History of Essex County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I, Part 5

Author: Hurd, D. Hamilton (Duane Hamilton), ed. n 85042884-1
Publication date: 1888
Publisher: Philadelphia : J. W. Lewis & Co.
Number of Pages: 1538

USA > Massachusetts > Essex County > History of Essex County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I > Part 5

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BENJAMIN LYNDE (2d) was the son of the above- named Benjamin Lynde, and was born in Salem

October 5, 1700. He graduated at Harvard in 1718, and, though not a lawyer, was appointed in 1734 a special justice of the Court of Common Pleas for Suffolk, and in 1739 one of the standing judges of that court for Essex. He was appointed to the bench of the Superior Court in 1745, and on the appoint- ment of Chief Justice Thomas Hutchinson to the office of Governor, in 1771, he was commissioned in his place, resigning his seat in 1772. He was then ap- pointed judge of probate for Essex County, which office he held until his death, October 9, 1781.

RICHARD SALTONSTALL was the son of Richard Saltonstall, of Haverhill, and was born in that town June 14, 1703. He was the grandson of Major Na- thaniel Saltonstall, great-grandson of Richard Sal- tonstall, and great-great-grandson of Sir Richard Sal- tonstall, one of the original patentees of the colony of Massachusetts Bay. The subject of this sketch graduated at Harvard in 1722, and at the age of thirty-three was appointed a judge of the Superior Court of Judicature. It is not known that he was educated to the law, nor was it in either the days of the Massachusetts Colony or of the province the custom to confine judicial appointments to those of the legal profession. At the age of twenty-three he held a commission as colonel of the provincial troops, and in 1737, while on the bench, he was the commander of the Ancient and Honorable Artillery Company. He was a man of scholarly habits, of considerable learning, of refined tastes and was conspicuous for the generous hospitality which his ample means enabled him to dispense.

Judge Saltonstall held his seat on the bench until his death, which occurred at his residence in Haver- hill, October 20, 1756. He married three wives, the last of whom was a daughter of Elisha Cooke, one of the judges of the Court of Common Pleas for Suffolk County, and granddaughter of Judge Elisha Cooke, one of the judges of the Superior Court of Judica- ture, who married a daughter of Governor John Leverett. He left three sons-Richard Saltonstall, a graduate of Harvard in 1751, who died in England in 1785; Nathaniel, a physician, living in Haverhill, a graduate of Harvard in 1766, who died in 1815 ; and Leverett, a captain under Cornwallis, who died in New York in 1782. He left also two daughters, one of whom, Abigail, was the first wife of Colo- nel George Watson, of Plymouth, and the other the wife of Rev. Moses Badger, of Providence.

CALEB CUSHING, of Salisbury, was made Common Pleas judge in 1759, and after the Revolution, when the Common Pleas Court was reorganized, he was appointed chief justice.

STEPHEN HIGGINSON was born in Salem in 1716. He was appointed judge of the Common Pleas in 1761, and died in the same year.

ANDREW OLIVER, of Salem, was one of the " Mandamus Counsellors." He graduated at Har- vard in 1749, and was appointed Common Pleas judge

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in 1761, and held office until the Revolution. He died in 1799.

WILLIAM BOURNE was the son of Sylvanus Bourne, of Barnstable, and graduated at Harvard in 1743. Hc settled in Marblehead, and was made judge of the Court of Common Pleas in 1766, holding his office until his death in August, 1770.

PETER FRYE was born in Andover in 1723, and graduated at Harvard in 1744. He was register of probate and judge of the Common Pleas Court, to which office he was appointed in 1772, and which he held until the Revolution. He died in England in 1820.

WILLIAM BROWNE was born in Salem February 27, 1737, and graduated at Harvard in 1755. In 1764 he was appointed collector of Salem, and in 1770 was made a judge of the Court of Common Pleas for Essex. He was confirmed as judge of the Superior Court of Judicature June 15, 1774, and in the same year was made a " Mandamus.Counsellor." He was a Loyalist, and, retiring from the country in 1778, was made Governor of Bermuda in 1781, and died in England February 13, 1802.

SAMUEL SEWALL was born in Bishop-stoke, Eng- land, March 28, 1652, and died in Boston January 1, 1730. His grandfather, Henry Sewall, born in 1576, came to New England and lived in Newbury, where he died about 1655. His father, Henry Sew- all, came to New England in 1634, and after begin- ning a settlement in Newbury, returned to England. In 1659 he again came to New England, and after making a permanent settlement in Newbury, was fol- lowed by his wife and children in 1661. The son, Samuel, graduated at Harvard in 1671, and after studying divinity preached for a time. On the 28th of February, 1676, he married Hannah, daughter of John Hull, a goldsmith of wealth in Boston, by whom he secured ample means of support without the drudgery of a minister's life. Hewas made an assistant in 1684, and continued in office until the arrival of Andros. In 1688 he went to England, resuming on his return, in 1689, the office of assistant, and from 1692 to 1725 was a member of the Council. In 1692 he was made a judge of the Court of Oyer and Term- iner and subsequently an associate judge of the Su- perior Court of Judicature, which position he held until 1718, when he was made chief justice. He was also judge of probate for Suffolk, and resigned both offices in 1728 on account of old age. He had been a firm believer in witchcraft, and was one of the judges before whom the alleged witches were tried, but on the 14th of January, 1697, Rev. Samuel Wil- lard read a "bill," as it was called, before his congre- gation, in which the judge expressed his abhorrence of the acts in which he had been engaged, and peni- tently asked the forgiveness of God and man.

STEPHEN SEWALL, son of Major Stephen Sewall, was born in Salem December 18, 1704, and graduated at Harvard in 1721. He was for a short time tutor at

Harvard, and afterwards taught school in Marble- head. He was appointed associate judge of the Su- perior Court of Judicature in 1739, and in 1752 was promoted to chief justice. He held his seat until his death, which occurred September 10, 1760.

SAMUEL SEWALL was born in Boston December 11, 1757, and graduated at Harvard in 1776. In 1808 he received the degree of LL.D. from his alma mater. He studied law with Francis Dana, of Cam- bridge, and practiced in Marblehead, which town he represented in the Legislature. He was a member of Congress from 1797 to 1800, and in the latter year was appointed associate justice of the Supreme Judicial Court. In November, 1813, he was made chief justice, and died in Wiscasset, Me., June 8, 1814. He married, December 8, 1781, Abigail, dangh- ter of Dr. Humphrey Devereux, of Marblehead.

JOSIAH WALCOTT, a merchant in Salem, was ap- pointed to the bench of the Essex Court of Common Pleas in 1722. He continued on the bench until his death, February 2, 1729.

TIMOTHY LINALL was born iu Salem November 4, 1677, and graduated at Harvard in 1695. He was Speaker of the House of Representatives in 1720, and in 1729 was appointed to the Common Pleas bench. He held his seat until 1754, and died October 25, 1760.

JOHN WAINWRIGHT was a merchant of Ipswich, and graduated at Harvard, in 1709, at the age of eighteen. He was appointed to the Common Pleas bench in 1729, and held his seat until his death, Sep- tember 1, 1739.

THEOPHILUS BURRILL, of Lynn, was a nephew of Judge John Burrill, and was appointed to the Com- mon Pleas bench in 1733, and died in office in 1737.

THOMAS BERRY, a physician of Ipswich, was born in Boston and graduated at Harvard iu 1712. He was judge of probate of Essex County, as well as judge of the Common Pleas Court, to which office he was appointed in 1733, and which he held until his death, in 1756.

BENJAMIN MARSTON was born in Salem, but in his later years lived in Manchester. He married Eliza- beth, daughter of Isaac Winslow, of Marshfield, and great-granddaughter of Governor Isaac Winslow, of the "Mayflower." He was sheriff of Essex County, and was appointed to the bench of the Court of Commoni Pleas in 1737, which office he held until his death, in 1754. He graduated at Harvard in 1689.

JOHN CHOATE, of Ipswich, was judge of probate for Essex County, and chief justice of the Court of Common Pleas. He died while in office, in 1766.

HENRY GIBBS, a native of Watertown, was born in 1709, and graduated at Harvard in 1726. He settled in Salem as a merchant, and was appointed to the Common Pleas bench in 1754, and continued on the bench until his death, in 1759.

JOHN TASKER, of Marblehead, was made Common

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Pleas judge in 1755, and died in office November 9, 1761.

BENJAMIN PICKMAN, of Salem, was born in 1708, and was a merchant. He was appointed to the Com- mon Pleas bench in 1756, holding his office until 1761. He died August 20, 1774.

WILLIAM PRESCOTT was born in Pepperell August 19, 1762, and was the son of Colonel William Prescott, who distinguished himself at the battle of Bunker Hill. He graduated at Harvard in 1783, and after teaching school for a time in Brooklyn, Conn., he en- tered the law-office of Nathan Dane, in Beverly, where he afterwards began to practice. He subsequently removed to Salem and married a daughter of Mr. Hickling, American consul at St. Michael's, from whom the late distinguished historian, William Hick- ling Prescott, the son of William Prescott, derived his middle name. While in Salem he was a member of both the House and Senate in the State Legislature. He removed to Boston in 1808, and before his removal, in 1806, and afterwards, in 1813, he was offered a seat on the bench of the Supreme Judicial Court, which he declined. He was a member of the Executive Coun- cil from Suffolk County, a delegate to the Hartford Convention in 1814, and in 1818 accepted the appoint- ment of judge of the Court of Common Pleas for the county of Suffolk. He died in Boston December 8, 1844, and at his death a meeting of the bar was held in the Supreme Court room, at which Mr. Webster offered resolutions of respect, which were responded to by Chief Justice Shaw, at that time holding the court.

NATHANIEL SALTONSTALL, son of Richard and grandson of Sir Richard Saltonstall, one of the six patentees of the colony of Massachusetts Bay, was born in Ipswich in 1639, and graduated at Harvard in 1659, afterwards settling in Haverhill, on an estate still known as the "Saltonstall seat." He was chosen an assistant in 1679, and on the arrival of President Dudley, in 1685, was offered a place as member of his Council, which he declined. He took au active part in deposing Andros, and under the charter of 1692 was appointed one of His Majesty's Council. At the breaking out of the witchcraft delusion, Governor William Phipps, without authority of law, established a special Court of Over and Terminer to try the witches, and by commissions dated June 2, 1692, ap- pointed Wm. Stoughton chief justice, and Nathaniel Saltonstall, John Richards, Bartholomew Gedney, Wait Winthrop, Samuel Sewall and Peter Sergeant associate justices.

Judge Saltonstall, like many other judges of the time, was not bred to the law, but he was a man of strong mind and sound sense, and not easily imbued with the bigotry and fanaticism prevailing at the time. He left the bench evidently disgusted with the work it was called on to perform, his place being taken by Jonathan Corwin. He married a daughter of Rev. John Ward, of Haverhill, and died May 21, 1707,

leaving three sons,-Gurdon, the Governor of Con- necticut ; Richard, the father of Richard, whose sketch is given below ; and Nathaniel, who graduated at Har- vard in 1695, and died young.

JAMES CUSHING MERRILL was the son of Rev. Giles Merrill and Lucy (Cushing) Merrill, and was born in Haverhill September 27, 1784. He married Anna, daughter of Dr. Nathaniel Saltonstall, of Haverhill, and died in Boston October 4, 1853. He fitted for college at Exeter and graduated at Harvard in 1807. He studied law with John Varnum, of Haverhill, and was admitted to the bar in 1812 at the September term of the Circuit Court of Common Pleas, held at Salem. He not long after removed to Boston, where he continued to reside until his death. For many years he was a justice on the beach of the Police Court of Boston, resigning in 1852 on account of feeble health. Previous to his appointment to the bench he was a member of the Senate and House of the State Legislature. He was a scholar as well as a jurist, and his proficiency in Greek literature was recognized by his alma mater by his continuance for thirty years on its examining committee for Greek.

JOSEPH GILBERT WATERS was born in Salem July 5, 1796, and was the son of Captain Joseph and Mary (Dean) Waters. He graduated at Harvard in 1816, and after completing his law studies in the office of John Pickering, was admitted to the bar at Salem at the October term of the Supreme Judicial Court in 1821. In 1818 he went to Mississippi, where he spent several years, and returned to Salem, where for a short time he was the editor of the Salem Observer. In 1825 he married Eliza Greenleaf, daughter of Captain Penn Townsend. He was appointed special justice of the Police Court in Salem in 1831, and afterwards held the office of standing justice of the same court from 1842 until 1874. In 1835 he was a member of the State Senate, and died in 1878.

BENJAMIN MERRILL was born in Conway, New Hampshire, in 1784, and fitting for college at Exeter, graduated at Harvard in 1804. He studied law with Mr. Stedman, of Lancaster, and was admitted to the bar in Worcester County. Removing to Lynn in 1808 to enter into practice, he was required under the court rules to study one year within the county, and entered the office of Samuel Putnam, whose partner he afterwards became. He received the degree of LL.D. from Harvard in 1845, and died at Salem July 30, 1847, at the age of sixty-three. When he settled in Lynn he was the first lawyer who had ever opened an office in the town, and after a few months' resi- dence there, it is said that he was told that the pres- ence of a lawyer would be prejudicial to the interests of the community, and that he was requested to leave.

JOSEPH PERKINS was born in Essex July 8, 1772, and graduated at Harvard in 1794. In 1801 he was appointed county attorney, and died in Salem Febru- ary 28, 1803.

HISTORY OF ESSEX COUNTY, MASSACHUSETTS.

ASAHIEL HUNTINGTON was born in Topsfield July 23, 1798, and graduated at Yale in 1819. He was county and district attorney, clerk of the courts and twice representative from Salem to the General Court. In 1853 he was mayor of that city, and died Septem- ber 5, 1870.

THEOPHILUS PARSONS .- Among the eminent law- yers of the last century, Chief Justice Theophilus Parsons stands pre-eminent, and to his autobiography by his son, Theophilus Parsons, we are indebted for this sketch of his life as a lawyer, statesman and judge. His judicial knowledge and legal acumen won for him the title of "giant of the law," and his intimate knowledge of the structure of the Greek lan- guage, and acquaintance with its literature, in which he delighted, and to which he turued for recreation from his legal duties, caused Mr. Luzac, the then Professor of Greek in the University of Leyden, to say of Mr. Parsons, that he should be called "The giant of Greek criticism."

Chief Justice Theophilus Parsons was born in By- field, Massachusetts, 1750, and his father, Rev. Moses Parsons, was a settled minister in that place. His first youth was passed at Dunmer Academy, of By- field, under the Rev. Mr. Moody, and he entered Har- vard College in 1765. The minister's stipend was small, and his family large, so that when the young Theophilus was ready to enter college pecuniary diffi- culties stood in his way. So general, however, was the accepted idea, that his natural ability promised great things, great exertions were made to send him ; one of the maid servants offered to give him a year's salary, twelve pounds, to help him. This offer was of course refused, but the assistance proffered by friends and parishioners was gladly accepted. Theo- philus was an insatiable student, but after his lessons were learned would turn for recreation, to a novel or self-imposed mathematical problem with equal relish, which practice he followed in after years, adding a devotion to scientific studies. He graduated in 1769, and went to Portland, Maine, then called Falmouth, where he taught a grammar school ; when not oecu- pied with his school duties, he studied in the office of the eminent lawyer, Judge Theophilus Bradbury. Here he applied for admission to the bar. The com- mittee for examination to whom he referred himself, construed the rule that three years of preparatory study, meant three years of consecutive study, and that his employment of school-teaching prevented that from being so considered. However, the committee yielded to his solicitations, and his examination proved so entirely satisfactory, he was admitted to practice in Falmouth. This was in 1774.

The following year Admiral Graves, commander of the British squadron in Boston Bay, despatched some ships of war to Falmouth with orders to destroy it, and it was almost totally burned. Mr. Parsons theu returned to his home, greatly disappointed and cast down ; but he found at his father's house, Judge

Trowbridge, and his learned help and counsel was as eagerly sought and received by Mr. Parsons as he was ready to give it. The latter remained in Byfield a considerable time, and when he found that Mr. Par- sons was to be his companion and student, he ordered thither all his library, which was not only the best, but probably the only thoroughly good one, then in New England.

He found in Mr. Parsons an intelligent student, of devoted industry prepared by previous habits, as well as by previous knowledge, to profit by this golden op- portunity.

Edmund Trowbridge died in Cambridge, in 1793, at the age of ninety-four, and during half of his long life, he was, by commou consent, regarded as the most learned lawyer of New England. In the seventh volume of the Massachusetts Reports (page 20), Mr. Parsons speaks of his excellence as a common-law lawyer, and says: "The late Judge Trowbridge was an excellent common-law lawyer, of whose friendly assistance in my early professional studies I cherish the most grateful remembrance," and Chancellor Kent, in his commentaries calls him "the oracle of the common-law of New England."

About the time of the Declaration of Independence the formation of a Constitution became a matter of much moment to many of the colonies which had just become States. In Massachusetts the system of government went on with few alterations, although the charter had lost all force. In June, 1776, it was proposed in the general court to prepare a form of government, or constitution,-to be presented to the people. In 1778, a constitution was agreed upon by the General Court, and offered to the people, but was rejected by them by a vote of five to one. These were the reasons for its rejection :

The draft was imperfect, evidently drawn up with- out due care and consideratiou ; the people preferred that it should be made by a committee chosen for that express purpose and not by the Legislature. A Bill of Rights, clearly defining to the people what were their inalienable rights, was not prefixed, and lastly, the constitution so carefully avoided a strong govern- ment, the power of the executive was a mere cipher. It was this last objection which weighed most with many people.

The conflict for the adoption or rejection of the constitution seemed to be the early manifestation that a new question was brought before the minds of men which threatened, or seemed to threaten, the disrup- tion of civil society, and has continued to this day to divide, not politicians only, but the whole people; and will ever do so. This question is, which shall prevail of the two great parties, into one or the other of which every man is forced by nature, habit, taste, education or circumstances. These are the parties of progress and conservatism ; of those who love the " largest liberty" with more regard to its quantity than its quality, and those who desire only the best

Theo Passons

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THE BENCH AND BAR.

liberty, and dread, as the greatest of evils, its corrup- tion into license. To all men of this last class the constitution offered to the people was wholly worth- less ; and to this large party Mr. Parsons belonged. His home was in Essex Connty, and there he was sustained by the warm sympathy of excellent men, and perhaps, young as he was, strengthened their love of order or their fear of anarchy. A meeting of these men took place in Essex County, in 1778, in Newburyport ; a committee was appointed and then it adjourned to Ipswich; and there it met in the last week of April of that year, when a term of the Su- preme Judicial Court was held there. At this ad- journed meeting a pamphlet was presented by the committee, approved and adopted by it and by its order published.

It contained eighteen distinct articles, setting forth the leading objections to the Constitution proposed. Its title was: "The result of the Convention of Delegates holden at Ipswich, in the County of Essex, who were deputed to take into consideration the Constitution and form of government proposed by the Convention of the State of Massachusetts Bay." It was called the "Essex Result." It went very fully into the consideration of the objects and prin- ciples which should be regarded in the formation of a constitution ; it not only made the rejection of the proposed constitution far more decisive, but exerted an important influence on the structure of that Con- stitution which was soon after framed and adopted by the people.

Mr. Parsons wrote this pamphlet, which is now very rare, but is reprinted in the Appendix to his auto- biography. The proof that he wrote it lies in the assertion of Chief Justice Parker, who says in his address to the grand jury after Judge Parsons' death : "The Report was undoubtedly his, though he was probably aided by others, at least, with their ad- vice." This elaborate Report is called "The Essex Result." No doubt, he obtained all the assistance, by advice and suggestion, which could be rendered to him in a matter of this importance by the wise men with whom he acted. But he wrote every word of it, and this, perhaps, proved that the young man was already recognized by them, who were certainly among the ablest and most venerable men of the county, as one with whose work they were satis- fied, and one whom they could trust to speak for them. Among the most distinguished peculiarities of the actual institutions and government of this country is the singular blending of the progressive and conservative principles in such a way that they do not so much neutralize each other as promote each other's activity, while they compensate for each other. While our fathers were making history, there were some whose love for liberty had degenerated into a love of li- cense, and whose idea of happiness was to run riot through the fields of life; they balanced and checked and were balanced and checked by the stern lovers of

order, who appeared, in their extremity of opinion, to think that the first use of legs is to wear fetters, while walking is but a secondary and conditional pur- pose. Happily, there were wise men who were able to bring these extremes into compromise, and, by means of compromise, into union. The "Essex Re- sult " was regarded as a very early encounter with the great question then dawning upon this country and upon the world. It was an earnest endeavor to discover and declare how progress and conservatism, liberty and order, might be so adjusted in human in- stitutions, that freedom should be secure, and peace and happiness be the children of freedom.

The Old Confederation of the United States was formed November 15, 1777, in the midst of war and danger and effort; and while these lasted their pres- sure kept it together. But with the relaxation of peace its debility and insufficiency became apparent. In May, therefore, 1787, a convention of delegates from the states assembled at Philadelphia for the purpose of forming a Federal Constitution, and at once the new parties of the country-the Liberty party and the Government party-started into full life.

The two antagonistic principles entered into imme- diate, constant and energetic conflict; and the good sense and caution and love of peace, and the pro- found conviction that union would be impossible if not then consummated, and that without union there must be destruction-all these were in perpetnal requisition, and were only able to reconcile these hostile sentiments and principles so far as to produce the Constitution, which was throughout, and in al- most every paragraph and every provision, a com- promise. After the Constitution was framed, the man who most loved peace and union labored stren- uously to procure for it the signatures of all the dele- gates, that it might go to the people with the advan- tage of their unanimous consent. And all did sign but three-Randolph and Mason, of Virginia, and Elbridge Gerry, of Massachusetts, afterwards gover- nor of the State. The Constitution contained a pro- vision that it should go into effect as soon as nine states should accept it. It was adopted by the Con- vention that framed it on the 17th of September, 1787; then by Delaware, December 7, 1787; by Pennsylvania, December 12, 1787 ; by New Jersey, December 18, 1787; by Georgia, January 2, 1788 ; and by Connecticut, January 9, 1788. Then came the question whether the Commonwealth of Massa- chnsetts should accept it. It was feared that Massa- chusetts would be hostile, and that her example would operate with much power upon New York, Maryland and Virginia for good or for evil. Jauu- ary 9, 1788, the convention of delegates from the towns of Massachusetts assembled in Boston to de- termine whether the Constitution should be adopted or rejected by that State. The debates of this con- vention were republished by the Legislature of Mas-

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History of Essex County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I, Part 5

Author: Hurd, D. Hamilton (Duane Hamilton), ed. n 85042884-1 Publication date: 1888 Publisher: Philadelphia : J. W. Lewis & Co. Number of Pages: 1538

Author: Hurd, D. Hamilton (Duane Hamilton), ed. n 85042884-1
Publication date: 1888
Publisher: Philadelphia : J. W. Lewis & Co.
Number of Pages: 1538