USA > Maine > Lincoln County > Memorials of the bar of Lincoln County, maine, 1760-1900 > Part 1
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1
JOHN A. PETERS.
MEMORIALS
OF THE
Bar of Lincoln County
MAINE
1760-1900
BY R. K. SEWALL. 11
" Benedicta est expositio quando res redimitur a destructione."-+ Coke, 26.
WISCASSET : THE SHEFPSCOT ECHO PRINT 1900
r
1
Memorials of the Bar of Lincoln County.
SECOND EDITION.
ILLUSTRATIONS.
I Chief Justice John A Peters I
2 Pemaquid Harbor, site of Jamestown IS
3 Town of Popham's Fort St. George, by sketch of a Spanish Spy 19
Jamestown and St. Charles, Capital of Cornwall County, A. D. 1665-1677 24
5 Samuel Denny's Homestead, Arrowsic Island, First Lincoln County Judge 30
6 Wiscasset, Shire of Lincoln County, as seen from Edgcomb Heights in 1858 .. 31
7 Court House Lincoln County, Wiscasset, erected 1824 33
8 Water View of Old Fort Edgcomb and Batteries, from the quay and Penobscot Oak on Folly Island 36 and 38
9 Court Room Lincoln Bar 40
Tragic Death of Judge Thomas Giles 26 and 29
At a meeting of the Lincoln County Bar Association, held at the Court House, in Wiscasset, on the sixth day of March, 1900, it was
Voted : That Messrs. R. K. Sewall, Geo. B. Sawyer, and Emerson Hilton be a committee to negotiate and provide for the printing, for the use of the Bar. of one hundred copies of the report of the proceed- ings on the occasion of the banquet given by this Bar, Nov. 3. 1899, in honor of the Hon. John A. Peters, the voluntarily retiring Chief Justice.
Memorials of Lincoln Bar.
INTRODUCTION.
BY R. K. SEWALL, ESQ.
Under the administration of the late Charles Weeks, Esq., as Clerk of the Courts, Lincoln bar held an historical reunion at Squirrel Island on Saturday, August 18, 1883. Organized and executed with success by the clerk, the literary exercises consisted of an historical sketch by R. K. Sewall, a poem by Benjamin F. Smith, and "post prandial exercises" by addresses from Judge Barrows, Nelson Dingley, Jr., M. C., and gentlemen of the bar of Lincoln and Sagadahoc. The entertainment was served at the Samoset House, on Mouse Island. It was the first service of the bar relating to its historical incidents, and a formal, distinguished and successful gathering under conduct of the Sheriff of Lincoln County and a Judge of the Supreme Court of Maine.
The suppletory matter of the present issue was then and there elaborated and is now introductory to the colonial narative of this memorial issue.
As an outgrowth of pre-existing conditions of colonial civil life, forces prevailing in England, having organic effect in the charter of the Ioth of April, 1606, the charter party of the Popham voyage and landing on the coasts of Maine, in August, 1607, and practically applied on the peninsula of Sabino of Sagadahoc, in a formal act of "seizure and possession""
I Gorges. Mass. Ilist. cul. vol. IS.
6
of New England under the English theories and application of the law of valid land title, Lincoln bar is the legal representative of this English common law antecedent in New England. In its personals eminent men have practised more or less at Lincoln bar. John Adams attended Court at Pownalboro in 1765. William Cushing, a graduate of Harvard, 1737, came to Lin- coln and was the only resident lawyer prior to 1769. He was Chief Justice, and Sargent, Sewall and Sumner, associates, at the opening of the S. J. Court in 1786. Cushing was created associate justice of the Supreme Court of the U. S. on its organization in 1789. Daniel Webster, it is said, attended a case at Lincoln bar and George Evans, John Holmes, and Benj. F. Butler have practised at Lincoln bar ; and our honored senator, Wm. P. Frye, acting president of the Senate of the U. S., was admitted to practice law at Lincoln bar.
Our record of notable men at this bar would be incomplete without the names of Hon. Samuel E. Smith, for four years governor of the state ; Hon. John Ruggles, late of the senate of the United States; and the fact that the Hon. Chief Justice of the Supreme Judicial Court of Massachusetts died on the bench in this County of apoplexy on the second day of the court, whose monument in marble is yet standing in the old Wiscasset graveyard, inscribed "Erected by the members of the bar practising in the Supreme Judicial Court of this Common- wealth, to express their veneration of the character of Hon. Samuel Sewall, late Chief Justice of this court, who died suddenly in this place, June 8th, 1814."
I Frontier Missionary, p. $2.
CHAPTER I. Law of "Seisin and Possession" as a Factor of Valid Land Title. Its Origin and Application as a Colonial Factor in New England.
LAW AS A CIVIL ELEMENT.
Law and the Christian religion are types of the highest developement in human civilization, and are not only props but pillars of state. Both are rooted in the principles of natural right and justice ; and summarily expressed in the Mosaic code of the rock-written decalogue.
It is a philosophical axiom that order is nature's first law. But order is a fruition-the creation of law. Back of all order, in the chaos, where cause and effect work out issues, there must be a law-maker ; and while law marshals organic relations of each molecule of matter, every throb of thought, all acts of the will, in material, mental, moral, social, civil and religious organism, it is only an expression of purpose, developement of design, movement of a plan by force of an intelligent cause. The law-maker is behind all. Law links the chain which holds all creation to its activities, and in its proper place all its forms, natural, moral and civic. Society is one of them, and the state an aggregation thereof, an outgrowth of law. The integrity of the state is upheld by force of law which keeps in proper action to their true functions the underlying forces of right and wrong in life's drama. Law is therefore a science, and right and wrong the sphere of its operations.
8
Law as related to valid land title in English juris- prudence, known as that of "seizin and possession" is of ancient origin and as held and applied, is a common law, appurtenant to, and safeguard of, homestead rights in land. This common law force was brought into use as a factor in colonial adventure in foreign lands early in the history of North American empire, by England as an initial step.
In 1492 the fact of a new continental world in the west from Europe was revived and certified to the maritime nations of Europe. In 1493 the lands of the new continent were partitioned to Spain and Portugal in virtue of alleged Divine vice-geral authority, by Pope Alexander VI, as a dotal act. excited England and France.
This act startled and The question of the validity of such title was raised. France wanted Adam's will produced and the clause in it shown by which she was barred from a share in the new world. England appealed to natural right, and declared there was no good title in newly discovered land without possession. It was her common law doctrine of scizin and possession. A legal issue of international scope was started and grave questions of homestead holdings abroad opened among the nations. The British lion shook his mane in parliamentary ferocity. Bristling with resentment at Papal presumption, England roared : "prescriptione sine possessione haud valcat," and prepared to enforce her common law postulate of homestead holding, as an element of international law applicable to trans-atlantic titles instead of Papal dotal title. The English dogma was novel. It was also revolutionary. Spain was supreme in prestige and power on land and sea and a favorite of Rome.
9
National issues of trans-atlantic title had become involved with other matters of state. England was resolute. The issue narrowed to more or less of religious prejudice and church perquisite. Spain was incisive and led off, not only as the champion of her right to the exclusive possession of her church dotal in the choice lands of the American continent, but also in the assumption of the Divine vice-geral authority and persquistes of the Pope. More than a century had passed since the Papal grant, when, in 15So, England declared' that by the law of nature and nations scisin and possession were the sole grounds of good title to newly discovered lands ; whereupon this issue became the battle ground of statemanship and diplomacy in the legal arena of international right.
THE CRISIS.
The argument ended in 1588. Spain decided to cut the Gordian knot with the sword. She marshalled an "Armada," heralded the invincible, and called her great American captain and dog of war. Pedro Menendez, to lead it. Death intervened to defeat his leadership, and the fleet entered the English channel on the 19th of July, 1588, under another command.
England gathered her wooden bulwarks, massed her guns in defense, to storm the channel waters under her Admiral Drake. On the 21st of July battle was joined. Fifteen different engagements were fought. The con- flict raged to the 27th of July. For six days a cyclone of fire and shot swept the sea around the shores of England.
I Holmes annals Vol. I. P. I.
IO
Spain lost five thousand men and seventeen ships of war, sunk, burned and scattered. This catastrophe of arms and storm cleared the sea of Spanish supremacy : and England vaulted to empire and became herself mistress of the sea, a position she has ever since held. Thereafter the English common law of "seizin and possession" became a great colonizing force.
England and France at once applied the beneficent principle to trans-atlantic homestead life on North American shores. English maritime restlessness and enterprise in the west organized to discover and take "seizin and possession" of eligible sites in the new world. In 1602 the Concord, Gosnald, master, was chartered and started in execution of the enterprise. This ship- master conceived the plan of a new and direct route across the sea to American shores as the winds and currents would permit. It was within the parallel of the 43d degree N. L. In seven weeks he struck New England, on the coast of Maine, in a land full of hillocks, an out point of tall grown trees ahead north, a rocky coast at a point fringed with white sands. It was a sunrise view of a May morning. A Spanish sloop with native sea- men, some clad in European costume, came along side and chalked a map of the country on the Concord's deck and called it "Ma-voo-shan." The relation of Gosnold arrested the attention of the commercial circles of Eng- land. In 1605 a "new? survey" of this Gosnold land was projected, and the ship "Arch-Angel," Capt. Geo. Weymouth, was sent out from the west of England to execute it, which was done before autumn and in latitude
I Teig's Hist. Chronology.
2 Strachy.
11
north, 43 and 44 degrees. This survey made discovery of a magnificent harbor, the little River Pemaquid and the notable River Sagadahoc, the great river of the country of Mavooshan, the landfall of the Gosnold voyage of 1602. This landfall of harbor facilities, hillocks, rocky shores, fringed with white sands, and rivers described, became in England a coveted point of commercial and colonial attraction, valuable for "seizin and possession." The relation of Gosnold supplemented by the Wey- mouth survey fixed in England the locus in quo of emi- nent domain for a "great State."
The spacious harbor, grand river tributaries, mag- nificent woods of great mast trees and oak ribs for ships, abounding seashore fisheries, beaver haunts and otter ponds, were the appreciated features of commercial and industrial promise "of places fit and convenient for hopeful plantations."1
Gosnold's landfall of the Ma-voo-shan country, the beaver haunts of the Sheepscot and Kennebec, Pema- quid and Muscongus, environed with the "strangest of fish ponds" in the sea, and land marks most remarkable from Monhegan and its island archipelago with hills north and east and the twinkling mountains of Aucocisco in the west, in 1606 had become a land of promise to the commercial industries of England for a seat of empire in North America.
But France had forestalled England in the applica- tion of her law of seizin and possession to the lands of the new world and planted colonial foothold in New England on the St. Croix River, east of Ma-voo-shan in 1604. Nevertheless, recognizing the legal tenure of
1 Charter, 1620.
12
the French occupancy, England hastened to make good her legal hold in the lands west. On April 10th, 1606, the English purposes to utilize her common law of seizin and possession in North America in the latitudes of her surveys took form and expression in legal muniments of contract.
The Chief Justice, Popham, of the bench of England, organized a corporate body on a crown grant hedged with specific agreements. "We do grant and agree," is the opening of the contract. In tenor it was a license conditioned to the issue of future and further conces- sions. The grantees were government contractors. The transaction was a formal, legal conception of a valid permanent title of possession of homestead holdings of the English race at the points of seizure, discovered and seized as "fit and convenient"' places for making of habitations and leading out and planting of volunteer subjects of Great Britain. The contractors agreed to build and fortify where they should inhabit ; and could lawfully colonize only such residents as would voluntarily emigrate. Permanency of possession, homestead estab- lishment of English people, alone could fulfill the conditions precedent of the colonial undertakings. Such a colonization accomplished, insured, under royal stipula- tion, endowment of plenary right to the fruits of their undertaking to the contractors, their heirs, assigns and successors, in letters patent or crown deed to the lands by them seized and occupied, which issued in the great New England charter of 1620.
I need not say the facts above stated were a practi- cal expansion and enforcement of the English common
I Charter, 1606.
13
law doctine of valid land title to North American soil, to serve purposes of state as well as corporate interests. The contract of the 10th of April, 1606, pregnant with the forces of English common law land title, at once began to untold the era of English colonization north of Florida, in English cartography marked "Verginia."
Two colonial adventures were started within definite bounds for the shores of North America, known as the first and second colonies. This scheme for seizing and · establishing a legal land title in right of the English race on North American soil, was applied in Maine and set to work out natural results with all the machinery of law into which the civilizing forces of Christian ethics, natural right and justice fully entered to shape an embryo state on the 20th of August, 1607.
THE RIGHT ASSERTED.
The French, who had forestalled the English in a "seisure and possession" east, alert to extend the posses- sion of the celtic race in New England, some three years after the English seizure within the 43d degree and a supposed abandonment, on rumor thereof at St. Croix. planned an expedition to seize the abandoned region, led by Captain Plastrier, the French commander. Reaching Monhegan, a dependency of Pemaquid off Popham's Port, two English ships from the little harbor of Monhe- gan captured Plastrier and held him prisoner by force and arms till he promised to return east and abandon his purpose of expansion of French territory at the expense of English rights of possession in the latitude. The Englishmen produced letters of royal authority in justification of their acts,' saying" they were masters of
I Caryon's letters. Baird's narrative.
14
the place," probably the charter of the 10th of April, 1606, of the Popham colonial enterpise. This public assertion of land title in right of the English race was the earliest outgrowth of the English law of seizin and pessession recognized as an element of international law now put in force in the colonization of North America.
The charter licence of April 10th, 1606, (and charter party of the Popham colony), is therefore the guarantee of land titles to colonial life in New England. The common law of land titles in England applied as an international right to the soil of the North American continent, in its expansion and application to colonial holdings prior to 1619 and in virtue of the Popham colonial startat Sagadahoc, established legal possession of New England in right of the English race and settled English homestead life in more than one place, agreeable to the desire of the colonial settlers on the coast of Maine. On the 20th of August, 1607, the climax of English land title was consumated, on Thursday, when all the colonists landed at Sagadahoc, and the President, Popham, "set the first spit of ground" to fortify, and after him all the rest followed, thus waiving and merging the ancient symbolic act of seizure by "turf and twig," by breaking the soil with a spade.
CHAPTER II. LINCOLN ( MAINE) BAR.
Its Colonial Rootlets 1607, and Climax 1899.
In English jurisprudence the bar represents a conception and contrivance in the administration of law, founded on the Roman idea of a tribunal of justice. The bar is a factor of our civilization. It is, in fact, a duly organized body of men, schooled and skilled in the principles of justice to be an organ of sovereignty, to determine questions of right and wrong in society, and enforce the demands of natural justice, agreeably to good conscience and fair dealing.
Lincoln bar is the representative of legal procedure in the earliest appliances of the common law of England in New England as a colonial factor. Originally its jurisdiction embraced a section of the coast of North America in and about 44 degrees N. L. :- a country specifically located between Cape Small Point and the eastern expansion of Pemaquid dependencies, on dis- covery, in 1602, called by the natives "Mavoo-shen" ; in the English colonial transactions of 1607 contracted to "Moashan"2 : and in the annals of colonial English literature described as "The Kingdom of Pemaquid."3 The earliest civil organization for general legal procedure, was formed into a ducal province, as the county of "Cornwall," after that of England, the home in the fatherland of many of the early immigrants thereto.
I Hutchinson Hist. Map.
2 Popham's despatch.
3 Strachy.
16
Lincoln was applied to the same civil jurisdiction in 1760, in honor, (it is supposed), of the ancestral home of Governor Pownal, who signed the act creating the county.
With these facts relating to the origin, succession, name and jurisdictional territory of Lincoln bar, we proceed to the facts of antecedent administration of law and justice within its bounds; together with the princi- ples of civil polity on which the administration vested underlying legal rights.
We therefore go back to the reign of Queen Eliza- beth of England, when her nobility besieged the throne with calls of urgency for English colonial seizure and planting of North American soil. "The wings of a man's life," they cried in her ears, "are plumed with the feathers of Death,"' till the head of the English bar was autho- rized to act in the premises, and the Royal Licensure of April 10, 1606, was issued, -the charter-party of the Popham colonial exodus from England, in 1607, embracing a code of civil principles which were organized on the colonial landing, and into its Pernaquid expansion, and enlarged in the patent of February 20, 1631, and there reduced to practical use in the judicial construction of a civil polity on the basis of the common law of England.
The first court organized in New England was within the ancient jurisdiction of Lincoln County and in Popham's town of Fort St. George, where first were applied the forces of the common law of England as a colonizing agency. The antecedents of Lincoln bar were the outgrowth of the royal charter aforesaid :- an inden-
I Brown's Genesis. 1
17
ture drawn up by Lord Chief-Justice Popham of England.
Its execution began in the English seizure and possession August 20, 1607, of the peninsula of "Sabino," the west shore of the mouth of the Kennebec river, then, as now, known as the "Sagadahoc," its Indian name. The colonial grant was a pregnant act, having fuller expansion at Pemaquid and old "Sheepscot farms," up to 1689 ; and matured in the administration of law, as now, at Wiscasset Point in 1794.
The unfolding of the charter of April 10, 1606, started English homestead life and industries on North American shores in lat. N. 43 to 44 degrees. One hundred and twenty English colonists landed under the English flag. The site of a town was chosen. The first act was solemn consecration of the spot by the worship of God and a sermon, according to English canonical law and formularies of the English Episcopal Church. A code of law was promulged and civil polity organized, and a court of law opened.
Sir George Popham was nominated, not as a viceroy, governor or mayor, but as president of the embryo state, to wield the sovereignty thereof, and duly inducted to office, with subordinates, by solemn oath.
The material fruits of the movement were an English hamlet of fifty houses, a warehouse, a church with a steeple to it, an elaborately entrenched fort, well mounted with guns, a shipyard with a thirty-ton vessel on the stocks and a court of law.
The president, with sworn assistants, were the Court officials. It had a seal. "Sigellum Regis Magnae Brit- ianiae, Franciae .et Hiberniae,"I was the legend of one
I Popham Memorial vol., Appendix S. p. 133.
18
side ; and on the other, "Pro Concillio Secundae Colo- niae, Virginiae,"
All the rights, privileges and liberties of English home-born citizenship were guaranteed. Trial by jury and the writ of habeas corpus were grants of right to the people.1
Every safeguard of life, personal liberty and property, to the English common law appurtenant, was set about the new homestead life of the English race here,
PEMAQUID HARBOR. (Site of "Jamestown." Capital of Conwall County. (1005 . and Fort Charles.)
as a hedge, even to the use of the elective franchise in the civil office of chief magistrate." So all the forces of Christian civilization were planted at Sagadahoc. Tumults, rebellion, conspiracies, mutinies, sedition, manslaughter,
I ldem, Appendix A, P. 94.
2 "These my loving subjects shall have the right annually to elect a president and make all needful laws for their own government," etc. Memo. vol. page 94.
19
incest, rape and murder were capital crimes. Adultery, drunkenness and vagrancy were penal offenses.'
All offenses were required to be tried within the colonial precinct. Magistrates were ordered to hold sentence on judgments recovered, in abeyance for appeal to royal clemency to secure a chance for pardon. To
Eastern
Northern
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00366882
1 Takeone
1 Prenderle mais
1 Chaku
y Muriten vence
=
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.
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.
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M Market Place
" The rest are private dwellings
Plan of St. George & Fort ! Pophamsl al mouth of Kennebec River Exdern Hunt 1627, 0:65 - From Spanish Archives.
facilitate this feature of legal mercy, the court was required to keep full records and preserve the same. Preaching of the Christian religion was ordained as matter of law, as well as Christian teaching and civili- zation of the Indians.
It will be seen the scope of jurisdictional issue of the court at its colonial start in this county was substantially.
1 See Charter, April 10, 1606.
Southern
1 2 Lorry Pulveron
.
* Buttery General
20
as relates to crime, the same in its cognizance as now.
No records of the adjudications of the court of Popham's town of Fort St. George have yet been re- covered.
The only legal public paper extant is a dispatch of President Popham to the King of England, dated at the old town, December 13, 1607, detailing present success and incidents of promise of the colonial holdings, written in Latin, the then language of state papers.
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