History of the Connecticut Valley in Massachusetts, with illustrations and biographical sketches of some of its prominent men and pioneers, Vol. I, Part 35

Author: L.H. Everts & Co
Publication date: 1879
Publisher: Philadelphia : Louis H. Everts
Number of Pages: 700

USA > Massachusetts > History of the Connecticut Valley in Massachusetts, with illustrations and biographical sketches of some of its prominent men and pioneers, Vol. I > Part 35

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In 1641 the General Court of Massachusetts took cogni- zanee of the matter, "and Pynehon was authorized to exer- cise an extensive civil and criminal jurisdiction."

The right of appeal to the Court of Assistants, at Boston, was granted in difficult and weighty cases.

Mr. Pynchon continued to exercise this jurisdiction down to the year 1650,2 at which date he was suspended from his office in consequence of the publication of a theological pam- phlet by him, which was adjudged as heterodox.

Ilis son-in-law, Henry Smith, was appointed in his place, but both he and Mr. Pynchon soon after returned to England. In 1652 a joint commission was given to three persons, of whom John Pynchon was one, having similar powers before possessed by the single magistrate.

In 1658 authority was given to the commissioners of Springfield and Northampton, united, to hold courts alter- nately at those places ; and by the same authority the right of appeal was granted to the County Court at Boston, instead of to the Court of Assistants. This arrangement continued until the erection of Hampshire County, in March, 1662.

There would seem to have heen very little respect shown to the lawyers of those days, and the business of the profession was anything but a lucrative one.

An ordinance passed by the General Court in 1663 shows the estimation in which the profession was held in the carly days and the manifest determination to keep it in the back- ground. It prohibits every person " who is a usual and com- mon attorney in any inferior court" from being admitted to sit as a deputy in the General Court, and the regulation con- tinned in force until the expiration of that charter.

According to Mr. Bliss, the earliest record of attorneys admitted to practice in Hampshire County bears date Sep- tember, 1686. The parties were John King, of Northampton, and Samuel Marshfield and Jonathan Burt, Sr., of Spring-

* In 1862 Mr. Grinnell went to Washington, D. C., as chief clerk of the De- partment of Agriculture, where he served three years, when he was appwinted chief clerk of the Patent Office, where he remained for ten years. He is a meni- ber of the New England and Massachusetts Agricultural Societies, and of the State Agricultural Board of Massachusetts; and is also connected with other similar associations. See chapter on the Bar.

+ The three following chapters have been compiled largely from the addresses ot Hon. George Bliss, 1826, Hon William G. Bates, EN74, and Hon. Whiting Gris- wold. 1873, suppdemented with such additions as we have been able to make from information gathered from varions authentic sources.

# In explanation of Mr. Pynchon's powers it is specifically stated that his au- thority " shall extend to all canses, vivil or criminal, subject to an appeal to the Courts of Assistants, with a jury of six mien, until they shall have a greater num- ber for that service."-Hon. W. G. Bates' address, page 1%.

¿ Non. Wm. G. Bates makes this date 1651. For further notice of Mr. Pyn- chon see general chapters of early history in this work.

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field, who took the oath for the faithful performance of their duties. In addition to these, he states that there were several others incidentally mentioned as attorneys, though there is no written evidence of their having been admitted to practice.

There seems to be very little information concerning the legal profession on record during the colonial period from 1620 to 1691, when the new charter was granted. During the second period, from 1691 to 1743, the records are more full and explicit, though a portion of them are missing; but it appears certain that the practice of the law throughout llamp- shire County, and probably the entire province, was consider- ably improved.

Touching this matter, Mr. Bliss says: "There were some general regulations which had a tendency to produce this re- sult. A Superior Court was substituted, in the several coun- ties, for a Court of Assistants, and Courts of Common Pleas for County Courts.

" At first no time or place was fixed for holding the Supe- rior Courts in the county of Hampshire; but appellate juris- diction was given to the court holden at Boston, with power to the Governor and Council to order a Superior Court to be holden in the county as occasion should require; but in the year 1699 a Superior Court was ordered to be holden once a year at Springfield ; and in the year 1771 an addtional term of that court was directed to be holden annually at Northampton. These courts were continued without interruption till all the courts of justice in the county were stopped, in the year 1774.

" By a law passed in 1692, the Courts of Common Pleas were expressly authorized to establish rules of practice. At the same time liberty was given to plaintiffs, if they should so elect, in all cases where the demand exceeded ten pounds, to institute their suits at first in the Superior Courts. In the year 1701 the form for the oath of an attorney was prescribed, which is in use to this day .*

" I have not been able to ascertain that the Court of Com- mon Pleas established any rules of practice, except one affect- ing attorneys living out of the province and practicing in our courts, which imposed some restraints upon them, and regu- lated the costs which they should tax. These rules also pro- vided that a person not residing in the State should not be admitted to take the oath of an attorney, and that none who had not taken the oath should tax attorneys' fees ; that there should be no costs taxed for the writ from the clerk's office. No taxation to be allowed further than there was actual at- tendance. An attorney might elect to take his fees or his client's travel and attendance, but not both. These rules were adopted at the March term of 1728."

Between the years 1694 and 1720 there is a chasm in the court records, and the names of attorneys practicing during that period cannot be given. Mr. Bliss mentions John lug- gins and Christopher Jacob Lawton as being residents of Springfield in 1686 and subsequently, and as having consider- able practice,-probably more than any other persons. llug- gins, in particular, had an extensive practice, and was an attorney of excellent information. He subsequently removed to Lower Housatonic (now Sheffield), where he continued in practice, and was succeeded by his son. llis declarations were drawn with much formality.

Lawton was regularly admitted in 1726, but very little is known of his subsequent career.

Samuel Partridge, who had been clerk of the court, is men- tioned as an attorney, and, after the year 1720, as chief-justice of the Court of Common Pleas.

Among the prominent men mentioned is Timothy Dwight, of Northampton, who was regularly admitted at the August term in 1721, "continuing many years in reputable prac- tice," and subsequently held the office of judge. The names of William Pynchon and Josiah Dwight, of Springfield,

are also given, but the date of their admission to practice seems not to have been known. John Ashley, of Westfield, was admitted in 1732, and at the March term of 1733 the names of Joseph Dwight, Esq., of Brookfield (now in Wor- vester County), and Oliver Partridge, of Hatfield, appear of record. There is no mention of their legal acquirements other than that shown by the records.

Cornelius Jones, a resident of Springfield, and a tailor by trade, is mentioned as having commenced practice as a petti- fogger in 1732; was regularly admitted in 1752, and con- tinued in practice down to 1765. He is said to have been peculiar, and perhaps eccentric, in his manner of doing busi- ness, but, notwithstanding, had about as much practice as any attorney of his day.

It would appear, from information obtained by Mr. Bliss, that the attorneys practicing in the western part of the State previous to 1743 had few books, and those not the most valu- able. He says, " In the latter part of this period three of the judges of the Court of Common Pleas had been prac- ticing attorneys,-Samuel Partridge, John Ashley, and Henry Dwight. At a later period Timothy Dwight and Josiah Dwight were also judges ; and at one time, after the year 1743, the three Dwights above named were on the bench together.

" Though there is plenary evidence that the practice had been, for several years before the year 1743, gradually im- proving, yet it was in many respects incorrect, and knowledge of legal principles was imperfect. From that time both were very much advanced. This ought to be attributed principally to three men,-Phinchas Lyman, of Sutfield, John Worthing- ton, of Springfield, and Joseph Hawley, of Northampton."

GEN. PHINEHAS LYMAN was born at Durham, Conn., in 1716, graduated at Yale College in 1738, and was a tutor in that institution for three years. In 1742 he left that position, and was soon after admitted to practice law, probably at New Haven, whence he came to Suffield, then considered a part of old Hampshire County, and commenced practice in 1743. Ilis business soon became extensive for those days. Mr. Bliss says : " He was a distinguished advocate, and afterward an able politician and renowned officer." lle continued in practice until 1749, at which date Suffield renounced the jurisdiction of Massachusetts, which result the general, according to his biographer, Dr. Dwight, was very instrumental in bringing about, though what the motives were, which impelled him to this course, are left to conjecture.

The general had a small but valuable library, including several ancient authors. From the date of separation between the two colonies, he probably withdrew from practice in Mas- sachusetts.

Upon the breaking out of the French war in 1755, we find him holding a prominent position in military circles as com- mander-in-chief of the militia of Connecticut, and the same year he served with Sir Wm. Johnson in the campaign around Lake George. He was second in command at the series of battles fought on the 8th of September in that year, and when Sir William Johnson was wounded took the command, and de- feated the enemy under the Baron Dieskau, who lost their commander and many men, killed, wounded, and prisoners.

He was also with Abercrombie at Ticonderoga in 1758, at the capture of Crown Point by Amherst in 1759, and at the surrender of Montreal to the same officer in September, 1760. In 1762 he commanded the provincial troops in the Havana expedition. Subsequently he went to England, where he remained for several years, endeavoring to procure grants of land in the Mississippi Valley for the purpose of es- tablishing a colony. In this he was at length successful, and, in 1775, embarked with his son and others for the Mississippi country, but died in West Florida, on his way thither, in the same year.

Worthington and Hawley were both students of Gen. Ly- man. The former commenced practice in 1744, and the latter

* 1826.

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about 1749. " Contemporary with these, in the early part of their practice, were Oliver Partridge, of Hatfield, Charles Phelps, of Hadley, Josiah Dwight, then of Westfield, John Ashley, of Lower Housatonic, and Cornelius Jones, of Spring- field. Jones died in 1765."

The following list of barristers and attorneys who were practicing at the elose of the third period, in 1774, is from Mr. Bliss' address. It includes, as will be noticed, the names of five who were residents of Berkshire County, but who practiced before the Superior Courts in Hampshire County : John Wor- thington, of Springfield, barrister ; Joseph llawley, of North- ampton, barrister ; Charles Phelps, of Hadley ; Moses Bliss, of Springfield, barrister; Mark Hopkins, of Great Barring- ton ; Simeon Strong, of Amherst, barrister; Thomas Wil- liams, of Stockbridge; Timothy Danielson, of Brimfield ; Elisha Porter, of Hadley ; Jonathan Bliss, of Springfield, bar- rister ; Daniel Hitchcock, of Northampton; Theodore Sedg- wick, of Sheffield, barrister ; Thomas Bridgman (quære, of Brimfield) ; Jonathan Ashley, of Deerfield ; John Phelps, of Westfield ; Justin Ely, of West Springfield ; Samuel Field, of Deerfield ; Elijah Williams, of Deerfield ; William Bil- lings, of Sunderland; Samuel Barnard, of Deerfield ; Wood- bridge Little, of Pittsfield; Samuel Fowler, of Westfield ; John Chester Williams, of Hadley ; Caleb Strong, of North- ampton, barrister ; David Noble, of Williamstown. Several of these, according to Mr. Bliss, including the Williamses, Danielson, Bridgman, and Hitchcock, were mostly retired from practice.

Mr. Bliss observes that previous to the advent of Wor- thington and Hawley " the practice was very illiberal ; techni- cal distinctions were much in vogue. This practice continued for some time after their admission, but it seems gradually to have gone out of use, and a more free and liberal course was adopted.

" While Worthington and Hawley were at the head of the profession in this county the Bar adopted a number of rules of practice, and, among others, the important one requiring three years' study before a recommendation for admission should be given. From the first establishment of courts to that time there seems to have been no rule, no settled, uni- form practice, on this subject. Probably the courts generally required some previous study, and it has been said that a year had been many times required.

" This rule was adopted but a short time before the Revolu- tion. These regulations originated with the Essex Bar. That county has always been among the foremost in improvement in the knowledge and practice of the law. . . . Some respect- able members of the Bar, when this rule as to admission was proposed, doubted whether the term of study was not too long, but, after thorough experiment, became well satisfied with it."

WILLIAM PYNCHON, EsQ., of Salem, was a native of old Hampshire County, though he neither studied nor practiced in the county of his birth. He removed to Salem in 1745, and read law with Mr. Sewall. lle died in 1790.

In speaking of the Superior Courts, and the customs of the early days, Mr. Bliss remarks, " After the Superior Courts were ordered to be hoklen in this county, eminent counsel from Boston very frequently attended. The appearance of the Superior Court of that period was adapted to fill the mind with respect. It came into the county but once a year, and was ushered into it by the sheriff with his posse. The dress of the judges while on the bench-their robes and wigs-added to the majesty of their appearance. I saw the court when a boy ; and after making all due allowance for the effect upon the mind of a child, I feel confident that no earthly tribunal could inspire greater reverence than its appearance did on my mind. I must believe that there was much in its appearance well adapted to command veneration and respect. The attor- neys of that court were all obliged to dress in black, and the barristers, when in court, to wear black gowns. To me it has

been a subject of regret that no peculiar costume has been retained or adopted by the Bench and the Bar. When I saw a chief-justice of the United States dressed, while on the bench, in a drab or mixed russet suit, it appeared to me out of character. I know that such a man as Chief-Justice Jay cannot fail to command respect and veneration, but we ought not to reason from the effect produced by a Jay or a Parsons to ordinary cases.

" After Worthington and Hawley came to the Bar they soon acquired a distinguished reputation, and were employed in all important trials. Associated with them, though much their juniors, were Simeon Strong, Moses Bliss, and Jonathan Bliss, and, toward the close of their practice, Mark Hopkins, Theodore Sedgwick, and Caleb Strong."

The northern section of the county, constituting the present county of Franklin, was much more recently settled than the southern and middle portions, and many of the towns were then entirely unsettled. This was also the ease with the northern part of the county of Berkshire.

" For a short time before the Revolution, Ashley and Bar- nard were at Deerfield, Billings at Sunderland, and Field, as 1 believe, at Conway ; Woodbridge Little at Pittsfield, and David Noble was at Williamstown. These, I believe, were all that were in practice in the northern part of these counties.

" In the present county of Hampshire I cannot find that there were attorneys in any of the towns except Northamp- ton, Hadley, and Amherst. And in the limits of the county of Hampden there were none except within the limits of what was then Springfield and Westfield; for I think it uncertain whether either Danielson or Bridgman were in practice at Brimfield as late as the year 1774. Pleading, during this period, acquired in general the same standard which it now (1826) has. This, however, must have been gradual rather than sudden. Though Worthington and Hawley made rapid improvements, considering the disadvantages under which they labored, yet it is not to be supposed that they could pro- duce an instantaneous revolution. It took them some time to procure libraries and become themselves sufficiently in- strueted, and it must have taken time to induce the court and their seniors at the Bar to conform to their standard. . . . In proportion to its numbers, this Bar has at no period had mem- bers of superior legal ability to that which immediately pre- ceded the Revolution."

The following paragraphs upon the lives and characters of Col. Worthington and Maj. Hawley are from Mr. Bliss' ad- dress :

" COL. WORTHINGTON was a native of Springfield, born Nov. 24, 1719. He was educated at Yale College, where he graduated in the year 1740, and where he was some time a tutor. He left there in 1743, and read law a short time-as is supposed, about a year-with Gen. Lyman, at Suffield. He commenced practice in 1744, at Springfield, where he resided till his death.

" I have not been able to find any record of his admission, nor that of Lyman Hawley. His legal attainments were highly respectable. He usually attended the courts at Wor- eester, and, after Berkshire was made a county, the Court of Common Pleas there. ITis practice was very extensive. He was public prosecutor, or king's attorney, for this county. I never heard him argue a cause to a jury ; but, from what I have known of his method of managing controversies, I have no doubt but he was an able advocate. His mind was ardent, his imagination lively, his feelings strong. His ideas were apt to flow in torrents, and he had great command of lan- guage. He was many times very powerful. If he had any fault as an advocate, it was this,-that, being very forcibly impressed with his subject, he would sometimes forget the condition of those whom he addressed, and, not always real- izing their feelings, he would urge a topic beyond what it would bear. llis style was nervous, forcible, and uncom-

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monly correct. He had a taste for general science, and his knowledge was not confined to law and politics.

"From the interruption of the courts in Angust, 1774, to the time of his death, in April, 1800, Worthington lived re- tired from publie and professional business. Having been thirty years in practice, and during that time conversant with the judges and familiarly acquainted with the eminent law- yers of his time, he was capable of communicating much legal information while his health and ability to converse were con- tinued, and many interesting particulars of the course of prac- tice and of the character of the eminent jurists of his time, and was very free to do it. I had frequently the pleasure and benefit of his instructions. As he had been for many years so situated as to form a very extensive acquaintance, and lived to a good old age, he had many of his friends and acquaintances to visit him and enjoy his conversation. Ile died in the eighty-first year of his age .*

"Of MAJ. HAWLEY I know much less than of Col. Worth- ington, but the information I have is derived from those who were many years associated with him in practice. He was born at Northampton in 1724, and graduated at Yale College in the year 1742. After he left college he studied divinity, and was a preacher for several years, though he was never settled in the ministry. Ile officiated as a chaplain in the pro- vincial army, and was at the siege of Louisburg. After this he studied law with Gen. Lyman, at Suffield, but for how long a time I have not been able to learn. Ile came to his native place, and went into practice there. The precise time when he began to practice is not ascertained. The first notice of him as an attorney in court is at the May term, 1749, which, by tradition, is the first year of his practice.

" Ilis practice was extensive, though more circumscribed than that of Worthington. He did not usually practice in Worcester County, but regularly attended the Berkshire courts after they were established. He was grave and solemn in his demeanor, was strictly conscientious, and had an in- stinctive abhorrence of anything approaching to deceit. Ju- ries had confidence in his assertions; their opinion of his stern and undeviating integrity made them very ready to listen to him. His opinions had, with them, great weight. It was said, and generally believed, of him that he would not engage in a cause until he was fully persuaded that his client had right and justice on his side.

" When Hawley was satisfied of the justice of his cause his arguments were very powerful and convincing. When a point of law was to be taken he would meet the case fairly, and reason upon it as a sound logician. Hawley's judicial science was profound. lle was peculiarly attached to the old English black-letter law. He was very attentive to forms and tenacious of ancient English precedents. Compared with Worthington, he was probably more conversant with Bracton, Britton, Fleta, and Rastell, but not so well acquainted with the more modern authors, and less acquainted with the various branches of commercial or mercantile law.

" Hawley was a very active and zealous magistrate. He was subject to turns of great depression of spirits. The general tenor of his manners made him more in favor with the people than with the court.

" Worthington, though very popular among his own towns- men, was more courtly in his manners, and, being thought to stand high with the provincial government, had less general popularity. They were generally engaged on opposite sides in court. When they were united a successful opposition to them rarely occurred. They were both correet special pleaders, and could not endure to have legal proceedings in any other than appropriate technical language.

" Maj. Hawley, in the year 1767 or '68, fell under the censure of the Superior Court and was suspended from prac- tiee. At the next term he was restored at the motion of Col. Worthington. The precise state of the case I cannot give, but have always understood that there was no imputation on Hawley's character in the affair. He was counsel for some persons in the county of Berkshire who had been indicted for being concerned in a riot. In the course of the trial he made some observations which the court considered as having too much of the spirit of liberty to be permitted to pass without animadversion.

" Worthington and IJawley had the honor of numbering among their pupils those who would be ornaments to any Bar. Hawley never practiced after the year 1774, but occa- sionally presided in the Court of Sessions as the oldest magis- trate in the county. He died in March, 1788, aged sixty-four years."

President Dwight, in speaking of Hawley, uses this lan- guage: " Many men have spoken with more elegance and grace. I never heard one speak with more force. His mind, like his eloquence, was grave, austere, and powerful.

" Worthington and Ilawley were both men in whose honesty and fairness those who knew them intimately would place unbounded confidence. Hawley retained more of the man- ners of our Puritan ancestors. Worthington had long been conversant with the most polished society in our country, and added to great acquisitions as a lawyer those of a scholar and a gentleman. Though their manners were very different, a dishonest, unprincipled man would choose to keep out of their way.

" That Worthington and Hawley should, with the means then in their power, have acquired such eminence is a proof of great talent and industry. It is also evidence that a thor- ough knowledge of the law, as derived from its ancient sources, will make a man respectable without reading every modern publication.

" Hawley's law-library consisted principally of ancient authors. Worthington had a much better collection of more modern authors."

MOSES BLISS graduated at Yale College in 1755, after which he studied divinity and preached for a considerable time. Subsequently he read law a year with Col. Worthing- ton, and was admitted to the Bar in November, 176I. It appears that he practiced several years before his admission, which would seem from the records to have been a common occurrence in those days. He retired from practice in 1798.

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History of the Connecticut Valley in Massachusetts, with illustrations and biographical sketches of some of its prominent men and pioneers, Vol. I, Part 35

Author: L.H. Everts & Co Publication date: 1879 Publisher: Philadelphia : Louis H. Everts Number of Pages: 700

Author: L.H. Everts & Co
Publication date: 1879
Publisher: Philadelphia : Louis H. Everts
Number of Pages: 700