USA > Massachusetts > Hampden County > Springfield > An address, delivered in the new court house, in Springfield, Hampden County, Massachusetts, at the dedication of the same, April 28, 1874 : containing sketches of the early history of the old county of Hampshire and the county of Hampden, and of the members of the bar in those counties, with an appendix > Part 2
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When, therefore, those who, in a moment of petulance, for the misconduct of a jury, the ignorance of a judge, or the inno- vating change of a sound principle that has been hallowed by the experience of ages, or disgusted by the conduct of those legal practitioners who sell not only their talents, but their char- acters, for the purposes of a corrupt and unprincipled client, in- veigh against the delays, the uncertainties, and the imperfections of the law, let it be understood, that their vituperation has ref- erence rather to the defects of its administration, to the folly or the apathy of the people, in the first duties of their political ob- ligations, in reference to the nomination of virtuous and intelli-
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gent legislators, in the choice of honest and faithful executive officers, and in the clection or appointment of able and upright judges, than to any imperfections of those principles of law, that are the choice heritage from our fathers. The law is still over us and around us, in all its strength and wisdom ; and it is we, we ourselves, whose criminal omissions are the sources of those evils, which all good men deplore.
If the people were not recreant, we should not be compelled to read, as we often do, in an opinion of a court of one State, a complaint that a court in another State holds a different doc- trine on this point from that which we have always maintained : nor, on the other hand, a counter crimination. There would not be that diversity of which the wise old Roman orator so eloquently complains-" One law at Rome and another law at Athens ;" but its provisions would be uniform, stable and permanent ; and to the demons of innovation, whether legislators or judges, its language would be that of the great apostle : "Finally, brethren, whatsoever things are true, whatsoever things are honest, what- soever things are just, whatsoever things are pure, whatsoever things are lovely, whatsoever things are of good report, if there be any virtue, if there be any praise, think on these things." For these are the principles of the common law ! These are the foundations upon which all the great institutions of society re- pose. Upon them is erected the beautiful fabric of social life. The general security of society is maintained by them. They are the protectors of the innocent and the avengers of the guilty. They hush the turbulence of discord, and inspire that peaceful quiet, that preserves, refines, and adorns society. They incite and inspirit men to the cultivation of science, to the love of art and beauty, and are the nourishers and guardians of the progress of the world. Therefore I maintain that Mr. Choate was right in his reply to the judge, who said to him, that he would pass what he conceded to be an equitable rule, if he would furnish him with any precedent. "I will look, your honor, and en- deavor to find a precedent, if you require it, though it would seem to be a pity that the court should lose the honor of being the first to establish so just a rule."
It has been intimated to me, as your expectation, that I shall give a cursory history of this County, and the course of its judi- cial progress, with such personal reminiscences of the courts, the
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judges, and the leading members of the bar, as may be interest- ing to those who have come into professional life, since the days when there were giants in the land. There is but one objection to this course, and that is, that he who does it, almost necessa- rily subjects himself to the charge of egotism. When a person essays to delineate his personal recollections of the character, the conduct, and especially the conversations of another, he, of necessity, makes himself more or less a companion, and identi- fies himself with the individual whom he describes. Thus, Bos- well, although an author of talent, sufficient to write the best biographical history that the world has ever seen, would scarcely have been known to it at this time, but for his connection with the distinguished father of English literature.
Some few years since, an aspiring lawyer essayed to write the biography of a most eloquent forensic orator ; and a wag was cruel enough to say of it, that it was a history of the wit, wisdom, and eloquence of the author, with the attestations, en- dorsements, and recommendations of Rufus Choate. But, when it is recollected, that, in the early part of the present cen- tury, before railroad intercommunication had interfered with the professional habits of the bar, the terms of the courts, in the agricultural portions of the Commonwealth, brought to the shire town all the legal practitioners, and kept them there, dur- ing almost the whole length of their sessions, it will occur to every one, what a favorable occasion was presented to each one of the number for observation and memory. It was particularly so in this country. When a person was admitted to the bar, excepting as to the different grades of the court, and the offices, he was admitted to its full communion, and to all its courtesies. It was the custom for the greater portion of the members to congregate at one house ; and though at breakfast and tea they sat at reserved seats, at the head of the table, yet their dinner was served up in their own apartment. The judge was seated at the head, and the members arranged themselves somewhat according to their seniority at the bar. And here, the distinc- tion of age and rank ceased. The dinner was the feast of rea- son and the flow of soul. If not the duty, it was the employ- ment of the judge to call forth, from the different members, their highest contributions of enjoyment; and at times, the
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length of the hour was made to trench somewhat upon the hour of adjournment.
On one of these occasions, when, as it happened, a couple of distinguished gentlemen from the eastern part of the Common- wealth were present, and the general hilarity had caused the company to forget the hours, the watchful sheriff remarked to the judge that the court bell was ringing. " And let it ring," said his honor, with exhilarating emphasis; "why should its tongue interrupt our harmony ? Here are the counsel on both sides,-there, in excited controversy ; here at peace. And for myself, I think I can say, as another man did, who was going to be executed,-' Don't hurry, gentlemen ; there will be no fun till I get there!' Well, Mr. Sheriff, one song more, and then we will seek further what carried off that dam !"
But it was the evenings, the nights, the more than noctes an- brosianæ, that brought the different members of the bar and the judges into that close communion, where dignity, age and learn- ing were fused and melted into good-fellowship, and gave to the young student, even, those advantages that, at the present day, are hardly to be attained. For a short time after supper, the leaders of the bar were generally closeted with their juniors, in the preparation for the cases for the morrow ; and those who were not so engaged were left in the parlor, to discuss the pro- ceedings of the day, or to indulge in such conversation as seemed pleasant to them. But, at a later stage of the evening, there was a general convocation of the members of the bar and the judges, in the parlors, and a conversation ensued, that was always in the highest degree interesting and instructive. I once heard an indolent lawyer speak of those meetings with the high- est enthusiasm. "I have," said he, " but few books and little business ; and I contrive to pick up sufficient law, from the elder lawyers, to last me through the next vacation."
Before I proceed to speak of my personal reminiscences, let me recall briefly to your recollections, the early history of West- ern Massachusetts, being that part of it, that constituted the old county of Hampshire.
During the first winter of the settlement at Plymouth, in December, 1620, one-half of the whole colony, including twenty- eight of the forty-eight adult male population were laid in their carefully leveled graves. In June, A. D., 1630, an additional
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colony was settled at Boston. Within fifteen years from the landing at Plymouth, people went forth from these scanty municipalities,-a sufficient number of bold, brave and advent- urous men,-to form settlements in different parts of a territory, greater in extent than the whole island from which they emi- grated. Plymouth, Boston, Charlestown, Watertown, Rocks- bury, Dorchester, Hingham, Medford, Newbury, Ipswich, Salem, Saugus, Waymothe, and New Towne, had become before that time, regularly organized plantations ; and in addition to these, were the settlements in New Hampshire, Maine, Rhode Island and Connecticut.
I have not ascertained the exact date of the discovery of the Connecticut river. It was navigated as early as 1631, and a settlement was made upon its banks in 1633. In the latter part of 1635, a representation was made to the court, sitting at New Towne, that several of their friends, neighbors and freemen from the eastern plantations, as also other men of quality, now in England, are resolved "to transplant themselves and their estates to the Ryver of Conecticott, there to reside and inhabite ; and that there may be, upon occasions, some causes of differ- ence, and also dyvers misdemeanors, which will require a speedy redresse ; " and, thereupon, it was ordered, that William Pinchon, William Phelps, and others, should have authority, by a majority, and in certain cases by any two of them, to hear and determine, in a judicial way, such causes of difference, and to inflict corporal punishment or imprisonment, to fine, and levy the same, "soe as shall be for the peaceable and quiet ordering of the affairs of the plantation for the space of one year." (Records of Massachusetts, vol. I, p. 173, 1635-6.)
There being a controversy in reference to the meaning of the resolve above referred to, a petition was made by Mr. Pinchon and others to the general court ; and, after a consideration by that august body, three distinct explanatory resolutions were adopted ; and a declaration was made that Mr. Pinchon's au- thority in all " tryalls," shall extend to all causes, civil or crimi- nal, subject to an appeal to the courts of assistants, with a jury of six men until they shall have a greater number for that service. (Records of Massachusetts, vol. I, p. 320, 1641.)
Prior, however, to this subsequent legislation, there seems to have been a controversy relative to the authority of Mr. Pinchon
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as a magistrate for the county ; and, as a case ex necessitate rei, the people resorted to the first principles of government, and, on the 14th of February, 1638, they resolved that, "being by God's providence, fallen into the line of Massachusetts jurisdic- tion, and it being farr off to repayre thither, in such cases of justice as may often fall out, among us, we doe therefore, thinke it meete, by a general consent, and vote and ordaine Mr. Wil- liam Pinchon " as a magistrate, etc. And it was also agreed upon, that, " seeing a jury of 12 fit persons cannot be had at present among us, six persons shall be esteemed and held a sufficient jury to try any actions under the sum of ten pounds, till we shall see cause to the contrary, and by common consent shall alter this number of jurors, or be otherwise directed from the general court in ye Massachusetts."
Mr. Pinchon continued to exercise these judicial powers, until a storm broke upon him which, at last, drove him from the colony. As this was the first instance of the impeachment of a public man in this country, or of a process in the nature of it, it may be interesting to refer to it, as illustrating the dispositions, and the gross inconsistency of those who had just fled from their own country to find liberty of conscience here. Mr. Wil- liam Pinchon appears to have been a man of considerable talent ; and though not a lawyer, to have filled a leading position in public affairs. He possessed the confidence of the government, which in many instances deferred to his suggestions, in relation to the affairs of the colony. But, in the height of his useful- ness, and in the zenith of his reputation, like many others before him, he was induced to write a book ! And it was for this reason :
-" quo numine læso, Quidve dolens, regina deum tot volvere casus Insignem pietate virum, tot adire labores Impulert : tantæ ne animis cœlestibus iræ !"
It was on the 16th day of October, 1650, when Thomas Dudley was governor, John Endicott, Esq., deputy governor, and William Pinchon, gent., one of the ten assistants, that the record declares, that "the courte, having had the sight of a booke, printed under the name of William Pinchon, doe judge meete, first, that the protest be drawn to satisfy all men that the courte utterly dislikes and detests it, as erroneous and daingerous ; secondly, that it be answered by one of the elders ;
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thirdly, that the said William Pinchon, gent., be summoned to appear to the next general courte to answer ; and fourthly, that the booke be burnt by the executioner, or such person as the magistrate shall appoint (the party being willing to doe it,) in the market-place, on the morrow immediately after the lecture." On the same day, the court made a more formal declaration of their innocency and ignorance of the writing, or publishing thereof; of their detestation and abhorrence of much of its contents as false, erroneous, heretical ; of their condemnation of it to be burned in the market-place; of their purpose to convent the said Mr. William Pinchon before authority ; and also, God assisting, to proceed with him according to his demerits. They also further purpose to appoint some fit person to make particular answer to the errors and falsities, so that the minds of those that love and seek after truth may be con- firmed therein. On the next day it was ordered, "that this declaration be signed by the Secretary, sent into England and be printed there ; that Mr. John Norton of Ipswich be instructed to answer the booke ; that Mr. William Pinchon be summoned to appear before the courte on the first day of the next session, to give answer to the booke entitled, The Meritorious Price of our Redemption, Justification, etc., and not to depart without leave from the courte."
Accordingly, on the meeting of the council, in May, 1651, Mr. William Pinchon appeared, and avowed himself the author of the obnoxious book. The court, out of "tender respect " to him, gave him liberty to confer with all the elders present, or such of them as he chose. He selected three of them, and "returned his mind under his hand," that he hoped he had so explained his meaning, as to take off the worst construction ; and " that it hath pleased God to let (him) me see," that he had not spoken so fully of Christ's sufferings as he should have done ; for, he says, " in my booke I call them but trials of his obedi- ence, yett intending thereby to amplify the mediatorial obedi- ence of Christ as the only meritorious price of man's redemp- tion ; but " he adds," I am now inclined to think they were appointed for a further end,-as the due punishment of our sins, by way of satisfaction to divine justice for man's redemption."
In view of this candid and frank acknowledgment, from this able and upright magistrate, the court gravely resolved, "that
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through the blessing of God on the pains of the reverend elders, that he is in a hopeful way, they judge it meete to grant him his liberty to return to his family the next week, and to carry Mr. Norton's reply up with him to consider thereof, so that at the next session in October, he may give full satisfaction, as is hoped for." But inasmuch as the people of Springfield required a magistrate, to "put issew" to such causes and dif- ferences as might arise, and a man like Mr. William Pinchon, was so far tainted with heresy upon such an important point of theology, as not to be able to settle their controversies, they ap- pointed his son-in-law, Mr. Henry Smith of Springfield, for the present exigency, who tooke his oath, and was dismissed to his jurisdiction. At the same session the thanks of the court were presented to Mr. Norton for his book ; and, what was doubtless of more value to him, the sum of £20 was paid to him therefor.
At the October session of the same year, the consideration of the errors and heresies of Mr. William Pinchon were again resumed in the court. They enjoined him to more thoroughly consider them; to weigh well the judicious answer of Mr. Norton ; and protesting that it was their desire that he should give a full satisfaction, and that they should not be constrained to proceed to so great a censure as his offence deserved, they ordered that the judgment should be suspended to the next May session, at which time he was enjoined to appear, under a penalty of £100. He soon after returned to, and died in, Eng- land, leaving his son as one of the colonists, who, like his father, was an intelligent man, and an upright public officer. What became of the recognizance of £100, or of the book, or of the answer of the Mr. Norton, we are not informed ; but they would be, at the present day, extremely valuable, as an ancient precedent on.the subject of trials of impeachment.
Mr. William Pinchon was one of the court of assistants, a body in some respects analogous to the council, at the present day, and, in others, to our Senate. He was one of the members of it before the colonists left Europe. He continued in office from the time of their landing at Boston, until the year 1651, when he was deposed, and his son-in-law, Henry Smith, ap- pointed in his stead. He was one of the persons named in the royal patents of James and Charles ; the subsequent confirm- atory charters of William and Mary, and George I., commonly
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called the provincial charters ; he was the Moses, who led this band of pilgrims into a distant wilderness, afar from human sympathy, or succor; he was not only an assistant,-a high counselor of the colony,-at Boston, but the friend, the magis- trate, the chief officer of the infant plantation, in the scene of its carly and dangerous trials ; and having expended the buoyant energy of his youth, and the matured wisdom of his manhood in behalf of a cause, that lay like a living coal at his heart, he was forced back from passing beneath the very arch of his tri- umph, and, with a bosom throbbing with disappointment and sorrow, compelled to return to the intolerant persecutions of a land, from which he supposed he had fled forever.
What a striking lesson does this melancholy example teach us of the reckless inconsistency of human conduct ! How fully does it illustrate the truth, of which history is full, that when political animosity or religious intolerance has inflamed the popular heart, and an unholy passion has driven reason from her throne, meritorious services, unrequited toils, and common dangers are forgotten, private rights and constitutional obliga- tions, shrivel in the furnace of public indignation, and, like that ideal creation, which the great Master of morals has depicted as the embodiment of a jealous and unreasoning passion, "it dooms, but dotes, and murders, yet adores."
However interesting may be the history of the subsequent period, from the year 1650 to the establishment of the county of Hampden in 1812, I pass it over briefly, inasmuch as it has been spread before the people by the Hon. George Bliss, in his address to the bar of the old county of Hampshire, September 27, 1826. I merely insert a few dates, for the convenience of reference, and a few facts which are not contained in the address of that learned historian. Hampshire county was incorporated on the 7th day of May, 1662. The incorporating act recites that the inhabitants of this jurisdiction "are much increased," and "are planted farre into the country, upon Conecticott river," that they cannot conveniently be annexed to any existing coun- ties ; it is therefore ordered, that henceforth Springfield, North- ampton and Hadley shall be a county by the name of Hamp- shire ; that Springfield shall be the shire town there, and the courts shall be kept, one time at Springfield, and one time at Northampton, and that the inhabitants shall pay their public
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rates to the county " in fatt cattle, or young cattle, such as are fitt to be putt off," or " in corne at such prises as the law doe commonly passe amongst themselves." The boundaries of this great county were certainly somewhat indefinite. It was pro- vided that the limits of it, on the south, should be the south line of the " Pattent," and the extent of the other bounds to be full thirty miles distant from any, or cither of the " foresaid " towns; and it was provided, further, that whatever towns or villages should hereafter be erected within these bounds, should be and belong to the aforesaid county. Inasmuch as the south boun- dary of the patent was not definitely known or fixed, but exten- ded, as it was claimed, far down into Connecticut ; as, also, the lines of the towns of Springfield, Northampton and Hadley had hardly better or more definite termini than " the wilderness," and thus, as the starting-point of the thirty miles from these three towns was beyond conjecture, the extent of the county could hardly be very correctly ascertained.
Prior to the grant of the province charter in 1692, the law was administered with little regard to form. From the few records, which now can be referred to, it seems that the magis- trates more nearly resembled arbitrators, or referees, than judi- cial magistrates. Sometimes they assumed great astuteness of practice, and undertook to dispose of pleas in abatement, demurrers and special pleas in bar, with the affected precision of Lord Coke, or Chief Justice Saunders. At others, they set themselves up as lord chancellors, and disposed of cases upon what they called the principles of equity, as they understood equity, and that was, to dispose of each case, not according to a system of precedents, but upon its own merits, or, as it seemed fair and equitable. From their decision an appeal was had to the court of assistants in Boston. Of course, a party injuriously affected by the verdict of a jury, in a community where it was at times impossible to empanel more than six capable jurymen, and where the law was laid down to them by magistrates, generally without a legal education, would have frequent occasion to crave the relief of an appeal ; but, when we consider the time to be consumed in a journey through what was called "the wilder- ness," a journey sometimes of eight or ten days, we shall be apt to conclude, that few of them were of sufficient resolution to avail themselves of it.
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But, after the establishment of the county of Hampshire, and the creation of the court at Springfield and Northampton, to be held alternately, at each place, and an arrangement by which, at the direction of the authorities at Boston, a court should be held in the county whenever there should be an occasion for it, the administration of the law began to assume much more the character of a science. Rules of court were established, by which the oath, which is now taken by an attorney, on his ad- mission to the bar, was then to be administered to each person so admitted. The people had seen the evil of an unqualified, and an unprincipled pettifoggism, and the court adopted meas- ures to protect them from it. More learned judges were appointed for the benches, both of the supreme court, the suc- cessor of the court of assistants,-or the town meeting court,- and the court of common pleas, the substitute of the former county court. The bar at once felt the change ; and, in a few years, those pettifogging persons, who, without learning, except the tricks of dishonorable practice, without self-respect for themselves, or a regard for the character of the profession, and with no desire, except the sordid wish to embroil neighborhoods in quarrels, in the hope of filching from them the means, which they could persuade them to sacrifice to stimulated passion, were succeeded by gentlemen of talent and influence, whose names have come down to us, as men who were honored in their day and generation.
The county of Hampden was incorporated February 25, 1812, and the act provided, that it should be in force from and after the first day of August, then next. It enumerated the towns to be embraced within it, the terms of the different courts of probate, the circuit court of common pleas, and the supreme judicial courts, and the powers and duties of sundry officers of the new county ; but it failed to make provision for the author- ity of the sheriff, and the deputies of the county of Hampshire, to act, as they had acted, within the territorial jurisdiction of the new county. The incorporating act was passed in a time of great political excitement. Hon. Elbridge Gerry had been elected previously as the governor of the Commonwealth, with a working majority of the democratic party as his coadjutors. The possession of office was then, as now, the great object of political toil ; and, on the 23d of May, before the day for the
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