USA > Massachusetts > Suffolk County > Boston > The memorial history of Boston : including Suffolk County, Massachusetts. 1630-1880, Vol. IV > Part 73
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1 [See Vol. I., P. 575. - ED.]
574
THE MEMORIAL HISTORY OF BOSTON.
impudent counsel; and the judges thought it wise to let the matter drop. A yet more serious feature was the multiplicity of grossly inconsistent offices, which were often held by one and the same person; and at the pres- ent day we learn with surprise that Hutchinson was allowed to combine the positions of lieutenant-governor and of chief-justice, besides which he was also commander of the Castle, a member of the council, and judge of pro- bate. Yet many instances as bad, or worse, can be given of a custom productive of infinite and obvious mischief. But miserable as was this farrago of ignorance, of demoralizing customs, and of evil principles, amid it all there were forming the elements of a courageous, independent, and learned Bar; 1 and when in time the days of trial came, we shall see that men who were both able and willing to vindicate in the courts the cause of the people were found to have gained all the needful training.
Jeremiah -or, as it was the fashion of the time to call him, Jeremy - Gridley has often been called the "Father of the Boston Bar; " and un- Jor. Grisly questionably he well deserved the name, though little can now be learned about him.2 He was born "about 1705," says the Biographical Dic- tionary, which devotes four lines to his name; while the Catalogue of Harvard College shows that he graduated there in 1725. It is the pen of that true gossip, John Adams, which chiefly has rescued from oblivion the memory of this very estimable man. It was some little time before he found his real vocation in the world. He taught for a while in a grammar school in Boston, and occasionally also appeared in the pulpit. In 1732 he started a newspaper called The Rehearsal, which, how- ever, only lived for a year. In time he came to the Bar. Apparently it was his influence, aided, perhaps, by that of Edmund Trowbridge, which gave the first impetus in Massachusetts in the direction of profound legal learn- ing and a high professional spirit. " Pursue the study of the law," he said, " rather than the gain of it. Pursue the gain of it enough to keep out of the briers; but give your main attention to the study of it." This was a kind of advice quite novel in those days. In 1765 - less than three years before his death - the industrious old man formed a project of a " law club or sodality" for the purpose of reading and discussing works upon the civil law, and upon oratory. He had to seek his associates in the younger gener- ation, where it was largely due to the effect of his own example that such a
1 [One of the earliest to give character to the Bar was John Read (H. C. 1697), and the break- ing up of the prejudice against lawyers was largely owing to his character. See his Life by George B. Reed, privately printed, 1879; see also Vol. II. p. 427. The title of "barrister " seems first to have been used in our courts by Thomas Newton, who came here in 1688 (see Vol. II., p. 155) ; and was occasionally used by the elders of the Bar without any rule till 1761, when the Supe- rior Court determined that three years' probation
in a lower court was necessary to become a bar- rister, and this term was extended in 1766. In
John Read
1782 the Supreme Court was authorized to con- fer the degree of barrister-at-law ; they never did so, however, after 1784. N. E. Hist. and Geneal. Reg., April, 1877, p. 207. - ED.] 2 [See Vol. II. p. 427 .- , ED.]
575
THE BENCH AND BAR IN BOSTON.
scheme could find favor. John Adams, one of this club, delighted to call Gridley his "master," though he was not so in the strict sense of the phrase.
Adams's account in his Diary of his own early life at the Bar is the best sketch extant of the professional circle then living in Boston and the vicinity. He rode into town in 1758 with the intention of being admitted to practice ; walked into the court-house, " and sat down by Mr. Paine at the lawyers' table. " I felt shy," he says, " under awe and concern; for Mr. Gridley, Mr. Prat, Mr. Otis, Mr. Kent, and Mr. Thacher were all present and looked sour. I had no acquaintance with anybody but Paine and Quincy, and they took but little notice." It would seem that business was not so abun- dant or so lucrative at that time as to permit those who divided it among themselves to welcome any increase of their numbers. Yet when Mr. Adams called on Mr. Gridley on the following day, he found himself kindly received. Gridley examined him as to his accomplishments, and gave him much good advice concerning his professional career, especially that he should not marry early, since an early marriage would " obstruct improve- ment," besides involving him in expense. Gridley made light of the fact that Mr. Adams had not brought with him the customary formal certificate from the gentleman with whom he had been reading. But Benjamin Prat, whom also Mr. Adams visited, in compliance with a custom requiring appli- cants for admission to the Bar to make the round of at least the more dis- tinguished practising barristers and obtain their concurrence, thought the want of the certificate a more serious matter, justly suggesting that no one knew anything definite as to the young man's character and acquirements, to which some testimony should be adduced in the usual way. Thereupon Mr. Adams - who even at this early age dealt out his esteem or dislike wholly with reference to the behavior of the special individual toward him- self - delivers a eulogy upon Gridley, and assails Prat with a vehemence which the impartial reader must regard as undeserved. Somewhat later, indeed, as if to keep the scales even, Gridley, having appeared a trifle too arrogant and vain in the presence of Mr. Adams, comes in for his share of that sensitive and peppery gentleman's abuse. Mr. Adams continued upon his canvassing tour in propitiation of the great lawyers, till he further visited James Otis and Oxenbridge Thacher, and being well received by them, appears to have rested content. When the day for admission came, Gridley "rose up, and bowed to his right hand and said, 'Mr. Quincy,' when Quincy (Samuel) rose up; then he bowed to me, 'Mr. Adams,' when I walked out." Then Mr. Gridley made a little speech in commendation of the accomplishments and character of the two young men; Mr. Prat fol- lowed with a few words; the oath was administered; the neophytes shook hands with the members of the Bar, "received their congratulations, and invited them over to Stone's to drink some punch, where the most of us resorted and had a very cheerful chat."
Though we have seen John Adams come away "full of wrath " from his interview with Benjamin Prat, and hasten to stigmatize him in his Diary as
576
THE MEMORIAL HISTORY OF BOSTON.
at best an ill-natured man, yet there is no reason to doubt that Prat is en- titled to rank with the best lawyers of the colony in his day and generation. Bery Pret He was a man of extensive accomplishments and of very high standing, and certainly did wiser things in his life than when he wounded John Adams's vanity. "He was," says Hutchinson, "of the first character in his profession." About the time of the argument concerning the Writs of Assistance he was appointed Chief-Justice of New York, and removed thither, where about two years afterward he died, at the early age of fifty- two. While so many more interesting and important facts concerning him have been forgotten, it is carefully recorded that he was lame. Long after the grave had closed over the poor gentleman, and the memory of him was lapsing into meagre tradition, we find Mr. Adams speak in somewhat lauda- tory language of Prat. In 1817, when sixty years had softened the asperi- ties which had found expression in the Diary of 1758, he wrote a few pages concerning the case of the Writs of Assistance. "In a corner of the room," he then said, "must be placed, as a spectator and an auditor, wit, sense, imagination, genius, pathos, reason, prudence, eloquence, learning, and immense reading, hanging by the shoulders on two crutches, covered with a great cloth coat, in the person of Mr. Prat, who had been solicited upon both sides, but would engage on neither, being, as Chief-Justice of New York, about to leave Boston forever."1 This was, so far as can now be judged, a fair picture.
When the Stamp Act set the colony a-flame it had at least one effect which frivolous scoffers at the legal fraternity might say went far to counter- act all its many other evil qualities. It put a stop to litigation. The people, finding they could have only stamped writs, would have none at all. With that exquisite lack of perspective which he never failed to manifest whenever his own figure entered into the picture, Mr. Adams abuses the " execrable project," which he believes to have been "set on foot for my ruin as well as that of America in general, and of Great Britain." But his fellow-citizens came to the rescue of Mr. Adams as well as to that of America in general ; and in order to be sure of doing this wisely and effectually, they voted unanimously in town-meeting that Jeremiah Gridley, James Otis, and John Adams, Esquires, be " applied to as counsel to appear before His Ex- cellency the Governor in council, in support of their memorial praying that the courts of law in this province may be opened." A few days later these three gentlemen were privately heard, but obtained nothing better than a tolerably civil dismissal. For some little time afterward they appear to have acted as advising counsel for their townsfolk in those troublous days, when rendering legal service to the patriots was a matter not only
1 [John Adams's Works, x. 245; Washburn, Judicial History of Massachusetts, p. 225, refers to an address from the Bar to Prat on his leaving for New York, as evidence of the high esteem
in which he was held. This address was printed in the newspapers. Prat's office was on the west side of the present Washington Street, just north of Court Street. - ED.]
577
THE BENCH AND BAR IN BOSTON.
of professional difficulty, but of political and possibly even of personal danger.
Too many of the gentlemen who really adorned the Bar at this time have left little save their names to posterity ; yet, as we peer into the dim ob- scurity of the past wherein their scarcely distinguishable shades flit through the streets of old Boston, they look to us very picturesque and interesting personages, and it is sad to find that they will not disclose themselves to us in more distinct outline. Besides those whom we have already mentioned, it is right, if we can do little more, at least to name Robert Auchmuty, a
Roßt Auchmitigar: R auchmaty
AUTOGRAPHS OF FATHER AND SON.1
gentleman who seems to have stood much higher in the general estimation than in that of Mr. Adams, in whose pages it is his misfortune now chiefly to live. For a time he was regarded by many persons as at the head of the Bar. He was appointed a judge of the Special Court of Admiralty, upon which Bench sat, among others, Governor Bernard and Lieutenant-Governor Hutchinson, to whom, if Adams may be trusted, Auchmuty behaved with an ignoble servility. Two years earlier Adams wrote of him : -
" Auchmuty is employed in sessions and everywhere ; the same heavy, dull, in- sipid way of arguing everywhere ; as many repetitions as a Presbyterian parson in his prayer. . . . Such nauseous eloquence always puts my patience to the torture. In what is this man conspicuous? . . . in confidence, in dogmatism, etc. His wit is flat, his humor is affected and dull. To have this man represented as the first at the Bar is a libel upon it, a reproach and disgrace to it."
Adams's abuse always makes lively reading, but, as in this instance, is apt to represent a single and often also a singular opinion.
Richard Dana, - or Justice Dana, as he was commonly called, - a little older than Auchmuty, was the founder of the well-known Dana family. He it was who in the presence of a great assemblage of the angry townspeople, standing under the Liberty Tree, administered to Mr. Secretary Oliver the oath 2 that he had not distributed, and that he would take no measures for distributing, the odious stamps, nor for enforcing the hateful act of the British Parliament.
Benjamin Kent began life as a clergyman, - a calling so utterly out of keeping with his disposition that he soon left the pulpit for the bar. He
1 [The elder died in 1750, the younger in 1788. The younger at one time lived in School Street. The Auchmuty House in Roxbury, often the resort of Auchmuty's Tory friends, is en- VOL. IV. - 73.
graved in Vol. II. p. 343. A sister of the younger Auchmuty was the wife of Benjamin Prat. - Drake's Roxbury, p. 209. - ED. ]
2 [See fac-simile in Vol. III., ch. i .- En.]
578.
THE MEMORIAL HISTORY OF BOSTON.
was a humorist, not sufficiently reverent of things divine to please his strait- laced contemporaries ; he was " for fun, drollery, humor, flouts, jeers, con- Brent atty Even e tempt. He has an irregular, unmethod- ical head, but his thoughts are often good, and his expres- sions happy." At a merry dinner of the brethren of the Bar we find Kent, doubtless with a very excellent satire for those times, presenting a project for an Act of Parliament against devils. His theory of life and religion was that this existence was only one - and perhaps not the first one-of an unending series of periods of probation and so of advancement; not so bad a notion in itself, perhaps, but too original and devoid of Biblical authority to please the Bostonians of that day. When the troubles between the colonies and the mother country came to a head, Kent went to Halifax, thereby giving currency to the opinion that he was a Loyalist refugee, though there seems some reason to doubt the propriety of thus ranking him.1
Oxenbridge Thacher seems, from what insufficient glimpses we get of him, to have been a man of charming character, having the cultivation of a gentleman and the knowledge of a profound and ingenious lawyer. He was a silvery-tongued and persuasive speaker, happily combining subtilety and clearness in 0 Thacher his arguments. His father, a colonel and a deacon, was " a very holy man," supposably " not well pleased with his son's preferring the law," rather wishing that he should be a deacon; though why the position of deacon should have been more incompatible with the legal than with the military profession, does not clearly appear. Probably it was due to his father's influence that Mr. Thacher, after gradu- ating at Harvard College in 1738, studied divinity and became a clergyman ; and perhaps it was natural distaste for this calling which induced him to abandon it, on the odd ground that his voice was too weak, and to adopt a vocation for which doubtless he was better fitted, but for which a feeble voice has never been considered a peculiar qualification. At one time, when James Otis was apparently wavering in his attachment to the cause of the colonies, and the suspicion had gone widely abroad that he had fallen a victim to the bribes and blandishments of Governor Hutchinson, it was attributed to the influence of Thacher, strongly exerted with his friend, that Otis was brought back and strengthened in his patriotic faith and at- tachments. Thacher himself was a sound patriot, greatly to the disgust of the king's party in the province, for he was a man who had gained for him- self both love and respect. When Hutchinson had the audacity to make himself chief-justice for an obvious political purpose, Thacher spoke with
1 [Sabine, American Loyalists. Washburn classes him as a Loyalist. He died in Halifax in 1788. - ED.]
579
THE BENCH AND BAR IN BOSTON.
great freedom and indignation of the indefensible proceeding. It was im- possible to bribe or silence him, and equally impossible to defame his character or actions. He won, therefore, the distinction of an exceptional animosity. The Tories " hated him," says John Adams, " worse than they did James Otis or Samuel Adams; and they feared him more, because they had no revenge for a father's disappointment of a seat on the Superior Bench to impute to him, as they did to Otis." Mr. Thacher died in 1765, of a pulmonary complaint, which was believed to have been aggravated by
his extreme anxiety concerning public affairs. He was but little abroad among men during his latter days, by reason of his ill-health, and he was greatly concerned lest his countrymen were not showing a sufficiently high and quick spirit in resenting the royal encroachments, - a needless alarm, indeed, but highly honorable to him who, in his sick chamber, cherished so independent and courageous a temper.1
Stephen Sewall, whose father also had been a lawyer, belonged to a family which has given many distinguished names to the history of Massa- chusetts. He " stood very high in public esteem for his honor, integrity, moderation, and great benevolence." He was made Chief-Justice of the Supreme Court of the Province, and held that position when the application was made for the granting of a Writ of Assistance. He " expressed great doubt of the legality of such a writ, and of the authority of the court to grant it." But within a month after the application, and before the hearing in the cause, he died, greatly to the chagrin of the patriot party. As ill fortune would have it, his estate proved insufficient to pay his debts ; and his nephew, Jonathan Sewall, acting as administrator, petitioned the Legislature for a grant · of money to enable him to satisfy the creditors. The ground taken was that the chief-justice had been rendered insolvent by reason of his public spirit in serving upon an inadequate salary. Jonathan Sewall2 was himself a member of the Bar in excellent repute as a lawyer, and very popular as a man, and thus far in his career had leaned to the popular side in the various disputes with Great Britain. But in the matter of this petition he encountered the successful opposi- tion of Colonel Otis, and of his son, the famous James Otis. This angered Sewall greatly, and Governors Bernard and Hutchinson, and Judge Trow- bridge, were sedulous in their efforts to make this resentment a cause of political separation. Calling also to their aid the seductions of official position, they achieved an unfortunate success in their schemes, and there- after Jonathan Sewall was to be ranked as a stanch Tory. He had his re- ward in the several places of solicitor-general, attorney-general, advocate- general, and judge of admiralty "with six thousands a year ; " but he does
1 [Thacher's office was opposite the south door of the Old State House. - ED. ]
2 [Sewall lived at one time in the house, now greatly changed, on the westerly corner of Brat-
tle and Sparks streets in Cambridge. He was mobbed here in September, 1774, and fled into Boston. General Riedesel occupied this house in 1777-78. - ED.]
580
THE MEMORIAL HISTORY OF BOSTON.
not hold that position in the memory of posterity which his abilities would have insured to him had he been steadfast in his earlier political faith.
A nephew of Jeremiah Gridley was Benjamin Gridley, who also was called to the Bar; but though apparently he had sufficiently good abilities, he turned out nothing better than a lazy wag. "He has no business of any kind; lies abed till 10 o'clock ; drinks, laughs, and frolics, but neither studies nor practises his profession."
Edmund Trowbridge, born in 1709, an eminent lawyer and admirable man, was made Attorney-General of the Province in 1749, and was afterward de- servedly raised to the post of Associate Justice of the Supreme Court. Unfortunately, however, his Tory predilections led him to consort with Governors Bernard and Hutchinson, and he became in time very unpopular with the people at large, though his kindness of disposition served to pre- serve most of his personal friendships. In 1772 he resigned his seat upon the Bench, and retired to the little village of Byfield, where he long re- mained.1 His ostensible excuse was that he wished to escape the small-pox, then epidemic in Boston; but it was shrewdly surmised that he was more afraid of the patriots than of disease. In Byfield he instructed Theophilus Parsons in the law.2 He had the finest law library then in the Province, a rare and valuable possession in those days. He had also another less harm- less possession, being a large full-length portrait of Governor Hutchinson, in a handsome frame, which he kept in his parlor, to the alarm of his family, who dreaded that it might induce a foray from the lawless Sons of Liberty. Accordingly, one day, when Trowbridge was away from home, they cut out and burned the canvass, and put in its place a portrait, by Copley, of Jus- tice Richard Dana. Trowbridge died in Cambridge in 1793, at the ripe age of ninety-four, leaving a high reputation for professional learning, to which Chief-Justice Parsons and Chancellor Kent afterward bore willing testimony. It is an odd circumstance that at different times he had two names, and appears during a part of his life, at least, to have been known by them both indifferently. He was the adopted child and heir of Colonel Edmund Goffe, and took the name of Goffe in early youth; but afterward, toward the time of the Revolution, he reassumed his original name of Trowbridge. It has been suggested in explanation of this, that Colonel Goffe was a connec- tion of the regicide judge, and that the Tory proclivities of Trowbridge made him unwilling in such times of revolt to bear the disloyal name. But this theory is a mere surmise, resting on no sufficient authority.3
No adequate sketch of the Bar of Boston in this pre-Revolutionary pe- riod could be complete, without a narrative of one of the most important
1 [His home in Cambridge, to which he re- turned, was a mansion which stood where now the meeting-house of the first parish stands .- ED.] 2 [There are some glimpses of Trowbridge in the Memoir of Theophilus Parsons, by his son. - En ]
3 Peter Oliver, Dudley, Fitch, and perhaps a few more might be mentioned; but unfortunately tradition preserves little more besides their names, and it is impossible to reproduce them, as they were, with any approach to accuracy or vividness.
581
THE BENCH AND BAR IN BOSTON.
causes ever tried in this country ; but it has fallen to the writer 1 of another chapter to recall the events which induced a resort on the part of the Gov- ernment to Writs of Assistance, resulting in a decision of the court sustain-
Jana 2
ing them. Later on, Hutchinson, who was the presiding justice, when seeking from the home Government reparation-for the sacking of his house and destruction of his furniture at the time of the Stamp-Act riot, enlarged
1 [The Rev. E. G. Porter, Vol. III. ch. i .- ED.]
2 [This cut follows the portrait by Copley, named in the text, now owned by Richard H. Dana, of the third generation. The picture measures 4 X 32 feet. Richard Dana was born in Cambridge, Aug. 7, 1699, and died in
Boston, May 17, 1772. A duplicate is owned by his descendants in England. Perkins's Cop- ley, p. 50. The Massachusetts Gazette, June I, contains his obituary, copied into Frothingham's Warren, 195. See further in Vol. II. of this History, pp. 324, 373. - ED.]
582
THE MEMORIAL HISTORY OF BOSTON.
upon his services on this memorable occasion, and claimed that the decision made in the cause was due to his personal influence exerted upon reluctant associates. Under all the circumstances, what Hutchinson claimed as a glory must, even from a Tory standpoint, be regarded as a disgrace. In the long run the triumph lay with James Otis, who had argued against the writs, and who from this time became the principal leader of the malcontents or patriots. They needed just such a one as he, and his ardent and zealous temper would not let him refuse their urgent summons. His private busi- ness was neglected and went to ruin, while he attended more and more exclusively to public affairs. He was elected to the General Court, and there continued his exertions. Still, however, he occasionally practised, and after the soldiery had been sent over to overawe the colonists, when the Superior Court, on coming together in the council chamber, found a guard posted and cannon ranged before the building, and troops quartered within it, Otis arose, and "with a significant expression of loathing and scorn" moved the adjournment of the court to Faneuil Hall, observing that "the stench occasioned by the presence of the troops might prove infectious, and that it was utterly derogatory to the court to administer justice at the points of bayonets and mouths of cannon."
Unfortunately the career of this daring and brilliant advocate was destined to an untimely end. Early in 1768 Hutchinson wrote, "We have now and then flashes from our firebrand. I wish I could think them presages of his extinction ; " and again, "Otis, like an enraged demon, ran about the house ; " and soon after, Otis " behaved in the house like a madman." In sad truth the clouds of insanity were rapidly gathering athwart that glorious intellect, and tendencies of Nature were accelerated by human agency. Otis fell a victim, as Mr. C. F. Adams has said, to his own irregularities and the vindic- tiveness of his enemies. He was violently assaulted and beaten over the head with a cane one evening in a coffee-house,1 by one of the Royal Commis- sioners. Subsequently, in an action which he brought against his assailant, he recovered the sum, then a large one, of £2,000 in damages ; but he mag- nanimously remitted payment upon receiving from his adversary a written acknowledgment of fault and request for pardon. The effect, however, upon the brain of Otis, already predisposed to disorder, could not be cured by money or apology, and the madness which rapidly advanced was doubt- less hastened, though probably not wholly caused, by this disaster. On May 23, 1778, he was leaning against the post of an open door of the house in Andover in which he lived, telling a story to-several other inmates, when a sudden flash of lightning struck him instantly dead. Singular as the death was, it was remembered with astonishment by his friends that he had often expressed a wish that he might die in this manner; and it was not without a certain awe that it was recalled that he had written to his sister, "I hope when God Almighty, in his righteous Providence, shall take me
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