1871.
Cummings, Michael A., 1894-96.
Sullivan, James E., 1882-88.
Davis, Robert T., 1857-58.
Tourtellott, John Q. A., 1875-77.
Whittaker, John B., 1869-70.
SUPERINTENDENTS OF STREETS.
Horton, Danforth, 1859-67, 1809-77. Thurston, Anthony, 1878-94.
Manchester. Alexander, 1868. Thurston, Frank A., 1894-98.
DISTRICT PHYSICIANS.
FIRST DISTRICT .- John Gilbert, 1891-95; Thomas Gunning. 1804-06; Joseph E. Huard, 1897-08.
SECOND DISTRICT .--- Valmore St. Germain, 1801-98; Peter A. A. Collet, 1894-00; Emanuel Harris, 1807-08.
.
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Bowen, Seabury W., 1878-74.
Buck, Augustus W., 1897-98 (resigned and John Gilbert elected). Copeland, Charles W., 1878.
1)welly, Jerome, 1855-56, 1859, 1865-8.
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Alawson Borden
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THE BAR AND JUDICIARY.
CHAPTER XXXIV.
THE BAR AND JUDICIARY OF BRISTOL COUNTY:
The early judicial system established in the various counties' of Massachusetts was modeled after that of the mother country, and to this day retains many of the characteristics of the English courts. The English law, also, constitutes the foundation of our own common law. It is probable, however, that the first permanent white settlers in Mas- sachusetts territory gave little thought to law or court during a consid- erable number of years after their arrival in the new world. Their first and paramount desire was to escape intolerance and oppression and to find a home where they could worship God untrammeled and in their own way. Indeed, peace and order were chiefly maintained in the early years far more through regulations and edicts emanating from the church, than otherwise. The compact for civil government made before the Pilgrims set their feet on our shores clearly indicates this fact. Religious, legislative, and judicial control, such as prevailed for many years after the first settlement, were intimately intermingled.'
The first General Court of Massachusetts was held October 19, 1630, in Boston. At that court it was agreed that, in future, the freemen should choose the assistants, and that the assistants should choose from among themselves the governor and the deputy-governor. The Court of Assistants was to have the power of making laws and appointing officers. In their zeal to establish a commonwealth on a religious foundation, they ordained "that none but church members should be
" The first record of the word " county," as applied to government, was in the time of William the Conquerer. Then the sheriff was the most important official, and ruled the counties of Eng- land with an iron hand. County courts were then established. During the reign of Edward I, the county, notwithstanding all draw-backs, was still a living, self-governing body, and we find . the fiscal business the most important function of the shire. All taxes were then assessed and col- lected by the juries elected by the county court .- From a lecture delivered before the Civil Gov- ernment Class, February 18, 1807, by William Sanders.
It may be added in this connection that the office of sheriff in this country in early years was a for more important one than at the present day.
" The legislative and judicial authorities were very improperly mixed together, and it is with difficulty that we can keep our muscles in due subordination when we read some of their legisla- tive provisions, and some of their judicial discussions .- Writings of Abraham Holmes.
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OUR COUNTY AND ITS PEOPLE.
admitted to the freedom of the body politic," or enjoy the privilege of voting. This is further confirmation of the power and influence of re. ligious sentiment in public affairs in those times. After 1634 commit. tees consisting of ministers and leading laymen were appointed with almost annual frequency, for about twelve years, to prepare a code of laws for the colony, and enactments of imperative necessity were adopted. In 1648' these were collected, ratified by the court, and printed. In civil actions the rules of equity were applied as far as circumstances seemed to admit. In punishing offenses the old Mosaic law seems to have governed, at least as far as the moral character of that law was concerned. Note the following sentences found in the records:
Josias Plaistowe, for stealing four baskets of corn from the Indians, is ordered to return them eight baskets, to be fined five pounds, and hereafter to be called by the name of Josias, and not Mr., as formerly he used to be.'
Captain Stone, for abusing Mr. Ludlow, and calling him justass, is fined one hun- dred pounds, and prohibited from coming within the patent, without the governor's leave, upon pain of death.
Serjeant Perkins ordered to carry forty turfs to the fort for being drunk.
Edward Palmer, for his extortion in taking two pounds thirteen shillings and four-pence for the wood-work of Boston stocks, is fined five pounds, and ordered to sit one hour in the stocks.
Thomas Petit, for suspicion of slander, idleness, and stubbornness, is censured to be severely whipped and to be kept in hold.
Daniel Clarke, found to be an immoderate drinker, was fined forty shillings .- These are from Hutchinson's Hist. Mass., Vol. I. p. 436.
From these few extracts from an almost endless record of similar sentences, many of them for trivial and private delinquencies, it will be seen that courts of law after the modern form, rising by regular steps from the lowest to a very high tribunal, were scarcely necessary in those days, and that authority for maintaining good order in the com- munity extended into all the circumstances of social and domestic life. Attorneys were unknown; if recognized as members of a profession, it is quite probable they were regarded as an unnecessary evil. But the time
" The first trial for witchcraft in Massachusetts, as shown by the records, took place in this year (1648), when Margaret Jones, of Charlestown, was indicted as a witch, found guilty and ex- ecuted, in accordance with the English laws. She was charged with " having such a malignant touch, that if she laid her hands upon man womun, or child, in anger, they were seized presently with deafness, vomiting, or other sickness, or some violent pains."
" The title, "Mr.," carried with at a considerable well-defined dignity. It was not applied unless deserved and in comparatively few instances. A list of one hundred freeman of those times will not contain more than four or five with the prefix. The common title was "Good- man," and "Goodwife."
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THE BAR AND JUDICIARY.
came when, with increasing population and the contentions inevitably arising from antagonisms in human nature and acts of dishonest or ma- licious men, courts of law were demanded. Coming into these courts with his grievance the ordinary freeman found himself incapable of in- telligently presenting his case; hence an advocate was wanted-a coun. selor-a lawyer. Those pioneers were accountable to nobody, unless perchance to their clients; they were sole judges of their own qualifica- tions; they took no responsibility, and were bound by no oath. If they won a case, it was more through the innate and evident justice of their client's claims, or their own natural talent or advocacy, than through their knowledge or application of established laws. They merely assumed the title of attorney and were recognized as such. Their . standing in the early years may be indicated to some extent by the fact that it was enacted in 1683 that no attorney should have a seat in the Legislature; and that was the first mention of the office by the Legis- lature. Thirty-eight years later, in 1701, the form of oath to be taken by attorneys was established by statute; while in 1715 a law was passed prohibiting a party to a suit from retaining more than two of the sworn attorneys, so that his opponent might not be deprived of similar assistance.
Although Bristol county was formed in 1685, no court records have been found with date carlier than 1702, other than the following im- portant document, which was discovered in the basement of the old Taunton court house, just before its removal to make room for the new structure. It is a record of the courts from 1696 onwards, and in this connection is of great importance; hence its introduction here in full:
At his Majesties Inferior Court of Common Pleas held at Bristol July 14th in the eight year of his Majesties Reign, Annoque Dom. 1696.
John Saffin Esq President. Justices present, Capt. John Brown Capt. Tho. Leonard, Esqrs Capt. Nicholas Peck,
Grand Inquest.
Caleb Eddy William Howard Swansey.
Cpt Reynolds form. 1 M'Hugh Woodbery
Bristol.
John Linkhorn - Taunton.
Not here. Richard Haskins
Nicholas White
Christopher Almy Will Palmer Saml Shelly Little Compton. Ap. 18, 97. Philip Commin, Dartmouth.
Henry Sweeting 2 days Israel Reed Thomas Ormsby
Rehoboth.
Ralph Paine Freetown. Ap. 97 not here. Christ'p Allen :
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OUR COUNTY AND ITS PEOPLE.
Jurors for Tryals.
Abraham Hathaway, Foreman.
John Allen -
1 Bristol.
Isaac Chapin John Barnee Samuel NewMan, Jun'r. - Rehoboth.
Dismis Tho. Briggs In Maj. Bradford Case Joseph Earl
Dartmouth.
John Irish { Little Compton. John Coe
Sworn Edward Adams put in Maj. Brad- fords case.
At " IIis Majesties Court of Common Pleas held at Bristol, July 14, 1696," and "again, January 12, 1696-7. Present John Saffin, Esq., President. Justices present Capt. Jno. Brown, Capt. Thomas Leon- ard, Capt. (Nicholas) Peck Esqr."
The next record is of " His Majestyes Superior Court of Judicature holden at Plimouth for the Countys of Plimouth on the second Tues- day of March, 1696-97." The actions tried were chiefly for debt and trespass, and cases of appeal from lower courts and single justices.
In 1698-99, January 10, is noted the holding of the " Inferior Court of Common Pleas at Bristol." The names of attorneys found in that connection are John Spurr, Eliezer Carber. On April 11, 1699, the name of Robert Crossman appears as attorney; and October 10, 1699, that of Nich. Moorey.
On January 9, 1699-1700, the Inferior Court met at Bristol, with the same justices as before. Then follows this record:
Nicholas Moorey pltt, versus Henry Gashett, Def. The pltt bringeth his action of Case to ye Damage of fifty pounds for that the sd Gashett did deceitfully and insuf- ficiently Build the Hull and Head of the Barque Goodspeed in Taunton, the work- manship of said vessell not being done and p'formd workmanlike.
The defend' by his attorney pleaded that the writt might abate for the uncertainty thereof, the Court allowed the same and gave judgment that the defende have his bill of costs. Costs allowed.
.
08 00 10
which cost was by the pltt payd to the defend !. Attest Jnº Cary, clerk.
Then Henry Gashett pltt brings action to recover 5 pounds 5 shillings justly due, as he saith for 3 weeks, 8 days work done and performed (faithfully) by sª Gashett and his bro. David Gashett, beginning sometime in the mo. of May, was in year 1696-97 upon ye Hull of a certain vessel described as in the writt. Deft pleads plt' did not work no time faithfully. Verdict against Pltt. He appealed to Superior Court.
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Nath: Whittiker John French
William Chase Joseph Kent, Jun Swansey.
Abraham Hathaway - Taunton.
Jonath: Briggs John Smith
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THE BAR AND JUDICIARY.
Already Taunton had made vigorous efforts to the end that some of the courts should be held there. The following vote shows this fact:
This 11th day of May, 1693. the town hath voted: Whereas we the inhabitants of Taunton judging it to be for ye public benefit of ye province that at least one of ye Superior Courts, if not some of ye Inferior Courts, be kept at Taunton, it being so much in ye centre of ye colony, and ye greatness of our number, compared with our neighbor towns, do order the selectmen to write a petition to ye next General Court to be held by ye Governor Council and Representatives, that we may have one or more of ye Courts held in Taunton.
The Selectmen sent up a strong petition, giving in detail the reasons why Bristol was no more entitled to the courts than Taunton, and why for the convenience of the settlers they should be held in Taunton. A part of these reasons are stated in the following from the petition :
Most of the actions and lawsuits arising in any Town in this County (except in Bristol itself) are concerning the titles and bounds of lands, in which cases the most ancient inhabitants are best witnesses, having been present at the bounding of . most lands, and whose memories are our best records, through the brokenness of ancient times. These ancient witnesses are too old to travel twenty miles to Court, and the presence of a grave ancient person orally attesting to what he knows and explaining his testimony, is of far more advantage to a case than some shattered evidence he sends from home in writing.
6th. Taunton is nearer to Boston than Bristol is by twenty mils at least, which will save so much riding through very bad way for the honored judges of the Circuit in case the Superior Court be removed from Bristol to Taunton.
Upon these grounds our Town humbly desires that they may enjoy at least one or more of the quarter Sessions and one Superior Court be removed from Bristol to Taunton.
Subscribed in behalf of town by James Leonard, Henry Leonard, Thomas Dean. Shadrach Wilbore, Peter Walker, Selectmen.
The efforts of the Taunton men were unsuccessful and the town had to wait more than fifty years for its courts.
It was some years after the settlement of the colony before the shire was introduced as a territorial subdivision and a part of the governing power through its inhabitants. So long as the assistants or the General Court were able to discharge the functions of a higher judiciary for all important cases, and the colonial marshals could execute their processes, town government sufficed; but with the increase of settlements, and the vast expansion of business, arose an important demand for a dis- trict between the province and the isolated committees. The judicial system of the shire was reorganized under the second charter in 1691 and brought into closer harmony with the cotemporary English model. For example, the criminal jurisdiction and the ministerial or general
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OUR COUNTY AND ITS PEOPLE.
administration business of the old County Court were transferred to the so-called "Quarter Sessions," or, as it was subsequently styled, the "General Sessions of the Peace." In addition to its judicial work, this court performed the duties of the modern Board of County Commission- ers. While during the first stage in the evolution of the Massachusetts shire (1636-43) the general functions of the County Court were rudi- mentary; during the second stage (1643-91) and the third (1691-76) the status of that court as a county board of civic administration rapidly increased in importance.
From the evidence thus far adduced it is clear that the three courts (the Superior Court of Judiciary, the Court of the General Sessions of the Peace, or the Quarter Sessions, and the Inferior Court of Common Pleas) were in full operation very soon after the erection of Bristol county. The officer of the County Court was the marshal, superseded after 1791 by the sheriff and clerk. The latter, in addition to his duties in keeping the judicial records, was ex officio recorder of the county, thus performing the duties of the modern county clerk.'
The jurisdiction of the old County Court extended over all criminal matters the punishment of which did not extend to loss of life, member, or banishment. . Aside from the earlier records before quoted from, the first recorded proceedings of this court are for the year 1702, from which the following extracts are taken as showing the character of cases and measure of punishment prevailing at that period:
On the 14th of April, 1702, William Earle, of Swansea, being presented for pro- fane swearing and summoned to appear to answer for the offense, came and pleaded the province law, to wit, such offenses must be proved against the offender within thirty days after the offense is committed, was admonished therefor and dismissed.
July 14, 1702. "Samuel Waldron, of Taunton, being presented for not attending public worship of God on the Lord's day, appeared upon the summons and pleaded
" The office of constable was an important one in the carly history of the county. During the colonial period it was considered a post of honor and responsibility, as representing the civil government and being the chief exponent of law. Only trust worthy and respectable persons were chosen, and such as they frequently shrank from the duties of the position. Hence, fines were imposed in cases where men refused to take the office without sufficient excuso. In Taun- ton in 1606, John Deane, Isaac Deane, James Leonard, jr., and Richard Godfree, jr., were com- pelled to give their reasons for declining to serve as constables. In those days office-seeking was not the mad scramble that now prevails.'
' Even the office of governor sought the man and not the man the office. The General Court of Plymouth passed the act, that whoever refused the office of governor should pay twenty pounds sterling, unless he was chosen two years successively, and whoever refused the office of counselor or magistrate should pay ten pounds. Edward Winslow, in 1688, was chosen governor, Mr. Bradford having been governor about ten years, and now, "by importunity," writes Win- throp, "gat off."
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THE BAR AND JUDICIARY.
that he was of the way of the Church of England, but did not go to hear Mr. Dan- forth, but to other meetings as often as he could, was admonished for his neglect, and dismissed with paying costs, taxed at two shillings."
"Samuel Watfield, Keeper of the jail at Bristol, having served the year past in that office for the sum of five pounds, desires to have an order passed this Court to the County Treasurer for the receiving of the said sum; it was passed accordingly."
April 13, 1703. "Ordered that Capt. Samuel Gallup have and receive of the County Treasurer eight shillings for his trouble, expense, and pains in going to Swansey to fetch the order for the Thanksgiving, and notifying the people in Bristol thereof the day before." Captain Gallup was then sheriff of the county.
April 13, 1713. "Frank Townsend being bound by the way of recognizance to ap- pear at this Court upon complaint of his wife, who complains that he had left her, and had taken another woman to be his wife, and he being convicted thereof by his own confession, it is ordered that he be whipt twenty lashes on his bare back, well laid on, and to stand committed until sentence be performed."
John Weaver, in court, "owning that he had been guilty of a breach of the Sab- bath by husking corn on the Lord's day; ordered to pay a fine of ten shillings, as the law directs, and costs of Court."
'The colonial office of king's attorney was the direct predecessor of our district attorney and its requirements and duties were similar. Samuel Howland, of Bristol, was appointed to that office at each term from 1702 to 1746.
The dispute between Massachusetts and Rhode Island over the boundary line, which began in 1740, and ended in 1746 by setting off to the latter State, Tiverton, Little Compton, Bristol, Warren, Barring- ton, and Cumberland, has been described in earlier chapters of this work. By that change Bristol lost its status as the county seat of Bristol county, Mass., and made the selection of a new one imperative. Accordingly an act was passed under date of November 13, 1746, estab. lishing the county seat at Taunton, and providing for the removal of records, etc., to the new location.' The sheriff was directed to transfer all prisoners from his majesty's jail in Bristol to Taunton, and " there put them under safe custody in some proper place until the county shall provide a jail." Little faith need be put in the tradition alluded to in the foot note on this page, for it is clearly shown in the papers of the Leonard family, written by Judge George Leonard, that the removal of the records was accomplished by Mr. Leonard, who with Thomas
" " There is a tradition that the people in Bristol who had the custody of the court records refused to give them up, and that James Williams, of Taunton, was deputed to get them by stratagem. He is said to have succeeded in his efforts, brought the recordsto Taunton, and that he was rewarded for this act by being appointed county register, an office now called register of deeda, which office he, his son, and his grandson held successively for a period of ninety-five years"-Writings of John S. Brayton.
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