USA > Massachusetts > Plymouth County > History of Plymouth, Norfolk and Barnstable counties, Massachusetts, Vol. II > Part 32
USA > Massachusetts > Barnstable County > History of Plymouth, Norfolk and Barnstable counties, Massachusetts, Vol. II > Part 32
USA > Massachusetts > Norfolk County > History of Plymouth, Norfolk and Barnstable counties, Massachusetts, Vol. II > Part 32
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It is interesting to see how a member of one of the learned professions
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regarded those of another in earlier, but not colonial days. Dr. Nath- aniel Ames, who called himself "a student of physick and astronomy," was a leading citizen of Dedham at the beginning of the nineteenth century and latter years of the eighteenth. He made an entry in his diary under date of April 3, 1802: "A lawyer in every man's mess here. Nothing will go with Fools without a Lawyer, but from good company they are excluded ; or if they get in, they spoil it."
Thomas Lechford was the only lawyer in the Massachusetts Bay Col- ony and he returned to England after trying in vain to make a living at his profession. The magistrates objected to having lawyers direct men in their causes. Magistrates were accustomed to give private advice before they were called upon to decide causes. In 1635 it was ordered "that none among us shall sue at the lawe before that Mr. Henry Vane and the twoe Elders have had the hearing and desyding of the cause, if they Cann." Attorneys were not actually forbidden, but they were . discountenanced. Selectmen in towns had authority by statute to act in a judicial capacity. The need of men of learning in the law was rec- ognized soon after the union of the Plymouth and Bay colonies. By statute of 1701 they were regarded as officers of the court.
According to Thomas Weston of the Suffolk bar, in his "History of Middleboro, Massachusetts": "By rule of the Supreme Court of Judica- ture for Massachusetts Bay in 1761, no one was admitted as a barrister who had not practiced three years in the inferior court, and no one but a barrister could appear before that court either in the trial of causes or arguing questions of law. It was the practice for them to wear the black silk gowns, bands and wigs used by the barristers of England. This practice seems to have been discontinued for a few years, but was re- sumed at the close of the Revolution and again given up a few years later. In John Adams' diary, this appears: 'The bar has at last intro- duced a regular progress to the gown and seven years must be the state of probation.'
"In 1806 the profession was divided into two ranks, attorneys and counsellors ; but a few years after, all distinction between attorneys and counsellors was abolished by the revised statutes."
The title of barrister was first used in this locality by Thomas Newton, one time prosecuting attorney in the Special Court for the trial of the Salem witches.
The breaking up of the prejudice against lawyers was largely due to men of character who came into the profession about two hundred years ago, notably John Read. James Otis spoke of him as "the greatest common lawyer the country ever saw." John Adams called him "that great Gamaliel," and Knapp apparently went the whole distance in
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"Biographical Sketches of Eminent Lawyers" when he referred to him as "Distinguished for genius, beloved by the votaries of literature, rever- enced by the contemporary patriots of his country, the pride of the bar, the light of the law, and chief among the wise, the witty, and the elo- quent."
In the ante-Revolutionary period, Captain Preston and his soldiers, charged with murder at the famous Boston massacre, were defended by John Adams and Josiah Quincy, Jr. Adams had attained a high rep- utation as a member of the bar for twelve years. Both were ardent pa- triots but neither flinched when duty apparently compelled them to give their talents in the defence of persons who represented the tyranny against which they were ready to pledge their lives and fortunes. Cap- tain Preston and six of his men were acquitted and two others were con- victed of manslaughter.
John Quincy Adams, son of John Adams, was also a member of the bar, but both father and son were chosen to various public offices in rapid succession, until both eventually became presidents of the United States. Quincy is frequently referred to, even in this day, as "the home of the presidents." They were the only men from Norfolk County to fill that high office.
There was a court trial in Dedham nearly one hundred and fifty years ago which is still referred to at times, so greatly was the country stirred at the time. Unhappily such crimes have occurred in recent years too many times to possess any novelty, but when Jason Fairbanks was on trial for the brutal murder of Miss Fales, the village belle of Dedham, intense excitement prevailed. Fairbanks was one of Miss Fales' ad- mirers. One day he attacked her in a meadow and hacked her to death with a knife.
The trial took place in the Dedham church, the chief justice presid- ing in the pulpit, his associates occupying the table beneath the high pulpit and the jury occupying neighboring pews. John Lowell and Harrison Gray Otis appeared for Fairbanks. He was found guilty and placed in confinement until time for his execution. Sympathizers con- trived to rescue him and assist him in getting to Canada, but he was re-captured just before reaching the border, brought back and eventu- ally hanged.
Delusion of Witchcraft-To which of the "learned professions" be- longs the opprobrium of active participation in the witchcraft delusion it is hard to say. All three were bitten by the same bug. The medicine men early discovered that there was no pill or nostrum which would cure either the accused or accusor. Anyone was likely to be accused, and to be accused meant to be convicted, and to be convicted meant to
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hang. Some families fled from the Puritan to the Pilgrim colony to escape the accusations of designing persons.
Witchcraft nonsense started in the family of a Salem minister and the clergy took an active part in "explaining" and using it. Judge Samuel Sewall was one of the judges before whom the unfortunate persons were tried on the ridiculous charge of witchcraft. He had the distinction of eventually making a public confession of his mistake on the Fast day, January 14, 1697.
The presiding justice in the witchcraft trials was William Stoughton of Dorchester, for whom the town of Stoughon was named, when it was set apart from Old Dorchester. Unlike Sewall, he never was brought to acknowledge his error.
The Special Court for the trial of witches, over which Judge Stough- ton presided, sat during the interregnum between the repeal of the Col- ony charter and the setting up of the Province charter. The witches were tried without any Colony or Province law on the subject. If there were any legal authority for the trials it was under the English statute of James I. The judges caused to be embodied in the Province laws the rules and practice which they had followed at Salem, and which they had no intention at that time to abandon.
Rev. Cotton Mather will always be associated as long as witchcraft is remembered, with that superstition which led to the hanging of the accused. It is well to remember that none of them were burned, as some sensational, imaginative but ignorant scenario writers and after-dinner speakers have represented. The delusion was bad enough without add- ing to the criminal madness any extra cruelty. It did not, however, originate in Salem or New England or with the Puritans, nor did it end with them. The last execution for witchcraft in the colony was in 1693. It was continued in England until 1723.
Norfolk County really had so little to do with witchcraft that this is no place for extensive details concerning it. The death toll of witchcraft on this side of the Atlantic numbered thirty-six. Its victims in Europe numbered hundreds of thousands.
The Pilgrims and Plymouth Colony were not touched by the delu- sion. The mental atmosphere in Holland did not contain it and edu- cated men as a rule no longer held to the relic of heathenism. It was the educated men among the Puritans in this vicinity, however, who promulgated the doctrine most strenuously, especially the clergy and physicians. Satan spoke through the witch, according to the ministers, and prevented the medical science of the day from healing patients, according to the physicians.
Rev. Nicholas Noyes of Salem pointed to eight of his former neigh-
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bors and parishioners, hanging from a tree, their bodies swaying in the wind, and piously said to others of his church: "What a sad thing it is to see eight firebrands of hell hanging there."
Rev. Cotton Mather demanded the death of George Burroughs against the real will of the people. It was this brilliant believer in ghosts who rode back and forth on horseback through the crowd in February, 1692, during an execution, smothering the people's sympathy, reminding them that "Satan himself sometimes puts on the garb of an angel of light."
It is not surprising to find that when he was well along in years he chronicled as one cardinal point of the Puritan faith, speaking of "the delight saved souls would enjoy in gazing o'er heaven's battlements, watching the writhing forms of the lost, forever aflame in excruciating agony, yet never consumed."
When death transferred him where he might enjoy that delight, the "New England Weekly Journal," of February 26, 1728, in commenting on his death said :
"He was perhaps the principal Ornament of this Country, and the greatest scholar that ever was bred in it. But, besides his unusual learn- ing, his exalted Piety and extensive Charity, his entertaining Wit, and singular Goodness of temper recommended him to all that were Judges of real and distinguished merit."
Cotton Mather wrote and published three hundred and eighty-two pamphlets and books, and was at one time in voluminous correspond- ence with fifty or more of the learned men of England on deep, educa- tional topics. The record of his achievements is amazing and those who have not read many of his writings cannot understand the colonial men- tality or the New England conscience. But those who have read all of them cannot understand Cotton Mather. He was the colonial prodigy, the conundrum of the period.
Perhaps as fair a sketch of the life of Cotton Mather as has been pub- lished was contained in "The Story of Massachusetts," by the late Rev. Edward Everett Hale. It read :
"Cotton Mather, D. D., F. R. S., a celebrated minister and writer, was a native of Boston, born Feb. 12, 1663. He was distinguished for his early piety, and was ordained colleague with his father, in 1684. He was a man of unequalled industry, vast learning, and expansive benevo- lence, also distinguished for his credulity, pedantry, and want of judg- ment. No person in America had so large a library, or had read so many books, or retained so much of what he had read. So precious did he con- sider his time, that, to prevent visits of unnecessary length, he wrote over his study door "be short." He understood Hebrew, Greek, Latin, Spanish, and Iroquois, and wrote in them all.
PLYMOUTH, NORFOLK AND BARNSTABLE
"By his diary, it appears that in one year he kept sixty fasts and Firenty vigils, and published fourteen books, besides discharging the duties of his pastoral office. His publications amount in number to three hundred and eighty-two. His great work was his "Magnalia Caristi Americana" or ecclesiastical history of New England, from its
to the rear 1698.
"His style shounds with puerilities, puns, and strange conceits, and he makes a great display of learning. In his "Magmalis" he has saved zomerous and important facts Brom oblivion. In the work are contained bengraphical accounts of many of the first principal settlers. He died in
The founder of the famous Mather dynasty in America was Rev. Richard Mather of Dorchester. The influence of this famous family on early New England, for better and for worse, is amaring. The family was comnetted by marriage with several other prominent early Puritans. The second wife of Richard Mather had been the second wife of Rev. Toàn Cotton, the fr : = inister of Boston. Increase Mather, som of
Richard Mather, ed his stepsister, Mary Cotton. For his second wife, Increase Mather married the widow of Rev. John Cotton of Hamp- ton, nephew of Mather's first wife. Rev. Cotton Mather, so zealous in the persecution of so-called witches and zealoms in nearly everything. was a son of Rer. Increase Mather.
Someone attempted to tell the story of the Mather family in the form of an egetagh :
Under His stone Des Richard Mather who had a son greater than his
oss than either: B= Se sent generation indad --
Increase Mather went to England and obcalmed a new charter in 1691 which combined Plymouth and the Massachusetts colonies, and made Sir William Phipps a royal govermor, che Erst of tem royal governors who ruled New England until the Revolution. Among the many posi- Soms held by Rev. Increase Mather was the presidency of Harvard College.
Torture of Giles Corey-While the persecutions and munders for al- leged mitobcraft were originated and carried on by the Puritans rather chan the Pilgrims, among those accused was Captain John Alden, eld- és: son of John and Priscilla Alden of the "Mayflower," and he escaped
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with his life because he fled from Salem jail and made his way to the an- cestral home in Duxbury where he remained in hiding until the hellish frenzy was over. Captain Alden was seized in Boston and taken to Salem for trial. A trial was equivalent to a conviction.
Captain Alden was a sailor and had a sailor's gift of strong language which he flung emphatically against his accusers and the magistrates at his trial. He was placed in prison with many others accused of witchcraft but was fortunate enough to make his escape.
While he remained with his Duxbury relatives, Governor Phipps, in May, 1693, issued a proclamation ordering the release from prison of all who were held on the charge of witchcraft. One hundred and fifty were thus saved, providing they paid their board for the time they had been imprisoned, also fees claimed by the jailers. Those who had not the means to purchase their release remained there till someone paid the bill. An Indian woman, Tituba, was sold into slavery for her fees.
Governor Phipps had been chosen by Rev. Increase Mather and he was sufficiently ignorant and superstitious to become a tool in the hands of the Mathers to carry out their unexplainable schemes. It was not until Governor Phipps' wife had been accused of being a witch that he had a change of heart. In fact one of the first orders from him as a gov- ernor was to place heavy irons upon all those in jail. The governor appointed a special court with seven judges, with Lieutenant-Governor Stoughton as chief justice, to try the large number of accused witches in Salem jail. Giles Corey was accused but would not plead guilty or not guilty, knowing that he would be executed in either case but relying on an English law for the protection of his daughters in case he "stood dumb." This would mean no trial and his property would not be con- fiscated but would go by descent to his two daughters. As for his pun- ishment for "standing dumb," "in such cases the prisoner was to be three times brought before the court, and called to plead; the consequences of persisting in standing mute being solemnly announced to him each time. If he remained obdurate the sentence of peine forte et dure was passed upon him; and, remanded to prison, he was placed in a low and dark apartment. He would there be laid on his back on the bare floor, naked for the most part. A weight of iron would be placed upon him, not quite enough to crush him. He would have no sustenance, save only, on the first day, three morsels of the worst bread; and on the second day, three draughts of standing water that should be nearest to the prison door; and in this situation, such would be alternately his daily diet till he died, or till he answered."
Giles Corey was over eighty years of age. His wife had been hanged as a witch because she did not believe in witchcraft. Rather than for-
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feit his right to leave such property as he had to his two daughters and yield to that frenzied tribunal, he voluntarily faced the horrible torture of having gradually increasing weights put upon him until the slowly increasing torture and other visitations of hate forced him to give up the ghost.
Rev. Mr. Parris, pastor at Salem village, whose daughter, Elizabeth Parris, was one of the group of girls who generally accused the victims, refused to give up the delusion after Governor Phipps had liberated the prisoners and called no more courts to try witches. He refused to leave his ministry when the people of Salem demanded it, and all the ministers of Boston had to be called in before the community could get rid of the man whose name will always be associated with the six months of terror.
When Judge Stoughton found his occupation of sentencing witches gone, he said: "We were in the way to have cleared the land of them; who it is that obstructs the cause of justice I know not; the Lord be merciful to the country." He was so exasperated that he left the bench in displeasure and never returned.
In our conceit of the twentieth century we are inclined to view the delusions of the forefathers with a pitying smile and think of those days as the days of superstition and of Salem and Boston as places set apart as the home of credulity. We are very careful, however, not to walk under a ladder, start on a journey on Friday and are quite uneasy about the number thirteen. We knock on wood when telling how we have escaped some accident or prevailing disease and in a thousand and one other ways are just as silly as the forefathers in the superstitious slant. They were not free from passion or prejudice, neither are we. The mob rule in Salem differs from mob rule at various times in various places merely in the date on the calendar. As for Judge Stoughton and his disappointment that he could no longer legally murder people accused by a group of designing girls-Elizabeth Parris, aged nine; her cousin, Abigail Williams, aged eleven; Ann Putnam, aged twelve, daughter of the clerk of the parish in Salem where Rev. Mr. Parris preached-he was a faithful follower of the teachings of Blackstone, still regarded as the great legal authority. It was in 1765, a few years before the Rev- olutionary War and a hundred years after Judge Stoughton had gone to his reward, that Blackstone, the great expounder of English law, wrote: "To deny the possibility, nay, actual existence of witchcraft and sorcery, is at once flatly to contradict the revealed word of God in vari- ous passages, both of the Old and New Testaments; and the thing itself is a truth to which every nation in the world hath, in its time, borne testimony either by example, seemingly well attested, or by prohibitory
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laws which at least suppose the possibility of commerce with evil spirits."
At the time of the witchcraft craze in Massachusetts a canon in the English church forbade ministers to cast out devils without a license. The Bishop of Chester issued licenses duly authorizing certain min- isters to cast out devils. "During this whole century there were trials and executions for witchcraft in all civilized countries. More than two hundred victims were hanged in England; thousands were burned in Scotland, and still larger numbers in France, Germany and Italy. Mat- thew Hopkins in England procured the death in one year, in one county, of more than three times as many as suffered in Salem during the whole delusion."
It is too early yet to say there is no longer a belief in witchcraft.
"An Intellectual Aristocracy"-This part of the country, and all New England for that matter, was for many years ruled directly or indirectly by the Congregational clergy. Practically ever since, the entire United States has been governed by lawyers. Congregational clergymen conscientiously believed that they were men set apart to rule other people. Many of the early clergymen were educated in universities and there were very few others who had had similar advantages. Conse- quently the clergymen were by tradition and profession aristocratic and autocratic. They knew their power, used it, and, as the expression is, "got away with it."
The lawyers from earliest times have carried with them the mysterious protection of Latin phrases and high sounding vocabularies, matched by no other profession except the medical men, and, as a result we have had twenty-nine presidents and twenty-three of them have been lawyers. We have had forty-four secretaries of state and all but two of them have been lawyers. Twenty-five of the fifty-six signers of the Declara- tion of Independence were lawyers. There were fifty-five framers of the Federal Constitution and thirty-one of them were members of the legal profession.
When our Massachusetts lawyer-president Calvin Coolidge read his messages to the Congress, sixty-two out of a possible ninety-six senators were fellow members of that profession, nearly a two-thirds voting power if lawyers could ever be made to agree. In the House two hun- dred and seventy-nine lawyers were a little more than a majority of the four hundred and thirty-five members.
The offices mentioned might be held by business men and the United States Government would have a more consistent representation in Washington, since business is supposed to be the mainstay of the nation. There are offices which require lawyers, naturally. These
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offices were made by lawyers, for lawyers, and no one else could hold them without the system appearing ridiculous. So it is consistent that all of the attorneys-general, all of the judges of the Federal courts, and so on down, taking in all the city solicitors, town counsels and a long list too obvious to mention, have been lawyers.
DeTocqueville describes the legal profession as "an intellectual aris- tocracy." So were the Congregational clergymen in Old Colonial days. Both believed in their respective days, that it was as it should be. At least our own Senator George Frisbie Hoar said, in his address before the Virginia State Bar Association in July, 1898: "The lawyer is the chief defense, security and preserver of free institutions and of public liberty." Professor Wendell, of Harvard University, says: "It is hardly excessive to say that throughout the nineteenth century, the American bar proved itself a true intellectual aristocracy. In free competition, it forced itself to the fore; it asserted and justified its recognized leader- ship."
These quotations, among thousands which might easily be given along the same line, remind one of the story of another lawyer, General Ben- jamin F. Butler. In a dispute between men concerning who should rightfully be regarded the "smartest lawyer" in Massachusetts, it was agreed to leave the decision to General Butler. Accordingly, he was sought out and the question put to him, "Who, General, is the smartest lawyer in Massachusetts?" "I am," was the unhesitating reply. "But how can you prove it?" was the next question. "I don't have to prove it, I admit it," said the general.
Daniel Webster, a Plymouth County lawyer, was called "the expound- er of the Constitution" in his day. Since then there have been many expounders and the expounding business will continue indefinitely, since the Constitution of the United States depends upon the bench and bar for its interpretation. Following the failure to impeach Justice Chase of the Supreme Court of the United States in 1805, according to Henry Adams, in his "History of the United States," written in 1889, "Henceforth the legal profession had its own way in expounding the principles and expanding the powers of the central government through the Judiciary."
William W. Cook of the New York bar, author of several valuable books on corporations, principles of law and its powers and responsi- bilities, says in his "American Institutions and Their Preservation," pub- lished in 1927 : "For over a hundred and thirty years the Supreme Court of the United States has been applying the Constitution to new condi- tions and the baffling problems which have arisen ... the bewildering maze and labyrinth of American constitutional law is something new in
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the world. It has supplanted the divine right of kings . . . Our govern- ment always has been and will continue to be a government by the legal profession. ... The power of the American bar is unorganized and un- seen, but upon it depends the continuity of constitutional government and the perpetuity of the republic iself."
Decisions Without Aid of Lawyers-In colonial days, when Thomas Lechford was trying to get a living as a lawyer among the Puritans and had to fall back upon "writing petty things which scarce finds me bread, and therefore sometimes I look to planting of corn," a commission was appointed in 1636 to prepare a regular system of laws for the Pilgrims in the Plymouth Colony and other first comers. For fifteen years an- nually elected officers of the colony had discharged functions, subject only to revision of the voters as a body. Billington, the murderer, was found guilty and executed under no other authority than the oral order of the town meeting or its elected council.
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