History of Plymouth county, Massachusetts, with biographical sketches of many of its pioneers and prominent men, Part 4

Author: Hurd, D. Hamilton (Duane Hamilton)
Publication date: 1884
Publisher: Philadelphia, J.W. Lewis & co.
Number of Pages: 1706

USA > Massachusetts > Plymouth County > History of Plymouth county, Massachusetts, with biographical sketches of many of its pioneers and prominent men > Part 4

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During the last years of his judicial life his eyes were so seriously affected that he was incapacitated for the work of taking notes, and even the light of the court-room became a painful annoyance. But so tenacious was his memory that after a protracted trial, involving large interests and encumbered with a large amount of expert and technical testimony, every witness and every essential piece of evidence were so clearly photographed on his mind that in his charge to the jury he was able to reproduce them with un- erring accuracy. His malady, however, became finally

so heavy a burden that he was compelled to resign his seat, and the last years of his life were spent in a darkened room. He died at his home in Boston, Oct. 13, 1880, at the age of eighty-seven.

JOHN HOLMES .- The subject of this sketch spent his professional life and won his reputation in Maine, but as a native of Plymouth County, and at the threshold of his career a member of its bar, he should not be omitted in these narratives. Mr. Holmes was born in Kingston in March, 1773. He was the son of Malachiah Holmes, an iron-manufacturer in that town, and was descended from John Holmes, who appeared iu Duxbury at a very early period of the Plymouth Colony. At the age of nineteen, when a workman in his father's works, his intelligence and spirit attracted the notice of one of the schoolmasters in the town, by whose advice and influence he was placed under the instruction of Rev. Zephaniah Willis, the pastor of the church in Kingston. In 1793 he entered an advanced class of Brown Univer- sity, and graduated with Tristam Burgess and Dr. Benjamin Shurtleff in 1796. He at once began the study of law with Benjamin Whitman, a successful attorney in Hanover, and was admitted to the bar in Plymouth in 1799. In those days the district of Maine was what the West is now,-a field for active and enterprising young men to grow up with new towns, and thereby win popular favor and professional success.

To the village of Alfred, with a population of eight hundred and fifty, and not incorporated as a town until 1808, Mr. Holmes wended his way imme- diately after his admission to the bar, and at once identified himself with the interests and welfare of a thrifty and enterprising community. At that time, as is well known, Maine was a part of Massachusetts, and in the whole district there were only forty-three lawyers practicing in its courts. Though never pro- found in the law, his knowledge of men, his industry and honesty, his unbounded humor, and his mild tem- per soon made him a formidable opponent before a jury, and placed him in the front rank of advocates. As a humorist, his chief competitor in the courts was Joseph Bartlett, who afterwards married in Plymouth and there died, after a residence of some years in that town, at the close of his career in Maine. In the latter part of his professional life in Maine, Mr. Bart- lett contracted habits which destroyed his reputation as a lawyer and reduced him to the lowest range of criminal cases as a means of support. In one instance he received something in the nature of a reprimand from the court for appearing as counsel for a negro named Cæsar, whose case, after a short hearing, was

HISTORY OF PLYMOUTH COUNTY.

abruptly dismissed. Mr. Bartlett, in defense of his course, told the court that with him it was " Aut Cæsar, aut nullus." Mr. Holmes was a staneh Federalist in politics, and represented Sandford and Alfred in the General Court of Massachusetts in 1802 and 1803. In 1811 hc was a firm advocate of the war measures of Madison, and was again sent to the General Court, where he was the candidate for Speaker of the House of Representatives, in opposi- tion to the successful candidate, Timothy Bigelow. In 1813 he was chosen a member of the Massaehu- setts Senate, and in 1815 was appointed by 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 Passama- quoddy Bay. In 1816 he was chosen a member of Congress, and rechosen in 1818. He took an active part in the movement to make Maine an independent State, and in 1820 was chosen senator of the new State to the National Congress. His service in the United States Senate continued until 1833, and was characterized by that skill in debate and keen humor which had distinguished him as a member of the bar. On one occasion, when reminded by John Tyler of the inquiry of John Randolph, what had become of James Madison, Felix Grundy, John Holmes, and the devil, he promptly replied, " The first is dead, the second has retired, and the last has gone over to the party of nullifiers, of which the honorable gen- tleman is a conspicuous member."

In 1841, Mr. Holmes was appointed by Harrison United States attorney for the Maine distriet, and held the office until his death, which occurred in Port- land, July 7, 1843. He married two wives, the first Sally Brooks, of Scituate, whom he married in Sep- tember, 1800, and the second the widow of Henry Swan and daughter of Gen. Knox, whom he married in July, 1837. After his sceond marriage he re- moved from Alfred to the estate of his wife at Thom- aston, and during the last six years of his life had a divided residence in that town and Portland, the seat of his official duties.

It may not be improper to say that it is well un- derstood that SIDNEY BARTLETT, of Boston, a native of Plymouth, and a graduate of Harvard in 1818, who at the age of eighty-four still contests the honors of leadership of the Massachusetts bar with his only recognized competitor, William G. Russell, of' Boston, also a native of Plymouth, and a Harvard graduate in 1840, has more than once deelined the offer of a commission to the highest court in the State. It is not only understood, but known, that on the retire- ment of Horace Gray from the chief justiceship of

the Supreme Court, after his appointment to the Supreme Court at Washington, Mr. Russell was urged to accept the place, and deelined it to the regret of the Governor, of the bar, and the whole community.

Among the earliest lawyers in the county was NATHANIEL CLARK, of Plymouth, a son of Thomas Clark, who came over in the " Ann" in 1623. Mr. Clark was the successor of Nathaniel Morton, in 1685, as secretary of Plymouth Colony, and on the advent of Sir Edmund Andros, in 1686, he attached himself to the new Governor, and became one of the most troublesome instruments of his troublesome ad- ministration. Unscrupulous smartness, a trait less popular among the Pilgrims than among their sons, was his characteristic, and he lived a disturber of both publie and domestic peace.

Most of the members of the bar up to the time of the Revolution have been referred to in connection with some judicial or county office. JAMES OTIS, the patriot, studied law in Plymouth, and practiced law there for a time after he was admitted to the bar, oceupying the southerly room in the building north of the engine-house on Main Street as his office. His sister Mercy, the wife of James Warren, lived at the same time in the house on the corner of North Street, and he was an inmate of her family.

WILLIAM CULLEN BRYANT, too, was admitted to the bar in Plymouth, Aug. 8, 1815. Hc had been a student in the offiec of William Baylies, of West Bridgewater, and after his examination wrote the following letter to his father :

" DEAR SIR :

" I went to Plymouth last weok, where I stayed four days, and might perhaps have beon obliged to stay a week, had it not been for good luck in finding a Bridgewator man thore with a vacant seat in his chaise. I have received a certificate in the handwriting of A. Ilohos, Esq., and sprinkled with his snuff instead of sand, for which I paid six dollars, according to the tenor and substance following :

" 'These cortify that William Cullen Bryant, a studont-at-law in Brothor Baylies' office, has beon examiued by us, and we do agreo 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."

JAMES HOVEY and PELHAM WINSLOW, of Plym- outh, and OAKES ANGIER occupied prominent po- sitions, and must not be omitted in allusions to lawyers of this period. As the threshold of the present cen- tury is passed the number of attorneys increases. Besides those who have been mentioned, there have been of those now dead John B. Thomas, William Thomas, John Thomas, Jacob II. Loud, William

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Davis of Plymouth. Samuel Stetsou of Duxbury, Charles K. Whitman of Pembroke, Ebenezer T. Fogg of Scituate. Ebenezer Gay and Solomon Lin- coln of Hingham, Eliab Whitman of North Bridge- water. Austin Packard of West Bridgewater, Jared Whitman and Benjamin Hobart of Abington, Beu- jamin Whitman, Alexander Wood. and John Wins- low of Hanover. Seth Miller of Wareham. Welcome Young and Bartholomew Brown of East Bridge- water, and Williams Latham of Bridgewater, all of whom have occupied positions at the bar which justify their mention.

WILLIAM BAYLIES. who for many years stood at the head of the Plymouth County bar, was the son of Dr. William Baylics. of Uxbridge. Nicholas, the father of Dr. Baylies, came with his father. Thomas, from Colebrooke. England, in 1737, and settled in Uxbridge. where he carried on the iron husiness. Dr. Baylics was born in Uxbridge in 1743, and re- moved to Taunton with his father's family after his graduation at Harvard. in 1760, and died in 1826. He married Bathsheba, daughier of Hon. Samuel White, a native of Braintree, then living in Taunton, and had two sons, Francis Baylies, a member of Con- gress and minister to Buenos Ayres under Andrew Jackson. and the author of a comprehensive history of the Old Colony, and William, the subject of this sketch. William was born in Dighton, Sept. 15, 1776, and was fitted for college in one of the schools of that town. under the instruction of John Barrows, a graduate of Harvard in 1766. He entered Brown University in 1791. and graduated in 1795 with the highest honors. After preparing himself for the practice of law in the office of Seth Padelford, of Taunton, he was admitted to the bar in that town at the March term of the Court of Common Pleas in 1799, and settled in West Bridgewater. He repre- sented his adopted town in the House of Representa- tives in 1808-20 and 1831, and was a member of the State Senate in 1825. In 1809 he was elected a member of Congress, but his seat was successfully contested by his competitor. In 1813 he was chosen a second time, and held his seat during two terms. In 1831 he was again chosen, and during two addi- tional terms served his district on the floor of Con- gresg. In 1831 he received the degree of Doctorate of Laws from his Alma Mater. This honor was con- ferred, however, not so much on account of a public career, from which he derived little satisfaction and upon whose laurels he placed little value, as in recog- nition of his eminent and deserved success in the line of a profession in whose fields he had diligently labored and whose fruits he was ambitious to gather.

During a full half-century no man in Southeastern Massachusetts held a more conspicuous place at the bar than Mr. Baylies. All those mental character- istics which are the indispensable ingredients of what is called wisdom-clearness of thought, power of analysis, a normal intellectual vision, neither far- nor near-sighted, a mental couscience, an appreciation of just and accurate views on all questions, a recog- nition of the two-sidedness of all matters iu dispute, an even, unruffled temper, a healthy body, and great powers of endurance-were his, and they were not long in securing and retaining the confidence of cli- ents and the community. During fifty years he drew to him all the business which he felt that he could faithfully perform, and during many a term of the court in Plymouth he went from jury to jury, plead- ing on one side or the other in every civil case on the docket. From the second voluuse of the " Massachu- setts Reports" to the sixty-fourth, his name may be found scattered thickly along the pages of Plymouth and Bristol decisions, only equaled in frequency by the name of Zechariah Eddy, of Middleboro', who was more often than any other lawyer his antagonist in the legal arena.

He first appeared before the full court at its law term in October, 1806, with his old law-teacher, Seth Padelford, on the other side, in " Joshua Thomas, judge of probate, against Asa Leach," in which the scholar proved himself more than a master for his master in securing a decision that " an action in the name of a judge of probate on an administrator's bond cannot be referred." His last appearance was in January, 1849, in Alden B. Weston and others against Alfred Samp- son and others, with William Thomas, of Plymouth, as his associate, for the defendants, and Thomas Prince Beal, of Kingston, and H. A. Scudder, of Boston or Barnstable, for the plaintiffs. On the question at issue this was a leading case, the decision of which involved extended interests along the seaboard of the Old Colony. It was an action of trespass quare clausum fregit, originally brought before a justice of the peace and submitted to the Court of Common Pleas. It was finally brought by appeal to the Supreme Court on the following agreed statement of facts : " It was admitted that the Plaintiffs were the pro- prictors of a tract of upland described in the writ, with the flats adjoining, at Powder Point, so called, in Duxbury, bordering upon the bay. The defendants, inhabitants of Duxbury, went in their boat upon said flats, and there, at low water, dug five bushels of clams and put them into their boat and carried them away. The place where the defendants dug their clams was between high- and low-water mark, and

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HISTORY OF PLYMOUTH COUNTY.

within one hundred rods of the shore of the plain- tiff's upland. If the Court shall be of opinion that the defendants had a right so to dig and earry away said elams, the Plaintiffs are to become nonsuit, oth- erwise the ease is to be sent to a jury." The court decided that fishing was a common law right, as well fishing for shell-fish as for those swimming in the water, and unless there was some colonial, provineial, or State law which controlled and limited that right, the inhabitants had a right to go in boats to flats be- tween high- and low-water mark and there take shell or other fish. The plaintiff relied on a law of Mas- sachusetts Colony, passed in 1641, giving the owner of uplands the (propriety) so far as the tide ebbs and flows, when it does not ebb more than one hundred rods; but the court held that, notwithstanding the union of the Massachusetts and Plymouth Colonies, in 1692, the absence of any Plymouth Colony law or provineial law after 1692, or State law after the adoption of the Constitution, keeps the old common law right alive, and justifies the defendants in their aet.

Mr. Baylies was never married. He retired from the bar soon after 1850, died in Taunton, Sept. 27, 1865, and was buried in Dighton, the place of his birth.

EBENEZER GAY, of Hingham, was descended from John Gay, who appeared in Watertown in 1635, and removed to Dedham. John Gay, the aneestor, by a wife, Joanna, said to have been a Widow Baldwicke, had ten children,-Samuel, born in 1639; Hezekiah, born in 1640; Nathaniel, born in 1643; Joanna, born in 1645; Ebenezer, born in 1647; Abiel and Judith (twins), born in 1649; John, born in 1651; Jonathan, born in 1653; and Hannah, born in 1656. Nathaniel Gay, one of the above children, married Lydia Lusher, and had Benjamin, Nathaniel, Mary, Lydia, Lusher, Joanna, Abigail, and Ebenezer. Eben- ezer, one of the sons of Nathaniel, was born in 1696, and graduated at Harvard in 1714. He settled as pastor over the Hingham Church in 1718, and died in 1787, after a pastoratc of sixty-nine years and nine months. On his eighty-fifth birthday he preached a sermon from the text, " Lo, I am this day fourseore and five years old," which, under the title of the " Old Man's Calendar," was published in Amcriea, in England, and on the continent. In 1785 he received the degree of Doctorate of Laws from his Alma Mater. He married, in 1719, Jerusha, daughter of Samuel Bradford, of Duxbury, grandson of William Bradford, Governor of Plymouth Colony, and had Samuel, 1721, a graduate of Harvard in 1740; Abi- gail, 1722; Calvin, 1724; Martin, 1726; Abigail again, 1729; Celia, 1731 ; Jotham, 1733 ; Jerusha,

1735 ; Ebenezer, 1737; Persis, 1739; and Joanna, 1741. Martin, one of the sons of Ebenezer, carried on the business of brass-founder in Union Street, Bos- ton, and was also interested in navigation. He was deacon of the West Church, and captain of the Aneient and Honorable Artillery Company. At the breaking out of the Revolution he adhered to the erown, and at the evaeuation of Boston went with the British army, in 1776, to Halifax. He returned to New England in 1792, and died in 1809. He mar- ried, in 1750, Mary Pinekney, and had Celia (1751), Mary, Samuel (a graduate of Harvard in 1775), Martin, Frances (who married Dr. Isaae Winslow, of Marshfield), Pinckney, and Ebenezer. Ebenezer, one of the above children, and the subject of this sketeh, was born in Boston, Feb. 24, 1771, and re- ceived his early education in the Boston Latin Sehool, where he fitted for college. He graduated at Harvard in 1789, and after spending a year in Nova Scotia, where his father then resided, he entered the law- office of Christopher Gore, and was admitted to the Suffolk bar at the April term of 1793. He at onee opened an office in Scollay's building, which stood on the spot now marked by the statue of Governor Win- throp, and stepped so rapidly into practice that at one of the earliest terms of the Common Pleas Court after his admission he entered sixty aetions. His business was largely that of eolleetions, though he was one of the first to explore the field of admiralty law, at that time little understood. In the early years of his eareer the Suffolk bar, though small in eom- parison with its proportions at the present day, was composed of marked men. It contained thirty-three men,-five barristers, twenty attorneys of the Supreme Judicial Court, and eight attorneys of the Court of Common Pleas. The barristers were James Sullivan, Theophilus Parsons, William Tudor, Perez Morton, and Shearjashub Bourne. The Supreme Court at- torneys were Thomas Edwards, Jonathan Mason, Christopher Gore, Rufus G. Amory, Joseph Hall, Edward Gray, John Davis, Harrison Gray Otis, Joseph Blake, Jr., John Lowell, Jr., John Quiney Adams, John Phillips, George Blake, Ebenezer Gay, Josiah Quincy, Joseph Rowe, William Sullivan, Charles Paine, John Williams, and William Thurs- ton, and those of the Common Pleas were Edward Jackson, Foster Waterman, David Everett, John Heard, Charles Davis, Charles Cushing, Jr., J. W. Gurley, and H. M. Lisle.

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-he won a deserved reputation for industry, fidelity, and exact methods of business, which had added, as he thought, sufficient to his store to enable him to retire to the less burdensome field of a conntry life, in which business and relaxation might be so happily blended as to preserve a vigorous constitution and, at the same time, an active mind. In 1805 he removed his residence to Hingham, but retained his office in Boston until after the death of his father in 1809. Having finally removed his office also, the distance of Hingham from Boston, with the existing means of communication, severed. of course, his connection with old clients and with the courts of Suffolk, and thenceforth he became identificd with the Plymouth Connty bar as one of its ablest and most trustworthy members. Though not a brilliant jury lawyer, his docket at the Plymouth courts was always large, and his well-grounded knowledge of law, mingled with a conscientious fidelity both to his clients and to the exacting demands of justice. often carried him success- fully and safely through the rocks and shoals of litiga- tion. on which many a more eloquent advocate would have been irrecoverably wrecked.

His contemporaries at the Plymonth bar were William Baylies, Zechariah Eddy, Thomas Prince Beal. Kilborn Whitman, Abraham Holmes, and Joshua Thomas; and while his dignified bearing re- pelled familiarity, his companionship was eagerly sought. for his conversational powers, dealing with a large fond of information, were always entertaining ; and he was believed to be a genuine honest and true man. His friendships, where the recipients were worthy, were always lasting. Though removed from the professional sphere of his earlier years, he neither deserted nor was deserted by those comrades at the bar with whom he had been associated in Boston. With Harrison Gray Otis, Solicitor Davis, Judge Minot, James Savage, and Judge Shaw he had con- tracted a lasting friendship, and these gentlemen werc frequent guests at his Hingham home.

Mr. Gay married, July 31, 1800, Mary Allyne, daughter of Joseph Otis, of Barnstable, and at his death left eleven surviving children,-Mary Otis, born July 9, 1801, who married Robert T. P. Fiske, M.D., of Hingham ; Martin, born Feb. 16, 1803, a distin- guished physician and chemist, who married Eleanor, daughter of Frederick Allen, of Gardner, Me. ; Charles William, born July 17, 1804; Henry Pickney, boru Oct. 24, 1806; Frances Maria, born Aug. 4, 1809 ; Elizabeth Margaret, born April 28, 1811; Sydney Howard, the well-known editor and author, born May 22, 1814, who married Elizabeth, daughter of John Neal, M.D., of Philadelphia ; Abby Frothingham, 2

born May 14, 1816, who married Isaac Winslow, of Boston ; Ebenezer, born March 27, 1818, who mar- ried Ellen Blake, daughter of Oliver Blood, M.D., of Worcester; Arthur Otis, born Aug. 31, 1819; Winckworth Allan, the distinguished artist, born Ang. 18, 1821.

Mr. Gay never sought office nor conspicuous posi- tion of any kind, but was honored by his adopted county with a seat in the State Senate, and declined the appointment by Governor Gore as a justice on the bench of the Court of Common Pleas. He died at Hingham, Feb. 11, 1842, at the age of seventy-one years.

ZECHARIAHI EDDY was descended from Rev. Wil- liam Eddy, vicar of St. Dunstan's Church, in Cran- brook, county of Kent, England, who married, in 1587, Mary Foster. Samuel Eddy, the son of William, born in 1608, came to Plymouth in the " Handmaid," in 1630, with his brother John. After a few years' resi- dence in Plymouth he removed to Middleboro' and Swansea, and died in the latter place in 1688 at the age of eighty years. By a wife, Elizabeth, he had John, Zachariah, Caleb, Obadiah, and Hannah. Of these Obadiah, by a wife whose maiden name was Bennett, had Samuel, John, Jabez, Benjamin, Elizabeth, Mary, Mercy, and Hasadiah. He lived in East Middle- boro', and died in 1722 at the age of eighty years. His son, Samuel, who married Melatiah Pratt, settled on the paternal estate, and had Samuel, Zechariah, Bennett, Fear, and Melatiah. Of these Zechariah, who inherited his father's estate, married Mercy Morton, and had John, Nancy, Ebenezer, Hannah, Nathaniel, Mary, Joshua, Zechariah, Seth, Thomas, Lucy, and Samuel. Of these Joshua commanded a company at Ticonderoga, Monmouth, and Saratoga during the Revolution, and John, Seth, Thomas, and - Samuel, four of his brothers, also served in the Con- tinental army. Joshua married Lydia, daughter of Zechariah Paddock, of Middleboro', and had nine children,-John Milton, Joshua, Zechariah, Nathan- iel, Ebenezer, Lydia, William S., Jane, and Morton. Of these Zechariah is the subject of this sketch. He was born in Middleboro' in 1780, and, entering Brown University in 1795, graduated in 1799, de- livering the Latin salutatory at commencement.

After graduating he taught in the Newport Semi- nary, and afterwards became preceptor in the Plain- field Academy. He studied law in the office of Joshua Thomas, of Plymouth, and was admitted to the bar in 1806. He married Sarah, daughter of Pollycarpus and Lucy (Eaton) Edson, of Bridge- water, and settled permanently in Middleboro'. His position at the bar was a distinguished one, and

HISTORY OF PLYMOUTH COUNTY.

for many years he stood shoulder to shoulder with William Baylies, Thomas Prince Beal, and Kilborn Whitman in the front rank of the Plymouth bar. As a special pleader he had no superior among those with whom he was in the habit of measuring his strength. During a connection with the bar of more than half a century, he failed to attend only a single term of the Plymouth court, and left it at an ad- vanced age with a record of more than three hundred cases in the Massachusetts Reports in which he ap- peared as counsel. His first argument was at the October term of 1806, on a motion by the defendant for a new trial in the case of Zechariah Eddy, pe- titioner for partition, against Eliab Knapp, in which on the trial in the lower court exceptions were taken to the admission as evidence of a judgment and exe- eution where the appraisers were appointed by the officers without notice to the judgment debtor. Chief Justice Parsons read the opinion of the court that, as under the common law land could not be taken on execution, the provisions of the statute must be strictly followed ; and as the debtor had no voiee in the appointment of appraisers, the execution was in- valid, and the exceptions must be allowed.

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History of Plymouth county, Massachusetts, with biographical sketches of many of its pioneers and prominent men, Part 4

Author: Hurd, D. Hamilton (Duane Hamilton) Publication date: 1884 Publisher: Philadelphia, J.W. Lewis & co. Number of Pages: 1706

Author: Hurd, D. Hamilton (Duane Hamilton)
Publication date: 1884
Publisher: Philadelphia, J.W. Lewis & co.
Number of Pages: 1706