History of Worcester County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I, Part 7

Author: Hurd, D. Hamilton (Duane Hamilton)
Publication date: 1889
Publisher: Philadelphia : J.W. Lewis & Co.
Number of Pages: 1576

USA > Massachusetts > Worcester County > History of Worcester County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I > Part 7

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Judge MOSES GILL lived on a magnificent estate in Princeton, which was described by President Dwight, of Yale College, as more splendid than any other in the interior of the State. These lands were the in- heritance of his wife. His own fortune, accumulated in mercantile pursuits in Charlestown, his native place, had enabled him to improve and maintain an establishment of extensive proportions. He was born in 1733, and lived in the place of his birth until about 1767, when he began to spend a portion of each year amid the beauties of the Princeton hills. That town he represented in the General Court, and was suc- cessively State Senator, Councillor and Lieutenant- Governor. From 1775 until his election to the office of Lieutenant-Governor he was an associate justice of the County Court. Both he and his associate, Samuel Baker, of Berlin, were of the original board of trustees of Leicester Academy. To have been in- strumental in establishing an institution which has contributed so largely from among its alumni to the service of the State, and especially to the leadership of the bar of this county, must be counted, perhaps, the greatest of Judge Gill's distinctions.

Of SAMUEL BAKER little can be added, save that for twenty years, until his death in 1795, he faithfully discharged his judicial duties. During a portion of this time he represented his town of Berlin, and was several years a State Senator.

When Judge Foster was promoted to the Superior Court, JOSEPH DORR took his place in the lower tribu- nal. His father, bearing the same name, was the pas- tor of the church in Mendon for many years, a man repected for his public spirit as well as for his faith- ful discharge of ministerial duties. The son grad-

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uated at Harvard in his twenty-second year in the class of 1752. He was never ordained, but he evi- dently had some intention of adopting his father's profession, for he preached in the pulpit occasionally. He was a most earnest patriot and fully in sympathy with the principles animating the Revolution. He devoted almost the whole of his time for seven years to the public service without any compensation, and was one of those non-combatants who largely aided the success of the cause by efficient moral support at home. In any conflict all cannot be on the field of action. It is the part of some to foster and preserve the prize of the battle,-the institutions whose exist- ence is at stake. Mr. Dorr was the town clerk and treasurer of Mendon for a number of years. On the records the Declaration of Independence is spread at length in his handwriting, so beautifully legible as to suggest at once the thought that he was not a law- yer. On this bench, however, he presided with dig- nity and acceptance for twenty-five years, and was also judge of Probate from 1782 to 1800. During the last years of his life he removed to Brookfield, where he died in 1808.

The Court of Common Pleas, presided over in this county by the gentlemen of whom we have spoken, survived almost without change the political disturb- ances of the time. Appointed in 1775 by the de facto government, Ward and his associates continued to discharge the same duties after the Declaration of Independence and under the Constitution of the State.

No mention of this court appears in the Constitu- tion, but in 1782 an act was passed " establishing Courts of Common Pleas." This was in effect a statute declaratory of the law as it was then adminis- tered. The jurisdiction granted was the same; the right of appeal, the power to make rules and the regulation of the business of the court were the same as under the province charter.

The court was to consist of "Four substantial, dis- creet and learned persons, each of whom to be an in- habitant of the county wherein he shall be ap- pointed," and these requirements were well fulfilled by those who were upon the bench in this county when the statute passed.

In the same year with the act just referred to were passed statutes establishing "'a Supreme Judicial Court " and "Courts of General Sessions of the Peace," both of which tribunals had been exercising their functions before either Constitution or statute were adopted.

In the convention which formed our State Consti- tution, it was decided to simplify the rather cumber- some title of the Provincial Court of last resort. Ac- cordingly, all through the Constitution reference is made to a Supreme Judicial Court, instead of the Superior Court of Judicature, Court of Assize and General Gaol Delivery. Among the early enactments of the first Legislature under the new order of things

was a statute giving jurisdiction to the Supreme Judicial Court of " all such matters as have hereto- fore happened or that shall hereafter happen, as by particular laws were made cogaizable by the late Superior Court of Judicature, etc., etc., unless where the Constitution and frame of Government hath pro- vided otherwise." After this very explicit recogni- tion of its existence, an act establishing a Supreme Judicial Court passed in 1782 seems, to some extent, a work of supererogation. That act provides for one chief and four associate justices, and grants very broadly jurisdiction over all civil actions and all criminal offences. It further authorizes the control and correction of the proceedings of the inferior courts by writ of certiorari and manda- mus. A full beuch was to consist of at least three of the judges. From the rulings of one justice at nisi prius exception might be taken to the full bench, which alone had the final decisions of questions of law. Before three judges also were to be decided all capital cases, divorce matters, and probate appeals.

Courts of General Sessions of the Peace, with juris- diction over minor offences and with power to bind over to the proper tribunals persons charged with graver crimes, were provided for by another act of the same year. Of the numerous justices of the peace who exercised jurisdiction in this court it would be impossible to obtain record or to make mention. Some one or more of the Common Pleas Court usually sat with them at the trial of offences. In 1803 the criminal jurisdiction was transferred altogether from the Sessions Court to the Common Pleas Court, leaving to the former the supervision of county finances, the laying out of highways and the like. After several experiments in giving these latter powers also to the Common Pleas, and after the Court of Sessions had been twice abolished and twice revived, in 1827 the act defining the power of county commissioners was passed, and the Sessions Court finally disappeared. Until 1811 the County Court of Common Pleas re- mained the tribunal in which was carried on the great bulk of ordinary litigation.

Upon the election of Moses Gill to the Lieutenant- Governorship and his consequent resignation of his seat on the bench, the position was offered to Dwight Foster, but was declined. Michael Gill was there- upon appointed. Of him I learn nothing, save that he was probably a nephew of his predecessor; that he resigned in 1798, and that he was living in 1826. ELIJAH BRIGHAM took the place left vacant by Judge Baker's death in 1795. He was born in Northborough iu 1751 and graduated at Dartmouth College in 1778. The study of divinity at first engaged his attention, but that was soon abandoned for mercantile pursuits. Senator, councillor and member of Congress success- ively, he discharged the duties of each station with propriety, though without leaving a great impress up- on the times. He held the office of judge until the abolition of the County Court in 1811. In 1816,

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while attending the session of Congress at Washing- ton, he very suddenly died.

DWIGHT FOSTER accepted an appointment to this bench in 1801. He was a son of the earlier judge, and was born in Brookfield in 1757. His classical studies were pursued at Brown, where he graduated in 1774. After studying his profession he commenced its practice at home. At that time there was no other lawyer within twenty miles of Brookfield. As a consequence he early gained a very great practice, which his own abilities enabled him to keep and in-

crease. His health was never robust, so that all through life he was obliged to husband his physical resources. Yet by diligence during his working hours, by a systematic arrangement of his time and by powers of application natural and cultivated, he accomplished au enormous amount of labor. As a conveyancer he was noted for accuracy and neatness, -qualities of whose importance he was no doubt im- pressed by his father, who had been obliged to acquire w hat knowledge he had of that branch without the aid of such an education as the son had enjoyed. It was noted of the latter that he made it a constant practice to rise and be at work early, invariably by candle-light in winter. This discouraging propensity is the only fault recorded of him.

His father had been chosen as a delegate to the convention for framing the Constitution, but died be- fore the session began. Dwight, then but twenty- two, was chosen to fill the vacancy,-a proof of the confidence which his townsmen already reposed in his sound judgment and discretion. In 1792 he held the office of high sheriff of the county, and was the same year elected to Congress, where he sat for three terms. Later, he was a member of the United States Senate. For ten years he was the Chief Justice of the Common Pleas, succeeding Judge Sprague, and lived until 1823, active until the last, His manners are described as extremely courteous, and he exer- cised a generous hospitality at his country home.

In the same year with Judge Foster, BENJAMIN HEYWOOD was elevated to a seat on this bench. He was the son of a Shrewsbury farmer, and had learned and practiced in early life the trade of a carpenter. His strong desire for an education overcame the diffi- culties in his way, and he prepared for college and entered Harvard in 1771. But here hindrances to the pursuit of knowledge still met him. The country was aroused to arms. With the other young men of the institution, he felt the duty of bearing his share in the impending conflict. At the opening of hos- tilities he laid aside his books, followed the retreating British forces after Concord fight, and was soon after regularly commissioned an officer of the Provincial Army. He rose to the rank of captain, and discharged the difficult and responsible duties of regimental paymaster with scrupulous fidelity and accuracy. When, at the close of the war, the Continental Con- gress found itself with a great debt, an army whose

pay was largely in arrears, and an empty treasury, a most serious danger threatened the stability of the independence which had been won. The soldiery were naturally discontented and conscious of ill treatment, and conscious also of their strength as a united body. Captain Heywood was one of those who at this juncture assisted Washington to allay the growing impatience and to persuade the meu to disband peaceably, in the hope of justice from the tardy people who had profited by their sufferings. When, after peace was finally established, he returned to his native town, he found himself called upon to devote much of his time to the public. His neigh- bors had learned to appreciate his integrity and the soundness of his judgment. Later, he removed to Worcester, where he cultivated a large farm, portions of which remain in the hands of his descendants to this day. In 1801 he succeeded Judge Dorr, and held office so long as the court existed. He is the last judge of any of the higher courts of this county who was not educated for the legal profession.

John Sprague, who succeeded Artemas Ward as chief of the Common Pleas, was, as has been said, the only member of the bar before the Revolu- tion who continned for any length of time to practice in the courts under the new establishment. His first competitor was LEVI LINCOLN, who was admitted to the bar in Hampshire County, and began prac- tice here as soon as the courts were opened in 1775. Joshua Upham had not then abandoned his Brook- field clientage, but remained only a few months longer. Lincoln was the son of Enoch Lincoln, a farmer of Hingham, and had been apprenticed in youth to a trade. In this employment he evidently found he had no pleasure, and he succeeded, with the assistance of friends who were impressed by his man- ifest desire and aptness for learning and his serious determination to obtain an education, in fitting him- self to enter Harvard College. There he graduated in 1772, in his twenty-fourth year, and begau the study of the law in Newburyport. Later, he entered the office of Joseph Hawley, of Northampton, who was then of the highest rank in the profession, as well as in the councils of the patriotic party. His studies were interrupted by the call to arms in April, 1775, but he soon returned to his books, and opened his office in Worcester. At once he was made clerk of the courts, and held the office a little over a year. No doubt the duties interfered too seriously with the great opportunity for professional business which lay before him. Those who had been the leaders in every walk in life, judges of the courts, lawyers, men of wealth and cultivation, had in large numbers adhered to the British cause, and were then in self-imposed exile. To a man of Lincoln's superior ability it was inevitable that the people should look for leadership and advice. His powers matured early under the re- sponsibilities which he was thus compelled to assume. He possessed naturally great firmness of purpose and

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a sober judgment, and throughout his long career, much of which was passed prominently before the public eye, what he accomplished was largely due to the fact that what, on sufficient reflection, he felt to be his duty, that he unfalteringly strove to do.

He had none of that long period of weary waiting for clients which serves to some extent to winnow out the wheat from the chaff of modern aspirants for legal honors. After the long vacation and the cessation of general business natural to the beginning of so tre- mendous a struggle as was then inaugurated, with the first breathing space people realized that their affairs at home still must receive attention. Lincoln at once was overwhelmed with business. In 1779 he was "specially designated to prosecute the claims of government to the large estates of the Refugees, con- fiscated under the Absentee Act." Mr. Willard says of him : " He was without question at the head of the bar from the close of the Revolution till he left our courts, at the commencement of the present century. His professional business far exceeded that of any other member of the bar. He was retained in every case of importance, and for many years constantly attended the courts in Hampshire and Middlesex." His great success shows that he made the best use of his excellent opportunities. He was a most skill- ful advocate before juries, pleasing in his address, popular from his known public spirit, eloquent and keen. It must have been a task most congenial to his temperament when, as counsel in the celebrated case involving the liberty of a negro, he was called upon to maintain the equal rights of all men under the laws of his native State. The suit was brought by one Jennison against two of the name of Caldwell, for enticing away a negro slave. Sprague was of connsel for the plaintiff. Lincoln's argument, deduced from the laws of God and nature, from the principles for which the Colonies were even then contending, and from the first article of the Massachusetts Bill of Rights the proposition that in this State at least no man could have the right to say that he was the owner of another. So the court decided, and so, from that day, has been the undisputed law.

With public duties and honors Lincoln's life was replete. He sat in the convention to frame the Con- stitution of the State, and in the Congress of the Con- federation. He was State Senator, Councillor, Lieu- tenant-Governor. In 1800 he was chosen to represent his district in the Congress of the United States, but had hardly taken his seat when President Jefferson called upon him to enter the Cabinet as Attorney- General. The duties of that station he discharged with ability and faithfulness so marked as to cause Jefferson to accept with the utmost reluctance and with every evidence of regret his resignation, after four years of service.

In the more limited sphere of his native town he was active for good. In the support of the freedom of religions worship, of common-school education, of

advancement in the arts and sciences, in support of government against faction and misrule, his voice and influence were ever ready. The latter years of his life he spent in a well-earned retirement, enjoying the delights of literature, which his busy life had only permitted him to sip. In 1820 he died, trans- mitting to a line of descendants, as an especial legacy, which they have never surrendered, his great quality of faithfulness to duty.

In 1776 Mr. Lincoln was appointed judge of the Probate Court for this county, and held the office for six years. It was not until after the adoption of the State Constitution that a law was passed establishing and defining the jurisdiction of this court. As has been said, the judges appointed from time to time had been in theory the deputies of the Governor and Council, in whom the jurisdiction really resided. In 1783 an act passed providing that an "able and learned person " should be appointed in each county for " taking the probate of wills and granting admin- istration on the estates of persons deceased," for the appointment of " guardians to minors, idiots, and dis- tracted persons," "examining and allowing the ac- counts of executors, administrators, or guardians," and other kindred matters.

One year after Lincoln, WILLIAM STEARNS, of Lu- uenburg, entered upon a brief career at the bar, which was cut short by his death in 1784. Before he decided upon making the law his profession he had studied divinity and made a beginning in journalism. He was a lovable man, who, even in the short time he lived, made friends of all about him, and left a reputation for kindness of heart, joined with talents, that promised him a successful career. He was asso- ciated with Sprague for the plaintiff in the case of Jennison against Caldwell, to which reference bas been made.

The next admission was not nntil 1780. In that year Dwight Foster, DANIEL BIGELOW and Edward Bangs took the oath. Bigelow was a Worcester man, born in 1752. After graduation at Harvard he tried his hand at pedagogy for a few months. Then, with Stearns, he carried on a newspaper, which lived about a year, when both its editors betook them to the law. Bigelow settled in Petersham, and there won the con- fidence of the community as a counsellor whose ad- vice it was safe to follow, and as a suitable person to be entrusted with legislative functions. For eight years in House and Senate he represented his con- stituents with fidelity, and until his death, in 1806, retained the respect which he had fairly earned.

EDWARD BANGS, a native of Hardwick, was pursu- ing his studies at Harvard when the news spread of the British expedition to Concord, on the 19th of April. He was a member of a company recruited from the undergraduates, which had been drilled in anticipa- tiou that their services might be needed in some snch emergency. In the irregular warfare of that mem- orable day he bore his part courageously. With true

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chivalry he made no war on the defenceless, and saved the life of a wounded enemy whom others were about to put to death. Although the regular course of studies was interrupted by the exciting scenes that followed, he continued to use his books at home, so that when the recitations were resumed he was ready to proceed with his class, and graduated in 1777, at the age of twenty-one. Chief Justice Parsons, then practicing in Newburyport, became his guide through the mazes of the law, his college classmate, Rufus King, being then also his fellow-student. After ad- mission to the bar, in 1780, he formed a partnership with Mr. Stearns for practice in Worcester, but after two years concluded to try his fortunes alone. In this he achieved a moderate success, though a biog- rapher, from whom most of the material for these sketches is drawn, says of him that " In his arguments on questions of law . . . he conceived the matter well, and was methodical in his arrangement, and made strong points, but was not sufficiently lucid in their enunciation."

In 1805 he formed a partnership with WILLIAM E. GREEN, which continued till his elevation to the bench, in 1811.

For several years he held the office of prosecuting attorney for the county. From the asperities and dry detail of his profession he found relief in the study of the classics, in art, in music aud in poetry. He was a great admirer of the beauties of nature and a de- voted horticulturist. At one time he tried his hand at editing a newspaper, and was one of the eleven members of this bar who, at different periods of its precarious and stormy existence, endeavored to bear up the Egis which Francis Blake had intended should throw its protection about the national policy of Mr. Jefferson.

During the disturbance of 1786 and '87, known as " Shays's Rebellion," he contributed by pen, voice and arm to the upholding of the cause of order and good government. When the rioters gained such numbers and cohesion as to threaten some serious danger to the State, he felt it his duty to enlist. The privations of the campaign in the winter of 1786-87-brief though it was-were a severe strain upon his health, the effects of which were felt through life.

In 1811 the old system of County Courts was abol- ished, and the State divided into six circuits, for each of which a Court of Common Pleas was established.

The Western Circuit consisted of Worcester, Hamp- shire and Berkshire Counties. Each court consisted of a chief and two associate justices, any two of whom might hold the court. The jurisdiction was the same as that of the County Courts which were superseded. Mr. Bangs, who was then county attorney, was pro- moted to a seat on the new tribunal, and retained that position till the time of his death, in 1818.

The predecessor of Judge Bangs, in the office of county attorney, was Nathaniel Paine ; born in Wor- cester ; graduated at Harvard, and through life iden-

tified with the town of his birth. Hestudied law with John Sprague, in Lancaster, who was then in himself the bar of the county. That year (1775), however, saw Levi Lincoln's entry upon his professional career, and youug Paine had before him most excellent ex- amples in his instructor and his young rival. With the exception of the four years immediately following his admission to the bar, iu 1781, when he lived in Groton, Mr. Paine spent his life in Worcester. There, one says of him, he " acquired a practice at one time greater in extent, it is believed, especially in the col- lection of debts, than was ever enjoyed by any other professional man in the county." For thirty-five years he discharged the delicate duties of judge of the Probate Court for this county, succeeding Judge Dorr, in 1801. In that court, where the widow and the fatherless, the hapless victim of insanity and the reckless prodigal are brought, in order that the rights, which their own weakness is insufficient to maintain, may be secured to them, it is needful that a man of wide sympathies, of patience and of sound judgment should preside. These qualities Judge Paine possessed, and in his long term of service, which has not its equal for duration in this county, and proba- bly not in the state, they were ripened into the char- acter of a model judge. Some one has observed that, broadly speaking, in the course of a generation, less than Judge Paine's official term, all the property of a county passes through the processes of the Court of Probate.

In 1817 an act was passed " to regulate the jurisdic- tion and proceedings of the Courts of Probate," by which all provisions of previous statutes were codified and the methods of transactiug the business of the court established much as they are in vogue at the present time. In 1823 the system of remuneration by fees was abolished, and fixed salaries established for judges and registers. In Worcester County the judge was allowed six hundred dollars, and the register eleven hundred dollars, the latter office, though of less dignity, commanding a greater salary, inasmuch as it occupied more thoroughly the time of the incumbent. Judge Paine was distinguished for courtesy of man- ner, for a habit of observation, a faculty of retaining in his memory what hesaw or heard, and great facility in communicating his stores of anecdote thus treas- ured up. He was accordingly a most delightful com- panion-one who could entertain, by his own collo- quial power, or who was ready to add to his acquisi- tion by listening to others. He lived several years after resigning his judicial functions, and died in 1840, at the ripe age of eighty-two.

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History of Worcester County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I, Part 7

Author: Hurd, D. Hamilton (Duane Hamilton) Publication date: 1889 Publisher: Philadelphia : J.W. Lewis & Co. Number of Pages: 1576

Author: Hurd, D. Hamilton (Duane Hamilton)
Publication date: 1889
Publisher: Philadelphia : J.W. Lewis & Co.
Number of Pages: 1576