USA > Massachusetts > Barnstable County > History of Barnstable County, Massachusetts, 1620-1890 > Part 23
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The first session of the general court, under the new charter, met at Boston on June 8, 1692, and continued nineteen days, until June 27,
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1692. It was ordered at this first session of the general court, that all the local laws made by the late governor and company of Massachu- setts bay and of New Plymouth, not repugnant to the laws of Eng- land nor inconsistent with the present constitution and settlement by their majesties' royal charter, do remain and continue in full force in the respective places for which they were made and used until Novem- ber 10, 1692, excepting in cases where other provision is or shall be made by this court or assembly; and all persons were required to con- form themselves accordingly: and the several justices were thereby empowered to the execution of said laws as the magistrates formerly were. On June 28, 1692, an act was passed for holding courts of jus- tice on or before the last Tuesday of July, 1692, to be a general ses- sions of the peace, held in each county of the province, by the justices of the same county, or three of them at least, who were empowered to hear and determine all matters relating to the conservation of the peace, and whatever was by them cognizable by law; the said justices being approved by the selectmen of each town. "That the sessions of the peace be successively held within the several counties, at the same times and places, as the county courts, or inferior courts of common pleas, are hereinafter appointed to be kept. That they shall hear and determine all civil actions arising or happening within the same, tria- ble at the common law according to former usage. The justices for said court, in the county of Suffolk, shall be appointed and commis- sioned by the Governor, with advice and consent of the council ;- that all writs and attachments shall issue out of the clerk's office of the said several courts, signed by the clerk of such court," and the jurors to serve at said courts, were to be chosen according to former custom, and qualified as was directed in their majesties royal charter. -This act was to continue until other provision be made by the gen- eral court or assembly.
An act was passed, November 25, 1692, establishing judicatories and courts of justice within this province, which were similar in their powers and jurisdictions, to those hitherto existing. Their majesties' justices of the peace had jurisdiction of all manner of debts, trespasses and other matters not exceeding forty shillings, wherein the title to land was concerned, from which decisions the defendant had the right of appeal to, the next inferior court of common pleas. There were quarter sessions of the peace, by the justices of the peace in the same county, held at specified places, each three months in the county, to hear and determine all matters relating to the conservation of the peace, and punishment of offenders, and all other things cognizable by them according to law.
There was a superior court of judicature extending, in its jurisdic- tion, over the whole province, having a chief justice and four other
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associate justices, three of whom constituted a quorum. having gen- eral jurisdiction of causes both civil and criminal. The terms of court were held for the counties of Barnstable, Plymouth and Bristol, at Plymouth on the last Tuesday of February. Wherever this court was held, the justices held a court of assize and general goal delivery. A high court of chancery was held, to hear and determine all matters in equity, which could not be reached by the courts of law. This court was held by the governor, or such other as he might appoint as chancellor, assisted by eight or more of the council. Any party in this court could appeal, wherein the matter in controversy exceeded three hundred pounds sterling.
By the authority of the province charter of William and Mary of 1691-2, power was given to the governor and council to grant the pro- bate of wills, and appoint executors and administrators on estates of deceased persons of this province.
The judiciary system, from the time of the union of the colonies, to the revolutionary period, was substantially the same in spirit, form and general jurisdiction, that existed previous to this time, yet many minor changes it was necessary to make. (See Province Laws Chap. 23, 1699. Chap. 18, 1700. Chap. 5, 1699). At the beginning of the revo- lutionary period, 1775-6, a court of admiralty was established, to be held at Plymouth,-its judges to be appointed by the majority of the council,-to try the justice of the capture of any vessel brought into either Barnstable, Plymouth, Bristol, Duk'es county or Nantucket. Subsequently the jurisdiction of this court was enlarged. The laws relating to the judiciary, after the beginning of the revolutionary period, were enacted to be in full force and virtue until November 1, 1785, by the session held at Boston, November 1, 1779, continuing sun- dry laws that then existed, and were near expiring, with all and every clause, matter or thing therein respectively.
The magistrates of the earliest courts in the Old Colony, officiated as early as 1640, i.e., Edmund Freeman of Sandwich, Thomas Dimock of Barnstable; and John Crow of Yarmouth. A court was held at Yarmouth June 18, 1642, before Edward Winslow, Myles Standish and Edmund Freeman.
In 1679, a select court was established in each town. Those com- missioned to hold them were, in Sandwich, Edmund Freeman, John Blackwell and Thomas Tupper; in Yarmouth, Edmund Howes, En- sign Thacher, Edward Sturgis, John Miller, and Jeremiah Howes; in Barnstable, Joseph Lothrop, James Lewis, and Barnabas Lothrop; and in Eastham, Jonathan Sparrow, Mark Snow, and John Doane. In 1689, Jonathan Sparrow of Eastham and Stephen Skiffe of Sandwich were appointed county judges.
After the union of the colonies, the following is the list of the judges of the court of common pleas of the county of Barnstable:
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HISTORY OF BARNSTABLE COUNTY.
December 7, 1692, John Freeman, Eastham: December 7, 1692, Bar's Lothrop, Barnstable; December 7. 1602, John Thacher, Yar- mouth; December 7, 1692. Stephen Skiffe, Sandwich; March 6, 1695, Jon'n Sparrow, Eastham; July 17. 1699, John Sparrow, Eastham; June 8, 1710, Wm. Bassett, Sandwich; July 5, 1713, Daniel Parker, Barnstable; July 5, 1713, Thomas Payne, Eastham; April, 1715, John Otis, Barnstable; April, 1714, Sam. Annable, Barnstable; July 20, 1711, John Gorham, Barnstable; July 5, 1713, John Doane, Eastham; July 14, 1715. Mela'h Bourne, Sandwich; July 14, 1715, Sam. Sturgis, Barn- stable; December 10, 1715, Nath. Freeman, Harwich; November 14, 1721, Jos. Lothrop, Barnstable; March 16, 1722. Jos. Doane, Eastham; December 26, 1727, Ezra Bourne, Sandwich; March 10, 1729, Peter Thacher, Yarmouth; March 10, 1729. Shub'l Baxter, Yarmouth; June 22, 1736, John Thacher, Yarmouth; June 22, 1736, John Davis, Barn- stable; December 21, 1739, John Russell, Barnstable; January 27,1742, Shub. Gorham, Barnstable; January 27. 1742, Dav. Crocker, Barnstable; August 9, 1746, John Otis, Barnstable; February 24, 1763, Roland Cot- ton, Sandwich; May 9, 1770, Is'c Hinckley, Barnstable; September 13, 1753, Thos. Winslow, Harwich: June 2. 1758, Sylv. Bourne, Barn- stable; August 2, 1758, Thos. Smith, Sandwich; December 19, 1758, Row. Robinson, Falmouth; May 23, 1760. Ny's Marston, Barnstable; February 1, 1764, James Otis, Barnstable; February 1, 1764, Edw. Bacon, Barnstable; June 20, 1765, John Gorham, Barnstable.
At the interruption of the revolutionary period the following were known to belong to the common pleas court : Melatiah Bourne, Shear- jashub Bourne, David Gorham, Solomon Otis, Kenelm Winslow, David Thacher, Daniel Davis, Joseph Otis, and Richard Bourne.
Immediately following 1774, the appointment of judges was con- ferred upon the governor alone, and the first appointments in the county were in the names of the "Governor and People of Massachusetts Bay," viz .: October 11, 1775, James Otis, Barnstable ; Nath. Freeman, Sandwich; Daniel Davis, Barnstable; and Richard Baxter, Yarmouth. The following appointments were also made : October 13, 1775, Joseph Nye, jr., Sandwich ; March, 27, 1781. Sol. Freeman, Harwich ; March 21, 1793, John Davis, Barnstable; June 28, 1799, Ebenezer Bacon, Barnstable; February 11, 1801, David Scudder, Barnstable; February 14, 1803, Sam'l Waterman, Wellfleet; February 20, 1804, Thomas Thacher, Yarmouth ; February 22, 1809, Isaiah L. Green, Barnstable ; February, 1809, Timothy Phinney, Barnstable; August 22, 1809, Wendell Davis, Sandwich.
As session justices for the county (immediately after the circuit court of common pleas was established) Richard Sears of Chatham was commissioned June 10, 1814, and Calvin Tilden of Yarmouth on February 15, 1815.
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Since the beginning of this century, the following were appointed judges of the court of common pleas for this county : Nath. Freeman, Sandwich, chief justice ; John Davis. Barnstable, chief justice, 1811 ; Jos. Dimick, Falmouth, chief justice, 1808: James Freeman, Sand- wich, justice, 1808; Sam'l Freeman, Eastham, justice, 1811; Isaiah L. Green, Barnstable, justice, 1812; Sol'n Freeman, Brewster, justice, 1812; Richard Sears, Chatham, justice, 1816; Calvin Tilden, Yar- mouth, justice, 1816; Sam'l P. Crosswell, Falmouth, justice, 1819; Elijah Cobb, Brewster, justice, 1819; Elisha Doane, Yarmouth, justice, 1819; Naler Crocker, Barnstable, special justice, 1822; Melatiah Bourne, Sandwich, special justice, 1822.
The legislature of 1828 abolished the court of sessions and commis- sioners of highways, and established in their place, a court of county commissioners, since which time this board has been composed as be- low indicated. The first court of county commissioners was organized in 1828, with Samuel T. Crosswell, Matthew Cobb, and Obed Brooks as commissioners. On the 11th of June, 1835, Jesse Boyden of Sand- wich, Michael Collins of Eastham and Alexander Baxter of Yarmouth, having been elected, organized under the statute of the preceding April. Chapter XIV. of the Revised Statutes provided that on and after the first Monday in April, 1838, three commissioners should be chosen every third year to serve three years. In 1838 Jesse Boyden, Michael Collins and Charles Sears were elected ;- in 1841, Zenas D. Bassett, Isaac Hardy, and John Newcomb; in 1844 and 1847, Seth Crowell of Dennis, Ebenezer Nye of Falmouth, John Newcomb of Wellfleet ; 1850, Seth Crowell, John Doane of Orleans, David K. Akin of Yarmouth ; 1853, John Doane, David K. Akin, and Simeon Dilling- ham of Sandwich.
The act of March 11, 1854, directed the commissioners to choose by ballot one of their number to retire in 1854, one in 1855, the other to hold his office until 1856, and provided for the annual election of one commissioner at the general election each year, whose term of office should be three years. In 1855 David H. Smith succeeded David K. Akin, and in 1856 William Hewins succeeded Simeon Dillingham. In September, 1856, Edward W. Ewer of Sandwich was elected to fill the vacancy of David H. Smith. Since that time the three year terms begin in January. The names of the several commissioners with the year in which their terms began, are as follows: 1857, James Gifford of Provincetown; 1858, Edward W. Ewer of Sandwich ; 1859, Joseph H. Sears of Brewster; 1860, John W. Davis of Wellfleet; 1861 and 1864, Erasmas Gould of Falmouth ; 1862, Joseph H. Sears of Brewster ; 1863 and 1869, Daniel Paine of Truro; 1865 to 1883, James S. Howes of Dennis ; 1867 to 1875, Ebenezer S. Whittemore of Sandwich; 1872, Elijah E. Knowles of Eastham ; 1875, Jonathan Higgins of Orleans ;
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HISTORY OF BARNSTABLE COUNTY.
1876 to 1884, Joshua C. Robinson of Falmouth ; 1881, Nathan D. Free- man of Provincetown (died in office); 1886, Solomon E. Hallett of Chatham ; 1SS8, Samuel Snow of Barnstable; 1888, Isaiah C. Young of Wellfleet, elected to fill the vacancy caused by the death of N. D. Freeman, and reelected in 1889, for further term.
By the statute of 1784, probate courts were established, with pow. ers and jurisdiction given by the laws of the commonwealth. The appellate jurisdiction is vested in the supreme judicial courts. By the charter of William and Mary the authority was vested in the governor and council, by which probate officers were appointed in the several counties, exercising a delegated authority, from the decrees of which appeals were taken to the governor and council, who remained the supreme court of probate. Such was the commencement of the pro- bate court as a distinct tribunal. This probate court continued to exercise probate jurisdiction, until county probate courts were estab- lished under the state constitution, and the act of 1784, under which the probate courts were first formally established, and which act provided for the holding of a probate court within the several counties, and for the appointment of judges and registers of probate, and transferred the appellate jurisdiction from the governor and council to the supreme judicial court, which is the supreme court of probate. The probate courts thus organized continued to exercise probate jurisdiction until the law of 1858, chapter 93, which abolished the office of judge of probate and provided for the appointment in each county of a suitable person to be judge of probate and judge of the court of insolvency, and be designated the judge of probate and insolvency.
The decrees of the probate court, upon subjects within its jurisdic- tion, are final, unless appealed from. They cannot be questioned in courts of common law, neither will a writ of error lie to its judgments, nor will certiorari lie from the supreme court; but the illegal decrees of the probate court are nullities, and may be set aside, by plea and proof; but an aggrieved party may appeal to the supreme court of probate, as prescribed by statute. The probate courts for each county have jurisdiction of the probate of the wills, of granting administra- tion of the estates of persons who at the time of their decease, were inhabitants of or resident in the county, and of persons who die out of the Commonwealth leaving estates to be administered within the county; of the appointment of guardians to minors and others; of all matters relating to the estates of such deceased persons and wards; of petitions for the adoption of children, and for the change of names; and of such other matters as have been or may be placed within their jurisdiction by law.
Governor Joseph Dudley in 1702, in consideration of a change in
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the charter of 1691, referring to the probate of wills, vesting that power in the governor and council; and finding courts established in the several counties for that purpose, ordered that these courts be continued. The incumbents have been: first, in 1693, Barnabas Lo- throp: June 15, 1714, John Otis; December 26, 1727, Melatiah Bourne; January 6, 1740-1, Sylvanus Bourne; February 1, 1764, James Otis; March 27, 1781, Daniel Davis; May 27, 1799, Ebenezer Bacon; January 30, 1800, John Davis; June 8, 1825, Job E. Davis; January 11. 1828, Nymphas Marston; December 18, 1854, George Marston; May 13, 1858. Joseph M. Day; June 14, 1882, Hiram P. Harriman.
The registers of probate have been: in 1693, Joseph Lothrop; August 13, 1702, William Bassett; June 14, 1721, Nathaniel Otis; August 23, 1729, Sylvanus Bourne; January 6, 1740-1, David Gorham; August 28, 1775, Nath. Freeman; January 22, 1823, Abner Davis; March 28, 1836, Timothy Reed; June 29, 1852, Nath'l Hinckley; March 2, 1853, George Marston; December 28, 1854, Joseph M. Day; Rufus S. Pope; June 29, 1858, Charles F. Swift; 1858, Jonathan Hig- gins; 1874, Charles Thacher, 2d; 1884, Freeman H. Lothrop.
The statute of 1858, Chapter 138, authorized the governor to desig- nate, not exceeding nine justices of the peace, in the county of Barn- stable, as trial justices, to try criminal offenders, whose jurisdiction extended to any town in the county. Subsequently their jurisdiction was enlarged by statute of 1877, Chapter 211, which authorized them to have original and concurrent jurisdiction with the superior court of civil actions of contract, tort, or replevin, where the debt or dam- ages demanded or value of property alleged to be detained is more than one hundred and does not exceed three hundred dollars. In other matters, their jurisdiction was coextensive with ordinary munic- ipal and district courts.
Those who have held the office of trial justice, since 1858, in the county, are: Ebenezer Bacon, Barnstable, from 1860 to 1869; Edward W. Ewer, Sandwich, 1858 to 1860; James B. Crocker, Yarmouth, 1858 to 1884: George W. Donaldson, Falmouth, 1858 to 1865; Joseph K. Baker, jr., Dennis, 1859 to 1861; John W. Davis, Wellfleet, 1858 to 1865: Albion S. Dudley, Provincetown, 1858 to 1863; Cyrus Weeks, Harwich, 1858 to 1866; Ebenezer S. Whittemore, Sandwich, 1860 to 1889, and continues; Marshall S. Underwood, Dennis, 1861 to 1882; Isaac Bea, Chatham, 1862 to 1872; Benjamin F. Hutchinson, Province- town, 1868 to 1870; Theodore F. Bassett, Hyannis, 1868 to 1889 and continues; Smith K. Hopkins, Truro and Barnstable, 1867 to 1889 and continues; Frederick Hebard, Dennis, 1868 to 1869; Richard S. Wood, Falmouth, 1865 to 1875; George T. Wyer, Wellfleet, 1872 to 1889 and continues; Shubael B. Kelley, Harwich Port, 1873 to 1SS9 and contin- ues; Raymond Ellington, Provincetown, 1875 to 1878; James H. Hop-
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kins, Provincetown, 1886 to 1SSS; Charles F. Chamberlayne, Bourne, 1884 to 1889 and continues; George Godfrey, Chatham, 1886 to 1889 and continues; Jonathan Kelley, 2d, Dennis, 1886 to his death in 1889; William D. Foster, Provincetown, 1884 to 1885; Tully Crosby, jr., Brewster, appointed in 1890 and continues; Watson F. Baker, Dennis, 1889, and continues.
THE BAR OF THE COUNTY OF BARNSTABLE .- The bar can justly claim some of the highest mental lights of the world, and yet what is known of its members, is in a great degree, traditionary. Very few of the transcendent efforts in the forum are reported ;- their fame and merit are passing and transitory; and are forgotten by the multitude who heard them. Our great American orator, statesman, and patriot, James Otis, who was born at West Barnstable, February 5. 1725, ex- hibited the character of one of the purest patriots and eloquent de- fenders of human rights, that the American continent has produced; -when in the midst (1761) of his duties as advocate general, in defend- ing the writs of assistance, but deeming them illegal and unjust, he immediately resigned .- His argument in this case produced a pro- found impression. Such was his unselfish love of country, that he has left his impress as an ornament on the column of time.
The finished forensic efforts of Rufus Choate and other eminent American advocates, would adorn the pages of Cicero, and yet much of it has passed into forgetfulness. A few Nestors of the Suffolk bar, occasionally speak of the scintillations of his magnetic mind, and the charm of his speech, yet they add in despair ;- " we cannot repeat the effect upon the breathless multitude who heard him, with the inde- scribable power of a magician." No one is able to rehearse these masterly utterances, or realize the effect upon the enchanted multi- tude. I well remember how deeply moved was the throng in the court- room, when he closed his argument for the defense in a capital case, where the life or death of the defendant was depending upon the ver- dict of that jury; the audience refused to leave the room, before the verdict came in, so deeply were they in sympathy with Mr. Choate's client.
It will be impossible to say much concerning the early members of the bar of the county of Barnstable, since we have very little ma- terial relating to them to make up anything approaching the dignity of biography. At this early period of the Pilgrims and some years subsequently, the profession of the law hardly had a name in the Old Colony; very few made the study and practice of the law an exclusive profession; and those who were members of the bar, it is difficult to determine, with any degree of accuracy, until we pass to a later time.
As early as 1676, Richard Bourne of Sandwich, Shearjashub Bourne
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of Barnstable, and Samuel Prince were conversant with the duties of a lawyer. Hon. Ezra Bourne of Sandwich was by preparation and practice a lawyer as early as 1700. William Bassett, Samuel Jennings and Silas Bourne of Sandwich, were lawyers in their way; and so was Nathaniel Otis of Barnstable, a member of the bar, in fact. With the exception of Ezra Bourne, Hon. Timothy Ruggles was the most able and learned lawyer in the county. He came to Sandwich, not far from the year 1739,-having graduated at Harvard College in 1732.
Hon. Shearjashub Bourne of Barnstable was a man of mark, and during the first years of the republic, he was the representative in congress from this district, during the first, second and third con- gresses. He was born in Barnstable in 1744. graduated from Harvard College in 1764 and died in 1806. He was a class-mate of Governor Caleb Strong, and other distinguished men. Shearjashub Bourne was a direct descendant of Rev. Richard Bourne of Sandwich, who was one of the most able men who came to Sandwich in 1637, and finally became a useful and devoted missionary to the Indians.
Hon. Lemuel Shaw, chief justice of the supreme judicial court of Massachusetts, from August 31. 1830, to August 23, 1860, died at Bos- ton, March 30, 1861. This illustrious chief justice was born at West Barnstable, January, 9, 1781, the son of Rev. Oakes Shaw, who held here the pastorate for 47 years. The son graduated at Harvard College in the class of 1800, with Judge Story, William E. Channing and other distinguished men. Judge Shaw never practiced law in the county of Barnstable, but he held a broad and secure position in the affections of all the citizens of the Commonwealth, and was the ac- knowledged chief of its jurists. No man in any period of our history has so deeply impressed his mental power and judicial reasoning upon the people of the Commonwealth, as did Judge Shaw. He was constructive, and yet he was progressive. As has been said, for the high degree of symmetry and harmonious development to be found in the science of the law as administered in our courts, we are largely indebted to his comprehensive and vigorous intellect. He had an abiding sympathy, coupled with broad mental power and minuteness of observation. "His understanding resembles the tent which the fairy Paribanou gave to prince Ahmed. Fold it, and it seems a toy for the hand of a lady. Spread it, and the armies of powerful sultans might repose beneath its shade." His sympathies were deep and broad, which an incident will illustrate. The question was raised whether a heifer calf was exempt from attachment, which caused some merriment at the Bar. Judge Shaw paused and with some emotion said : "Gentlemen, this may seem to you a trifling case, but it is a very important question to a great many poor families."
Hon. Nathaniel Freeman, jr., son of General Nathaniel Freeman of
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Sandwich, was born May 1, 1766, and died August 22, 1800, at the age of 35 years. He graduated at Harvard College in the class of 1787, with John Quincy Adams, and other men of ability. He studied and practiced law; but at the age of 30, in 1796, he was elected to the fourth congress, with a unanimous vote, save one. In 1798, he was elected the second time to the fifth congress, and while a member of this body, he died at the age of 35. Nathaniel Freeman, jr., was a per- son of brilliant mind, and a man of great powers of eloquence for one of his years ; and yet it is hardly known, even in the Old Colony, what an able man he was. His was an untimely death ;- what fruit might we not expect from the golden autumn of such a mind !
Hon. Timothy Ruggles was one of the most remarkable lawyers ever connected with the bar of the county of Barnstable; born in Rochester. Mass., He graduated at Harvard College in the class of 1732, before his 24th birthday, in 1739; he became an inhabi- tant of Sandwich, and he began the practice of law before he came here. He managed to be elected a representative to the provincial legislature from Sandwich. He married Bathsheba Newcomb, a young widow, who was the proprietor of the tavern, and united the profes- sion of the law with that of innkeeper; having personal supervision over both. With all else, he had a decided military bent, and was destined to be distinguished in that direction .- Freeman says, as col- onel he led a body of troops to join Sir William Johnson in the ex- pedition against Crown Point in 1755. He was in the battle of Lake George; brigadier general under Lord Amherst; removing to Hard- wick, he served several years as representative from that town, two of which he was speaker. He was for a while chief justice of the court of common pleas. In 1765 he was a delegate, with Otis in the colonial convention, and was chosen its president. As a politician, his popularity was fated to wane; the whigs were dissatisfied with his course, and the house of representatives reprimanded him from the speaker's chair. His assurance never for a moment forsook him. As a lawyer he was shrewd and quick of apprehension, and was bold in his conception; in his manners, rude and lordly; artful in his address to the jury; sagacious and well equipped as a demagogue, against whomsoever he was pitted. He was mentioned as a mandamus coun- sellor in 1774 and proved a decided loyalist. Finding concealment in Boston, until its evacuation, he retired with the British troops to Hali- fax, where he organized a body of loyal militia refugees to the num- ber of 300. He died in Nova Scotia in 179S, at an advanced age.
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