History of Middlesex County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I, Part 8

Author: Hurd, D. Hamilton (Duane Hamilton), ed
Publication date: 1890
Publisher: Philadelphia, J. W. Lewis & co
Number of Pages: 1034

USA > Massachusetts > Middlesex County > History of Middlesex County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I > Part 8

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CHAPTER II.

BENCH AND BAR.

BY WILLIAM T. DAVIS.

IN the earlier days of Middlesex Conuty the bar was divided into two classes, harristers and attorneys, and this division continued until 1836, though after 1806, under a rule of court, counselors were substi- tuted for barristers. In the earliest days the lawyers were chiefly uneducated men, and of the judges few were educated to the law. Edward Randolph wrote home to England in January 1687-88, "I have wrote you of the want we have of two or three honest attor- neys (if any such thing in nature); we have but two ; one is West's creature, come with him from New York and drives all before him. He also takes ex- travagant fees, and for want of more the country can- not avoid coming to him, so that we had better be quite withont them than not to have more." These two attorneys were very likely George Farwell and James Graham, the former of whom was clerk of the Superior Court, and until June 20, 1688, attorney-gen-

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eral, when he was succeeded by the latter. Little is known of the barristers before 1768. In that year there were twenty-five barristers in Massachusetts. Of these, eleven were in Suffolk-Richard Dana, Benj- amin Kent, James Otis, Jr., Samuel Fitch, William Read, Samuel Swift, Benjamin Gridley, Samuel Quincy, Robert Auchmuty, Jonathan Adams and An- drew Cazeneau. Five were in Essex-Daniel Farnham, William Pynchon, John Chipman, Nathaniel Peaselee Sergent and John Lowell. Two were in Worcester --- James Putnam and Abel Willard. One was in Mid- dlesex-Jonathan Sewall. Two were in Plymouth- James Hovey and Pelham Winslow. Three were in Boston-Samuel White, Robert Treat Paine and Dan- iel Leonard, and Hampshire had one, John Worthing- ton. According to Washburn's "History of the Judi- ciary of Massachusetts," from whom the writer quotes, sixteen other barristers were made before the Revolu- tion-John Adams and Sampson Salter Blowers, of Boston ; Moses Bliss and Jonathan Bliss, of Spring- field ; Joseph Hawley, of Northampton ; Zephanialı Leonard, of Taunton ; Mark Hopkins, of Great Bar- rington ; Simeon Strong, of Amherst ; Daniel Oliver, of Hardwick ; Francis Dana, of Cambridge; Daniel Bliss, of Concord; Joshua Upham, of Brookfield ; Shearjas- hub Bourne, of Barnstable ; Samuel Porter, of Salem ; Jeremiah D. Rogers, of Littleton, and Oakes Angier, of Bridgewater.

It is by no means generally known what constituted a barrister in New England. The term is derived from the Latin word barra, signifying bar, and was applied to those only who were permitted to plead at the bar of the courts. It was necessary in England that a barrister before admission should have resided three years in one of the Inns of Court, if a graduate of either Cambridge or Oxford, and five years if not. These Inns of Court were the Inner Temple, the Middle Temple, Lincoln's Inn and Gray's Inn. Up to the time of the Revolution the English custom was so far followed as to make a practice of three years in the Inferior Courts a qualification for admission as bar- rister. John Adams says in his diary that he became a barrister in 1761, and was directed to provide him- self with a gown and bands and a tie-wig, having practiced according to the rules three years in the In- ferior Courts.

After the Revolution the appointment of barristers continued, and the following entry has been found by the writer in the records of the Superior Court of Judicature :

"Suffolk SS. Superior Court of Judicature at Boston, third Tuesday of February, 1781, present Wm. Cushing, Nathaniel P. Sargeant, David Sewall and James Sullivan, Justices : and now at this term the follow ing rule is made by the Court and ordered to be entered, viz. : whereas, learning and literary accomplishments are necessary as well to promote the happiness as to preserve the freedom of the people, and the learning of the law, when duly encouraged and rightly directed, heing as well peculiarly subservient to the great and good purpose aforesaid as pro- motive of public and private justice ; and the Court being, at all times, ready to bestow peculiar marks of approbation upon the gentlemen of the bar who, by a close application to the study of the science they pro-

fess, hy a mode of conduct which gives a conviction of the rectitude of their minds and a fairness of practice that does honor to the profession of the law, shall distinguish as meu of science, honor and integrity, Do order that no gentleman shall be culled to the degree of barrister until he shall merit the same by his conspi cuous hearing, ability and honesty ; and that the Court will, of their own mere motion, call to the bar such persons as shall render themselves worthy as aforesaid ; and that the manner of calling to the bar shall be as follows : The gell- tleman who shall be a candidate shall stand within the bar ; the chief justice, or in his absence the senior justice, shall, in the name of the Court, repeat to him tbe qualifications necessary for a barrister-at-law ; shall let him know that it is a convictiou in the mind of the Court of his being possessed of those qualifications that induces them to confer the honor upon him ; and shall solemnly charge him so to conduct himself as to be of singular service to his country by exerting his abilities for the defenco of her Constitutional freedom ; and so to demeen himself as to do honor to the court and bar."

The act establishing the Supreme Judicial Court, July 3, 1782, provided that the court should and might from time to time make, record and establish all such rules aud regulations with respect to the admission of attorneys ordinarily practicing iu the said court, and the creating of barris ters-at-law. The following rule was adopted and entered on the records of that court :

"Suffolk SS. At the Supreme Judicial Court et Boston, the last Tues- day of August, 1783, present William Cushing, Chief Justice ; and Na- thaniel P. Sargeant, David Sewall and Increase Sumner, Jostices, ordered that barristers he called to the bar by special writ, to be ordered by the Court, and to be in the following form :

" ' COMMONWEALTH OF MASSACHUSETTS.

"' To A. B, Esq., of -, Greeting : We, well knowing your shil- ity, learning and integrity, command you that you appear before our Justices of our Supreme Judicial Court next to be holden at -, in and for our county of -, on the - Tuesday of -, then and there in our said Court to take upon you the state and degree of a Barrister-at-Law. Hereof fail not. Witness -, Esq., our Chief Justice at Boston, the - day of -, in the year of our Lord , and in the - year of our Independence -. By order of the Court, -, Clerk.'

which writ shall be fairly engrossed on parchment and delivered twenty daye before the session of the same Court by the Sheriff of the same county to the person to whom directed, and being produced in Court by the Barrister and there read by the Clerk and proper certificate thereoo made, shall be redelivered and keptas a voucher of his being legally called to the har : and the Barristers shall take rank according to the date of their respective writs."

It is probable that no barristers were called after 1784, and in 1806, by the following rule of court, coun- sellors seem to have been substituted in their place :

" Suffolk SS. At the Supreme Judicial Court at Boston for the coun- ties of Suffolk. and Nantucket, the second Tuesday of March, 1806, present Francis Dans, Chief Justice, Theodore Sedgwick, George Thatcher and Isaac Parker, Justices, ordered : First. No Attorney shall do the business of a Counsellor unless he shall have been made or ad- mitted as such by the Court. Second. All Attorneys of this Court, who have been admitted three years before the setting of this Court, shall be and hereby are entitled to all the rights and privileges of such. Third. No Attorney or Counsellor shall hereafter he admitted without a pre- vione examination, etc."

In 1836 (Chapter 88, Section 23 of the Revised Statutes) it was provided by law that " every person admitted to practice in any court may practice in ev- ery other court in the state, and there shall be no dis- tinction of counsellor and attorney." The rule of court above mentioned, adopted by the Superior Court of Judicature in 1781, was probably made necessary by the new order of things brought about

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HISTORY OF MIDDLESEX COUNTY, MASSACHUSETTS.

by the Revolution; and was probably only a new de- claration concerning barristers of a rule which had ex- isted in the Provincial courts. It has been thought by some that until 1781 the English rule prevailed re- quiring a probation in one of the Inns of Court, but it is absolutely certain that many of the barristers of 1767, a list of whom has been given, had never been in England.

Among those on the bench in the Massachusetts Colonial and Provincial periods, as has already been said, few of the judges were trained to the law. Up to the Revolution only four judges educated as lawyers had been appointed to the bench of the Superior Court of Judicature-Benjamin Lynde, Paul Dudley, Edmund Trowbridge and William Cush- ing. Of these, Edmund Trowbridge alone was a Middle- sex County man. Mr. Trowbridge was born in Newton in 1709, and graduated at Cambridge in 1728. In 1749 he was appointed by Governor Shirley Attorney- General, and in 1767 a justice of the Superior Court, resigning his office in 1772. He presided at the trial of English soldiers charged with murder at the Boston massacre and won great credit for his ability and im- partiality. Though a Loyalist, he held the confidence and respect of all parties until his death, which oc- curred at Cambridge, April 2, 1783. It seems surprising at this day, when the highest and pro- foundest legal attainments are sought for the bench, to find how little legal knowledge the judges of the highest courts in the early days must have possessed, and how strikingly unfitted by tem- perament and education many of them must have been for the occupation in which they were engaged. William Stoughton was the chief justice of the Court of Oyer and Terminer, created as a special tribunal "assigned to enquire of, hear and determine for the time all and all manner of felonies, witchcraft, crimes and offences how or by whomsoever done, committed or perpetuated within the several counties of Suffolk, Essex, Middlesex or, either of them." Its special mission was to try the cases of witchcraft then pending in Essex. Mr. Stoughton was born in Dorchester in' 1631 and grad- uated at Harvard in 1650. He was educated for the ministry, became a fellow at Oxford and preached in England and in New England after his return. 1n 1668 he preached the annual election sermon, and, though never settled, continued in the ministry until 1671. Nathaniel Saltonstall, one of the associate justices of the court, was a military man, but declined to act, and was succeeded by Jonathan Curwin, a merchant, and the other justices were Samuel Sewall, a clergyman ; John Richards, a merchant ; Waitstill Winthrop, a physician; Peter Sergeant, probably a merchant, and Bartholomew Gedney, a physician. The strong men on the bench were undoubtedly Stoughton and Sewall, and on them, more than the others, the responsibility must rest for the barbarous results of the trials in which they were engaged.

Of the Court of Assistants, which existed during the Colony of Massachusetts, there were some who, as Middlesex men, should be mentioned in this narra- tive.

THOMAS DUDLEY, an assistant in 1635, '36, '41, '42, '43,'44, was one of the founders of Cambridge in 1631. He remained there, however, only a few years, and after a short residence in Ipswich became a resident of Roxbury in 1636, before the county of Middlesex was incorporated. He was Deputy-Governor from 1629 to 1634, from 1637 to 1640, from 1646 to 1650, and from 1651 to 1653. He was also Governor in 1634, 1640, 1645 and 1650; commissioner of the four colonies of Plymouth, Massachusetts, New Haven and Connecticut in 1643, 1647 and 1649. While in Cam- bridge Mr. Paige, in his history of that town, states that he lived on the northwesterly corner of Dunster and South Streets. He died in Roxbury, July 31, 1653.

SIMON BRADSTREET, assistant from 1630 to 1678, was also one of the original founders of Cambridge, but became a resident of Andover in 1644. He mar- ried, in England, Ann, daughter of Thomas Dudley, and while in Cambridge, as Mr. Paige also states, lived on the easterly corner of Brighton Street and Harvard Square. He died in Salem, March 27, 1697.

JOHN HAYNES, an assistant in 1634 and 1636, came to New England in 1633, and lived a short time in Cambridge on the westerly side of Winthrop Square, removing thence to Connecticut in 1637, of which State he was the first Governor. He was also Governor of Massachusetts Colony in 1635. He died in 1654.

ROGER HARLAKENDEN, an assistant from 1636 to 1638, came to Cambridge in 1635 and lived on the Dudley estate, where he died of small-pox, November 17, 1638.

INCREASE NOWELL, who for many years was an assistant, came to New England with Winthrop in 1630 and was secretary of the Colony from 1636 to 1649. He was a founder of the church in Charlestown in 1632, and died in Charleston, November 1, 1655.

HERBERT PELHAM, an assistant from 1645 to 1649, though he remained in the country only a few years, was during his stay a Middlesex man, His grand- father, Edward Pelham, of Hastings, in Sussex Eng- land, was a member of Parliament, who was admitted at Gray's Inn in 1563, called to the bar in 1579, knighted and made Lord Chief Baron of the Ex- chequer of Ireland, and died in 1606. His son, Herbert Pelham, of Michelhan Priory, was admitted to Gray's Inn in 1588, and his son, the emigrant to New England, bore his father's arms in the Hastings muster-roll in 1619. The last Herbert, the subject of this short sketch, born in 1601, graduated at Oxford in 1619 and came to Massachusetts in 1638 and settled in Sudbury. He was the first treasurer of Harvard College, and returned to England in 1649, where he died in 1673. His will, proved in London, March 13,

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1677, calls him of Bewers Hamlet, Essex, and speaks of Thomas Bellingham as the husband of his sister. By a first wife lie had a son, Edward, and a daughter, Penelope, who married, in 1651, Governor Josiah Winslow, of the Plymouth Colony. The son, Edward, married a daughter of Governor Benedict Arnold, of Rhode Island, and died in Newport in 1720, leaving three children-Elizabeth, Edward and Thomas. Mr. Pelham, the assistant, married for a second wife Elizabeth, widow of Roger Harlakenden, who was also an assistant from 1634 to 1638, inclusive. The Pelham house in Hastings, built in 1611, was standing in 1862, the oldest house in the town.

FRANCIS WILLOUGHBY, another assistant, was the son of Colonel William Willoughby, and was born in Portsmouth, England. He was admitted a freeman at Charlestown August 22, 1638, and was in public service almost continuously until his death, which occurred April 4, 1671. He was selectman of his adopted town seven years, was the representative two years, was assistant four years and Deputy-Governor from 1665 until his death. He was a successful merchant, leaving at his death an estate valued at ahout £4000, of which he gave 300 acres of land to the schools of Charlestown.

DANIEL GOOKIN, another Middlesex assistant, was in various ways a prominent man. He was born in Kent, England, about 1612, and died in Cambridge March 19, 1687. He emigrated to Virginia from Eng- land in 1621 with his father, and came to New Eng- land in 1644. He was a captain in the militia, a deputy to the General Court from Cambridge and assistant from 1652 until 1686 inclusive. He was at different times superintendent of the Indians, licen- ser of the press and marshal-general of the Colony. He was the anthor of " Historical Collections of the Indians of Massachusetts," which were published by the Massachusetts Historical Society in 1792. He married, in 1639, in England, Mary Dolling, of St. Dunstan in the West, London.

SIMON WILLARD, who was an assistant from 1654 to 1675, was born in Kent, England, about 1605 and died while holding court at Charlestown April 24, 1676. He came to New England in 1634 and lived many years in Concord, Lancaster and Groton, finally removing to Salem, of which place he was a resident at the time of his death. He was connected with the militia and wore the title of major.

RICHARD RUSSELL, an assistant from 1659 to 1676, came to New England from Hereford, in Hereford- shire, England, and was admitted a freeman at Charlestown in 1640. He was a selectman of that town twenty-six years, a deputy to the General Court ten years, an assistant sixteen years, Speaker of the House of Deputies five years and twenty years the colonial treasurer. He was a merchant by pro- fession and accumulated a fortune that was large for the times. He died May 14, 1676, giving by his will £100 to his church, £50 towards a parsonage house,

£200 to the town for the benefit of the poor and £100 to Harvard College. By a wife, Maud, whom he probably married in New England, he had James,. born in 1640; Daniel, who graduated at Harvard in 1669 and died in Charlestown after his acceptance of an invitation to become its settled minister January 4, 1678; Catharine, who married William Roswell, of Connecticut ; Elizabeth, who married Nathaniel Graves and John Herbert.

THOMAS DANFORTH, an assistant from 1659 to 1678, was the son of Nicholas Danforth, of Cambridge, and was born in Suffolk, England, in 1622 and came to Massachusetts with his father in 1634. He was admitted a freeman in 1643 and in 1657 was a deputy to the General Court from Cambridge. In 1659 he was promoted from assistant to Deputy-Governor and remained in office until 1686. In 1679 he was ap- pointed by the General Court president of the Prov- ince of Maine, and a General Conrt for that Province was held at York in 1681. He continued in that office until the arrival of Dudley, in 1686, and after the old charter was resumed, upon the retirement of Andros, he was again made Deputy-Governor and continued in office until the union of the Colonies, in 1692, and the establishment of the Province. Under the Provincial charter he was made one of the Judges of the Superior Court of Judicature, and con- tinued on the bench until his death, which occurred at Cambridge November 5, 1699.

PETER BULKLEY, an assistant from 1677 to 1684, was the son of Rev. Peter Bulkley, of Concord, and was born August 12, 1643. He graduated at Harvard in 1660, and, though educated for the ministry, became an active man in the affairs of the Massachn- setts Colony. He was a deputy to the General Court from Concord from 1673 to 1676, and in the latter year was Speaker. He was one of the judges of the Superior Court under Dudley at Concord May 24, 1688. He married, April 16, 1667, Rebecca, daughter of Lieutenant Joseph Wheeler, who, as his widow, married Jonathan Prescott. Peter Prescott a son of Jonathan, born April 17, 1709, dealt largely in wild lands in New Hampshire, and gave the name to Peter- boro,' in that State. He commanded a company at Crown Point in 1758, and before the Revolution re- moved to Nova Scotia, where he was appointed clerk of the courts, and died in 1784.

THOMAS FLINT, an assistant from 1642 to 1651 and in 1653, came from Matlock, in Derbyshire, England, and settled in Concord in 1638. He was a man of wealth for New England, and is said to have brought with him £4000. He was a representative to the Gen- eral Court four years, as well as being an assistant. It was said of him that he was "a sincere servant of Christ who had a fair yearly revenue in England, but having improved it for Christ by casting it into the common treasury, he waits upon the Lord for doubling his talent, if it shall seem good unto him so to do, and the meantime spending his person for

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HISTORY OF MIDDLESEX COUNTY, MASSACHUSETTS.

the good of his people in the responsible office of mag- istrate."

JAMES RUSSELL, an assistant from 1680 to 1686 inclusive, was the son of Richard Russell, who has al- ready been mentioned in the list of assistants. He was born in Charlestown, October 4, 1640, and mar- ried a daughter of John Haynes, who was Governor of the Colony from May 5, 1635, to May 25, 1636, and was succeeded by Henry Vane. Mr. Russell was a deputy to the General Court, one of the Council of Safety at the deposition of Andros, and colonial treas- urer from May 19, 1680, to May 11, 1686. Under the Provincial charter he was named as one of the Council. He died April 28, 1709.

On the 7th of October, 1691, the Massachusetts Colony ceased to exist, as on that date a new charter passed the great seal embracing Massachusetts, Plym- outh, Maine, Nova Scotia, Nantucket and Martha's Vineyard in a new government by the name of the " Province of Massachusetts Bay." Under this charter, which reached New England in 1692, the General Court was authorized to establish courts with power to try all kinds of civil and criminal causes. Before, however, the General Court had met under the new charter, Sir William Phipps, who had been appointed the first Governor of the Province, created the special Court of Oyer and Terminer, already re- ferred to, for the purpose of trying persons charged with witchcraft. The judges commissioned for this court June 2, 1692, were only a short time in service, and in August or September of the same year the court was dissolved. None of the judges were Mid- dlesex men, and consequently they have no place in this record.

The courts, as has been already mentioned, perma- nently established under the charter were the Superior Court of Judicature, the Inferior Court of Common Pleas, a Court of Chancery, and the lower courts of Quarter Sessions of the Peace and of Justices of the Peace. The Superior Court of Judicature consisted at first of William Stoughton, chief justice; Thomas Dan- forth, Waitstill Winthrop, John Richards and Samuel Sewall, associates. Of these, Thomas Danforth, the only Middlesex man, has already been sufficiently referred to as one of the Colonial Court of Assistants.

JOHN LEVERETT, a justice on the bench of the Superior Court from 1702 to 1708, who was for many years a resident of Middlesex County, was born in Boston, August 25, 1662. He was a grandson of John Leverett, who was from 1671 to 1673 Deputy-Governor of the Massachusetts Colony. He graduated at Har- vard in 1680 and became president of the college on his retirement from the bench, which office he held until his death, which occurred on the 3d of May, 1724. He lived in Cambridge some years before his accession to the presidency of the college, and repre- sented that town in 1700 in the General Court, of which he was Speaker. For some years before his appointment to the college he held the offices of judge

of the Superior Court, judge of Probate and coun- selor.

JONATHAN REMINGTON, a judge of the Superior Court from 1733 to 1745, was born in Cambridge and graduated at Harvard in 1696. Before his accession to the Superior bench he had been a judge of the Common Pleas for Middlesex from 1715 to 1733 and judge of Probate for that county from 1725 to 1731. He died September 20, 1745.

THOMAS GREAVES, a judge of the Superior Court in 1738, was born in Charlestown in 1684 and grad- uated at Harvard in 1703. He studied and practiced medicine in the place of his birth. Before his ap- pointment to the Superior Court he acted in 1731 as special judge of the Middlesex Court of Common Pleas, in 1735 as special judge of the same court in Suffolk, and in 1737 as special judge of the Superior Court for Essex. In 1733 he was appointed a judge of the Common Pleas Court, on which bench he re- mained until his appointment to the Superior Court in 1738. In 1739, after leaving the Superior Court, having been superseded by Stephen Sewall on the 16th of May in that year, he was reappointed to the Common Pleas and remained on its bench until his death, which occurred June 19, 1747.

CHAMBERS RUSSELL, son of Daniel Russell, a judge on the bench of the Superior Court from 1752 to 1766, was born in Charlestown in 1713, and graduated at Harvard in 1731. He settled in Concord, in that part of the town which afterwards became a part of Lin- coln, and remained a resident of the new town after its incorporation in 1754. He was appointed a judge of the Court of Common Pleas in 1747 and continued on that bench until April 6, 1752, when he was com- missioned to the Superior Court. In 1747 he was also appointed judge of vice-admiralty over New Hamp- shire, Massachusetts and Rhode Island, and held the office until his death, which occurred at Guilford, England, November 24, 1767. The family of which Mr. Russell was a member was a distinguished one during many generations. He was the great-grandson of Richard Russell, already referred to as one of the Court of Assistants from Middlesex County during the life of the Colony. James Russell, a brother of Chambers, who died in 1798, wrote as follows to his son, Thomas Russell, an eminent merchant of Boston : " Our family has great reason to bless God that the reputation of it has been preserved. You are the fifth generation. In the year 1646 Richard Russell entered into public life. From that time to the pres- ent I may say the family have had every office of profit and honor which the people could give them, in the town of Charlestown, in the county of Middle- sex, and the State of Massachusetts ; and I do not find that there was any one left out of office for misbe- havior."

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History of Middlesex County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I, Part 8

Author: Hurd, D. Hamilton (Duane Hamilton), ed Publication date: 1890 Publisher: Philadelphia, J. W. Lewis & co Number of Pages: 1034

Author: Hurd, D. Hamilton (Duane Hamilton), ed
Publication date: 1890
Publisher: Philadelphia, J. W. Lewis & co
Number of Pages: 1034