USA > Massachusetts > Barnstable County > History of Plymouth, Norfolk and Barnstable counties, Massachusetts, Vol. I > Part 40
USA > Massachusetts > Norfolk County > History of Plymouth, Norfolk and Barnstable counties, Massachusetts, Vol. I > Part 40
USA > Massachusetts > Plymouth County > History of Plymouth, Norfolk and Barnstable counties, Massachusetts, Vol. I > Part 40
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Joseph Cushing of Scituate was the successor to Judge Sever. He took the office in 1778, and was succeeded by Joshua Thomas in 1793. The latter had served in the Revolutionary War as an aid to General John Thomas of Kingston, a kinsman. They were at Ticonderoga and Crown Point together. Judge Thomas served as representative and senator in the General Court. He was the first president of the Pilgrim Society, a descendant of William Thomas, one of the merchant ad- venturers, and a son of Dr. William Thomas of Plymouth. Like his predecessor, Judge Joseph Cushing, he was a graduate of Harvard College.
After the death of Judge Thomas in 1821, Wilkes Wood of Middle- boro became judge of probate and filled the office capably until 1844, when he was succeeded by Aaron Hobart, a much respected resident of East Bridgewater. He had served in the General Court of Massachusetts and three terms as a member of Congress. He was a member of Gov- ernor Lincoln's Council. He wrote a "History of Abington," published in 1839, which is a valuable and carefully written record of 176 pages. He was a member of one or more of the Constitutional Conventions in Massachusetts. As a member of Congress, he witnessed the presenta- tion of General Lafayette. He participated in the vote which made John Quincy Adams president. Judge Hobart died at his home in East Bridgewater, September 19, 1858. His successor was William H. Wood of Middleboro.
Judge Wood was a son of Judge Wilkes Wood, who held the office of judge of probate from 1822 to 1844. He was a graduate of Brown University and the Harvard Law School. He was one of the original founders of the Free Soil party. He served in the Massachusetts Senate and by his influence did much towards securing the election of Charles Sumner to the United States Senate. In 1853 he was a delegate to the Constitutional Convenion, in 1857 was representative in the General Court, a year later a member of the executive council. His appoint- ment as judge of probate and insolvency was by Governor Banks. This office he held until his death in 1883. In 1873 he was offered a position as judge of the Superior Court, upon promotion of Judge Devens, but ill health forced him to decline.
Judge Jesse E. Keith was appointed in 1884.
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Early Judges of Court of Common Pleas-It seems strange to people of the present day to try to visualize courts, with judges sitting on the benches but no lawyers to say "May it please your honor," but with every Tom, Dick and Harry attempting to defend himself or his friend, with no further preparation than submitting to an oath he would practice according to the ethics of something about which he was not supposed to know anything. Before there were lawyers there were courts and for a time the judges outnumbered the lawyers, the judge sometimes having some legal education and sometimes not.
Among the early judges of the Inferior Court of Common Pleas in Plymouth County was Ephraim Morton of Plymouth. His grandfather was George Morton who landed at Plymouth from the "Ann" in 1623, and acted as the financial agent in London for Plymouth Colony. He early joined the Pilgrims at Leyden but did not come over in the "May- flower," waiting till the "Ann" came three years later; in the meantime having published in London letters and journals from some of the Pilgrim Fathers informing the old country of the trials and problems of the Plymouth colonists.
Judge Morton became a freeman June 7, 1648, and was chosen the same day constable for Plymouth. Whether he was vested with all the pomp and glitter which went with that office later is doubtful.
Judge Morton served on the Grand Inquest in 1654, was representative to the General Court, a selectman, magistrate, lieutenant in the militia company and a member of the Council of War.
John Wadsworth of Duxbury was another early judge of the Inferior Court of Common Pleas. He was a descendant of Christopher Wads- worth, progenitor of the family in Massachusetts, including Henry Wadsworth Longfellow. Christopher Wadsworth's name appears on nearly every page of the early history of Duxbury, in which town he was constable, jailor, sheriff, crier to give warnings in church of coming marriages, etc. Judge Wadsworth was equally prominent in the same town in his generation.
Judge Isaac Little of Marshfield came naturally into the legal profes- sion, his grandfather, Thomas Little, having been a lawyer in Devon- shire, England, previous to his sailing for Plymouth in 1630. He became a freeman of Marshfield in 1650, settling in that town with his wife, a daughter of Richard Warren, who came in the "Mayflower." The Little family is one of the oldest and best known in Massachusetts and has a coat-of-arms which has been preserved by descendants of the worthy. progenitor.
Another descendant of Richard Warren who became judge of the court was James Warren. He became judge in 1700. The previous year he had been sheriff of the county. Several other judges graduated from Plym-24
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the office of sheriff to the judgeship, among them being John Otis of Scituate, made a judge in 1723; and Isaac Lothrop of Plymouth, who was chief justice in 1738. Nathaniel Thomas, Jr., of Marshfield, became a judge after being register of probate.
Nearly all the early judges were graduates of Harvard College, in- cluding Josiah Cotton of Plymouth, son of Rev. John Cotton, who had been register of probate, clerk of courts, historian, collaborator with Rev. John Eliot in revising the famous Indian Bible; Nicholas Sever of Kingston, appointed in 1731; Peter Oliver of Middleboro, appointed in 1747, who planned and superintended the erection of the courthouse at Plymouth; Thomas Foster of Plymouth, appointed in 1756, after- wards a Loyalist; and John Winslow of Plymouth, appointed in 1762, having a conspicuous military record.
Judge Peter Oliver was a brother of Andrew Oliver, lieutenant gov- ernor of the province. He erected, in that part of Middleboro called Muttock, an iron foundry, known as Oliver's Furnace. In this foundry were manufactured heavy ordnance, such as cannon, mortars, howitzers, shot and shell, under large contracts from the Crown.
In 1756, Judge Oliver was appointed judge of the Superior Court of Judicature, the highest court in the province. In 1762 he became chief justice. This rank made him the second in importance in the colony, the governor alone outranking him. When he presided at court in Boston, he made the journey over the road from Middleboro in his coach, with outriggers, dressed in scarlet, in imitation of the elegance maintained by the judges of the highest court in Westminster, London, and with a natural dignity becoming to his rank and dress. He was a Tory in the days of the Revolution and sailed for England with Gen- eral Gage. He received an honorary degree from Oxford, and died in 1782.
Another Loyalist, who had been judge of the Inferior Court of Com- mon Pleas, was Thomas Foster, already referred to as having been ap- pointed in 1756. He graduated from Harvard College in 1745, had been recognized as a leading, gifted citizen of Plymouth and honored by a seat in the Assembly and other positions of trust. His outspoken sym- pathy with the Crown caused him to become very unpopular in the days when Benjamin Franklin said all colonists "must hang together or they would hang separately." He took refuge in Halifax, Nova Scotia, in 1776, but returned the following year to Plymouth, where he died that year of smallpox.
There were numerous lawyers among the Loyalists in Plymouth County and other counties in this vicinity, possibly from the legal train- ing of making decisions from the standpoint of accepted authority and precedence. One of them was Pelham Winslow, son of General John
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Winslow of Plymouth, graduated from Harvard College in 1753, a man of culture who had occupied positions high in civil and social life. He joined the British Army at Long Island in 1776, and died there. Edward Winslow, clerk of the court, register of probate, collector of the port of Plymouth, left Plymouth, with his son, Edward, after the British evacuated Boston. The father died in Nova Scotia in 1784. The son became chief justice of the province of New Brunswick, and died in 1815. Others are referred to in the chapter on Loyalists, elsewhere in this history.
The Circuit Court of Common Pleas had, as justices, several men of distinction in the province. One of them was Francis Baylies of West Bridgewater, who for many years, in the opinion of many, stood at the head of the Plymouth County bar. Another was Kilborn Whitman of Pembroke, who became judge in 1811, remained on the bench a few years, and later was on many occasions attorney for the county.
One of the associate justices about the same time was Nahum Mitchell, best known as an historian of Old Bridgewater. He was graduated from Harvard College in 1789, was a student and writer on historical and antiquarian subjects, and much respected. He died in 1853.
Among other lawyers of distinction in Plymouth County in the early years of the nineteenth century, some of whom declined appointments to the bench, were Charles J. Holmes of Rochester, Zachariah Eddy of Middleboro, Nathaniel M. Davis and Joshua Thomas of Plymouth. Thomas P. Beal of Kingston. The latter was an especially skillful and effective practitioner before a jury, noted for his masterful advocacy.
Successful for Practice Elsewhere-Legal practitioners who have gone forth from Plymouth County and won distinction elsewhere are legion. In earlier days they included John Davis, the last surviving member of the convention which adopted the Constitution. He held the posi- tions of United States Comptroller of the Currency, United States District Attorney, Judge of the United States District Court. He was one of the Fellows of Harvard University, its treasurer, one of its board of overseers, secretary of the American Academy of Arts and Sciences, president for many years of the Massachusetts Historical Society, an orator, senator, editor, writer. Judge Davis was admitted to the bar at Plymouth in 1786, was appointed by President Adams, Judge of the United States District Court in 1801, resigned in 1841, and died at his home in Boston, January 14, 1847, aged eighty-six years.
Peleg Sprague, a native of Duxbury, April 27, 1793, took an active part in the movement which separated Maine from Massachusetts. He took up his residence in Hallowell, Maine, and was a member of the first two sessions of the Legislature of the State of Maine, in 1820 and 1821. He served the new State as congressman and senator. Returning
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to Massachusetts in 1835, he practiced his profession and, upon the res- ignation of Judge Davis, was, by President Benjamin Harrison, ap- pointed his successor in the United States District Court.
It is related of Judge Sprague that he gave an informal opinion one day in his court to a practitioner who expressed doubt, during the Civil War, if the crime of treason could be committed in Massachusetts, where no war existed. He is said to have replied in such a way that the opinion was considered a judicial decision. He said: "Bring me a man who, here in Massachusetts, has by any act, however slight, and however remote from the field of war, intentionally given aid to the rebels in arms, as by communicating to them information or advice, and I will not only show you that I can try him, but that I can have him hanged."
Austin Packard, born in North Bridgewater, January 15, 1801, after graduating from Brown University in 1821, studied law in the office of Hon. William Baylies of West Bridgewater, and was admitted to the bar in 1824. He opened an office in West Bridgewater and served that town in the Legislature, was trial justice for Plymouth from the creation of that office until his death, was selectman, assessor and overseer of the poor eighteen years.
Timothy Ruggles, born in Rochester in 1711 and graduated from Harvard College in 1732, had the distinction of being a tavern-keeper as well as attorney in the town of Sandwich. He moved to Hardwick in 1755 and in 1757 was made judge of the Court of Common Pleas for Worcester County. He was a Loyalist and following the evacuation of Boston went to Long Island and later to Halifax, Nova Scotia, where he died in 1798, at the age of eighty-seven.
William Cushing was born in Scituate in 1732. He was graduated from Harvard College in 1751 and studied law with Jeremy Gridley. In 1755 he went to Dresden, Maine, and is said to have been the first regularly educated lawyer in that province. He served as judge of probate for Lincoln County, was judge of the Superior Court in 1772. and was appointed chief justice in 1776. In 1789 he was appointed justice of the United States Supreme Court, and on the resignation of Judge Jay was made its chief justice. He died in Scituate in 1810.
Judge Sprague resigned, on account of failing eyesight, and lived the last years of his life in a darkened room at his home in Boston, where he passed away at the age of eighty-seven, October 13, 1880.
Another Plymouth County lawyer who won distinction in the district of Maine before it was set off from Massachusetts, was John Holmes, a native of Kingston. He was born in March, 1773, and at an early age went to work in the iron foundry of his father, Malachiah Holmes. One of the school teachers of the town noted his intelligence and
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desire for knowledge and, through his advice, the boy was placed under the instruction of Rev. Zephaniah Willis, one of the best educated men of the town at that time. By 1793 he was able to enter Brown Univer- sity and was graduated in 1796. The study of law appealed to him and he entered the law office of Benjamin Whitman in Hanover. His admission to the bar was in 1799 and he at once left for the District of Maine, and started his practice in the village of Alfred, not then incorporated as a town, and with eight hundred and fifty peaceful citizens constituting its population. Mr. Holmes became the forty-fourth lawyer in the whole District of Maine, and identified himself with the enterprising community which was incorporated as a town in 1808.
In politics he was a staunch Federalist. He was a member of the General Court in Massachusetts in 1802 and 1803, again in 1811 ; a mem- ber of the Massachusetts Senate in 1813. In 1815 he was appointed by President Madison a commissioner, under the fourth article of the Treaty of Ghent, to make a division between the United States and Great Britain of the islands in Passamaquoddy Bay. He was a member of Congress from 1816 to 1833, before and after Maine was separated from Massachusetts, and took an active part in making Maine an in- dependent State.
President Harrison appointed Mr. Holmes United States Attorney for the Maine District in 1841, and he held the office until his death July 7, 1843.
Hon. Abraham Holmes, born June 9, 1754, was admitted to the Plym- outh County bar in April, 1800. He had been president of the Court of Sessions and was not regularly educated for the legal profession, but was admitted in consideration of "his respectable official character, learning and abilities, on condition that he study three months in some attorney's office." In June, 1834, when eighty years old, he delivered an address at New Bedford, to the bar of Bristol County, on the rise and progress of the legal profession in Massachusetts, with anecdote and traditional lore which made it especially enjoyable.
His son, Hon. Charles Jarvis Holmes, was admitted to the Plymouth County bar in 1812; was a member of the General Court nine years, state senator two years, member of the executive council, presidential elector, collector of customs at Fall River. He wrote his own epitaph : "By profession a lawyer; by practice a peacemaker."
William Cullen Bryant Admitted to Practice-William Baylies of West Bridgewater, in whose office several other good lawyers studied, was a brother of Francis Baylies, the author of a comprehensive history of the Old Colony, a member of Congress and minister to Buenos Ayres during the administration of Andrew Jackson. He served as repre-
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sentative to the General Court, as state senator, and was regarded as the head of the county bar. One of his pupils was William Cullen Bryant, who was admitted to the bar in Plymouth County but much preferred to be a poet. A letter from Bryant to his father, after his appearance for examination at Plymouth, August 8, 1815, is still in existence, and reads as follows :
"Dear Sir: I went to Plymouth last week, where I stayed four days, and might perhaps have been obliged to stay a week, had it not been for good luck in finding a Bridgewater man there with a vacant seat in his chaise. I have received a certificate in the handwriting of A. Holmes, Esq., and sprinkled with his snuff instead of sand, for which I paid six dollars, according to the tenor and substance following:"
These certify that William Cullen Bryant, a student-at-law in Brother Baylies' office, has been examined by us, and we do agree that he be recommended to be admitted an attorney at the August term, 1815, he continuing his studies during all that time.
Joshua Thomas Abraham Holmes Committee of the Bar.
Zachariah Eddy of Middleboro was one of the prominent lawyers of the State, following his admission to the bar in 1806, and as a counselor in 1810. He had studied in the office of Joshua Thomas at Plymouth. He was a personal friend of Daniel Webster and associated with him in different cases. More than three hundred cases which he argued in the Supreme Court are given in the Massachusetts Reports. In 1833, he wrote to a friend that he had seventy-one cases on the docket for the Plymouth Court. He practiced forty years and was offered a place in the Supreme Court of Massachusetts but declined. Some valuable historical writings found in libraries in Southeastern Massachusetts were from his pen. He died in 1860 at the age of eighty years.
Some of his contemporaries at the Plymouth County bar were Nathaniel Morton Davis, of Plymouth; Kilborn Whitman, of Pembroke; Jared Whitman, of Abington, now Whitman; John Boies Thomas, of Plymouth; Thomas Prince Beal, of Kingston; Charles J. Holmes, of Rochester; Nahum Mitchell, of Bridgewater; and some others who held offices as members of the General Court, members of Congress and in various other civil and social capacities which testified to their recognition by their fellow-citizens as men of merit and dependability.
Conspicuous in his day was Ebenezer Gay of Hingham, who was one of the first to explore the field of admiralty law, little understood at that time. He was a state senator but gave most of his time and thought to his extensive law practice. Governor Gore appointed him
,
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as a justice on the bench of the Court of Common Pleas but he declined the office. He died in Hingham, February 11, 1842, at the age of seventy- one years.
Sidney Bartlett and William G. Russell, leading Boston lawyers at an advanced age, both of whom declined appointments to the highest court in the State, were natives of Plymouth.
Of the lawyers whose practice distinguished the early years of the nineteenth century the list would not be complete without mention of James Hovel and Pelham Winslow, of Plymouth; Oakes Angier, John B. Thomas, William Thomas, John Thomas, Jacob H. Loud, Wil- liam Davis, all of Plymouth; Samuel Stetson, of Duxbury; Charles K. Whitman, of Pembroke; Ebenezer T. Fogg, of Scituate; Solomon Lincoln, of Hingham; Eliab Whitman, of North Bridgewater, now Brockton; Austin Packard, of West Bridgewater; Benjamin Hobart, of Abington ; Benjamin Whitman, Alexander Wood and John Winslow, of Hanover; Welcome Young and Bartholomew Brown, of East Bridgewater; Williams Latham, of Bridgewater; Thomas Burgess and Seth Miller, of Wareham; the former judge of the Court of Common Pleas and judge of the Municipal Court of Providence ; Tristam Burgess, of Rochester, afterwards chief justice of Rhode Island, member of Congress, "The Bald Eagle of the North;" Zephaniah Swift, a native of Wareham, member of Congress, secretary of the mission to France in 1800, chief justice of the State of Connecticut, publisher of legal digests; Bartholomew Brown, native of Danvers, Massachusetts, who practiced law in Plymouth County many years, was one of the earliest members and president of the Handel and Haydn Society of Boston, composer of many musical pieces; Hon. Welcome Young, of East Bridgewater, who opened an office in Halifax, immediately after being admitted to the bar, was commissioner of insolvency, state senator, for a short time a partner of Benjamin W. Harris; Hon. Aaron Hobart, of South Abington, now Whitman, congressman, judge of probate; and Daniel Webster.
Daniel Webster Believed His Tongue Mightier Than His Pen-Daniel Webster was a Plymouth County lawyer and resident for twenty-five years. He had come from his native State, New Hampshire, to perfect himself in the study of law in the office of Hon. Christopher Gore, the distinguished counselor, in Boston. In the Boston office he studied diligently the principles of the common and municipal law, the laws of nations, and the science of special pleading. Hon. Mr. Gore made a motion that he be admitted to practice, speaking of the remarkable at- tainments and uncommon promise of his pupil.
Mr. Webster's father was at this time one of the judges of the county
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court in New Hampshire, and the clerkship in that court was tendered to his son. The income was fifteen hundred dollars per annum. Daniel Webster's brother, Ezekiel, was teaching school in Boston in an effort to help pay off a mortgage which their father had put upon his property in New Hampshire to give them an education. To accept the appoint- ment as clerk was a temptation, but Daniel Webster hired a horse and sleigh and drove two or three days to explain to his father that: "I mean to use my tongue in the courts, not my pen-to be an actor, not a register of other men's actions." He then placed in his father's hands sufficient money to discharge the mortgage. This money had been loaned him by a friend, Rufus Green Emery, who had urged him to go on with his studies and practice, decline the appointment and make the trip to New Hampshire to explain the matter fully to his father, who had set his heart upon having him as his clerk. Daniel Webster returned to Boston, where the court at which he was licensed to practice was in session, and took the oaths of office.
His first law office was in Boscawen, New Hampshire, near the home of his father. Mr. Webster's first plea in court was heard by his father and it was the only one which his fond parent ever heard from his eloquent lips, as the aged man died shortly after. The case was founded on a tavern bill for twenty-four dollars, and the jury awarded Mr. Webster's client seventeen dollars. From that beginning Daniel Webster was engaged in some of the most important cases ever tried in the country and became the acknowledged leader of the bar, as students of his biography are well aware.
This is no place for a biographical sketch of Webster, the orator, the expounder, the statesman, or even the lawyer, for he was not, strictly speaking, a member of the Plymouth County bar. But as a citizen and resident of Marshfield, the town he loved so well, he has a rightful place in this sketch of the county of his adoption and in which he died and in the soil of which his body was buried on his Marshfield estate.
This extensive estate first greeted the eyes of Daniel Webster, Mrs. Webster and their son Fletcher, destined to become Colonel Fletcher Webster of the 12th Massachusetts Volunteer Regiment in the Civil War, when they were returning from a fishing trip on Cape Cod. Daniel Webster drove into Marshfield with a trunk lashed to the axle of the old-fashioned chaise, Mrs. Webster sitting beside him, and Flet- cher riding on a pony. Marshfield had been mentioned to them by Samuel K. Williams of Boston as a very attractive town for a lover of nature, such as Mr. Webster. He was told to call on Captain John Thomas, who had a farm of about one hundred and sixty acres and a comfortable home.
Sitting on the piazza of this home, Captain Thomas greeted the
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Webster family, made them at home, and entertained them as his guests two or three days. Eventually Mr. Webster became the owner of the farm. It had belonged to Nathaniel Ray Thomas, father of Captain Thomas.
The elder Thomas was a Loyalist, fled to Halifax, Nova Scotia, after the British army left Boston, and his estate was confiscated, all except these one hundred and sixty acres which were saved as his wife's right, and were handed down to Captain John Thomas, the only child who did not accompany his father. The original Thomas estate was a grant by the Plymouth Colony Court, January 7, 1640, to William Thomas, one of the merchant adventurers who financed the Pilgrims' trip on the "Mayflower." He finally cast in his fortunes with the Pilgrims, arriving at Plymouth on the "Mary and Ann" from Yarmouth in 1637, and settled in Marshfield.
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