USA > Massachusetts > Worcester County > Worcester county; a narrative history, Volume II > Part 18
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18II, when the court was abolished. In the year 181I, a legislative act divided the Commonwealth into six circuits, with Worcester, Hampshire and Berkshire forming the western group and served the Circuit Court of Com- mon Pleas, composed of one Chief Justice with two Associate Justices, sup- plemented on the bench by two local magistrates, members of the General Court of Sessions. In 1814 these two courts were merged and so continued for five years. In 1821 the circuit system was abandoned, and the Court of Common Pleas substituted, with four judges. The number of justices was increased to five, March I, 1843; to six on March 10, 1845; to seven on May 24, 1851.
The Common Pleas Court was replaced by the Superior Court, on April 5, 1859. The following were judges of the Court of Common Pleas from its founding in 1821 to its abolishment in 1859: Artemas Ward, Chief Justice, 1821; John Mason Williams, 1821, Chief Justice in 1839; Solomon Strong, 1821; Samuel Howe, 1821; David Cummins, 1828; Charles Henry Warren, 1839; Charles Allen, 1842; Pliny Merrick, 1843; Joshua Holyoke Ward, 1844; Emory Washburn, 1844; Luther Stearns Cushing, 1844 ; Daniel Wells, Chief Justice, 1845; Harrison Gray Otis Colby, 1845; Charles Edward Forbes, 1847; Edward Mellen, 1847, and Chief Justice, 1854; George Tyler Bigelow, 1848; Jonathan Coggswell Perkins, 1848; Horatio Byington, 1848; Thomas Hopkinson, 1848; Ebenezer Rockwood Hoar, 1849; Pliny Merrick, 1850; Henry Walker Bishop, 1851; George Nixon Briggs, 1853; George Partridge Sanger, 1854; Henry Morris, 1855; and David Aiken, 1856. The Superior Court is not a county court although the terms are held by counties, and the writs, processes, records and the like, use the county as a territorial unit. The terms of the court are largely established by statute, and the Chief Justice assigns from his Associate Justices the judges needed for county ses- sions. As first organized the Superior Court justices totalled ten, a number gradually increased down to the present. The justices are appointed at large in the State by the Governor and Council.
An interesting study might be made of the inference with the rise and growth of a better judicial system by prejudice against the delegation of powers to officials. The Supreme Judicial Court, for example, was not given full jurisdiction in equity until 1877, chiefly because the old English practice, from which our own was inherited, would not trust judges with the effective powers naturally incident to their judicial office. On the other hand, there has been always too much to be performed by any of our courts, more especially after population had increased. The Courts of Probate and Insolvency grew quite naturally out of this overburdening of other departments of justice. Probate administration in the first century of the Massachusetts Colony was almost wholly carried on by the Governor and Council. These powers were
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delegated to county courts and still later to local magistrates, known as Judges of Probate and Registers of Probate. When a new State Constitution was adopted about 1784, Courts of Probate were established, with the Supreme Judicial Court acting as the Appellate Probate Division. The offices of Judge and Register of Probate were appointive until 1856, since when the Registers have been elected. In that same year, 1856, a Court of Insolvency was set up, but was merged with the Probate Court two years later. In 1862 the Probate Court became a Court of Record. The history of the Court of Probate and Insolvency has been one of increasing duties and powers, enough so to seriously harm its efficiency and reputation. Since the act of 1919, which severely limited probate appeals the work of the "people's court" has been greatly expedited. The Land Court was founded in 1898 after four years of investigation to administer the Land Registration Act. Through it titles may be registered on petition by judicial decree, after certain formali- ties. Its chief virtue is that of making unmarketable good titles marketable by removing clouds, calling in persons claiming any rights, and after a fair hearing, settling questions and registering the title subject to the known rights of others. The judges of the new court were given a free hand to develop the practice in accordance with the needs of the community as shown by experience. The court now has jurisdiction of ten different proceedings relating to land. Three judges and a recorder carry on the business of the court from the standpoint of the State. In most counties, the county register of deeds serves as assistant recorder.
The District Courts of today, of which there are seventy-three in the Commonwealth, are a development of the police and municipal courts of the larger places. The Worcester Police Court was created in 1848, and was succeeded after two decades by the Municipal Court, which in turn gave way in 1872 to the Central District Court. Five other district courts were estab- lished in that decade, the county being divided as follows: Central District Court, with jurisdiction in city of Worcester, and towns of Millbury, Sutton, Auburn, Leicester, Paxton, West Boylston, Holden and Shrewsbury, First South Worcester District, sitting in Webster and Southbridge, for towns of Webster, Southbridge, Sturbridge, Charlton, Dudley and Oxford; Second South Worcester District, sitting at Blackstone and Uxbridge, with jurisdic- tion over Blackstone, Uxbridge, Douglas, and Northbridge; Third South Worcester District, sitting at Milford, and embracing towns of Milford, Mendon, and Upton; First East Worcester District, sitting at Westborough, and Grafton, for those towns, also for Northborough and Southborough; Second East Worcester District, holding sessions at Clinton, and embracing the towns of Clinton, Lancaster, Sterling, Harvard, Bolton and Berlin. Fitch- burg then had a police court ; the other towns had trial justices. In effect the
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District Courts, with justices taken from among the best of the local bar, had markedly reduced the work of the Superior Court, and as its usefulness has been proven additions in increased powers and scope have been conferred upon it. The Juvenile Court is of recent birth but its growth is one of the remarkable developments in the field of jurisprudence. The United States District Court in the Worcester District, can be traced back to problems growing out of a state of rebellion against England and cases of international rather than State applications. The court did not blossom in Massachusetts until the Commonwealth ratified the Federal Constitution, in the year 1789, and until 1869 was unpopular with bench and bar.
The layman, at least, is impressed in connection with any study of the judiciary, with the unusual slowness of its development, and particularly by the hesitancy and delay manifest in legislative policies relating to courts and their necessary adaptation to the needs of the people the courts were intended to serve. One is inclined to reason that while the change is very great from the English system, originally dominated wholly by the King and those in his appointment, to one in which law is above individuals, still more than three hundred years have been allotted to this task. Many days of the General Court have been used in the process; there have been constitutional conven- tions upon several occasions since those of 1780 and 1788, although the Com- monwealth has always been chary about tampering with its constitution; and there is the Judicature Commission, founded in 1919, to review the entire judicial system and make recommendations. As the result of its 1921 report the Judicial Council was created as a permanent body which takes the place of the spasmodic special commissions which have been appointed at intervals of ten to fifteen years and provides a central "clearing house" for the more ordered and consistent future study of the administration of Justice. Quot- ing from the 1921 report of the Judicature Commission :
With the problem presented of recommending improvements in the system of one of the oldest American Commonwealths, the ideal of greater unity and ot greater flexibility and elasticity in the administrative features, as well as of greater responsibility, must be borne in mind as one to be approached as far as is practicable. On the other hand, we are dealing with a system for administration of justice in an old Commonwealth where, whatever may have been the defects of the system, the personal character and ability of most of the individuals who have held judicial office have, on the whole, made the system work, as modified from time to time during a period of one hundred and forty years, in such a way as not only to retain the respect of the com- munity but to give the State a distinguished position in the minds of all thor- ough students of civil government.
Shays' Rebellion-There is a page in history, and especially in the annals of the courts and lawyers, which was written mainly by Worcester
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County-Shays' Rebellion. It was written after the Revolution had ended and a new government established. A nation had to be created for ex-rebelli- ous governments, of states, and Massachusetts had been the last to adopt a State Constitution. Only about one out of five possible voters cast a ballot for this constitution which was neither democratic in doctrine or practice. All of this cost money, and when the legislators settled down to business there was more money spent. By 1786 Massachusetts had a debt of £ 1,631,789 in addition to her share in the Continental debt of £ 1,565,831. It was impossible to collect enough taxes to pay the interest upon these debts, not to mention the principal. In October of that year Rufus King, writing to John Adams, drew his attention to the fact that the taxes assessed that year would equal about one-third of the total income of the citizens. The fictitious prosperity which had accompanied the later years of the war had vanished-Worcester County had been free from warfare and the ill effects of the Revolution after 1776, and its agriculture had paid well. But now the farmer could not sell his produce; such specie as he had received had been spent, and the State would not do as Rhode Island did, issue fiat paper cur- rency-Continental paper was worthless. Creditors who had been liberal when prosperity was rife, became insistent upon payment of debts. Mort- gages were foreclosed ; farms taken from those who could not pay. Often if the farm failed to sell for enough to pay the debt under the law, all that he possessed, even his store of food, could be seized, and if still not enough, the debtor could be thrown into jail until he paid in full. Actually there were comparatively few imprisoned for debt in Worcester, in 1784 only seven; in 1785, however, there were eighty-six, and in the following year, eighty. In truth there were not jails enough, nor did the towns care to pay the costs of keeping inmates.
This outline of the backgrounds of the Shays' Rebellion is underdrawn. Judge Jonathan Smith of Clinton enumerates larger debt and tax figures and paints a far gloomier picture of social and physical conditions, as do most historians. He pointed out :
In 1785 nearly everybody owed almost everybody else, and each creditor tried to collect what was due him. If a debtor was sued, he in turn sued his debtor, and thus actions at law multiplied. The population of Worcester County was approximately 50,000. In 1784-85 about 4,000 lawsuits were entered in the courts of this county. Every lawyer represented at least two persons, and hence there was one lawsuit for the head of about every family in the county during these last two years.
Dwight Foster of Brookfield, one of the prominent lawyers of the county, had his office thronged from early morning until late at night by creditors seeking to collect their dues, and by angry debtors invoking his services to defend them in the courts. The fences on both sides of the road leading to
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and from his place were, during the daylight, lined with the carriages of his clients, much as are the fences near the entrance to country fair grounds now while the exhibition is in progress. . . The great hardship to the debtor, however, was what followed the judgment. There was no property exempt from seizure on execution, except the clothes on the debtor's back. The officer could take the bed on which the debtor slept, the last potato in his cellar, and the only cow or pig in his barn to satisfy the execution. Property at the execution sale brought nothing approaching its real value, and the debtor could only look on while the sheriff sold the house over his head and the last mouthful of his provisions for the winter, at a fifth of their real value, know- ing at the end that he would be turned into the streets with his family.
Judge William T. Forbes wrote of one of the most pathetic and deplorable cases of imprisonment for debt, that of Colonel Timothy Bigelow "the fore- most patriot from Worcester during the Revolutionary War. It seems incredible to us that this minute-man of 1775, who stormed Quebec with Montgomery, who bravely led his men at Monmouth, after his release from the hardship of a British military prison-the companion and friend of Wash- ington and LaFayette-at last, when poor and broken in health, should have been consigned to a debtors' prison, whence he was a few days later 'dis- charged by deth.'"
The people blamed for these conditions, the General Court which imposed laws which "favored the creditor over the debtor"; the judiciary which was unable to handle their business ("Delay in justice is an injustice") ; and the bar most of all. Albert Farnsworth, in the Massachusetts Law Quarterly of February, 1927, outlines the causes and character of Shays' Rebellion, and indicates that it was chiefly a debtors' rebellion against the courts and law- yers. One of his paragraphs states: "The real reason that there was so great an outcry against the legal profession was not so much that the tone of the bar was low or the lawyers venal, as it was the fact that there was in Worces- ter County, as elsewhere, a large class of men not professional lawyers who made a business of buying up claims and bringing suits in the inferior courts to collect. . . . . They practiced largely in the inferior courts and brought these suits there to collect on those small claims which they had bought on speculation. The people hated them, applied the term 'shyster' to them, and made no discrimination between the high-minded lawyer and the unscrupulous speculators. The harsh laws, the fact of a term in jail stared every debtor in the face, the size of the professional income of the lawyers and the acts of others in bringing claims into courts were the main causes of antagonism of the people toward the legal profession."
With the events of the "Rebellion" we are not concerned here. In truth it might better be called a riot or an uprising something like a modern strike, and the only definite purpose of the rioters was to close the court by a show
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of armed force. Folk who had won liberty and Statehood by recent years of revolution turned naturally to some method in this crisis. A method approved by the national leaders such as Alexander Hamilton. Worcester happened to be the focal point of the revolt because it was the shire-town of a county of which it was said : "One-third of its people were active belligerents ; one-third in sympathy with them and ready to go over to their side if victorious; and the remaining third being conservatives or the ruling class." The "tempest in a teapot" started like most strikes in meetings where demands were formu- lated. In this case, the town meeting, a perfectly legal form of procedure was used. Then there were conventions of representatives from towns. In gen- eral the grievances complained of were: the existence of the State Senate ; methods of representation; the sitting of the Legislature in Boston; mode of taxation and the attempt at that time to pay off State and Continental debts ; the failure to provide fiat money ; but principally against the Court of Common Pleas, lawyers and their high fees. It was suggested that all lawsuits should be stopped until money was plentiful, and that the number of attorneys to a county should be limited to one.
It was only after hundreds of such meetings and conventions, and more than a year in time, that the insurrection got under way. In the first week of September, 1786, on the eve of the fall session of the court, an armed mob of one hundred under Captain Adam Wheeler of Hubbardston, took posses- sion of the Worcester Courthouse, but when it came to the showdown, while the court was held elsewhere, the belligerents stood meekly by while Chief Justice Artemas Ward harangued them for three hours. Again at the time of the November court the justices in their fine robes were prevented from entering the courthouse by the "triple rows of bayonets" and after many threats and much badinage, the judges marched away. The clerk of the court sums up the affair with the entry in his record book "that the court was prevented from being held by an armed force." A much more thrilling description of Shays' Rebellion, and particularly the events in the county seat, is that given by William Lincoln in his ancient History of Worcester, an account that has been quoted in every local history since. It is well worth reading as a record by one thoroughly familiar with the facts of this "most dramatic incident in the history of the courts of Worcester County." The rebellion was started to remedy very real and pressing evils. In the beginning regular and legal methods were taken to secure a cure. The opposition of the conservatives, who strangely enough had been the arch rebels of the Revolu- tion, was partisan and prejudiced. It is certain that neither then, or imme- diately after the collapse of the insurrection, did the legally constituted authorities take any effective measure to assuage the conditions which so grieved and angered the majority of the citizens of Massachusetts. Nor
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was anything worth while done to establish the prestige of the judiciary and the bar.
The usual method in writing a narrative such as this is to devote the larger part of it to thumb-nail sketches of members of the bench and bar over a period, which as touching Worcester County, covers more than two hun- dred years, and to introduce numerous case annals notable for their spectac- ular qualities or the forensic efforts of the participants. This has been done especially well in such histories as Crane's, Nutt's, Hurd's (William T. Davis and Charles F. Aldrich), Jewett's; the collections and published works of many of the historical societies, and the writings of numerous members of the bench and bar. The biographical material is exceedingly great, and with the years has become embarrassingly so. The first sessions of the Worcester County courts in 173I attended to less than a dozen cases; in recent years the Superior Court may have a docket of two thousand criminal cases. Civil cases and divorce libels pending will average nearly four thousand. In 1930 there were about six hundred and forty attorneys in Worcester County and the number had remained about stationary in the preceding decade and dur- ing the other two decades of this century, although fewer in number, the proportion of lawyers to population was larger. The difference is due prob- ably to the increased educational requirements fixed by the Board of Bar Examiners, on April 23, 1921. It might be noted here that this same board set up almost similar requirements in 1904, but they were curtailed by a legis- lative enactment in 1915.
Not the reason for the size of the legal fraternity in Worcester County, but its numbers, now and over a long period, is the subject of comment. One should contrast the six hundred and more of today with seventeen "regular practitioners" in the county from 1731 to 1775. Incidentally, Washburn in his History of the Judiciary says there were only twenty-five barristers in Massachusetts as late as 1768, so that it surely means that the requirements for recognition as a "regular practitioner" in the county prior to the Revolu- tion were not high. It is of course well known that in the earliest period of our history, the professional lawyer was unknown and as late as 1699 many of the courts were presided over by laymen. With the founding of the Superior Court of Judicature in that year there began the rise of a bar and of trained lawyers capable of sitting on the bench or appearing before it. Fol- lowing English nomenclature, the barrister was differentiated from the attor- ney and counsellor, but until long after the Revolution laymen were privi- leged to represent clients in the courts.
The reference made to the number of "practitioners" from the setting up of the county to the Revolution is from Benjamin Thomas Hill, and the
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paragraphs containing it are well worth reprinting in full, not only for names, but for its calling attention to the effects of the Revolution upon the bar.
In 1774 the disputes between the government and the people had nearly reached a crisis. A board of Mandamus Counsellors had been created by the King. The judges of the Superior Court were of this number, and, in view of this fact and that Judge Oliver had accepted his salary from the Crown, the jurors of Middlesex and Worcester refused to be sworn or to act at all if that justice attended the court. As a result the courts were closed, not to be opened again until December of the following year, when we enter upon a new era in the history of the bar and of the courts. There were other judges upon the bench and it was almost another bar. "The change was striking," says Willard. "On one page in the records we see the ancient order of names and cases, and on the very next a new system of things rises to view ; and then follow the extensive confiscation of the estates of those whom, a few lines back, we found distinguished in the forum, and filling a large space in the community-the Chandlers, James Putnam, Timo- thy Paine, and Timothy Ruggles." General Artemas Ward was the only one of the justices of the Common Pleas who retained his seat, and there were but two members of the old bar, Judge John Sprague, of Lancaster, and Joshua Upham, of Brookfield.
From 1731 to 1775 there had been but seventeen regular practitioners in the county ; Joseph Dwight, of Brookfield; Nahum Ward, of Shrewsbury ; Timothy Ruggles, of Hardwick; Joshua Eaton, Jr., Christopher Jacob Law- ton, of Leicester ; Stephen Fessenden, James Putnam, Abel Willard, of Lan- caster ; Ezra Taylor, of Southborough; Joshua Atherton, of Petersham; Daniel Bliss, of Rutland; Joshua Upham, of Brookfield; John Sprague, of Lancaster ; Rufus Chandler, Daniel Oliver, of Hardwick; Nathaniel Chand- ler, of Petersham ; Elijah William, of Mendon.
During the years of the Revolution nine new attorneys had begun to practice here ; Levi Lincoln, admitted in Hampshire, was clerk of the courts in 1776, Judge of Probate from 1777 to 1781 ; Attorney-General of the United States under Jefferson, Lieutenant-Governor of the Commonwealth in 1807, and Acting Governor after the death of Governor Sullivan in 1808; William Stearns and Daniel Bigelow, who were the publishers of the Spy for a time ; Nathaniel Paine, Judge of Probate for 35 years; Nathan Tyler, Dwight Foster, William Caldwell, William Sever, and Peter Clark.
Of the seventeen named, Joseph Dwight took the oath of attorney in 1731 at the first court session held in Worcester County. He had won the title of Brigadier-General in the French and Indian wars; represented Brook- field in the General Court, and was elevated to the bench of the Court of Common Pleas in 1843. Nahum Ward, a resident of Shrewsbury, became a Chief Justice of the Court of Common Pleas in 1745; his son Artemas, and grandson of the same name, also were Worcester judges. The first Artemas is better known to fame as a general of the Revolution, and for his brave stand when barred from the Worcester Courthouse by the bayonets of armed insurgents during the Shays' Rebellion. Timothy Ruggles of Hardwick, a
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Harvard graduate, practiced in several courts before coming to Worcester. He was a Chief Justice in the Common Pleas Court and one of the great men of his day. He was a Loyalist, however, and migrated to Canada in 1776. Joshua Eaton, of Leicester, practiced law but a short time before becoming a minister. Christopher Jacob Lawton, of Leicester, was an experienced attor- ney before coming to Worcester. Stephen Fessenden opened a law office in Worcester in 1743. James Putnam, once called "the best lawyer in America" was once Attorney-General of the Province, but was a Royalist and later was a judge in the Supreme Court of New Brunswick, Canada.
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