History of Norfolk County, Massachusetts, with biographical sketches of many of its pioneers and prominent men, Part 3

Author: Hurd, D. Hamilton (Duane Hamilton) ed
Publication date: 1884
Publisher: Philadelphia, J. W. Lewis & Co.
Number of Pages: 1534

USA > Massachusetts > Norfolk County > History of Norfolk County, Massachusetts, with biographical sketches of many of its pioneers and prominent men > Part 3

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The present government of the society (1884) is as follows :

Winslow Battles (Randolph), president ; T. H.

1 Its preface and introduction were prepared by Nahum Capen.

THE BENCH AND BAR.

Dearing, M.D. (Braintree), Hon. David W. Tucker (Milton), Elijah G. Capen (Stoughton), George N. Spear (Holbrook), Charles F. Porter (Brockton), vice-presidents ; Daniel H. Huxford (Randolph), secretary; Alfred W. Witcomb (Randolph), treas- urer; Prof. Hiram Wilde (Boston), conductor ; George N. Spear (Holbrook), vice-conductor ; Lucius H. Packard (Stoughton), George R. Whitney (Brockton), George N. Spear (Holbrook), executive committee ; Herman L. West (Holbrook), pianist.

Not to notice such a society in this introduction would be an unpardonable omission. Some of its leading members, from its organization to the present time, are numbered as among the most distinguished citizens of Norfolk County.

As natives or residents of this county may be men- tioned the illustrious names of John Hancock, John Adams, John Quincy Adams, Charles Francis Adams, Gen. Joseph Warren, James Bowdoin, William Eus- tis, Edmund Quincy, Josiah Quincy, Capt. Roger Clapp, John Capen (the first in the colony to contri- bute money to public schools), Roger Sherman,1 Rev. Dr. Emmons, Fisher Ames, Horace Mann, Erastus Worthington, Marshall P. Wilder, Dr. Jonathan Wales, Rev. T. M. Harris, Samuel D. Bradford, Ed- ward Everett, A. H. Everett, John Everett, Edward H. Robbins, Daniel Fisher, John Wells, etc. We write the names as they occur to us and without order as to date, but to include all would too much extend the list for this place.

To all the sources of gratification which are to be found in society, it may be added that the people of a county, whether by birth, residence, or associ- ation, become attached to one another, and have a common pride in all that is done within its limits,

and in the honorable success of its citizens, however and wherever engaged. This is natural. Beginning with the family, what mother could find children superior to her own, a medical adviser more skillful than her physician, or a religious teacher more attrac- tive and eloquent than the minister of her own parish ?

Enter what circle we please, all is centred in what we have, in what we think, and in what we do, and in the place where we live.

This is as it should be. It is in the constitution of things. If we do not care for our own, or our surroundings, who could be found to care for us ? But, in boasting of what is personal, selfish, or local, let us not narrow the habits of the mind. Let us not forget that we are capable of expanding our sense of duty, our affections and generous considerations, from the smaller to the larger circles, from the town to the county, from the county to the commonwealth, and from the commonwealth to the great republic, the American Union.2 To this broad and commend- able pride is to be attributed the production of the following pages, giving to the world a just estimate of the character and distinction of some of the men who have lived to honor Norfolk County.

2 In speaking of the American Continent, in 1776, in his article published under the title of "Common Sense," Paine says,-

"'Tis not the affair of a city, a county, a province, or a king- dom, but of a continent,-of at least one-eighth part of the habitable globe."

" In this extensive quarter of the globe we forget the narrow limits of three hundred and sixty miles (the extent of Eng- land) and carry our friendship on a larger scale; we claim brotherhood with every European Christian, and triumph in the generosity of the sentiment.

" It is pleasant to observe by what regular gradations we sur- mount local prejudices as we enlarge our acquaintance with the world."-Common Sense, pp. 33, 35.

1 Roger Sherman lived in Canton before he removed to Con- necticut.

CHAPTER I.

THE BENCH AND BAR.

BY ERASTUS WORTHINGTON.

THE county of Norfolk was incorporated by an act of the General Court which passed March 26, 1793, and took effect June 20, 1793. All the terri- tory of the county of Suffolk, not comprehended within the towns of Boston and Chelsea, was then erected into an entire and distinct county, with Ded- ham as its shire-town. The towns of Hingham and

Hull were excepted by another act passed at the same session, and a few years after, those towns were annexed to Plymouth County. The territory of the new county extended from the line between Boston and Roxbury, southwesterly to the Rhode Island line, and from Middlesex on the north, to the Old Colony line, excepting Hingham on the south. It was com- posed chiefly of towns with farming communities, having but few compact villages, except in the lower parts of Dorchester and Roxbury, which were imme- diately contiguous to the large town of Boston. The formation of a new county had been the subject of petitions to the General Court from the towns for

HISTORY OF NORFOLK COUNTY, MASSACHUSETTS.

several years, based upon the obvious grounds of con- venience to the people in transacting the public busi- ness. Dedham was selected as the shire-town on account of its central position, and perhaps because it was the parent town, which once included all the northerly and westerly towns of the county. Med- field had been proposed, with the idea of uniting sev- eral towns of Middlesex. At this time Dedham had a population of about two thousand people, mostly farmers, with a small central village.

As there was no court-house, the records of the Supreme Judicial Court from 1794 to 1796 contin- ued to be kept in Boston, and the records for 1797 and 1798 are imperfect. The first term of the Court of Common Pleas, then a county court, was held in the meeting-house in Dedham, Sept. 24, 1793, and the first case was committed to a jury at the April term, 1794. At the same term the number of actions entered was one hundred and sixty-six. The first term of the Supreme Judicial Court was held in August, 1794. A court-house and jail were ordered to be built in 1794, but they were not finished until 1795. Both structures were of wood and have long since disappeared.

Fisher Ames, in a letter to Thomas Dwight, dated Sept. 11, 1794, writing of Dedham, says, "Our city is soon to be adorned with a jail and court- house, provided a committee of the Sessions can be persuaded to hasten their snail's gallop. I think I have mentioned in a former letter, that the Honor- able Supreme Court was to sit here in August. They did sit, and in tolerable good humor. Two days and a piece finished the business. The jurors could not but feel relief from the former burden of attending fifteen, sometimes thirty days in Boston." The allu- sion to the humor of. the judges is made more em- phatic in a letter written several years later, where he speaks of Judge Ursa Major, R. T. Paine, and of whom, after an uncomfortable scene in court, Mr. Ames once said, with reference to his deafness, that " no man could get on there unless he came with a club in one hand and a speaking-trumpet in the other."

of attending the courts of Norfolk County, and of course had a considerable share of the practice. The profession was then regarded with much jealousy and suspicion, which found expression in the records of the towns of that period. Among the instructions given to the representative from Dedham in 1786 occurs the following :

"THE ORDER OF LAWYERS .- We are not inattentive to the almost universally prevailing complaints against the practice of the order of lawyers, and many of us too sensibly feel the effects of their unreasonable and extravagant exactions; we think their practices pernicious and their mode unconstitu- tional. You will therefore endeavor that such regulations be introduced into our courts of law that such restraints be laid on the order of lawyers as that we may have recourse to the laws and find our security and not our ruin in them. If, upon a fair discussion and mature deliberation, such a measure should appear impracticable, you are to endeavor that the order of lawyers be totally abolished, an alternative preferable to their continuing in their present mode."

Among the reasons urged for the division of the county was the belief that if the court was held in a country town " the wheels of law and justice would move on without the clogs and embarrassments of a numerous train of lawyers. The scenes of gayety and amusement which are now prevalent at Boston we expect would so allure them as that we should be rid of their perplexing officiousness." With such a distrust existing in the country towns, the number of lawyers was no doubt kept conveniently small.

The first meeting of the members of the bar for the county of Norfolk was held at the office of Sam- uel Haven, in Dedham, Sept. 28, 1797. There were present at this meeting Fisher Ames, who presided, Samuel Haven, who acted as secretary, Thomas Wil- liams, Horatio Townsend, and Asaph Churchill of the county, and Seth Hastings from Worcester, Laban Wheaton from Bristol, and Artemas Ward from Middlesex. The only business done at this meeting was to establish a schedule of prices for writs. No other meeting was held until 1802, when the additional names appear of William P. Whiting, Henry M. Lisle, Jairus Ware, John S. Williams, James Richardson, and Gideon L. Thayer of Nor- folk County, with others from Bristol and Plymouth. It would seem from the attendance at this meeting, that the number of lawyers was rapidly increasing. In 1803, the bar adopted an elaborate code of regu- lations relating to the practice of law in the courts. From this time forward, excepting intervals of a few years, the bar of Norfolk County held its stated annual meetings down to 1853. These meetings of candidates for admission as attorneys to the different

At the beginning of the separate existence of Nor- folk County, the number of lawyers practising in the towns must have been very few. There were not a dozen lawyers in the town of Boston. Fisher Ames and Samuel Haven of Dedham, Horatio Townsend of Medfield, Thomas Williams of Roxbury, Edward Hutchinson Robbins of Dorchester Lower Mills, Asaph Churchill of Milton, were the only attorneys practising in the courts at this period. Members of | were held generally for passing upon the qualifications the bar in Suffolk, Middlesex, Worcester, and Bristol then and for some years afterwards were in the habit | courts and of counsellors to the Supreme Judicial

THE BENCH AND BAR.

Court, the law then requiring separate admissions as attorneys and counsellors to the respective courts. The recommendation of the bar was then a pre- requisite for admission. In a few instances they ad- ministered discipline upon members who had brought disgrace upon the body by their intemperance or evil practices. There were also many resolutions passed at these meetings to provide against the infringement of the rights of one of the brethren by another in encroaching upon his field of practice.

A very curious and suggestive record, illustrative of their scrupulous care upon this matter, was en- tered at the meeting held September, 1805, which shows in a striking manner how this practice of hav- ing offices in two places was then viewed.

" Voted, unanimously, that the bar discountenance and will by no means sanction any gentleman of the profession having more than one office at any time in the same or different towns ; and understanding that Perez Morton, Esq., now has an office in Boston, and another in Dedham, further voted that the sec- retary of the bar furnish Mr. Morton with a copy of this vote, thereby requesting him to immediately relinquish and discon- tinue, both directly or indirectly, either one or the other of said offices. The secretary is desired, if the above request to Mr. Morton is not complied with, to make a communication on the subject to the Suffolk bar."

There is a tradition in the county, that one of the justices of the County Court of Common Pleas once overruled a motion made by a Suffolk lawyer on the ground that he was an interloper. The records of bar meetings show, that a careful scrutiny was made not only into the qualifications and time spent in the study of law of the candidates, but also into the personal and professional conduct of each member of the bar in his profession and practice.

mon Pleas, and it continued until 1820, when the Court of Common Pleas for the commonwealth was established, and which existed until 1859, when the Superior Court was created.

There was also another county court called the Court of Sessions of the Peace, which was established in 1782. This court consisted of the justices of the county, and determined all matters relative to the preservation of the peace and punishment of offences cognizable by them. In 1803 the powers and duties of this court were transferred to the County Court of Common Pleas, except those relating to jails and county buildings, allowing and settling county ac- counts, estimating, apportioning, and issuing warrants for county taxes, granting licenses, and highways. In 1807, this court was made to consist of one chief justice and four associate justices in this county. By another act of the same year, the name of this court was changed to the Court of Sessions, and in 1809 this court was abolished, and its powers and duties transferred to the Court of Common Pleas. In 1811 the Court of Sessions was restored, and again in 1813 it was abolished, and its powers and duties transferred to the Circuit Court of Common Pleas. This last act was repealed in 1818, and the Court of Sessions again established. After some further legis- lation in 1819 and 1821, finally in 1827 the Court of Sessions was abolished, and the Court of County Commissioners established.

These changes effected in the courts are remark- able and perplexing, and can only be understood with the explanation that they were made as one political party or another had the control of the Legislature. In 1807, Dr. Nathaniel Ames, the clerk, records that after passing sundry accounts, " an eternal adjourn- ment of the Court of General Sessions of the Peace is made according to law." But the Court of Sessions was afterwards twice restored and twice abolished.

At this time there was but one court of general common law jurisdiction in the commonwealth, which was the Supreme Judicial Court, established July 3, 1782. There was also a county court called the Court of Common Pleas, also established July 3, The Probate Court has remained unchanged since 1784, except that in 1858 it was consolidated with the Court of Insolvency. 1782, whose powers and jurisdiction and number of justices were afterwards changed by several acts of the General Court. Its original jurisdiction was con- Fisher Ames died July 4, 1808. Although he spent the last fifteen years of his life upon his estate in Dedham, and had a law-office near the court-house, yet the state of his health was such during much of the time as to prevent his engaging in constant prac- tice, but he tried many causes before the jury, and was retained in some important causes in other counties. His fame as a statesman, orator, and political writer completely overshadowed his reputation as a lawyer. fined to cases where the ad damnum was over £4. By statute 1798, chapter 24, the court was made to consist of a chief justice and three other justices. In 1803 the powers and duties of the Court of General Sessions and of the Peace were transferred to the Court of Common Pleas, except as to jails and county build- ings, accounts of county, county taxes, licenses, and highways. In 1811 the commonwealth was divided into six circuits, and Circuit Courts were established, | His name does not appear upon the bar records after to consist of a chief justice and two associate justices. | 1804. He had for his law partner James Richard- This court was known as the Circuit Court of Com- son, one of the first members of the bar, admitted

HISTORY OF NORFOLK COUNTY, MASSACHUSETTS.

after the formation of the county. He studied law pher Webb, of Weymouth. All these had been ad- mitted as attorneys to one of the courts prior to 1820. Ashur Ware, afterwards judge of the United States District Court in Maine, had an office in Milton, where he lived from 1815 to 1824. At a later pe- riod, John W. Ames and Jonathan H. Cobb began practice at Dedham, Aaron Prescott at Randolph, with Mr. Ames, and was admitted as an attorney of the Supreme Court in 1803. He always lived in Dedham, where he practised his profession until the infirmities of age withdrew him from active life. He at one period engaged in manufacturing business, which somewhat interfered with his practice. He was a man of excellent attainments in law and let- | Warren Lovering at Medway, and Jonathan P. ters, and on Feb. 25, 1837, he delivered an address before the members of the Norfolk bar, at their re- quest, on the " antiquity and importance" of the legal profession, its " duties. and responsibilities ; the evils to which its members are exposed," and its " conso- lations and rewards," which was printed. He was president of the bar for many years, and died in 1858.

respect and confidence, than Theron Metcalf. He the present building, was finished and occupied for

Probably no member of the Norfolk bar ever ex- ercised a stronger influence in elevating its profes- sional standard and in making it a body deserving of came to Dedham in 1809, having had unusual ad- vantages for the time, in pursuing his preparatory studies at the law-school in Litchfield, Conn., then justly celebrated for the eminence of its teachers. He remained in practice at Dedham until 1839, a period of thirty years. While nearly all his contem- poraries in practice at Dedham embarked in manu- facturing enterprises or adopted other callings, Mr. Metcalf steadily devoted himself to the study and practice of his profession, although at this time it was not very remunerative. At the time of his ap- pointment as reporter of judicial decisions, in 1839, the bar association adopted a resolution expressing their estimation of his learning, integrity, and profes- sional character ; and while they regretted " his loss to their fraternity, they had reason to rejoice that he had been called to exercise his pre-eminent talents and distinguished learning in a sphere more extended in usefulness, where the profession might be equally benefited."

Among the earlier members of the Norfolk bar who were contemporaneous with Mr. Richardson and Mr. Metcalf, may be mentioned Asaph Churchill, of Milton ; Thomas Boylston Adams, the third son of President John Adams; Gideon L. Thayer and Thomas Greenleaf, of Quincy ; Daniel Adams, of Medfield ; William Dunbar, of Canton ; Jabez Chick- ering, Erastus Worthington, and John B. Derby, of Dedham ; Thomas Williams, John S. Williams, Samuel J. Gardner, and David A. Simmons, of Rox- bury ; Samuel P. Loud and Abel Cushing, of Dor- chester ; Josiah J. Fiske and Meletiah Everett, of Wrentham ; John King, of Randolph ; and Christo-

Bishop at Medfield. In 1827, Horace Mann began practice at Dedham, and in 1826 John J. Clarke began practice in Roxbury. In 1834, Ira Cleveland began practice in Dedham, occupying the office re- cently vacated by Horace Mann. Ezra W. Sampson had an office in Braintree for twelve years, until 1836. Ezra Wilkinson came to Dedham about 1835, and occupied the office with Mr. Metcalf, which was formerly that of Fisher Ames, opposite the court- house.

The court-house, which forms the south wing of the first time in February, 1827, the full bench being present at the term of the Supreme Court. Chief Justice Parker made some complimentary remarks concerning the new building, and the bar gave a din- ner to the justices of the Supreme Court, reporter, attorney-general, solicitor-general, and the architect, Solomon Willard. The new court-house was a Gre- cian building, with porticoes at both ends, like that on the south wing at present. It was considered a fine structure for the time, and there were other court- houses in the commonwealth, designed by the same architect, which bore a resemblance to it in its architecture. The extensive enlargements of the court-house on the northerly end were completed in 1861.

The county in 1835, had been established upwards of forty years, during which period it had grown in wealth and population, and by the introduction of manufactures had ceased in some degree to be an ex- clusively agricultural county, as at its beginning. Some of the original members of the bar had dropped from the ranks, either into other callings or into re- tirement, or had removed or died. The trial of cases in court was about to pass into the hands of another generation of lawyers. In important causes in the Supreme Court eminent counsel from other counties, -among whom were Pliny Merrick of Worcester, Rufus Choate and Franklin Dexter of Boston-were sometimes retained, but it was not many years before a large majority of the cases were tried by Mr. Wil- kinson on one side, and Mr. Clarke on the other. For more than twenty years they were the leaders of the Norfolk bar. Mr. Wilkinson had acquired the

THE BENCH AND BAR.

reputation of being an able, upright, and learned lawyer, and thoroughly devoted to his profession. Mr. Clarke also stood deservedly high in his profes- sion, and was especially successful in the trial of cases before the jury, and had a large practice. The in- fluence of both these gentlemen upon the character of the members of the bar during their professional career was marked and exemplary. Mr. Wilkinson retired upon his appointment as a justice of the Su- preme Court in 1859, and Mr. Clarke a few years later left practice in Norfolk County,-Roxbury having been annexed to Boston in January, 1868. Besides these leaders, there were other good triers of causes at the bar. Among these were David A. Simmons, Ellis Ames, Francis Hilliard, and Asaph Churchill, the younger of that name.

The successors to the leadership of the bar, after the retirement of Mr. Wilkinson and Mr. Clarke, were William Gaston, of Roxbury, and Waldo Col- burn, of Dedham. Mr. Gaston was not admitted to practice in this county, but he studied law with Mr. Clarke, and practised in this county for many years, and considered himself a Norfolk lawyer. He was an eloquent and successful advocate and had an excellent practice. He had removed to Boston prior to the annexation of Roxbury. Mr. Colburn always prac- tised in Dedham until he was appointed an associate justice of the Superior Court in 1875. He attained a high position in his profession as a wise counsellor, an able trier of causes, and a lawyer in whose hands the interests of his clients were always safe.

In the decade from 1865 to 1875 the course of legislation and events had tended to diminish the legal business of the county by transferring it to the county of Suffolk. A statute passed in 1854, which allowed actions to be brought in the county where either party had a place of business, had encouraged the members of the bar in all the towns near Boston, to open offices there, and therefore to bring many of their actions in Suffolk County. There were many clients who had places of business in Boston, but who were residents of this county, and gradually the choice which this statute gave as to the place where actions might be brought, was made in favor of Suffolk County. Boston was becoming at this period what it has since actually become, a place of legal exchange for the sur- rounding country within a circuit of twenty miles. In addition to these incidental causes, for several years the project of annexing the city of Roxbury to Boston had been agitated, and petitions presented to the Legislature until, by the act which took effect in January, 1868, the union of the two cities was effected. The loss of Roxbury was a serious one in many ways

to the county, and in nowise was the loss more seriously felt than in the removal of some of its best practitioners at the bar and the consequent withdrawal of their business. Mr. Clarke, Mr. Gaston, and Mr. John W. May, all having a good practice in Norfolk County, in course of time ceased to practise here alto- gether. In 1870 the old town of Dorchester, one of the best towns in the county, and in 1874 West Rox- bury were both annexed to Boston and taken from the county. The inevitable results of the removal of such a large proportion of the territory, valuation and busi- ness of the county, were to materially diminish the business of the courts, and to deprive the bar of many of its best members.

The last recorded meeting of the bar but one, was held Oct. 15, 1852, when resolutions were passed with reference to the decease of Daniel Webster, re- questing the court to adjourn, and that the bar attend the funeral in a body, and that John J. Clarke offi- ciate as marshal, and that the sheriff be requested to suitably drape the court-room in mourning. The last meeting was held in February, 1853, and was a busi- ness meeting relating to the purchase of books for the library. This is the last recorded meeting of the Nor- folk bar as an organized fraternity. An attempt was made to reorganize it some years afterwards, but with- out success.

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History of Norfolk County, Massachusetts, with biographical sketches of many of its pioneers and prominent men, Part 3

Author: Hurd, D. Hamilton (Duane Hamilton) ed Publication date: 1884 Publisher: Philadelphia, J. W. Lewis & Co. Number of Pages: 1534

Author: Hurd, D. Hamilton (Duane Hamilton) ed
Publication date: 1884
Publisher: Philadelphia, J. W. Lewis & Co.
Number of Pages: 1534