USA > Massachusetts > Essex County > Municipal history of Essex County in Massachusetts, Volume II > Part 46
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MILITARY HISTORY
Patriot's Day, April 19, 1918. The following is a list of those who made the "supreme sacrifice" up to the date of dedicating this tablet:
Oswald E. Apitz, U. S. Regular Army.
Joseph D. Ashkenazy, U. S. Regular Army.
Frank Beevers, U. S. Marine Corps.
Thomas Berwick, British Army.
John Bodkin, American National Army. John Booth, British Army.
Thomas J. Cate, U. S. Aviation Corps. John Cranston, Canadian Army.
Joseph Damphouse, Canadian Army.
Thomas J. Fallon, American National Army.
Charles G. Fyfe, Headquarters Com- pany, 102nd F. A.
Gerry Gaudette, Canadian Army.
William J. Guthrie, Co. L, 104th Inft.
Alfred Hewett, Canadian Army.
Elwood C. Hutcheson, American Nation- al Army.
Samuel Kaplan, Co. F, 101st Inft. (First to be killed).
John Kellett, British Army.
Everett R. Kenney, Battery C, 102nd F. A.
Felix Lynch, Canadian Army.
Warren McDonald, U. S. Navy.
Daniel McGillen, Canadian Army.
Charles A. Martin, U. S. Navy.
Fred Morgan, British Army.
Frank O'Connor, U. S. Regular Army.
Robert Peel, Co. F, 101st Inft.
Joseph Ravich, U. S. Regular Army, (first to die in service).
Thomas Rogers, British Army.
Ernest Russell, U. S. Regular Army.
John J. Sweeney, Co. F, 101st Infantry. Benjamin Townsend, British Army.
Arthur Vaudreuil, Co. L, 103rd Inft. John Welch, Canadian Army.
Salisbury Military History-The action of this town during the Revolutionary period from 1770 to the close of the war, is a record of patriotism and devotion to the nation. There were men from Salisbury who fought at Crown Point, at Ticonderoga, at Quebec, at the fall of Louisburg, at Bunker Hill, and sailors who manned the yards in the old ship "Alliance," and other of our early naval vessels.
The records of this town show that £20 were voted to provide timber, rocks and labor towards stopping the channel of the Merrimac to prevent English ships from entering. More than one hundred men went into the various departments of the war. Thirteen soldiers were paid who went to Providence, and ten were paid who went to points in Rhode Island. The cost of shoes, clothing and blankets furnished the soldiers of the Continental army by the town was £1900 sterling. For fear the British might sail up the Merrimac river, and to further prevent such a thing, the town voted to build two fire-rafts. The money in aid and for defense of Salisbury during that period was loaned by the people of the town, among whom should be named a Mrs. Clark, who contributed £500 ster- ling.
When the Civil War broke out, Salisbury as a town, bore her part bravely and well. The roster of these men covers scores of the best citizens of the town. These served on land and water and they met with the usual losses by death and disease. A few of the sons of Salisbury were in the War with Mexico and in the War with Spain, in 1898-9, when Cuba was set free.
In the recent World War, Salisbury gave of men and money freely. Fortunate indeed was this town that she lost only the following by death from the scores who went into that service from her borders: Frank A. Beevers, killed in action in France; Herbert W. Willmot, died in camp at Devens, as a result of being run over by an auto-truck.
CHAPTER XLVI.
BENCH AND BAR
It is not the conception of the writer of this article that a history" of the Bench and Bar is or ought to be in any sense biographical in its nature; therefore a search through the pages devoted to this chapter of the history of Essex County will result in disappointment to those who peruse it with the expectation or hope of finding therein genealogical facts or tracings of ancestry. It is submitted that no knowledge is gained. of how the Bench and Bar really has developed solely by sketching the lives of the Benjamin Lyndes, Theophilus Parsons and Timothy Picker- ings of each generation of judges and lawyers, their ancestry, education and achievements, right proud though the loyal sons of our ancient county are of the shining lights flashing forth so conspicuously in every age and in every sphere of activity in the progress of Colony and Nation, even from the earliest beginnings on these shores down to the very present.
Beginning with John Endicott and continuing down through the almost three centuries of history, hardly a page of the tale of human progress on the shores of the New World can be turned without meeting there the name of some son of Essex County whose influence has been felt in the march of events which have formed the structure of the Re- public. Were each of these men to be sketched as his activities for the public weal merit, there would be no opportunity in these volumes for anything but biography, and an impossible task would be presented to the writers of the various subject matters to select those who by reason of some particular conspicuousness might be thought more worthy of a place in the sun than others less known but equally influential in the work of building the nation.
It is not an exaggeration nor is it invidious to say that no county in the State or Nation has furnished to manifold fields of service so many sons whose names in their times and in ours are bywords ; when powerful. intellect, leadership in public service, eminence in constructive thought, progressive sturdiness of character and statesmanship, are the measures of excellence. Especially is this true in the men, past and present, of Essex County, whose intellect and thought were trained and directed by education and participation in the practise of law.
It almost seems as though the rugged soil of this old county was from the beginning impregnated with a virus that entered into the veins of its sons and made of them men especially fitted and developed to be judges of great learning and lawyers of distinguished ability,-as though from the very air they breathed in childhood and manhood they found that which formed them by natural process of growth into a preëminence of judicial mentality and legal attainments. And this is strange, too, for
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up to the time of the separation from the mother country there were comparatively few who were trained by actual study in the law; and even judges were chosen, not from members of the bar, but from the laity. No great opportunity was offered the ambitious aspirant for the judicial career for education in the law, and few came from across the water where legal lore was to be had, to try their fortunes in the Colonial courts.
A strange prejudice, (perhaps, as some think, not yet allayed,) early existed against the profession and its members even to the extent of denying them the qualification of being elected to the General Court. That lawyers were considered at least a necessary evil in those early days may be deduced from the appeal made in 1685 by Edward Randolph re- citing that there were only two attorneys in New England and asked the mother country "to send some honest lawyers, if any such in nature." That such unreasonable view towards the profession of the law has ex- isted and to some extent does exist, may not be gainsaid, and is greatly to be deprecated; yet when one thinks of the constructive work of our legal minds in government as well as judicial matters, the conspicuous part played in every crisis of American progress, the quick turn to them for constructive solutions of public problems and the ready self-sacrificing response, the wonderful story of the gradual union into a great nation of a heterogeneous mass of separate entities by the peaceful, steady, incisive, compelling method of judicial decision, one cannot but be filled with a sense of contentment to be even a humble member of such a profession which, even against prejudice and unreasoning distrust forces the hand which unthinkingly scorns, to turn to it in time of need and not in vain, for aid and guidance.
The profession of the law and its practise both at the bar and on the bench is essentially a public one. Each act of judge and counsel, each step in legal procedure, is in essence a making of history ; and there- fore the written story of bench and bar is but a tale of the progress of public affairs in this particular sphere. It is but the culling out of the public record the essentials of the development of the judicature and the tracing of its progress to the present. Necessarily in such a case there can be but little if any variance in the details of the story, for it is all history, all matter of record.
The writer must, therefore, at this point, acknowledge his indebted- ness in great measure to the able and exhaustive histories of the bench and bar and the judiciary by Emery Washburn and William T. Davis. The authors of these volumes must have spent many hours, days and months of laborious study and research to have gathered together the great amount of detail and biographical history appearing therein, but while interesting and of immense value from that standpoint, the pur- pose of the instant article, as the writer conceives it, does not warrant nor can it compass so vast a field.
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It will be the endeavour herein to brief and condense much that has appeared heretofore, rather than extend to what would necessarily with the passage of time be an unlimited length if all the preeminent personages of bench and bar in Essex County were to receive a merited review, for the intervening years have but added in marked degree to the long list of those who stand forth conspicuously in the white light that always beats mercilessly upon the actors on so public a stage as courts and court proceedings. And it is not too much to say that, as the present stars of the legal fraternity in Essex County pass off the stage, their parts played in keeping with the standards set them by their pre- decessors in the long succession, already, to observers like the writer, viewing the participants from side stage, so to speak, can be discerned those not yet at center whose patent destiny is to still further add lustre to the laurels of the profession, as they advance to the places made vacant by those who yield to them the activities of its practise.
The beginnings of government and courts on American soil are found in the original authority for colonization, which really meant parceling out huge portions of land on the new continent. Patents to land under grant of the King to deserving courtiers or adventurers gave rights in immense tracts of territory, the extent of which no one dreamed, and with the limited knowledge which was theirs of what they were under- taking, we of today must wonder at the hardihood of those who con- ceived, planned and carried out the hazardous enterprises involved in the various schemes of planting colonies to which the granting of patents in the new world gave rise.
We are concerned only with those which gave birth to New England, Massachusetts and Essex County. Apparently, the first of which any record appears, in 1606, so far as our inquiry is concerned, resulted in nothing tangible, though undoubtedly it must have caused the thoughts of the speculating public to be turned to the possibilities which it con- templated of new opportunities for pioneering spirits as well as for those seeking profits from the investment of capital in hazardous enterprises. But, however that may be, it was not until fourteen years later, in 1620, that the patent from which the structure of our courts and judiciary derives its authority was granted to Sir Ferdinando Gorges and his associates of the Northern Virginia Company, so-called in distinction to the Southern Virginia Company, each company receiving land located respectively north and south of each other. The associates of the Northern Company were made up of knights, gentlemen merchants and adventurers who came largely from Bristol, Plymouth and Exeter ; while those of the Southern Company were mostly from London. The familiar names of counties and towns in New England may easily be adduced in testimony of the origin of the composition of the Northern Company. The patent or charter applicable to New England was entitled "The Coun- cil established at Plymouth in the County of Devon for the planting or
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ordering, ruling and governing of New England in America," and re- cognized that the mere granting of land was not the sole or final proposi- tion of the Company, and, realizing that the winning of the soil could only be done by successful colonization, expressed in terms the age-old pas- sion of the Anglo-Saxon for local self-government, in that it granted to the associates power to make laws, appoint governors and other officers, and generally to establish all necessary forms of government.
From the Council at Plymouth in 1627-8 came a sub-patent after- wards confirmed by the government to certain persons, granting land ex- tending from three miles north of the Merrimac river to three miles south of the Charles. By sale, this sub-patent came into the hands of John Winthrop, Isaac Johnson, Matthew Craddock, Thomas Goff and Sir Rich- ard Saltonstall, who with John Humphry, John Endicott and Simon Whit- comb, original patentees, formed a new company. Of these, Mathew Craddock was made governor according to the charter, who remained in England taking care of the financial interests of the association at home.
From this formation on English soil came the concrete fulfilment of the scheme when John Endicott led a band of pioneers across the water in 1628 and planted at Salem the beginnings of democracy in the soil of Essex County under the style of "The Governor and Company of the Massachusetts Bay in New England." The charter, granted March 4, 1628, by which they received their authority and under which they acted, provided that the officers should consist of a Governor, Deputy Gover- nor and eighteen associates to be chosen annually by the freemen at a General Court. The General Court, consisting of the Governor, assist- ants and freemen, was to be held four times in each year, and by it officers were to be chosen and laws and ordinances enacted. The charter pre- scribed the holding "upon every 1st Wednesday in Hillary, Easter, Trin- ity and Michalmas as termes respectivelie for ever, one greate, generall, and soleme assemblie, which foure Generall Assemblies shall be stiled and called foure Greate and Generall Courts of the saide Company."
Thus was established in Essex County the first bench and bar, significantly democratic in the simplicity of its makeup. There was no code of legal procedure, no body of the law, save only the great body of the common law which was brought over in the common sense and in- nate character of the Englishmen who comprised the colonial, com- munistic family. The bench and the bar needed not judges and lawyers as such, but resolved itself in its General Court into a sufficient judiciary to serve the necessities of its simple life. Thus it may not be too great a stretch of imagination to place first in the list of bench and bar of Essex County the name of John Endicott, the first Governor chosen after landing at Salem, as the first Chief Justice, and all the freemen of his plantation as associate justices and bar.
Endicott was succeeded as Governor by John Winthrop in 1629, due to changes in plans at home. He came to the colony in 1630 and assumed
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the office under the new provisions of the charter, the seat of the govern- ment being transferred then to Boston, where the first General Court was held on October 19th of that year.
Under such a system, the growth of the judicature of the new world can be traced only through the development of the methods of govern- ment with which it was so closely intertwined, emerging therefrom only with the diversification and increasing complications of life as the colon- ists spread further and further from the centre of the communal society by its gradual expansion in winning the wilderness from savagery and waste, into a separate and distinct activity more and more specialized as the intricacies of life multiplied law and its application, even down to its present aspect in a civilization replete with the complexity of society carried to the nth. degree.
At the first General Court in Boston, the original democratic aspect of governmental activity underwent a radical change when the people surrendered to the assistants the election of Governor and Deputy Gov- ernor, and to the Governor, the Deputy Governor and assistants the enact- ment of laws, and retained to themselves only the election of assistants. Apparently this proved unsatisfactory to the self-governing instincts of the rapidly increasing body of immigrants, for by 1636 we find that the General Court had taken back the right to elect Governor and Deputy, as well as assistants, and also the exclusive power of enacting the laws.
The difficulty of travel from outlying posts of civilization and the in- convenience to freemen to meet in general council, brought about the inevitable change from personal participation in the affairs of govern- ment on the part of the individual members of the company, and the system of representative government found its birth in the physical ne- cessities of the situation in which the adventurers found themselves. The whole body of freemen assembled annually in the meeting house at Bos- ton, at which time delegates were chosen to perform the functions of government which it was originally intended should be participated in by all, but even this occasioned too much hardship, and it was provided that the freemen of Salem, Ipswich, Newbury, Saugus, Weymouth and Hing- ham might hold their election at home and send in their votes to the annual meeting by proxy, and this was afterwards made applicable to all the towns. Thus may be seen the beginning of the idea which sub- sequently developed into the formation of counties and county govern- ment.
The deputies from the towns representing the freemen, at first met and sat with the assistants, and this continued down to 1644, when a dispute arose as to whether a majority of both bodies sitting together determined the matters pending before them, as claimed by the deputies, or, as asserted by the assistants, whether there was a concurrent power on the part of the latter, virtually a veto. The result of the controversy was that the two bodies should no longer be combined, but should re-
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solve themselves into two branches of government, each with power of concurring or vetoing the decisions of the other. Over the Court of Assistants the Governor presided, while the Court of Deputies elected a. Speaker as its ruling officer. Thus was created a two branch General Court which has survived in the Senate and the House of Representatives of a later day.
The inherited training of the English mind for law and order, im- bibed from long generations of struggle for equality before the law, did not lose itself in the vast wilderness of the New World, but rather seemed to expand and grow amid the new surroundings with their un- tried experiences, and so as early as 1636 we find the attempt to carry that innate characteristic into concrete expression when the colonists provided for four courts to be held each quarter-one at Ipswich, to which Newbury shall belong; two at Salem, which included Saugus; and others with like subdivisions in other parts of the new Commonwealth. These courts were held by such magistrates as dwelt near the towns mentioned and by such other persons as might from time to time be appointed by the General Court, which designated the particular magistrates or per- sons who were to hold court at the particular places to which they were appointed, care being taken that no court should be held without at least one magistrate.
With the magistrates were to sit such persons as the General Court should designate as assistants, who were chosen out of a number of nomi- nees by the various towns. The total membership of the courts was to be five, including the magistrates. They had jurisdiction of all civil causes involving not more than ten pounds, and in criminal matters not to include any punishment concerning life, member, or banishment. An appeal lay to the next great Quarter Court, which must be pursued dili- gently, and if found frivolous the appellant was appropriately punished. The sessions of the Great Quarter Courts were held at Boston by the Governor and Assistants,-one each in June, September, December and March.
It should be borne in mind that the use of the word magistrates in the early provisions for courts as distinguished from the General Court, which was the assemblage of all the freemen and later by delegates or deputies, was synonymous with assistants, so that the judicial power of the colony was vested in and retained by them to the exclusion of the socalled more popular branch. This was definitely established as the judicature until 1639, when it was provided that because the business be- fore the Court of Assistants had grown to such proportions that it could not be expeditiously handled, the magistrates who lived near Boston were authorized, or any five, four or three of them, to assemble together and hear any civil cases involving not more than twenty pounds and any criminal cases not extending to life, member, or banishment, according to the course of the Court of Assistants, and to summon jurors out of
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the neighboring towns, the marshal and other court officers attending as at other courts.
Under the act of 1636 establishing the Quarter Courts, the magis- trates and persons appointed to hold court by the General Court were: for Salem and Saugus-John Humphry and John Endicott, magistrates, and assistants, Captain Turner, Mr. Scrugge and Mr. Townsend Bishop. Of the court, Ralph Fogg was named clerk. For Ipswich and Newbury -- Thomas Dudley, Richard Dummer, Simon Bradstreet, magistrates, and Mr. Saltonstall and Mr. Spencer associates, with Robert Lord as clerk.
The first Quarter Court at Salem was held June 27, 1636, with Magis- trate John Endicott and the assistants, Nathaniel Turner, Townsend Bishop and Thomas Scrugge present.
The first recorded case in the files of the clerk of the courts in Salem is after certain fines for non-attendance by jurymen and constables and a sort of ordinance relating to a survey of canoes, that of Phillip Verin vs. Francis Perry. What it is about, does not appear; but at the next session, July 27, 1636, fines were meted out for various offences, such as to Wm. James and his wife Elizabeth, who were bound over to appear at next court in Boston to answer for confessed uncleanness; James Smith and others, fined for taking excessive wages ; Thomas Brooke, fined 100 shillings for being overseen in drink; John Adams, whipped for run- ning away from his master; and Thomas Scrugges, fined 5 shillings for a pound breach. As there could be hardly two of the last named in Salem at that early time, and as one of that name was one of the assistant judges of the court, it may well serve as an illustration of the impartiality and evenhanded justice of the first court of Essex County.
Under the civil cases heard at this session appears: Robert Cotta vs. Sargt. Dixie, assault and battery ; Michaell Sallows vs. James Smith, trespass; George Emerie vs. Ben. Felton; Mathew Weston vs. Richd. Hutchens, Debt.
As one reads the proceedings and decrees of those early sessions, it stands forth as evidence that rules of law and the technicalities of practise found no place, justice being dispensed according to the dictates of common sense and the principles of natural justice between man and man.
On the 2nd of June, 1641, a further step in the judicial development of what was to be Essex County was made when the General Court pro- vided by its enactment "to ease the country of all unnecessary travalls and charges," that there should be four Quarter Courts held yearly by the magistrates of Ipswich and Salem with such assistants (called commis- sioners) as might be appointed by the General Court, but not to exclude any of the magistrates who might desire to help. Two of the Quarter Courts were to be held at Salem and two at Ipswich, each town alter- nating with the other at stated terms. The magistrates of both places were to attend, but no jurymen were to be summoned from Salem to Ips-
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wich nor any from Ipswich to Salem. In addition a Grand Jury was pro- vided for to sit once a year :
Wheras it is desired by this court to ease the country of all unneces- sary travels and charges, it is ordered that their shall be 4 quarter Courts kept yrly by the matrats of Ips & Salem wth sch others to be joined in commission wth them as this court shall appoint, not hindering any other matrats that will help them; this order to take effect after these 2 1-4 courts shall bee ended at Salem and Ipswich, 2 of thes 1-4 courts to bee kept at Salem and the other at Ipswich, the first court to bee kept the last 3rd. day of the 7th. month at Ipswich (and the rest at the same time former courts were), the next 1-4 at Salem, the 3rd 1-4 at Ipswich the 4th. at Salem and the matrats of Ipswich and Salem to attend every of these courts but no jurymen to be warned from Ipswich to Salem nor from Salem to Ipswich. To each of these places a grand jury shall be warned once a yeare and these courts to have the same power both in civill and criminal causes, the court of assistants hath at Boston except tryalls for life, limb or banishment wch are wholly reserved to Boston Court, provided, it shall be lawful to appeal from any of these courts to Boston. And it shall bee in the liberty of any plaintiffe that hath an action of above 100 pounds principall debt to try his caus in any of thies courts or at Boston the fines of these Courts to defray the charges of the same and the overplus to be returned to the Treasurer for the publique. And Salisbury and Hampton are ioned to the jurisdiction of Ipswich and Salem and each of them to send a grand jury man once a year.
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