History of Norfolk County, Massachusetts, with biographical sketches of many of its pioneers and prominent men, Part 4

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 4

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In 1815 there was formed a Law Library Associa- tion, which continued in existence until 1845. An attempt was made to reorganize it in 1860.

In speaking of the Norfolk bar as it now exists, reference could be made only to those members resi- dent within the county and who practise in it. The number of such gentlemen is not larger than it was fifty years ago, although the number of attorneys who reside elsewhere and practise in the county is much greater. The profession has everywhere changed in its character during the last half-century. The fraternal feeling, the jealous watchfulness that no unworthy applicant should be admitted to the profession, the old-time distinctions as to leadership have all passed away, and nowhere is this change more clearly to be seen than in Norfolk County. In former times mem- bers who had offices in Boston and in the town of their residence, were censured by their brethren at bar meetings in formal votes. At the present time there is scarcely a member of the bar who has not two offices, one in Boston and another in the county. The old organization with all its traditions has passed into history, but beyond this it has ceased to have any influence upon the present time. Of the new era in the profession, of the character of its members, of its methods in the conduct of causes, of its emoluments,

HISTORY OF NORFOLK COUNTY, MASSACHUSETTS.

and of the rapid increase of its members, the time has not yet come to speak as matters of history.

Justices of the Judicial Courts. - THERON METCALF was the son of Hanun and Mary Metcalf, and was born in Franklin, Oct. 16, 1784. He and his ancestors for five generations belonged to the county of Norfolk. At the age of seventeen years . he entered Brown University, where he was gradu- ated in 1805. After graduating, he studied law with Mr. Bacon, of Canterbury, Conn., and in April, 1806, he entered the law-school at Litchfield, then a celebrated institution, and the only law-school in the United States. Here he remained until October, 1807, when he was admitted to the bar in Connec- ticut. After studying a year with Hon. Seth Has- tings, of Mendon, he was admitted as an attorney of the Circuit Court of Common Pleas in this county at the September term, 1808, and as counsellor of the Supreme Judicial Court at the October term, 1811. He practised law for a year in Franklin, and removed to Dedham in 1809.

In 1817 he became county attorney, and con- tinued to hold that office for twelve years, until the office was abolished by the statute establishing the office of district attorney. He was representative to the General Court from Dedham in 1831, 1833, and 1834, and a senator from the county in 1835.

In October, 1828, he opened a law-school, and began a course of lectures upon legal subjects in Dedham. He had many students, among whom were the late Hon. John H. Clifford, of New Bed- ford, and the Hon. Seth Ames, the son of Fisher Ames, and afterwards a justice of the Supreme Judicial Court. The series of papers published in the American Jurist and afterwards embodied in his work on the " Principles of the Law of Contracts , as applied by the Courts of Law," were originally prepared for his students.

In December, 1839, he was appointed reporter of the decisions of the Supreme Judicial Court, and re- moved from Dedham to Boston. He held this office until Feb. 25, 1848, when he was appointed a justice of the Supreme Judicial Court. He remained upon the bench until Aug. 31, 1865, when he resigned after over seventeen years of service. He died in Boston, Nov. 13, 1875, at the age of ninety-one years.

Although Judge Metcalf had removed from the county, and was in no way identified with it during the last forty-six years of his life, yet the thirty years during which he had resided and practised in Dedham comprehended nearly the whole of his professional career. During this period he edited a number of .

law books, among which were " Yelverton's Reports," "Starkie on Evidence," "Russell on Crimes," " Maule and Selwyn's Reports," " Digest of Massa- chusetts Reports," and with Horace Mann supervised the publication of the Revised Statutes of 1836, the index to which was made by him.

Of his reputation and influence while at the bar some mention has been made. There were probably few lawyers in the commonwealth of his time who had such a full and accurate knowledge of the prin- ciples of the common law as Judge Metcalf. His reputation as a writer upon legal subjects is well established. His volumes of the Massachusetts Re- ports, it has been said, are the "model and despair of his successors." His opinions as a justice of the Supreme Judicial Court are remarkable for their precision of statement and their familiarity with the decisions, both English and American, as well as with the principle and maxims, of the common law, of which he was master. He never concealed his dis- trust of the changes effected in the administration of the law by legislation, especially the statute giving full equity jurisdiction to the Supreme Judicial Court.

He was an accurate scholar, and occasionally wrote articles for the reviews on other than legal subjects. He was in person below the average height, and of great gravity of demeanor, although he had a quaint humor. He was a keen and intelligent critic upon many subjects, and his pithy sayings will be long i remembered and quoted by those who knew him.

He received the degree of Doctor of Laws from Brown University in 1844, and from Harvard College in 1848.

SETH AMES was the youngest child of Fisher Ames, and was born in Dedham, April 19, 1805, and was but three years of age when his father died. He was graduated at Harvard College in 1825, and studied law with Theron Metcalf in Dedham, and was admitted as an attorney of the Court of Common - Pleas at the September term, 1828, being the same | term at which Ezra Wilkinson was admitted. He never practised law in this county, but removed to Lowell, where he practised law for twenty years. In 1849 he was appointed clerk of the courts for the county of Middlesex. In 1859 he was appointed a justice of the Superior Court, then established, and in 1867 was appointed chief justice of that court. In 1869 he was made an associate justice of the Supreme Judicial Court, which office he resigned Jan. 15, 1881. He died at his residence in Brook- line, in this county, Aug. 15, 1881.

Although Judge Ames had no connection with

THE BENCH AND BAR.

Norfolk County during his professional career, yet as he was born and pursued his professional studies in Dedham, and was admitted to practice in the court held for this county, and often presided as justice of the courts here, he may be claimed as a son of Nor- folk County. He well sustained the illustrious name he bore. Of great simplicity and modesty of char- acter, he possessed an admirable judicial mind, and was the master of a pure and concise style as a writer, qualities which make his legal opinions worthy of imitation. In the language of Chief Justice Gray, "he was a diligent student, a good lawyer, a safe counsellor, a faithful and useful public servant, a Christian gentleman."

EZRA WILKINSON .- He was born in Attleborough, Feb. 14, 1801, and was graduated at Brown Univer- sity in 1824. He began his professional studies with Hon. Peter Pratt, of Providence, R. 1, where he remained about a year, and he completed them in the office of Josiah J. Fiske, in Wrentham. He was ad- mitted as an attorney of the Court of Common Pleas, | at Dedham, at the September term, 1828. He was ad- mitted as a counsellor of the Supreme Judicial Court, at Taunton, at the October term, 1832. He began practice at Freetown, and subsequently removed to Seekonk, in Bristol County. In 1835 he removed to Dedham, and had an office in the same building for- merly occupied by Fisher Ames, and then by Theron Metcalf. He was employed to collate and complete the records of the court, which had fallen into some confusion through the prolonged illness of Judge Ware, the clerk, who had then recently deceased. In 1843 he was appointed by Governor Morton as dis- trict attorney for the district then composed of Worces- . ter and Norfolk Counties. He held this office until 1855. In 1859, upon the establishment of the Su- perior Court, he was appointed one of the associate justices, being then nearly sixty years of age, and he held the office until his death, Feb. 6, 1882, being more than twenty-two years. He had been in active practice for thirty-one years, so that his professional and judicial career covered a period of fifty-three years. He faithfully and promptly met all the re- quirements of his judicial position without any inter- ruption by illness, or asking any time for relaxation. Within a month before his death he held a term of court at Salem, and rendered decisions which com- manded respect and confidence. In person he was very tall and erect, even to the last days of his life. He was scrupulously neat in his attire, and bore him- self with dignity without affectation. He was not easy or fluent in speech, but he was concise and accu- rate in his use of language.

He was always a Democrat in politics. He was representative to the General Court from Dedham for three sessions, and was the candidate of his party against John Quincy Adams for Congress. He was also a member of the Constitutional Convention of 1853.

He died in Dedham, but his remains were interred in Wrentham. At his funeral in St. Paul's Church, Dedham, a large number of members of the bar from Boston and elsewhere were in attendance. Resolu- tions of respect for his memory were presented in the Superior Court at Salem, and in Boston, shortly after his decease. At the April term of the Superior Court in Norfolk County, 1882, Associate Justices Colburn and Staples being upon the bench, the fol- lowing resolutions, adopted by the members of the bar practising in Norfolk County, were presented to the court, and entered upon its records. These resolu- tions, with the remarks by Mr. Justice Colburn, em- body the high estimation and profound respect felt by the bench and bar for Judge Wilkinson's character and attainments.

They were presented by Asa French, Esq., district attorney, and addresses followed from Ellis Ames, John Daggett, Asaph Churchill, Nathaniel F. Safford, Samuel B. Noyes, Frederick D. Ely, and Erastus Worthington. The following are the resolutions :

"WHEREAS, On the sixth day of February last the Hon. Ezra Wilkinson, a justice of the Superior Court, departed this life at the age of eighty-one years, the members of the bar practising in the county of Norfolk, where he was born, and for twenty- five years was a leading practitioner, at the first term of that court held for civil business since his decease, would express their high appreciation of his character and services as a coun- sellor, as a prosecuting officer, and a judge, in the following resolutions :

" Resolved, That we hold in grateful memory the high sense of professional duty and obligations, and the thorough devotion to the study of jurisprudence, which characterized Judge Wilk- inson from the beginning to the end of his long career; that we would recognize his accurate and ample learning both in the common and statute law, his unswerving integrity, which tol- erated no suggestion of any indirect or questionable method in advancing his client's cause, his power of clear statement and convincing argument to the jury upon which he relied, rather than upon appeals to passion or prejudice, and his constant desire to maintain the honor and dignity of his profession.

" That as a district attorney from 1843 to 1855 for the district of which the county of Norfolk formed a part, he acquired a deserved reputation of striet fidelity to the duties of that respon- sible office, and for learning and skill in criminal pleading and practice, and for his performance of the highest duties of a pros- ecuting officer in ten capital trials from 1843 to 1849, that being the period during which the office of attorney-general was abolished in this Commonwealth.

"That as a judge of the Superior Court during a period of more than twenty-two years-1859 to 1881-we recall his judi- cial patience in the trial of causes, his readiness and aptness in applying legal principles to the facts of the case, and in which

HISTORY OF NORFOLK COUNTY, MASSACHUSETTS.

he rarely erred, and his capacity to discern the real points in issue, which enabled him to bring to the minds of the jury the exact questions they were called upon to decide.

"That by his death has been removed one of the few survivors of the latest generation of lawyers who were trained in the school of the common law before its essential modification by the stat- utes, and we regard Judge Wilkinson as a remarkable example of a jurist who kept himself fully informed of the decisions and statutes made and passed during half a century, and at the age of more than fourscore years, and scarcely more than a month prior to his death, was able to preside at the term of his court in the county of Essex, and to render decisions which commanded the respect and confidence of those before him."

Mr. Justice Colburn responded to the resolutions as follows :

" Gentlemen of the Bar,-The life of Judge Wilkinson ex- tended over nearly the entire portion of the nineteenth century which has passed. Born in this county, with the exception of a few years spent in the adjoining county of Bristol, he con- tinued a resident of this county until his death. Leading a single life, unaverted by family ties and cares, from inclination or gradually contracted habit, going but little into society, he early learned 'to scorn delights and live laborious days,' not from a desire for fame or fortune, but from a pure love of know- ing all that could be learned upon all subjects which excited his interest or would qualify him for the adequate discharge of the duties of his chosen profession. From his admission to the bar to his appointment to the bench he had an extensive and varied practice. For twelve years he held the office of district attor- ney, and during the first half of this time, there being no attor- ney-general, he had the sole management of all capital trials and the argument of all exceptions in criminal cases in his dis- trict. As soon as appointed he began to especially qualify himself for his new duties ; he went to the fountain-head; he acquired all the English criminal reports and leading treatises and books of precedents, and became one of the most accom- plished criminal lawyers and an unsurpassed criminal pleader.

"Upon the formation of the Superior Court, in 1859, Judge Wilkinson was appointed to that bench, and continued uninter- ruptedly, ably, and acceptably to discharge his judicial duties during the remainder of his life. For the adequate perform- ance of these duties his legal acquirements and extended civil and criminal practice qualified him in an unusual degree. His independence of his surroundings rendered absence from home at long terms of the court in distant counties less irksome to him than to other men. He seemed always to have some subject which occupied his mind and furnished him with all the recrea- tion he required, exempting him from that feeling of impatience which sometimes results from protracted labor away from home and friends. His stores of learning, his knowledge of unfa- miliar matters of practice and procedure, the results of wide studies and long experience, were always at the service of his brethren of the bench, and the starting of an inquiry, which he could not readily answer, would lead him to an investigation for the assistance of an associate with as much interest and patience as if it had become important in the discharge of his own duties.

"Though not possessed of what are considered brilliant tal- ents, he had a soundness of judgment, an independence in reaching his conclusions after duly weighing all arguments, a power of application, and a willingness to give his entire time and attention to any subject he had in charge, which more than compensated for the most brilliant talents without these quali- ties. Hle had read appreciatively all the leading authors in English literature, some of whom he especially admired, as

those well acquainted with him knew, and as his notes in the volumes of his extensive library and various memoranda show.

" Though always deeply interested in public and political affairs, he was never a politician or desirous of political ad- vancement, his political services having been limited to three sessions of the Legislature and the Constitutional Convention of 1853. He thoroughly despised all hypocrisy, cant, and in- sincerity, and never hesitated to express his convictions on all proper occasions, but never obtrusively, however much they might conflict with the prevailing sentiment of the times. All kinds of dishonesty, oppression, and injustice excited his indig- nation, and as prosecuting officer, though pursuing offenders he believed to be guilty with all his strength, he has been known to withdraw a case from the jury when the evidence appeared to be leading to certain conviction, having become satisfied from his previous conferences that his witnesses, through excessive zeal or pride or opinion or some worse motive, were testifying more strongly against the defendant than their actual knowl- edge would warrant, and fearing that injustice might be done. And I have heard him say that, in sentencing defendants, he had never imposed more than the one day of solitary imprison- ment absolutely required in certain cases; that nothing but a positive statute provision could induce him to add what he regarded as a kind of torture to a term of confinement to hard labor.

" Descended from a long line of New England yeomanry, he derived from them many of the best characteristics of that branch of the Anglo-Saxon race, which has so largely influ- enced the destiny of the Western world, had a fund of anecdote illustrating their early struggles and peculiarities, and an un- usual knowledge of their local and municipal histories. As age advanced his fondness for rural quiet and retirement increased ; he acquired large tracts of land, and delighted to spend his summer leisure among their rocks and woods, brooks and foun- tains, which had been familiar to him in youth and early man- hood. Though he appeared to those who did not know him well reserved and unsocial, this was not his natural disposition, but resulted from circumstances and his self-reliance, which induced habits of life not readily changed. He was at times a most instructive and entertaining companion. No man who has lived eighly-one years can be said to die untimely ; but the strength which extended his years so far beyond the allotted term appeared so free from the predicted labor and sorrow that we failed to realize how much our senior he really was. A learned lawyer, an upright judge, a high-minded, honorable man, in the maturity of years and the full vigor of his powers, has passed away, leaving the burdens he bore so long and well to be taken up and carried by younger men, until they in their turn shall be called upon by the great Disposer of the destinies of men to lay them down, to be again assumed by others.

"In accordance of the request of the bar their resolutions, with a memorandum of these proceedings, will be entered upon the records of the court."

HON. WALDO COLBURN, son of Thatcher and Hattie Cleveland Colburn, was born in Dedham, Mass., Nov. 13, 1824. He traces his ancestry in this country to Nathaniel Colburn, who emigrated from England, and Aug. 11, 1637, received a grant of land in the town of Dedham. He remained here until his death, May 14, 1691. The line of descent is as follows : Samuel, born Jan. 25, 1654; Ephraim, born Nov. 5, 1687 ; Ephraim, born Dec. 31, 1716 ; Ichabod, born Feb. 26, 1754; Thatcher, born Feb.

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20, 1787, and united in marriage with Hattie Cleve- land in June, 1823.

The subject of our sketch received the rudiments of his education at the common schools of his native town, and at the age of fifteen entered Phillips (An- dover) Academy, where he graduated in 1842, in the " English Department and Teachers' Seminary," which at that time was entirely distinct from the .classical course. In the following year (1843) he en- tered the classical department, where he remained until the summer of 1845, when he left the academy, and for two years following engaged in various pur- suits, chiefly, However, civil engineering and survey- ing.

May 13, 1847, he entered the law-office of Ira Cleveland, Esq., at Dedham, where he pursued his studies with diligence and attention, and May 3, Nov. 21, 1852, he united in marriage with Miss Mary Ellis Gay, daughter of Bunker Gay, of Ded- ham. She died Oct. 22, 1859, leaving two daugh- ters,-Mary and Anna F.,-who are still living. Aug. '5, 1861, he married Elizabeth C. Sampson, daughter of Ezra W. Sampson, a lawyer, and for thirty years clerk of the courts of Norfolk County. There was one son by this marriage, who died in childhood. ELLIS AMES (see history of Canton). 1850, was admitted to the bar. In the mean time, however, he had spent some time in the Harvard Law- School. He at once commenced the practice of law in his native town, and very soon took a leading posi- tion at the bar. He continued practice here until May 27, 1875, when he was appointed by Governor Gaston one of the justices of the Superior Court, a position virtually thrust upon him, as he knew nothing of the intention of Governor Gaston to appoint him until the day his name was proposed to the Council, and he was promptly confirmed. Nov. 10, 1882, he | ancestor in 1636, and was bred a farmer. His fondness was commissioned by Governor Long as a justice of the Supreme Court, a position which he occupies at the present time. In speaking of his appointment by Governor Gaston, a writer says, " The comprehen- sive knowledge of affairs, the wisdom, tact, and abil- ity, the legal culture and judicial grasp of mind dis- played by Judge Colburn, clothe his appointment to the bench of the Superior Court with special fitness and propriety, and make it one of the salutary acts of Governor Gaston's administration." One of the lead- ers of the Suffolk bar, in speaking of Judge Colburn, says, " He is one of the ablest, most successful, and popular judges in the commonwealth."

Judge Colburn, although never having been an active politician, has always labored to advance the interests of his native town, and has filled many posi- tions of trust and responsibility within the gift of his townsmen. He was a member of the Legislature in 1853, serving as chairman of the Committee on Parishes, Religious Societies, etc. He was returned to the Legislature the following year, and served as chairman of the Committee on Railroads and Canals. During these years he earnestly opposed loaning the State's credit to the Hoosac Tunnel scheme.

In 1870 he represented the Second Norfolk District

in the State Senate, and served on the Judiciary Committee, and had charge of drafting the well- known corporation act. Judge Colburn was also for several years the candidate of the Democratic party for attorney-general. He was chairman of the board of selectmen, assessors, and overseers of the poor of Dedham for nine successive years, beginning in 1855. He is also president of the Dedham Institution for Savings, and a director in the Dedham National Bank.

Politically, Judge Colburn was a member of the old Whig party, but upon the death of that organi- zation he became a member of the Democratic party, with which he has since affiliated. He is a kind and beneficent neighbor and friend, a learned and upright judge, and one of Massachusetts' most honored citizens.

Judges of Probate.1-WILLIAM HEATH was born in Roxbury, March 2, 1737, on the estate settled by his for military exercises led him, in 1754, to join the Ancient and Honorable Artillery Company, which he commanded in 1770, having previously been made a captain in the Suffolk regiment, of which he became colonel in 1774. In 1770 he wrote sundry essays in a Boston newspaper, signed " A Military Countryman," on the importance of military discipline and skill in the use of arms. He was a member of the General Court in 1761 and in 1771-74, engaged with zeal in the Revolutionary contest, was a delegate to the Pro- vincial Congresses of 1774-75, and was a member of the Committees of Correspondence and of Safety. Appointed a Massachusetts brigadier-general Dec. 8, 1774; major-general, June 20, 1775 ; brigadier-general (Continental army), June 22, 1775 ; major-general, Aug. 9, 1776. He rendered great service in the pursuit of the British troops from Concord, April 19, 1775, and in organizing the rude and undisciplined army around Boston, and with his brigade was sta- tioned at Roxbury during the siege of Boston. After its evacuation he accompanied the army to New York,

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History of Norfolk County, Massachusetts, with biographical sketches of many of its pioneers and prominent men, Part 4

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