Our country and its people; a descriptive and biographical record of Bristol County, Massachusetts, Part 68

Author: Borden, Alanson, 1823-1900; Boston History Company, Boston, pub
Publication date: 1899
Publisher: [Boston] Boston History Company
Number of Pages: 1399

USA > Massachusetts > Bristol County > Our country and its people; a descriptive and biographical record of Bristol County, Massachusetts > Part 68

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OUR COUNTY AND ITS PEOPLE.

Jurors for Tryals.

Abraham Hathaway, Foreman.

John Allen

Isaac Chapin

Bristol.

John Barnee

Samuel NewMan, Jun'r. -

Nath: Whittiker

Rehoboth.

John French

William Chase Joseph Kent, Jun § Swansey.

Sworn Edward Adams put in Maj. Brad- fords case.

At "His Majesties Court of Common Pleas held at Bristol, July 14, 1696," and "again, January 12, 1696-7. Present John Saffin, Esq., President. Justices present Capt. Jno. Brown, Capt. Thomas Leon- ard, Capt. (Nicholas) Peck Esqr."

The next record is of " His Majestyes Superior Court of Judicature holden at Plimouth for the Countys of Plimouth on the second Tues- day of March, 1696-97." The actions tried were chiefly for debt and trespass, and cases of appeal from lower courts and single justices.

In 1698-99, January 10, is noted the holding of the "Inferior Court of Common Pleas at Bristol." The names of attorneys found in that connection are John Spurr, Eliezer Carber. On April 11, 1699, the name of Robert Crossman appears as attorney; and October 10, 1699, that of Nich. Moorey.

On January 9, 1699-1700, the Inferior Court met at Bristol, with the same justices as before. Then follows this record :

Nicholas Moorey pltt, versus Henry Gashett, Def. The pltt bringeth his action of Case to ye Damage of fifty pounds for that the sd Gashett did deceitfully and insuf- ficiently Build the Hull and Head of the Barque Goodspeed in Taunton, the work- manship of said vessell not being done and p'formd workmanlike.

The defendt by his attorney pleaded that the writt might abate for the uncertainty thereof, the Court allowed the same and gave judgment that the defendt have his bill of costs. Costs allowed. € 03 00 10

which cost was by the pltt payd to the defendt. Attest Jnº Cary, clerk.

Then Henry Gashett pltt brings action to recover 5 pounds 5 shillings justly due, as he saith for 3 weeks, 3 days work done and performed (faithfully) by sd Gashett and his bro. David Gashett, beginning sometime in the mo. of May, was in year 1696-97 upon ye Hull of a certain vessel described as in the writt. Deft pleads pltt did not work no time faithfully. Verdict against Pltt. He appealed to Superior Court.

Abraham Hathaway Jonath: Briggs John Smith

Taunton.

Dismis Tho. Briggs In Maj. Bradford Case Joseph Earl

Dartmouth.

John Irish } Little Compton. John Coe

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THE BAR AND JUDICIARY.

Already Taunton had made vigorous efforts to the end that some of the courts should be held there. The following vote shows this fact :

This 11th day of May, 1693, the town hath voted: Whereas we the inhabitants of Taunton judging it to be for ye public benefit of ye province that at least one of ye Superior Courts, if not some of ye Inferior Courts, be kept at Taunton, it being so much in ye centre of ye colony, and ye greatness of our number, compared with our neighbor towns, do order the selectmen to write a petition to ye next General Court to be held by ye Governor Council and Representatives, that we may have one or more of ye Courts held in Taunton.

The Selectmen sent up a strong petition, giving in detail the reasons why Bristol was no more entitled to the courts than Taunton, and why for the convenience of the settlers they should be held in Taunton. A part of these reasons are stated in the following from the petition :

Most of the actions and lawsuits arising in any Town in this County (except in Bristol itself) are concerning the titles and bounds of lands, in which cases the most ancient inhabitants are best witnesses, having been present at the bounding of most lands, and whose memories are our best records, through the brokenness of ancient times. These ancient witnesses are too old to travel twenty miles to Court, and the presence of a grave ancient person orally attesting to what he knows and explaining his testimony, is of far more advantage to a case than some shattered evidence he sends from home in writing.

6th. Taunton is nearer to Boston than Bristol is by twenty mils at least, which will save so much riding through very bad way for the honored judges of the Circuit in case the Superior Court be removed from Bristol to Taunton.

Upon these grounds our Town humbly desires that they may enjoy at least one or more of the quarter Sessions and one Superior Court be removed from Bristol to Taunton.

Subscribed in behalf of town by James Leonard, Henry Leonard, Thomas Dean, Shadrach Wilbore, Peter Walker, Selectmen.

The efforts of the Taunton men were unsuccessful and the town had to wait more than fifty years for its courts.

It was some years after the settlement of the colony before the shire was introduced as a territorial subdivision and a part of the governing power through its inhabitants. So long as the assistants or the General Court were able to discharge the functions of a higher judiciary for all important cases, and the colonial marshals could execute their processes, town government sufficed; but with the increase of settlements, and the vast expansion of business, arose an important demand for a dis- trict between the province and the isolated committees. The judicial system of the shire was reorganized under the second charter in 1691 and brought into closer harmony with the cotemporary English model. For example, the criminal jurisdiction and the ministerial or general

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OUR COUNTY AND ITS PEOPLE.

administration business of the old County Court were transferred to the so-called "Quarter Sessions," or, as it was subsequently styled, the "General Sessions of the Peace." In addition to its judicial work, this court performed the duties of the modern Board of County Commission- ers. While during the first stage in the evolution of the Massachusetts shire (1636-43) the general functions of the County Court were rudi- mentary; during the second stage (1643-91) and the third (1691-76) the status of that court as a county board of civic administration rapidly increased in importance.

From the evidence thus far adduced it is clear that the three courts (the Superior Court of Judiciary, the Court of the General Sessions of the Peace, or the Quarter Sessions, and the Inferior Court of Common Pleas) were in full operation very soon after the erection of Bristol county. The officer of the County Court was the marshal, superseded after 1791 by the sheriff and clerk. The latter, in addition to his duties in keeping the judicial records, was ex officio recorder of the county, thus performing the duties of the modern county clerk.'

The jurisdiction of the old County Court extended over all criminal matters the punishment of which did not extend to loss of life, member, or banishment. Aside from the earlier records before quoted from, the first recorded proceedings of this court are for the year 1702, from which the following extracts are taken as showing the character of cases and measure of punishment prevailing at that period :

On the 14th of April, 1702, William Earle, of Swansea, being presented for pro- fane swearing and summoned to appear to answer for the offense, came and pleaded the province law, to wit, such offenses must be proved against the offender within thirty days after the offense is committed, was admonished therefor and dismissed.

July 14, 1702. "Samuel Waldron, of Taunton, being presented for not attending public worship of God on the Lord's day, appeared upon the summons and pleaded

1 The office of constable was an important one in the early history of the county. During the colonial period it was considered a post of honor and responsibility, as representing the civil government and being the chief exponent of law. Only trustworthy and respectable persons were chosen, and such as they frequently shrank from the duties of the position. Hence, fines were imposed in cases where men refused to take the office without sufficient excuse. In Taun- ton in 1696, John Deane, Isaac Deane, James Leonard, jr., and Richard Godfree, jr., were com- pelled to give their reasons for declining to serve as constables. In those days office-seeking was not the mad scramble that now prevails.1

1 Even the office of governor sought the man and not the man the office. The General Court of Plymouth passed the act, that whoever refused the office of governor should pay twenty pounds sterling, unless he was chosen two years successively, and whoever refused the office of counselor or magistrate should pay ten pounds. Edward Winslow, in 1633, was chosen governor, Mr. Bradford having been governor about ten years, and now, "by importunity," writes Win- throp, "gat off."

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THE BAR AND JUDICIARY.

that he was of the way of the Church of England, but did not go to hear Mr. Dan- forth, but to other meetings as often as he could, was admonished for his neglect, and dismissed with paying costs, taxed at two shillings."

"Samuel Watfield, Keeper of the jail at Bristol, having served the year past in that office for the sum of five pounds, desires to have an order passed this Court to the County Treasurer for the receiving of the said sum; it was passed accordingly."

April 13, 1703. "Ordered that Capt. Samuel Gallup have and receive of the County Treasurer eight shillings for his trouble, expense, and pains in going to Swansey to fetch the order for the Thanksgiving, and notifying the people in Bristol thereof the day before." Captain Gallup was then sheriff of the county.

April 13, 1713. "Frank Townsend being bound by the way of recognizance to ap- pear at this Court upon complaint of his wife, who complains that he had left her, and had taken another woman to be his wife, and he being convicted thereof by his own confession, it is ordered that he be whipt twenty lashes on his bare back, well laid on, and to stand committed until sentence be performed."

John Weaver, in court, "owning that he had been guilty of a breach of the Sab- bath by husking corn on the Lord's day; ordered to pay a fine of ten shillings, as the law directs, and costs of Court."

The colonial office of king's attorney was the direct predecessor of our district attorney and its requirements and duties were similar. Samuel Howland, of Bristol, was appointed to that office at each term from 1702 to 1746.

The dispute between Massachusetts and Rhode Island over the boundary line, which began in 1740, and ended in 1746 by setting off to the latter State, Tiverton, Little Compton, Bristol, Warren, Barring- ton, and Cumberland, has been described in earlier chapters of this work. By that change Bristol lost its status as the county seat of Bristol county, Mass., and made the selection of a new one imperative. Accordingly an act was passed under date of November 13, 1746, estab- lishing the county seat at Taunton, and providing for the removal of records, etc., to the new location.1 The sheriff was directed to transfer all prisoners from his majesty's jail in Bristol to Taunton, and " there put them under safe custody in some proper place until the county shall provide a jail." Little faith need be put in the tradition alluded to in the foot note on this page, for it is clearly shown in the papers of the Leonard family, written by Judge George Leonard, that the removal of the records was accomplished by Mr. Leonard, who with Thomas

1 " There is a tradition that the people in Bristol who had the custody of the court records refused to give them up, and that James Williams, of Taunton, was deputed to get them by stratagem. He is said to have succeeded in his efforts, brought the records to Taunton, and that he was rewarded for this act by being appointed county register, an office now called register of deeds, which office he, his son, and his grandson held successively for a period of ninety-five years."-Writings of John S. Brayton.

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OUR COUNTY AND ITS PEOPLE.

Foster and John Shephard, was appointed to that service in the third section of the act establishing the new county seat.1 Following is an account of the bill of expenses of the committee in going to Bristol " By order of the Great and General Court, and removing the records from Bristol to Taunton, November, 1746 " :

Cash pd. at mr. Robins ye Tavern, by Shepard 0 6 6

Cash pd. at Bristol at potters ye Tavern by Foster 0 6

pd. at Do. at mr. troup's by Col. Leonard. 1 0

0 pd. at Child's ye Tavern at Swansey by Col. Leonard. 16 0 pd. at harden's in Do. by Sheppard 1

pd. at Capt. wheeler's in Rehoboth

pd. at hill's in Do. by Sheppard 0

pd. at Brig's in Do. by Sheppard. 0 18 8

pd. by Shepard 29s by Foster 1 5

Given on ye Road by Capt. Sheppard 6 1 0 15 2

By foster

6 6 .6 74

By Col. Leonard 2 )3 0

1 13 6

Appended is the following report of the committee:

Nov. 18th, 1746, Delivered the Records of ye County, viz. of Deeds, &c. to mr. Thomas Troop, the Late Registre of Deeds, at ye house of ye Honorable Seth Will- iams, Esqr. at Taunton, & have taken bonds with Surtys for his keeping ye books & his offce also at Taunton till ye further order of ye General Court, or till a Registre be chosen. ye Same day Committed the Books of Record and papers belonging to ye Probate Register to Stephen paine, Esqr., at the house of Samuel white, Esqr., and have taken Bonds with Surties for ye Safe keeping sd. Books & papers in sd. Town.

ye same day appointed mr. Nathaniel Fales Clerk of ye Inferior Court of Comon Pleas & Court of General sessions of ye peace, who yus sworn to ye faithful dishard of sd. office & Committed ye Books & papers belonging to sd. Courts to ye sd. Nath'll Fales, at ye house of ye Honorable Seth Williams, Esqr., & have taken Bonds with Surtys for his Safe keeping sd. Books in the Town of Taunton, &c., the same day appointed James Williams, Esqr., Treasurer for sd. County, who has Rec'd the pa- pers & all accounts, & was Sworn to ye faithful discharge of sd. office."

On the 9th day of December, 1746, was held the first session of the Court of Common Pleas in Taunton, the Hon. Seth Williams, George Leonard and Stephen Paine, presiding.

The Court of Sessions, then consisting of all the justices of the peace,

1 They, "or the major part of them, shall cause them [the records] immediately to be con- veyed to the said town of Taunton, and there safely deposited under the care of the same persons as heretofore, or others, as said committee shall judge best."-Section 3 of act creating the county seat.

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sat on the same day, the following justices being present: Seth Will- iams, Thomas Terry, George Leonard, Timothy Fales, Samuel White, Thomas Bowers, Stephen Paine, Ephraim Leonard, John Foster, Ed- ward Hayward, Samuel Howland, Samuel Leonard, John Godfrey, Stephen White, Sylvester Richmond, jr .- fifteen in all. Timothy Fales was appointed clerk of both courts and took the required oath. As will be seen a little further on, about the first business of the court was to provide the county with a jail and a court house.

The proceedings in the early courts are replete with interest to the student of history, but they cannot, of course, be followed in detail in these pages. In a chapter prepared by John S. Brayton, for a former historical work on Bristol county, is found the following quotation from writings of John Adams, in which he refers in somewhat strong lan- guage to one of the chief justices, which is worthy of further preserva- tion :

8th day of June, 1762. Went to Taunton Court, the land of Leonards, three Judges of the Common Pleas of that name, each of whom has a son, who was bred at college. The Hon. George Leonard, the first Justice, seems to be arbitrary. He committed two old gentlemen, who were nearly eighty years old, to the custody of an officer only for speaking loud, when they were both deaf and not conscious that they did speak. A check, a reproof, an admonition would have been enough.

He was unwilling that the Sessions should adjourn for an hour to take the verdict of the Jury, in a trial upon a presentment for a riot, but would have that jury kept together all night till the Court should set again next morning. No other Court in the Province, superior or inferior, would have thought of keeping the jury up. He broke in most abruptly upon Bob Paine: He did not think it was right to run out against the King's witnesses; for his part, he did not like to hear it three or four times over! Thus the haughty tyrant rules the country !

The three judges named Leonard to whom Adams referred were George, his brother Ephraim, and his cousin Zephaniah, who were con- temporaneous judges of the Court of Common Pleas. This family was remarkable for the number of its membership in the judiciary, no less than seven having been elevated to the bench. These were Thomas, the son of James and the progenitor of the Leonards in this part of the country, who was followed by his son George, and he again by his son George, while still a third George was thus honored. Ephraim, great- grandson of the first James, was another; Zephaniah, also a great- grandson of James, and the father of Zephaniah, named Stephen.

Another somewhat peculiar cause was tried in March, 1773, which indicates that betting on election is not wholly an outgrowth of mod-

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OUR COUNTY AND ITS PEOPLE

ern times. Nehemiah Liscome, of Taunton, according to the record, sued Jerathmeel Bowers, of Swansea, in plea of trespass, " that where- as, on the 11th day of March last past, at Taunton, a certain discourse was had between the said Nehemiah and Jerathmeel concerning the election of the person who should be chosen to represent the town of Taunton at the next election." Bowers made a promise that if Liscome was elected representative he would give him one hundred gallons of Jamaica rum, and if Liscome was not elected, he was to give Bowers fifty dollars. Liscome was elected and demanded his quantity of the popu- lar beverage. Bowers refused to pay and the suit was brought to re- cover it or its value in money. The verdict was for the defendant.

When the fires of the Revolution swept over the country the colonial courts were dissolved and were not reorganized for more than a year. In some localities the absence of courts of justice was supplied by the establishment of local tribunals. For example, at a town meeting in Attleborough it was voted to have a Superior and Inferior Court in that town, and four men were chosen to serve as superior judges and seven as judges of the Inferior Court.

During the war of the Revolution, after the courts were reorganized, a large share of their business was in connection with the offenses of the class of persons called tories-those who showed by their acts that they were unfriendly to the colonists in the struggle for freedom. On the 12th of March, 1776, a large number of these loyalists gathered and prevented the court from meeting in the Taunton court house, and the court was compelled to seek other quarters. If a man was suspected of sympathizing with the enemy he would be brought before a Com - mittee of Correspondence and Safety, which was formed in every town. This committee would send the suspect before the Court of Sessions, where he would be ordered to enter into a recognizance in the sum of £200 not to join the enemy or render him any assistance. In 1777 the same Jerathmeel Bowers, who refused to deliver the promised rum to Liscome, and who was at that time one of the justices of the Court of Sessions, was convicted by the committee of "undervaluing the paper currency of the United States and refusing to take the same, and for saying that he would rather give one thousand dollars than to have any soldiers raised in Swansea." He was ordered to be committed to the gaol and there remain till he was discharged by the order of the State. At the next term of the Court of Sessions he was ordered discharged on his own recognizance. Bowers was elected representative from Swan-

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sea to the General Court in 1783, upon which the selectmen of Reho- both and other persons living in Swansea sent up a petition that he should be excluded from the seat, as "he had not shown himself friendly in the late struggle with Great Britain," and also that he was disqualified by a resolve of a former General Court. The matter being referred to a committee of the House it was reported that " by a resolve of the General Court passed April 7, 1777, the said Jerathmeel Bowers was disqualified from holding any post of honor or profit in the com- monwealth, which resolve in the opinion of the committee was still in force, and that Mr. Bowers was therefore disqualified from holding a seat." . Bowers quitted his seat.

The foregoing will serve merely as an example of almost innumera- ble cases bearing the same general characteristics. The colonists in their struggle for independence were most jealous of any defection from their ranks and looked with suspicion upon even an appearance of neutrality.

The attack upon the courts of Bristol county, in Taunton, which has passed into history under the title of Shays's Rebellion, which took place in 1785, while the community was still smarting from the wounds of the Revolution, has been suffciently described in an earlier chapter and need not be further considered in this place. While directed against the courts, its causes may be sought not alone in the existence of those tribunals or their proceedings, but in various other directions wherein discontent was bred.

In 1821 the judicial system of Massachusetts was organized substan- tially as it exists at the present time, and the Court of Common Pleas for the Commonwealth was established. The governor was to ap- point " four meet persons " to be justices, who, in the quaint language of the statute, "shall be men of sobriety of manners and learned in the law." Of the four justices first appointed, John Mason Williams, of Taunton, was appointed associate in 1820, and chief justice in 1839; Charles Henry Warren, of New Bedford, appointed in 1839, and Har. rison Gray Otis Colby, appointed in 1845. Judge Williams was on the bench twenty-four years, during five of which he was chief justice. He was a man of great legal learning, unimpeachable integrity and purity, great dignity of demeanor, and unfailing in courtesy. Judge Colby re- mained on the bench only two years.

For eighty-two years all the courts of Bristol county were held in Taunton. In the old records of the town of Dartmouth are found fre-

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OUR COUNTY AND ITS PEOPLE.

quent petitions to the General Court praying that certain terms of the court might he held in Dighton or some place farther south, giving as reasons that the distance to be traveled by the inhabitants of Dart- mouth to reach the courts was so great as to cause much inconvenience and hardship. Finally in 1828 a petition for this purpose was success- ful. The act establishing New Bedford as a half-shire town passed the Senate February 29, 1828, and the House on March 13 of that year. The first term of the Court of Common Pleas in New Bedford was held on June 9, 1828; it sat in the town hall on Second street, no court house having yet been provided. Judge Williams presided, and the following cases on the criminal docket were disposed of :

Samuel P. Martin and six others, for a riot in Seekonk; verdict, not guilty. Simeon Tisdale, for larceny in Taunton; verdict, not guilty.

All the courts in New Bedford continued to be held in the town hall until the court house was completed, as described a little farther on. The last term of the Court of Common Pleas for Bristol County was held in New Bedford, the term closing on the 27th day of June, 1859. Regular sessions of that court had been held either at Taunton or New Bedford for 113 years, with the exception of the brief interval before noticed. At the time of its organization the Court of Common Pleas was distinctively a county court, its three justices being residents of the county. All of the justices were present at the sessions of the court and shared in its business. In 1810 the State was divided into circuits, the Southern circuit being composed of the counties of Nor- folk, Plymouth, Barnstable, Bristol, Dukes and Nantucket. This con- tinued until the reorganization of 1821, under which this court became a State Court. On the 1st day of July, 1859, the Court of Common Pleas was abolished, and was succeeded by the present Superior Court. No other change was made until March 19, 1877, when the justices of the Superior Court were authorized by statute to adjourn any of the established terms of that court from Taunton to Fall River. The first session of this court was held in that city on June 27 of that year.

JUDICIAL OFFICERS OF BRISTOL COUNTY.

Of the judges of the Provincial Superior Court of Judicature, three- John Walley, John Saffin and Nathaniel Hubbard-were at some time citizens of Bristol county prior to the decree of the royal commission made in 1741, appointed to determine the line between Rhode Island and Massachusetts, before mentioned. John Walley removed to Bris-

655

THE BAR AND JUDICIARY.

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Our country and its people; a descriptive and biographical record of Bristol County, Massachusetts, Part 68

Author: Borden, Alanson, 1823-1900; Boston History Company, Boston, pub Publication date: 1899 Publisher: [Boston] Boston History Company Number of Pages: 1399

Author: Borden, Alanson, 1823-1900; Boston History Company, Boston, pub
Publication date: 1899
Publisher: [Boston] Boston History Company
Number of Pages: 1399