USA > Massachusetts > Essex County > The story of Essex County, Volume II > Part 19
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53
Because of his recognized ability as a barrister, Farnham's serv- ices were in great demand throughout Essex County, and he became a leading figure in the community. Soon after the incorporation of Newburyport was completed, in 1764, a warrant for the first meeting held in the new town was addressed to "Daniel Farnham, Esq., one of the principal inhabitants of the Town of Newbury Port."15 With the thickening of the clouds of revolution, however, Farnham's pres- tige ebbed, for he was an avowed loyalist; his career ended abruptly with the outbreak of war. A discussion of his loyalist stand is found in a manuscript sketch of his life by Hon. Eben F. Stone, and reads as follows :
"Ardent, high spirited and impetuous, he disdained to yield to the suggestions to prudence which controlled the con- duct of some of his friends, and boldly denounced the leading Whigs and liberty men as law-breakers and rebels. He was too far advanced in life when the troubles began to be in sym- pathy with those ideas and principles which, resulting in inde- pendence, shaped the policy and inspired the ambition of the radical whigs."16
Daniel Farnham died May 18, 1776, a victim of his support of the Tory cause, broken in spirit and health by the attacks of political
15. "History of Newburyport, Massachusetts," John J. Currier, Newburyport, 1909, Vol. II, p. 258.
16. "History of Newburyport, Massachusetts," op. cit., Vol. II, p. 258.
768
THE STORY OF ESSEX COUNTY
opponents, and, it was rumored, suffering from physical violence on the part of his enemies.
After the Revolution, and particularly after the beginning of the nineteenth century, the Essex bar flourished. Profound learning, combined with unusual forensic ability, distinguished a number of Essex County lawyers, some of whom became figures of national importance. Indeed, it seems as though in no other period has the individual brilliance of the bar been equal to that in evidence among Essex County lawyers between 1800 and 1860. Men like Theophilus Parsons, Rufus Choate, and Caleb Cushing were members of the Essex bar, while Daniel Webster, among other outstanding Suffolk County lawyers, was frequently heard in Essex County courtrooms.
To explain thoroughly the improved caliber of the bar would be difficult, but there is no doubt but that its earlier progress, making the law an honored profession, attracted many able men who other- wise would have chosen some other field; the high standards of entrance to the bar imposed before the Revolution had borne fruit in the next generation of lawyers. Then, too, the growth of "special pleading" and the gradual simplification of the stilted forms of court procedure which followed the turn of the century gave freer play to the forensic capabilities of the legal practitioners.
A rule of court, which indicates some of the forces which elevated the bar to its ultimate level, was adopted in 1781 by the Superior Court of Judicature, and has been quoted in the second volume of "The Municipal History of Essex County, Massachusetts," on page 848:
"Whereas learning and literary accomplishment are neces- sary as well to promote the happiness as to preserve the free- dom of the people, and the learning of the law when duly encouraged and rightly directed, being as well peculiarly sub- servient to the great and good purpose aforesaid, as promotive of public and private justice; and the court being at all times ready to bestow peculiar marks of approbation upon the gen- tlemen of the bar, who, by a close application to study of the science they profess, by a mode of conduct which gives a conviction of the rectitude of their minds and a fairness of practice that does honor to the profession of the law shall
769
THE BENCH AND BAR
distinguish as men of science, honor and integrity; Do order that no gentleman shall be called to the degree of barrister until he shall merit the same by his conspicuous learning, abil- ity and honesty; and that the court will, of their own mere motion, call to the bar such persons as shall render themselves worthy of aforesaid; and that the manner of calling to the bar shall be as follows: The gentleman who shall be a can- didate shall stand within the bar; the chief justice, or in his absence the senior justice, shall, in the name of the court, repeat to him the qualifications necessary for a barrister-at- law; shall let him know that it is a conviction in the mind of the court of his being possessed of those qualifications that induces them to confer the honor upon him; and shall solemnly charge him to conduct himself as to be of singular service to his country by exerting his abilities for the defence of her Con- stitutional freedom; and so demean himself as to do honor to the court and bar. .
"No person shall be permitted to practice in this court as an attorney until he shall have been regularly sworn as the law directs, . no person shall be admitted as an attor- ney of said court until they are convinced from the manner of his life that he is a friend to the interest and independence of his country, that he sustains a good moral character and has had time and opportunity for and hath really acquired suf- ficient learning to render himself useful in the profession and practice of the law."
Rules of court and agreements among barristers as to the recom- mendation of candidates for admission to the bar continued to main- tain, and even to improve, the standards of the profession. In 1806 a further step was taken in requiring that no attorney or counselor should be admitted without first having passed a proper examination. The examinations were conducted by county boards of examiners, appointed by the Supreme Judicial Court from among the bar of each county, until, in 1897, a single board for the entire Common- wealth was provided. A requirement of admission of attorneys and counselors, a part of the rule of 1806, restricted eligibility to "all
Essex-49
770
THE STORY OF ESSEX COUNTY
such as have, besides a good school education, devoted seven years at the least to literary acquisitions, and three years thereof at least in the office and under the instruction of a Barrister or Counsellor prac- ticing in this court." Another provision was that "Any person who has been admitted as an attorney and as such practiced two years may be a candidate for admission as barrister and examined therefore."
Even though the prestige of the bar had become considerable in the years following the Revolution, there was a considerable feeling against the legal profession in some quarters. Apparently there were then, as now, scapegraces among the lawyers of the Commonwealth, although Essex County seems to have been reasonably free from them. The prejudice against lawyers played an important part in Shays' Rebellion, which was confined principally to the debtor class, an unusually large one, of Worcester County, where great resent- ment against the legal profession had been aroused by the practice of putting men in jail for debt. Effects of the wave of popular feeling against lawyers were felt in Essex County, according to the letters of John Quincy Adams, who was studying law in Newburyport about that time. At some time in 1787, Adams wrote, in a letter to his mother, that "the popular odium which has been excited in this Com- monwealth prevails to so great a degree that the most innocent and irreproachable life cannot guard a lawyer against the hatred of his fellow-citizens. The very despicable writings of Honestus were just calculated to kindle a flame which will subsist long after they are for- gotten."17 It was not long, however, before the popular hatred for lawyers had been forgotten, and the prestige of the bar, never shaken among the more intelligent classes, continued its uninterrupted growth.
With the increase in size of the Essex Bar, it became more diffi- cult for the members to meet informally, as they had previously, to discuss matters of professional policy, and the need for the forma- tion of a bar association was felt. The first bar association of Essex County was formed in 1806, there being, according to Davis, twenty- two members: John Pickering, Timothy Pickering, Benjamin Pick- man, John Prince, Jr., Samuel Putnam, Leverett Saltonstall, Joseph Story, William Prescott, and Samuel Swett, of Salem; Joseph Dana, Michael Hodge, Edward Little, Edward St. Loe Livermore, Ebenezer
17. "Life in a New England Town," Diary of John Quincy Adams, Little, Brown & Co., Boston, 1903, p. 73.
771
THE BENCH AND BAR
Mosely, and Daniel Appleton White, of Newburyport; Stephen Minot and John Varnum, of Haverhill; Nathan Parks, of Glouces- ter; Ralph H. French, of Marblehead; Asa Andrews, of Ipswich; Nathan Dane, of Beverly; and Samuel Farrar, of Andover. The association was dissolved probably about the year 1812. One act of this group was to set the fees to be charged for various services in a list which ought to be of interest to modern lawyers. "Writs varying with amount involved, four to six dollars; real actions, six dollars; divorce, twenty-five dollars; petition for naturalization, five dollars; will, five dollars; argument in Court of Common Pleas, fifteen dol- lars; in Supreme Judicial Court, twenty-five dollars; Bill in Equity, same as writ. And it was provided in the by-laws that any member not conforming to the fee bill shall be guilty of unprofessional con- duct and improper practice tending to the scandal of the profession."18 How well the lawyers abided by this set of charges is problematical, but it is probable that the association was dissolved because, like most "trade agreements," the members failed to maintain the prices decided upon.
Another Essex County Bar Association was founded in 1831, and had among its fifty-two members some of the most able lawyers in the Commonwealth. Leverett Saltonstall was president, Ebenezer Shillaber, secretary, and Ebenezer Mosely, Jacob Gerrish, John G. King, Rufus Choate, and Stephen Minot were the standing commit- tee. The association, like its predecessor, continued only a few years.
The present bar association was formed at Lawrence, October 20, 1856, and since that time has functioned continuously, contributing to the advancement of the profession. Its presidents during its first thirty years of existence were Otis P. Lord, of Salem; Asahel Hunt- ington, of Salem; W. C. Endicott, of Salem; Stephen B. Ives, Jr., and William D. Northend.
During the thirty or forty years following the Revolution, a great improvement in the personnel and prestige of the bench took place, which elevated that body to a position not dissimilar to that which it occupies at the present day. No longer were the barristers able to look down upon the learning and legal accomplishments of the bench, for as time went on it became customary to appoint only law- yers to important judicial posts. Furthermore, as a rule only the
18. "The Municipal History of Essex County, Massachusetts," op. cit., Vol. II, p. 850.
772
THE STORY OF ESSEX COUNTY
most able and best qualified barristers were selected. From this time forward the courts of Essex County were presided over by men com- petent in the law and equipped, to some degree at least, with the judicial habit of mind. Any loss in dignity attending the relinquish- ment of the judicial wigs and gowns, effective by the precedent of Chief Justice Dana of the Supreme Judicial Court in 1792, was more than compensated for by the improved caliber of the personnel of the bench.
Some decisions in Essex County courtrooms, showing the extent to which judicial independence had developed early in the nineteenth century, were positively spectacular. An instance described by Charles Warren, and quoted in "The Commonwealth History of Massachu- setts," is a case in point :
"On October 8, 1808, in the Court House in Salem, a deci- sion was rendered which probably affected the history of the nation to a greater degree than any judicial opinion ever ren- dered in this Commonwealth.
"John Davis, Judge of the United States District Court, was an ardent and active Federalist, appointed by President Adams. All his friends and judicial associates were Federal- ists. Before him there was argued the question of the con- stitutionality of Jefferson's Embargo Law, a measure detested and abhorred by the Federalists of this State, against which the state had risen in open revolt.
"Strong in his judicial integrity, though amid the oppro- brium of all his party associates, Judge Davis resisted all influ- ence, and rendered a judgment sustaining the constitutionality of the law, in an opinion so conclusive that it settled the ques- tion forever. It is interesting to surmise the strain to which the judge's conscience would have been submitted, had the judge been a candidate for reelection at the presidential election which took place, just one month later, in Massachu- setts, that fall."19
A somewhat similar behavior in the exercise of judicial integrity in the face of personal feelings was demonstrated by Justice Joseph Story, of the United States Supreme Court. Story was an Essex
19. "The Commonwealth History of Massachusetts," op. cit., Vol. IV, p. 63.
773
THE BENCH AND BAR
County man, being born in Marblehead and practicing law in Salem for several years. Warren's description of Story's achievement in judicial independence, as quoted in "The Commonwealth History of Massachusetts," is as follows :
"Story had been appointed by President Madison to the Supreme Court, only ten months previous. He was a young man of thirty-three years of age. The War of 1812 had begun, and the administration was vitally interested in prose- cuting and convicting the cases of Americans who had been guilty of unlawful trade with the enemy, England. Such a case came up before Judge Story, in which the defendants pleaded a proclamation of President Madison reviving an embargo law, under which the indictment had been found, was illegal. Judge Story was thus called upon to decide upon the legality of an action of a President who had just appointed him to office, and upon its legality as bearing upon a class of cases in which the President and his administration were vitally desirous of obtaining convictions.
"Story, in spite of his youth and his personal and political predilections, without hesitation held the action of the Presi- dent to have been illegal, and the prisoner went free. ‘For the Executive Department of the Government, this court entertain the most entire respect,' said the judge, but 'It is our duty to expound the laws as we find them in the records of the State; and we can not, when called upon by the citizens of the county, refuse our opinion, however it differ from that of very high authorities. I do not perceive any reasonable ground to imply an authority in the President to revive this act, and I must, therefore, with whatever reluctance, pro- nounce it to have been, as to this purpose invalid.' "20
These examples, the first an occurrence in an Essex County court- room and the second the decision of a native of Essex County who had been a member of the Essex bar until his appointment to the Supreme Court, indicate the plane which the judiciary of this section had attained by the early years of the nineteenth century. The learned barristers could no longer be contemptuous of the bench, for
20. "The Commonwealth of Massachusetts," op. cit., Vol. IV, pp. 63, 64.
Courtesy of The Essex Institute
NEWBURYPORT-MICHAEL DALTON HOUSE, 1746 (DALTON CLUB)
-
--
-
775
THE BENCH AND BAR
that body had come to be composed of some of the best trained and ablest lawyers which the county has produced.
Having traced the development of the bench and bar up to this point, it becomes necessary to say something of the outstanding indi- viduals who have, at various times since the Revolution, been law- yers or judges in Essex County. Space, unfortunately, does not per- mit thorough biographical notes on the many distinguished members of the bar and bench of Essex County to be included in this chapter, but the careers of a few outstanding men, each representative of his own particular period, will be sketched briefly.
Since the Revolution the bar of Essex County has included a remarkable galaxy of names, of which the people of this section should be proud. Such men, mostly natives of the county, as Theophi- lus Parsons, Joseph Story, Samuel Putnam, Theophilus Bradbury, Ebenezer Mosely, Rufus Choate, Robert Rantoul, Timothy Picker- ing, Caleb Cushing, Leverett Saltonstall, Daniel Appleton White, William C. Endicott, William H. Niles, Nathaniel J. Lord, Edgar J. Sherman, William H. Moody, and Charles A. DeCourcy have, at various times practiced law in Essex County. Some of them, notably Rufus Choate, Caleb Cushing, Robert Rantoul, Timothy Pickering, and William H. Moody, can qualify as statesmen of national impor- tance. Rufus Choate, whose brilliance as a lawyer requires some recognition in this chapter, and William H. Moody, whose life work was primarily connected with the judiciary and the practice of law, will receive further mention, while the works of Caleb Cushing, Timo- thy Pickering, and Robert Rantoul will appear more properly in the chapter on political history.
Probably the most outstanding barrister in the county in the years between the outbreak of the Revolution and the War of 1812 was Theophilus Parsons, of Newburyport. Parsons was born in Byfield, a part of Newbury, in 1750, a son of Rev. Moses Parsons. He was educated at Dummer Academy, in Byfield, and at Harvard, where he graduated with the class of 1769. The next few years of his life were spent at Falmouth, now Portland, Maine, where he taught school and studied law in the office of Theophilus Bradbury. He was admitted to the bar at Falmouth in 1774, and practiced law there until the town was destroyed, the following year, by the fleet of Admiral Graves. Returning, discouraged, to the home of his father in Byfield,
776
THE STORY OF ESSEX COUNTY
Parsons had the great good fortune to meet Edmund Trowbridge, who has been characterized as the most learned and brilliant lawyer in New England prior to the Revolution. Under the influence and guidance of Trowbridge, Parsons laid the foundation for his own brilliant career.
Only four years after being admitted to the bar, Parsons' work in connection with the famous "Essex Result" brought him recogni- tion as one of the ablest and most learned lawyers in the county. The "Essex Result" was an adverse report on the proposed Constitution for Massachusetts, evolved at a meeting of delegates at Ipswich in 1778. This instrument, which expounded very fully the principles which should be followed in constructing a Constitution, both made the rejection of the proposed one more decisive and afforded an excel- lent basis for the drafting of the Constitution as finally adopted. It is believed that Parsons, although advised on some points, prepared the "Essex Result" almost single-handed.
His work in connection with the Constitution of Massachusetts assured Parsons a high position among the delegates to the conven- tion which met, in 1788, at Philadelphia for the purpose of drawing up a Federal Constitution. It was he who drafted the "Conciliatory Resolutions" which later became the first ten amendments to the Federal Constitution. Had not these "Resolutions," whose purpose was to reconcile conflicting opinions, been offered as amendments, it is doubtful whether the Constitution could have been approved by the states. It has been said that the "Conciliatory Resolutions" pre- served the unity of the country.
Parsons practiced law in Newburyport for many years, during which time John Quincy Adams and other noted men studied law in his office. In 1800 he removed to Boston, where he practiced until his appointment as Chief Justice of the Supreme Judicial Court, which office he occupied until his death in 1813.
Another distinguished Essex County barrister was Judge Samuel Putnam. Judge Putnam was born in Danvers, April 13, 1768, a son of Deacon Gideon Putnam, and a descendant of a distinguished line of ancestors. He received his education at Andover and Harvard, where he graduated in the class of 1787. After studying in the office of Theophilus Bradbury in Newburyport, he was admitted to the bar, and held a leading rank among the lawyers of the county, practicing
777
THE BENCH AND BAR
at Salem. As a judge, he distinguished himself for his grasp of the principles of common law, and his knowledge of mercantile and com- mercial law was probably unsurpassed in the Commonwealth.
Samuel Putnam was appointed to the bench of the Supreme Judi- cial Court in 1814, and continued in this office for twenty-eight years, during which time he commanded the respect and even the affection of the bar of Essex County. He died July 3, 1853, at the advanced age of eighty-five.
A pupil of Judge Putnam who became celebrated in his own right was Joseph Story. Story was born in Marblehead in 1779, a son of Dr. Elisha Story, and graduated from Harvard in 1798. He com- menced the study of law in the office of Samuel Sewall at Salem, but on the appointment of the latter to the bench of the Supreme Judicial Court, Story entered the office of Samuel Putnam, and there com- pleted his training. He soon entered politics, as a Democrat, and held public office a number of times, serving one term in Congress. In 18II he was appointed by President Madison to the bench of the Supreme Court, at the early age of thirty-two, and almost imme- diately demonstrated his high judicial caliber in the famous case already referred to, arising out of Madison's revival of the Embargo Act. In 1828 Judge Story became the Dane Professor of Law in the Dane Law School in Cambridge. He occupied this position until his death, which occurred in 1845.
Besides carrying on his active career as a judge and teacher of law, Judge Story was able to write a large number of commentaries and treatises on various legal subjects. His works are still standard in the law libraries of the country.
Among the most notable in forensic ability among New England lawyers, and generally considered second only to Daniel Webster in this respect, was Rufus Choate. William T. Davis wrote in reference to Choate :
"Though an orator of the highest rank, his greatest for- ensic efforts were before a jury, and no gladiatorial show ever exceeded in interest the continuous exhibition of logic, entwined with wreaths of eloquence, in which he indulged before a reluctant jury until one after another of the panel vielded to him his judgment, and was ready, as he trium- phantly said, to give him his verdict. There was a fascination
778
THE STORY OF ESSEX COUNTY
about him which no juryman with the usual qualities of human nature could resist. . . . . No man understood human nature better, or was more keen in discovering the points which would influence the human mind."21
Rufus Choate was born in Essex, October 1, 1799, a son of David and Miriam (Foster) Choate. He was educated at Hampton Acad- emy and Dartmouth, and was admitted to the bar in 1823, after studying law in various places. He practiced in Danvers for four years, and in Salem for six more. After 1834 his career is connected with the history of the Suffolk bar, and it was during this period that his most brilliant achievements were made. He succeeded Daniel Webster as Senator after 1841, and was made Attorney-General of Massachusetts in 1849. His untimely death, which occurred in Hali- fax, in 1859, removed one of the most remarkable personalities ever produced by Essex County.
A later day member of the bar who was outstanding among his contemporaries was Judge Edgar J. Sherman. Judge Sherman, son of David and Fanny ( Kendall) Sherman, was born in Weathersfield, Vermont, in 1834, and was educated at the Wesleyan Seminary at Springfield, Vermont. After teaching school for some years he stud- ied law in the office of George W. Benson, of Lawrence, and was admitted to the bar in 1858. Sherman practiced a few years in Law- rence, until interrupted by the outbreak of the Civil War, in which he served with distinction, bearing the rank of colonel. After the war he returned to Lawrence, and, in 1868, was elected District Attorney of the Essex District. As District Attorney, Colonel Sherman prose- cuted some outstanding cases, such as the trial of Leonard Choate, the Newburyport "fire-bug." His ability was soon widely recognized, and, successively, he held the offices of Register in Bankruptcy, Assist- ant Adjutant-General, Attorney-General, and finally, starting in 1887, Judge of the Superior Court. Judge Sherman died June 9, 1914.
One of the most outstanding lawyers who has ever had residence in Essex County was Judge William Henry Moody, of Haverhill. Moody was born in Byfield, a part of Newbury, on December 23, 1853, and was prepared for college at Phillips Academy, at Andover. After his graduation at Harvard, in 1876, he entered the Harvard
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.