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 3
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THE FIRST COURT HOUSE, BUILT ABOUT 1740.
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county to go into existence, he appointed Jonathan Smith, Jr., the sheriff. He had, also, on the 20th of the same month, appointed the Hon. Samuel Fowler the judge of probate for the same county. It will readily be conceived, that a corps of officers for a new county, appointed under such extraordinary circumstances, would arouse a spirit of intense excitement ; and, probably, in consequence of this very act, a political change took place in the government.
There was manifested an immediate disposition to test the legality of the proceedings ; and, on the 4th of February, 1813, an order was passed in the House of Representatives, request- ing the attorney, or solicitor general, to file informations, in the nature of a quo warranto, to know by what authority the Hon. Samuel Fowler, Jonathan Smith, Jr., and divers other persons, exercised the offices to which they had been so appointed. The attorneys and solicitor generals refused to file the information officially, because they had not been requested by both branches of the Legislature, and they prayed the advice of the court in the premises, which it very properly refused to give, until the said Smith should be heard thereupon. Accordingly the pro- ceedings were dismissed.
The next move in the direction against Smith, to which I refer, was a plea in abatement, in the case of Fowler vs Beebe, et al (9th Mass., 231). On the 17th of August, 1812, one Day, a deputy sheriff of Smith, had served a writ in the case of Fowler vs Beebe; and, at the return term thereof, on the last of the same month, Beebe pleaded in abatement, that Smith had received a pretended commission, dated May 23, 1812, from one Elbridge Gerry, with the advice of the council, appointing him sheriff of the county of Hampden ; and, on the 14th of August next following, Smith appointed Day a deputy sheriff ; whereas, on the day of said appointment, there was no such county as Hampden, nor any such office as sheriff. The plaintiff demurred to the plea, and Hon. Samuel Lathrop argued for the plaintiff.
The learned and Hon. George Bliss, as counsel for the defendants, with great zeal and ingenuity, opposed the demur- rer ; and in the course of his argument he perpetrated, what is said to have been, the only joke of his life. After commenting upon the legal authorities in Great Britain, and insisting that no such office existed, and no such county, at the date of the
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commission, he said : " It was indeed possible, that the county of Hampden might come into existence, in the ensuing August ; that there might be then such an office, as that of sheriff of such possible county ; and that, at the time contemplated, Smith might be a fit and proper person to fill such possible office. This last, however, in the opinion of many, was potentia remotissima !" It is hardly necessary to add, that notwith- standing the zeal and ingenuity of the counsel, the court held that Smith was de facto, the sheriff, though he might not hold the office de jure; and that it was only by process against him personally, and not incidentally, in a suit between other per- sons, that his rights could be affected; and so the demurrer was adjudged bad.
At the April term of the supreme judicial court, held at Northampton in 1813, the solicitor general filed an information, in the nature of a quo warranto, against the Hon. Samuel Fow- ler, requiring him to answer by what warrant he claimed to use and enjoy the office of judge of probate, for the county of Hampden, which office he had usurped. After summons to Fowler, Hon. Eli P. Ashmun, moved to quash the information, upon sundry technical grounds ; and he presented his views with great clearness and force. Bliss, in the absence of the solicitor general, replied, and the court over-ruled the motion. Ashmun, for the respondent, then pleaded in bar, that, on the 20th of May, 1812, the said Fowler was duly appointed by Gov. Gerry to the office of sheriff with the advice of the council, and was sworn by William Gray, the lieutenant governor, to the discharge of the duties. After oyer of the commission, and certificate, the solicitor general demurred, and the respond- ent joined in demurrer.
Bliss, in support of it, made a strong and learned argument, and Ashmun replied to it with great ability. In the course of his reply, he produced two certificates of the secretary of state, of similar appointments, in like cases. Mr. Bliss, in his closing argument displayed great ingenuity and a most unwonted zeal. I copy a few sentences of it, inasmuch as it is not fitting that such noble sentiments and such exalted precepts of political morality should be hidden in the sequestered pages of the volumes of the law reports. In reply to the argument of Mr. Ashmun, that similar appointments of other persons to other
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offices should be considered as authority in this case, he very happily, and very pungently says : "It is however, to be hoped, that executive precedents arc not all of them to be established by law. If they should be, our government would be, emphati- cally, a government of men, and not of laws. One governor divides, and another unites the militia. One orders detach- ments from it, and another declares the measure unconstitu- tional. One waits until there is an office before an officer is appointed, and another makes appointments, before the law has created an office. At one time, the executive causes it to be entered upon the public records, that an adherence to party ought to be the rule of elections to office. Another executive holds to the saying, detur digniori ; and, in the spirit of an old English statue, (12. R. 2. c. 2.) declares that 'no officer shall be ordained, or made for any gift, or brokage, favor, or affection, nor that any which pursueth, by himself or any other, privily or openly, to be in any manner of office, shall be put in the same office or in any other ; but that all such officers shall be made of the best and most lawful men, and sufficient' :- 'a law,' says Sir Edward Coke (I. Inst. 234) 'worthy to be written in letters of gold, but more worthy to be put in execution. For never shall justice be duly administered, but when the officers and ministers of justice be of such quality, and come to their places in such manner, as by this law is required.'"
The court adjudged the respondent's pleas bad and insuf- ficient, and the appointment void and without legal authority. Mr. Ashmun moved in arrest of judgment, and the case was continued ; but, at the next term of the court they overruled the motion in arrest, enjoined him from holding or receiving said office, and ordered judgment against him for costs. This seemed to have been the end of the controversy. As soon as the opinion of the court was ascertained, the residue of the offices were relinquished, and the federalists entered into the full possession of them.
My first acquaintance with the courts of judicature of the county of Hampden, commenced in the Autumn of 1825. I at that time became a student at law, in the office of iny father, in Westfield ; and profiting by the authority of Lord Coke, who "would advise our student" "to be a diligent hearer and ob- server of cases at law," in Westminster hall, he advised me to
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be a punctual attendant of the courts in the county, to read the declarations and pleadings of each case, to listen to the evidence and the arguments, to examine the making up of the costs, and, in short, to make each case my own. I am happy to say that I gave more than usual heed to these parental admonitions ; and now, standing in this legal association, in loco parentis, I wish to say, for the benefit of those who have commenced, or shall hereafter begin to acquire a knowledge of the science and the practice of the law, that I never can be sufficiently thankful that such advice was given to me, and that I was wise enough so well to follow it.
The court of common pleas, as it was reorganized in 1820, consisted of the following justices : Artemas Ward, chief justice, John M. Williams, Solomon Strong and Samuel Howe, justices. The members of the Supreme Court, in 1825, were Isaac Parker, chief justice, Samuel Putnam, Samuel S. Wilde and Marcus Morton, justices.
Upon the death of Chief Justice Ward, in 1839, Judge Williams was appointed as his successor, and remained in office till his resignation, in 1844, when he was succeeded by Hon. Daniel Wells.
I never saw Chief Justice Ward upon the bench ; but Judge Williams frequently held the terms of the court in this county, and was a most acceptable judge. He was well versed in the rules of practice, was quiet and gentlemanly in his manners, and when the questions which were presented for his decision had been discussed, he passed upon them, and the trial proceeded, nor would he indulge a further discussion.
Judge Howe was a citizen of Hampshire county, and an emi- nent lawyer at that bar. In connection with Hon. Elijah H. Mills and Hon. John H. Ashmun, he established a law school at Northampton, delivered a course of lectures, and heard the reci- tations of his pupils. He was a man of great industry in his studies, of great ardor of character, and exceedingly fond of legal discussions. He took a deep interest in the cases that were tried before him, and any questions of doubt, he was ac- customed to reserve for further investigation. At the close of a term which he had held, he usually narrated to his pupils the cases that had been tried, and his descriptions of the conduct of the different counsel were exceedingly interesting. He died
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about the time of my admission to the bar, in 1828, and the Hon. David Cummins was appointed as his successor.
The Hon. Solomon Strong remained upon the bench for a period of twenty-two years, and resigned in 1842. The west- ern circuit was a favorite one with him, and he used to strive for the opportunity to hold it. His attachment to the lawyers in the western counties, of course, begat a corresponding attachment ; and it was a pleasure to see the jovial face of Judge Strong upon the bench. If he was not so erudite as some of his brethren, he made up for it by the honesty of his purposes, and his strong common sense. He was kindly in his conduct to the junior members of the bar, and in all cases he exercised the strictest impartiality. Soon after my admission to the bar, a case was tried of Colton vs. Bliss, for the services of the former as an hired man, who had left his employer before the period of his agreed service had expired. Mr. Chapman, the late chief justice, was for the plaintiff, and the late Hon. Oliver B. Morris.for the defendant. At the conclusion of the evidence, Judge Strong inquired, " Well, Brother Chapman, do you wish to argue this case to the jury?" Mr. Chapman was rather taken aback ; but it was one of his first cases, and he felt confidence in it. "Most certainly I do," was his reply. " Well," said the judge, "you can go to the jury ; but can you hold a verdict ? Well, go on." Mr. Chapman proceeded to deliver an effective address ; and, as I have often heard him in his best moods, in subsequent years, I have thought that I never heard him more effective in his address to a jury. Ris- ing to give the charge to the jury, Judge Strong said, that the question for them to decide was one entirely of fact. Was the plaintiff justified in leaving the employ of the defendant before the expiration of the time of service, in consequence of the language of the defendant? "At the conclusion of the evi- dence," said he, "I intimated a most decided opinion for the defendant. I was wrong in giving such an intimation ; perhaps wrong in my opinion. That is for you to judge. It is pecu- liarly a question of fact for the jury, and the court has nothing to do with it. You will therefore consider my remarks as not having been made, and, as you decide upon this question, such will be your verdict." After receiving proper instructions from the court, as to the law and the facts of the case, the jury prompt-
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ly returned a verdict for the plaintiff. Mr. Morris at once moved for a new trial ; and, after a few remarks, said that it was unnecessary for him to enlarge, as the court had already ex- pressed so decided an opinion. "I know I did," said Judge Strong, " but as I often do, I made a mistake. It was a ques- tion for the jury ; they have decided against me, and I cannot but say that they have decided right. The defendant upbraided the plaintiff at the breakfast table, and before his family, repeat- edly, and in improper language ; and Brother Chapman says that it would have been beneath the spirit of a man to have submitted to it. On the whole, I think he is right, and I shall not disturb the verdict !" Mr. Chapman enjoyed and deserved his triumph; but rarely has the conduct of a judicial officer inspired a deeper feeling of respect and reverence, than this conscientious manliness of Judge Solomon Strong.
To properly appreciate the character of Judge Strong, it was necessary to see him off from the bench, at chambers, in the hearing of motions, settling bills of exceptions, and to see him upon those social and convivial occasions, when, the business of the court being over, he gave himself up to the hilarity of the occasion. He was fond of a joke, a story, or a song ; he was full of anecdotes of men whom he had known in his youth ; and he had a fund of historical reminiscences that were exceed- ingly interesting. I well remember with what zest he used to relate a story of his own experience as a member of a school committee. Having served several years in that capacity with a deacon in the town, he notified the deacon that it was his last year of service ; and, that as he had always addressed the pupils at the close of the schools, it would be a good thing if the dea- con should get his hand in, and to make an address before a new board should come in. The deacon assented to the arrange- ment, and the judge agreed to introduce him for the purpose of the address. Accordingly, at the close of the recitations, the judge remarked to the school, that he had been upon the committee for a long time, and had frequently addressed them ; but he should decline any future appointment ; and, with a few observations and a little advice, bade them farewell ; and then he added, that his colleague would make a short address to them in behalf of the committee. The deacon arose, stepped behind his chair, and, sawing forward and backward a few times,
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gave a preliminary hem, and thus began : "My young frins ; a kerect pronounsation is not only important in this world, but exceedingly valable in that which is to come!" There he paused ; and, either because he had forgotten the residue of his speech, or conceived, that the proposition contained all that it was important to impress upon their youthful minds, he turned and said to his associate: "Judge Strong, does anything occur to you to be added ?" "Nothing," said the judge ; "nothing to be added !"
And now I am in the way of it, and as this is a family party, I may as well narrate an event connected with the judge, which occurred at the dinner-table of the bar. It will be recollected that the bar were accustomed to dine in a parlor by themselves. It was at the June term of the Common Pleas, the weather fear- fully hot, the bar just seated at table, Judge Strong at the head, and Hon. Isaac C. Bates on his right, when an excellent and ven- erable member of the bar from the eastern part of the county, entered the dining-room in a glowing heat, and seated himself by the side of Mr. Bates. At that time it was the custom to use de- canters instead of pitchers, for water, cider, or such other bev- erages as the company required. In front of our venerable friend was a decanter of sour cider, and by the side of the judge, a decanter of gin. The former was a strong temperance man ; indeed, a teetotaler. He looked at the cider with wistful eyes, and thought of his dry, parched mouth ; and he concluded to put in the smallest quantity of cider to qualify the insipidity of nature's best beverage. Accordingly he said, "Brother Bates, I'll thank you to pass me that decanter of water!" Mr. Bates handed him the Judge's gin. Pouring into the modicum of cider, enough of the limpid element to fill the tumbler, he drank it off at a draught. Alas ! it was too fiery for the sensitive membranes of his throat and stomach; and when he at last recovered from his convulsive coughing, he turned to Mr. Bates, with a great vehemence of voice and action : "Brother Bates, you knew that that was gin!" The reply was simple and signifi- cant : "So did you!" "I aver," said he, "that I did not ! I aver that I thought it was water." "Well played !" said Mr. Bates ; " I did not suppose you had so much ingenuity in you. But let it pass. You've got the gin, and the judge does not object to it." "No," said the judge, "you are welcome, Brother Knight, to the gin ;
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and, if I had thought of it, I should have offered it to you ; but in that case we should have lost your ingenious ruse." "Judge Strong," said our venerable friend, now thoroughly aroused, "does your honor suppose that I would resort to such a con- temptible trick, so slimsy a device, to get a glass of your gin ?" But the laughter had now broke forth in full volley, and Mr. Bates and the judge were forced to compromise the matter, by affirming that it was a mistake all round. He was at last pre- tendedly satisfied ; but, in the frequent conversations he had dur- ing the term, with his brethren, who were accustomed to enjoy his simplicity, he used to intimate that, notwithstanding all the protestations of innocence, he could hardly persuade himself that both Mr. Bates and the judge did not know it was gin.
Passing from the notices of those judges of the common pleas, who were in office when I first attended it, I pass to the judges of the supreme judicial court. It then consisted of Hon. Isaac Parker, chief justice, who sat upon the bench from 1814 to 1830; Samuel Putnam, from 1814 to 1842, and Samuel S. Wilde, from 1815 to 1850. The life of Judge Parker is well sketched in the judicial reports of the Commonwealth, by Chief Justice Shaw, his successor, and needs no addition to it from my hand. He was a mild and pleasant gentleman, exceedingly courteous to the young men of the profession, and a favorite judge with all the members of the bar.
It may as well be stated here, that not only the common pleas, but the supreme court, especially, was a more dignified tribunal than the courts of judicature of the present day. There were then no business suits, or bob-tail coats, disclosing the fashion of the seat of the pantaloons; no fanciful and waxed moustaches, no exuberant goatees, within the circle of the bar ; but the officers of the court were clean shaven, clad in raven black ; nor did even "twilight gray" allow any mem- ber of the court to be clad, even "in her sober livery."
The approach, the entry into, and the departure from the temple of justice, would be a novelty to us in these days. By the side of the court, came the dignified and stern Sheriff Phelps, with his rod of office and his dress sword ; and, follow- ing them, were the members of the bar, the procession passing through the crowd of the citizens, which was divided at their approach. Entering the court house, the sheriff bowed to the
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judge as he ascended the judgment-seat, and not until he assumed his seat was the audience seated. The sheriff then placed his official rod in position, suspended his threatening sword, shouted " Silence !" with his stentorian voice, and the crier, Mr. Brewer, opened the court for the routine of business.
At that time, and until the year 1832, the supreme judicial court had jurisdiction of the more flagrant crimes, and the grand jury was in attendance, under the charge of the solicitor general. I well remember the impression of awe, with which the opening of the criminal proceedings of that court inspired me. In the first place, the solicitor was the author of a book, that correct and learned treatise upon the duties of a justice of the peace, with an appendix of forms, reported to be of scrupu- lous accuracy. He was also a man of great presence and dig- nity ; and, in the neatness and taste of his dress, not Apollo himself, with the aid of the choicest Parisian tailor, could have arrayed himself with more grace and beauty. When the grand jury, having been first empaneled and charged, were ready to report, a messenger was sent to the judge, who suspended the proceedings of the civil trial ; the sheriff and his deputies caused to be vacated the seats of the first jury and a sufficient space adjacent ; and the crowded court house was in anxious suspense for the appearance of the solicitor general and the grand inquest of the County of Hampden. At last the double doors were thrown open, and the procession appeared. First came the solicitor, his head freshly powdered, his ruffled shirt and sleeve ruffles of faultless form and whiteness, his hat and cane in one hand, and a bundle of papers, with a green silk bag, in the other, marching, preceded by a deputy with his staff of office, with a slow and measured step to his seat in the clerk's desk, while the loud cry of the sheriff,-"Make way for the grand jury!"-seemed to deepen the silence. The solicitor remained standing, and, looking earnestly at that great body, as if to see that every one was in his appropriate position, and then with a low bow and a graceful wave of his hand to them to be seated, he sat down. After a few moments' time, he rose, and announced to the court : "May it please your honor! the grand inquest of the body of the county of Hampden have found a number of indictments. I move, sir, that they be re- ceived and the defendants be called upon to plead." Then came
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the arraignments ; and, as the venerable clerk read over, in the technical language of the law, the story of each man's misdoings, it seemed as if a man must be a hardened criminal indeed to deny such a truthful accusation, and to trouble such a respecta- ble looking gentleman with the necessity of proving it.
In despite of the dignity that seemed to hedge in the supreme court, there were occasionally scenes, in which the wit of counsel and the circumstances of the occasion, would sometimes awaken the hilarity even of a grave judge. At one of the terms, at which Chief Justice Parker presided, a man was indicted for adultery, and put upon his trial. Hon. Patrick Boise was for the defense. The case proceeded laboriously ; some of the witnesses were absent, and the solicitor was put to many vexa- tions in disappointments and delays. Prior to the statute of 1840, it was necessary, in a case like that, to prove the solemniz- ation of a marriage by an ordained clergyman, or by a magis- trate. In that case the marriage was proved to have been only solemnized, but the difficulty was to prove the ordination. At last the witness appeared ; but he, though he supposed that the ordination had taken place, did not, of himself, know it. While the solicitor was in a quandary about the proof, the witness pro- duced to him a printed sermon, purporting to have been delivered at the ordination of the clergyman. The solicitor offered it in evidence, with an air of triumph. "I object to it," said Mr. Boise. " What is the objection ?" said the solicitor. "The fact that such a sermon was printed, does not prove that the ordina- tion actually took place," was the reply. The solicitor called the Rev. Dr. Vermilye, then of West Springfield, to the stand, and enquired of him, if he had ever heard of a sermon having been preached at the ordination of a minister, where the minister was not ordained. The reply was,-"I have !" So unexpected an answer disconcerted the solicitor, and excited the merriment of the judge and the bar. It was finally ruled, that the sermon might be admitted, as evidence tending to prove the fact, but not as full proof of it. The solicitor arose, and with the look of an advocate who has surmounted his last difficulty, read the title-page of the sermon and offered it in evidence. Mr. Boise promptly rose and said to the chief justice : "If the solicitor general insists upon putting that sermon in evidence to the jury, I insist that he shall read the whole of it!" This was too much
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for the gravity, even of the court. The idea of the solicitor, standing in the clerk's desk, and reading to the jury an ordina- tion sermon, awoke the mirth of the whole audience. He seemed to be at his wits' end. Turning to the bar, he encoun- tered a universal cachinnation ; to the jury, he saw them laugh- ing, at what they supposed to be a joke, of which they did not exactly see the point; and when he turned to the chief justice, and saw him convulsed with ill-suppressed merriment, he saw no relief from his discomfiture. At last, looking at the text and the title of the sermon, he said to the jury, " I see that the title of the sermon is ' A call to the unconverted'; I read the title-page to you, as my evidence in this case ; and I commend the title, the text and the sermon to the serious consideration of my Brother Boise !"
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