USA > Massachusetts > Suffolk County > Professional and industrial history of Suffolk County, Massachusetts, Volume I > Part 10
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1877, Elijah George, the present incumbent, was appointed register and subsequently chosen by the people.
In the history of the office of judge of probate of Suffolk county an event occurred, to which it may be interesting to refer. Edward Greeley Loring, who held the office from 1847 to 1858, was removed upon the ad- dress of the two Houses of the Legislature on the ground that holding the office of judge of probate was incompatible with holding the office of United States commissioner, both of which had been held by him some years. As United States commissioner he had heard an appli- cation for the rendition to his alleged master of Anthony Burns, a fugi- tive slave, who was arrested May 26, 1854, and rendered judgment in accordance with the application. This act aroused the indignation of the people to such an extent that his removal from office was demanded. His removal was attempted at various times by the Legislature on the ground that he had violated the provisions of the 13th section of the 459th chapter of the laws of 1855, which declared " that no person who holds any office under the laws of the United States which qualifies him to issue any warrant or other process, or to grant any certificate under the acts of Congress passed in 1793 and 1850, or to serve the same, shall at the same time hold any office of honor, trust or emolument under the laws of the Commonwealth." Resolves in favor of his removal on this ground had been several times reported by a special committee and had failed either to pass the Legislature, or, if passed, to receive the approval of the governor, and the chief argument against the resolves was the claim that the law of 1855 was unconstitutional.
In 1858 a renewed attempt was made, and the writer of this narrative, then a member of the Senate, was made chairman of the committee to whom the petitions for removal were referred. The late Joseph M. Churchill, of Dorchester, was chairman on the part of the House, in which branch the petitions had been presented, and he was requested by the committee to draft a report in favor of the passage of an address. The writer, believing that a removal would never be accomplished on the grounds that had been successfully attacked either by the Legisla- ture or the executive, and also believing that the report of Mr. Churchill would repeat those grounds and thus be defeated, determined to write a report with reasons for removal which would not only avoid all questions
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of constitutionality, but would commend themselves also to the minds of men whose anti-slavery sentiments were not especially strong.
At the next meeting of the committee, after the House chairman had read his report, the writer asked permission to read his own, and after its reading it was at once accepted by a majority of the committee. In order that a record may be here made of the final controlling reasons for a legislative act which has been misunderstood, the report is made a part of this narrative as follows:
" HOUSE OF REPRESENTATIVES, March 9, 1858.
"The joint special committee to whom were referred the several pe- titions for the removal of Edward Greeley Loring from the office of judge of probate for the county of Suffolk have considered the same and report.
" The constitution provides that 'all judicial officers duly appointed, commissioned and sworn shall hold their offices during good behavior excepting such concerning whom there is a different provision made in the constitution ; provided nevertheless the governor with the consent of the council may remove them upon the address of both houses of the Legislature.' The exercise of this right in the hands of the governor and council and the branches of the Legislature is unrestricted. Any reasons, unless they may be such as are based on misconduct and mal- administration in office which may seem sufficient, will justify removal by address.
" In the year 1840 Edward Greeley Loring was appointed commis- sioner of the United States to take bail and affidavits pursuant to the acts of Congress passed in 1812 and 1817. In 1846 he was appointed judge of probate for the county of Suffolk. At that time under the act of Congress of 1793 jurisdiction in all cases of the extradition of fugitives from service or labor was vested in any magistrate of a county, city or town corporate. The duties imposed on a commissioner in 1840, though enlarged by acts of Congress subsequently, were of such a char- acter that perhaps no valid reason existed why the offices of judge of probate and commissioner of the United States should not be held, and their separate functions discharged by one and the same person.
" But by the act of Congress passed in 1850 the jurisdiction in ques- tion was transferred to the commissioners of the United States, and in
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the language of that act Edward Greeley Loring as one of the commis- sioners was 'required to exercise and discharge all the powers and duties conferred by this act.' This transfer increased the duties and responsibility of the commissioners and so changed their character that the holding of that office became in the opinion of your committee in- compatible with the holding of the office of judge of probate ; that a faithful discharge of the duties of the one became inconsistent with the proper discharge in all cases of the duties of the other.
" A single illustration will suggest the conflict which might arise in the exercise of the powers and duties imposed by the two offices. A slave mother dies in Massachusetts and her children are brought before the Court of Probate for the appointment of a guardian. The judge of probate by the laws of Massachusetts is for the time their protector and friend, and while the hearing is pending the same judge in the capacity of commissioner is called upon to issue a warrant for their seizure as the property of a southern slave owner.
" Again the constitution provides that ' the judges of probate of wills and for granting letters of administration shall hold their courts at such place or places or fixed days as the convenience of the people shall re- quire, and the Legislature shall from time to time hereafter appoint such times and places.' These times and places have been fixed by the Leg- islature agreeable to the wants and convenience of the people.
" It must be apparent that the assumption or occupation by any judge of probate of any office whose duties might interfere with the discharge of his probate duties at the times and places thus constitutionally pre- scribed is improper, and after due notice is a sufficient cause of removal. It cannot be denied that a judicial officer under the laws of the United States whose duties are compulsory upon the incumbent may be in- compatible with a judicial office under the laws of Massachusetts whose duties are no less compulsory. Now no limit is to be presumed to the amount of duties which a commissioner may be called upon to perform. If the discharge of the duties of commissioners were voluntary under the act of 1850, the mere occupation of the office might be unobjection- able, but in the language of Judge Loring in his protest in 1855 'the duty of commissioners of the Cincuit Court of the United States under the law of 1850, is imperative upon them,' and 'an application made
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pursuant to law to any one commissioner fixes that duty on him and after such application he can neither decline it nor evade it.' It is clear then that even if such applications were rare, they might be made at the very time fixed by the law for the performance of liis probate duties, and if numerous they might prevent their performance altogether. The fact that during the trial of Anthony Burns such a conflict existed as compelled Judge Loring in the discharge of duties as commissioner to adjourn the Court of Probate and postpone its business, sufficiently con- firms the incompatibility in question.
" But the duties of commissioners in connection with the extradition of fugitive slaves are not the only duties which might conflict with the proper discharge of the duties of judge of probate. Pursuant to several acts of Congress passed subsequently to the appointment of Judge Lor- ing as commissioner in 1840, he is liable to be called to act in cases of extradition of fugitives from foreign countries, and issue warrants and hold preliminary examinations in cases of revolts, mutiny and affrays on shipboard, and a great variety of crimes and offences committed on sea and land within the jurisdiction of the United States. These duties enlarging from year to year aid still further in constituting the office of United States commissioner such an office as cannot with propriety be held by a judicial officer under the laws of Massachusetts. When we add to this interference of official duties their opposite and conflicting natures the incompatibility is the more manifest.
" This incompatibility has been long since recognized by the laws of the Commonwealth and by the members of successive legislatures. The law of 1843, though applicable to magistrates of this Commonwealth in the performance of the duties imposed upon them by the act of Con- gress of 1793, was clearly indicative of the determination of the people of Massachusetts that no magistrate in judicial office should participate in the extradition of slaves The sentiment and spirit of that law are as clearly violated whether that participation is had by a magistrate of Massachusetts as such acting under the law of 1793, or by a commis- sioner of the United States acting under the law of 1850, who is at the same time a judicial officer under the laws of the Commonwealth. In con- formity with the spirit of this law the Legislature declared by resolves in 1850 'that the sentiments of the people of Massachusetts as expressed
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in their legal enactments in relation to the delivering up of fugitive slaves remain unchanged' and ' that the people of Massachusetts in the main- tenance of these their well-known and invincible principles expect that their officers and representatives will adhere to them at all times, on all occasions, and under all circumstances.'
" The law of 1855 in a more positive manner recognizes the same principle and applies it to the condition of things existing in conse- quence of the law of Congress passed in 1850. In direct contraven- tion of the terms and spirit of this law, Judge Loring now holds the two offices of judge of probate and United States commissioner. Indeed, the whole current of sentiment and law in Massachusetts during the last fifteen years has enunciated the principle that no officers of this Com- monwealth shall engage in the extradition of slaves, or occupy any of- fice among whose dutie- such extradition may be counted. The same doctrine has been endorsed and confirmed by the address of two Legis- latures to the governor of the Commonwealth for the removal of the judge who has disregarded and violated it.
" For these reasons, in the opinion of the committee, the Legislature is called upon to address the governor to remove Edward Greeley Lor- ing from the office of judge of probate for the county of Suffolk. They do not feel obliged to base their grounds for his removal upon the law of 1855, and, indeed, to establish the entire validity of these grounds, in their opinion it is not necessary to regard that law, except so far as it is declaratory of the sentiment of the people. If that law is constitu- tional, it is sufficient to say that its violation is a valid reason for the address. If it is unconstitutional, they hold that the principle so long acknowledged which dictated its enactment, is also abundant cause and justification.
" Ample notice has been given to Judge Loring of the wishes of the people as expressed through their representatives, and ample time af- forded him to respect and yield to them. While judge of probate he still holds the office of United States commissioner in defiance of the sentiment of the Commonwealth, and his removal by address is the only remedy which the constitution recognizes or provides.
" Your committee therefore respectfully recommends that the accom- panying address be sent to the governor, requesting him with the consent
2.2 AFrualleth
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of the Council to remove Edward Greeley Loring from the office of judge of probate for the county of Suffolk.
"And your committee further recommends that a joint committee consisting of two on the part of the Senate and five on the part of the House be appointed to present said address to the governor."
The address was adopted by the Legislature and presented by the writer as chairman of the committee appointed for the purpose, to Na- thaniel P. Banks, then governor, who with the advice and consent of the Council promptly caused the removal.
The committee reporting the address to the Legislature consisted of Wm. T. Davis and Joseph W. Cornell, on the part of the Senate, and Joseph M. Churchill, Dexter F. Parker, George Stevens, W. F. Arnold, and William Page, on the part of the House. Mr. Page made a minor- ity report in opposition to the address, and Messrs. Churchill, Parker, Arnold, and Cornell reported that while they concurred in the report they favored the removal for the additional reason " that the said Ed- ward Greeley Loring in violation of the provisions of the 13th section of chapter 489 of the acts of 1855, holds the office of judge of probate for the county of Suffolk, and also the office of United States commis sioner with power to issue process and grant certificates under the act of Congress approved September 18, A. D. 1850, known as the fugitive slave act."
It is not proposed to include in this narrative sketches of the United States courts sitting within the county of Suffolk, but some reference to admiralty affairs before the adoption of the constitution may be appro- priate. Under the colony charter the Court of Assistants held admi- ralty jurisdiction, and under a law passed by the General Court in 1673, were authorized to hear and try cases without a jury. Under the prov- ince charter the crown reserved the power of establishing admiralty courts and appointing their officers. The words of the charter are : " Provided alwaies and it is hereby declared that nothing herein shall extend or be taken to Erect or grant or allow the Exercise of any Ad- mirall Court Jurisdiccon Power or Authority, but that the same shall be and is hereby reserved to Us and Our Successors and shall from time to time be Erected Granted and exercised by vertue of Commissions to be yssued under the Great Seale of England or under the Seale of the High
13
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Admirall or the Commissioners for executing the Office of High Ad- mirall of England."
The admiralty judges under the province charter having jurisdiction in Massachusetts were Adam Winthrop, appointed in 1699; William Atwood, appointed in 1701; Roger Mompesson, appointed in 1703 ; Nathaniel Byfield, appointed in 1703 ; John Menzies, appointed in 1715 ; Robert Auchmuty, appointed in 1728; Nathaniel Byfield, appointed in 1728; Robert Auchmuty, appointed in 1731 ; Chambers Russell, ap- pointed in 1747; Robert Auchmuty, jr., appointed in 1767, who held office until the Revolution. At a later date during the Revolution there appears to have been a Maritime Court, divided into three districts, of which Timothy Pickering was judge of the Middle District, Nathan Cush- ing of the Southern, and Timothy Langdon of the Northern. The wri- ter has not been able to learn much concerning this court, nor does he consider it necessary to investigate it for the purposes of this narra- tive.
With some reference to the attorney-generals who have served the province and State, to the sheriffs, and county attorneys of the county of Suffolk, all of whom are intimately associated with the judicial sys- tem and to the court-houses in use at various times, this sketch of the courts will close; and it will be only necessary before bringing this chapter to an end to allude to the condition and character of the Suffolk bar at different periods of its history.
The first attorney-general appears to have been Benjamin Bullivant, who received a reappointment to that office in 1686, and was succeeded by George Farwell, who served until June 20, 1688. During the re- maining time of the administration of Andros, James Graham held the office, and was succeeded by Anthony Checkley, June 14, 1689. Checkley was reappointed under the province charter by Governor Phipps, Oc- tober 28, 1692. Paul Dudley was appointed July 4, 1702, and in the opinion of Judge Washburn, Thomas Newton succeeded Dudley in 1718, and served until May 28, 1721. The successors of Newton un- der the province charter were John Overing, 1722; John Read, 1723; John Overing, 1728 ; John Read, 1733; William Brattle, 1736; John Overing, 1739; Jeremiah Gridley, 1742; John Overing, 1743 ; James Otis, 1748; Edmund Trowbridge, 1749; Jonathan Sewall, 1767, the last attorney-general under the charter.
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The office of solicitor-general was created in 1767, and given to Jona- than Sewall before his appointment as attorney- general, and when he was appointed to that office in the same year, Samuel Quincy was ap- pointed solicitor-general, who held the office until the Revolution. When the office of solicitor-general was revived, Daniel Davis was ap- pointed in 1808 and continued in office until June 1, 1832, when the office was abolished by an act passed March 14, 1832.
Since the adoption of the constitution the following persons have held the office of attorney-general :
Robert Treat Paine, appointed during the Revolution and held over; James Sullivan, February 12, 1790; Barnabas Bidwell, June 15, 1807; Perez Morton, September 7, 1810; James T. Anstin, May 24, 1832 (office abolished in 1843) ; John Henry Clifford, 1849 (office revived) ; Rufus Choate, January 22, 1853; John Henry Clifford, May 20, 1854; Stephen Henry Phillips, chosen 1858; Dwight Foster, 1861; Chester I. Reed, 1864 (resigned); Charles Allen, 1867; Charles R. Train, 1872; George Marston, 1879; Edgar J. Sherman, 1883 (resigned) ; Andrew J. Waterman, 1887; Albert E. Pillsbury, 1891 (incumbent).
During the colonial period there was no officer bearing the title of sheriff until the time of Andros, when James Sherlock acted in that ca- pacity and officiated in the Superior Court of Judicature in 1688, over which Joseph Dudley presided as chief justice, with William Stoughton and Peter Bulkley as associates. The following persons have served as sheriff of Suffolk county under the province charter and under the con- stitution :
Samuel Gookin, appointed May 27, 1692; Giles Dyer, October 23, 1702; William Dudley, August 27, 1713; William Payne, February 19, 1714-15; William Dudley, March 2, 1714-15; William Payne, December 9, 1715; Edward Winslow, December 12, 1728; Benjamin Pollard, October 20, 1743; Stephen Greenleaf, January 3, 1757 ; William Greenleaf, 1775; Joseph Henderson, December 14, 1780; Jeremialı Allen, April 14, 1791; Samnel Bradford, June 16, 1809; Joseph Hall, October 13, 1818; Charles Pinckney Sumner, September 6, 1825 (resigned) ; Joseph Eveleth, April 11, 1839; Henry Crocker, February 4, 1852 (resigned); Joseph Eveleth, May 21, 1853 ; John M. Clark, February 28, 1855; John B. O'Brien, chosen 1883 (incumbent)
The office of county attorney, or as at various times it has been called, attorney of the State, Commonwealth attorney, and district attorney, was established in 1807, and that year James T. Austin was appointed attorney of the State In 1811 he was reappointed as county attorney, and served until 1830. On the 5th of July in that year Samuel Dunn
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Parker was appointed county attorney, and served until 1852. On the 4th of February in that year, John C. Park was appointed Common- wealth attorney, and served until the 30th of September, 1853, when George Partridge Sanger was appointed. George W. Cooley was ap- pointed to succeed Mr. Sanger September 5, 1854, and served until the 26th of February, 1861, when Joseph H. Bradley was appointed dis- trict attorney. Mr. Bradley declined, and George Partridge Sanger was appointed March 21, 1861. John Wilder May succeeded May 18, 1869, and Oliver Stevens, the present incumbent, in 1875.
A few words concerning the buildings in which the courts have been held at various times in Boston will not be inappropriate. Thomas Lechford, writing in 1640, said that the General Court and the Great Quarter Courts were held in the Meeting House. At that time the Meeting House stood on the site of Joy's building on Washington street, in front of Young's Hotel. It had previously stood on the site of Brazier's building on State street. Between these two sites Capt. Robert Keayne lived, on the corner of Washington and State streets, and the market place was on the site of the old State House. Captain Keayne died in 1656, leaving to the town of Boston £300 " for a town house, a conduit and a market place, with some convenient room or two for the courts to meet in both summer and winter, and so for the townsmen and commissioners in the same building or the like and a convenient room for a library and a gallery or some other handsome room for the elders to meet in ; also a room for an armory." A wooden building was consequently erected and finished in 1658 on the old market place set on twenty-one pillars, leaving an open space on the ground for a market place and room above for town purposes. The General Court allowed to Boston one single country rate, provided the courts could be held in this building In 1667 it was repaired at a cost of £680, one-half of which was paid by the country, one- quarter by the county, and one-quarter by the town.
In 1711 it was burned, and a new building constructed of brick in 1712-13, one- half of the cost being paid by the province and one- halt by the county and town. In 1747 it was again partially burned, but the walls of the present old State House are supposed to be the same erected in 1713. In 1773 a new court house was built of brick in
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Court street, on the site now occupied by the northerly end of the stone building recently abandoned by the courts.
In 1810 a court house was built on School street on the site of the present city hall and occupied until the stone building in Court square was completed in December, 1836. The old Municipal Court continued to be held in the brick building on Court street until June 20, 1822, when it was removed to Leverett street, thence to the School street building in 1831, and to the Court street building in 1837. The Police Court was held in Leverett street from the time of its establishment in 1822 to 1837, when it removed to the Court street building.
The United States Courts were held in the School street building until rooms were furnished in the Court square house, and later for a term in Bowdoin square until the Masonic Temple was bought by the United States and fitted for their use.
There was practically no bar in Suffolk county during the colonial period. It is probable that John Winthrop, Richard Bellingham, John Humphrey, Herbert Pelham, Simon Bradstreet and Thomas Lechford had been educated as lawyers in England, but of these Pelham and Lechford returned home after a few years' residence, and the others were chiefly occupied as magistrates and not as attorneys. The skill with which the colony laws were drafted shows these few men to have been learned and able. Edward Randolph, the secretary of the Massa- chusetts colony under President Dudley, wrote home to England in January, 1687-8: " I have wrote yon of the want we have of two or three honest attorneys (if any such thing in nature), we have but two; one is West's creature, came with him from New York and drives all before him. He also takes extravagant fees, and for want of more the country cannot avoid coming to him, so that we had better be quite without them, than not to have more."
The Mr. West referred to in the letter of Randolph was John West, who came from New York and was appointed deputy secretary under Randolph, who was secretary under Andros. He was a practitioner in the courts, but, probably, not an educated lawyer. He managed as deputy secretary to deceive and financially prey upon his chief, and it is quite possible that he is one of the attorneys referred to in the above letter. He made himself so unpopular that when the Revolution of
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1688 came on he was arrested with Andros and with him sent to Eng- land. The other attorney was probably George Farwell, who also came from New York and was made attorney general by Andros. He also was arrested with Andros at the Revolution and sent to England in February, 1689.
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