History of York County, Maine, with illustrations and biographical sketches of its prominent men and pioneers, Part 19

Author: Clayton, W. W. (W. Woodford)
Publication date: 1880
Publisher: Philadelphia, Everts & Peck
Number of Pages: 730

USA > Maine > York County > History of York County, Maine, with illustrations and biographical sketches of its prominent men and pioneers > 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).

By the rearrangement of the judiciary in 1811, Cir- cuit Courts of Common Pleas were established, and three circuits assigned to Maine. Of the first circuit, composed of York, Cumberland, and Oxford Counties, the judges were Benjamin Greene, William Widgery, and Judah Dana.

Militia laws were passed March 3, 1781, and March 21, 1783, making all able-bodied men between sixteen and fifty eligible to duty. The militia in the District of Maine was arranged into one hundred and twenty companies, and finally classed iuto thirteen regiments, three brigades, and two divisions. In the Massachusetts enumeration the divisions were the sixth and seventh. Ichabod Goodwin, of Ber- wick, was chosen by the General Court major-general of the former, embracing the militia of York and Cumberland Counties.

Of the committee on public lands, Nathaniel Wells, of Wells, and Nathan Dane, of Beverly, were appointed mem- bers, March 19, 1784.

War was declared against Great Britain, June 18, 1812. Additional taxes as well as privations were necessarily among the incidents of the war. Of the three million dol- lars directly levied by Congress on the lands of the United States, to be collected after the ensuing January, seventy- four thousand two hundred and twenty dollars were appor- tioned to Maine,-a tax which the majority of the people paid with patriotic spirit. Enlistments were animated, and it is believed that a larger number of troops were recruited

for the army in Maine than in any one of the States, accord- ing to the population.

The government called for one hundred thousand militia, of which Maine's quota was two thousand five hundred. There were at this time in the district, including cavalry and artillery, twenty-one thousand one hundred and twenty- one men. The number and names of those who actually entered the service from York County it is impossible to obtain.

The following is a partial list of the companies, and the towns to which they belonged :

COMPANIES FROM YORK COUNTY IN THE WAR OF 1812-14.

Capt. Edward Small's company, of Limington.

Capt. Joseph Stevenson's company, of Limerick.

Capt. James Ayer's detached company of infantry. Lieut. David Maxwell's company, of Wells.

Lieut. George Wheelwright's company, of Wells.

Capt. Joseph Howard's detached company of artillery.

Capt. B. Thompsou's company detached militia. Sergeant's Guard, John S. Thompson. Capt. Thomas Cutts' company, of Kittery.

Capt. James Woodman's company, of Buxton.

Capt. Daniel Appleton's company, of Buxton. Lieut. Seth Fairfield's company, Saco and Biddeford.

Capt. Rufus MeIntire's company United States artillery, two hundred men in service in Canada eighteen months.

On the 6th of September, 1786, a convention was held at Falmouth to consider the question of a separation from Massachusetts and the formation of Maine into a State.

The delegates present from York County were Thomas Perkins, from Arundel ; Nathaniel Low, from Berwick ; Henry Y. Brown, James Haywood, Samuel Haywood, from Brownfield ; Samuel Knight, Nathaniel Hill, from Buxton; Joseph Frye, Paul Langdon, Daniel Fessenden, Isaac Walker, Nathaniel Merrill, from Fryeburg ; John Storer, from Wells. Resolutions were adopted favoring the erec- tion of the counties of York, Cumberland. and Lincoln into a separate State, and a committee was appointed to petition the General Court to that effect. The petition was not granted, and the subject rested till after the war of 1812-14, when it was again renewed and warmly advocated by many leading men in the district.

In Jauuary, 1815, a petition was presented to the Legis- lature of Massachusetts from forty-nine towns, in their cor- porate capacity, in Maine, aud by individuals in nearly as many others, asking for the privilege of calling a convention to adopt a State constitution.

The Legislature submitted the question to the people of Maine to be voted upon,-" Shall the Legislature be re- quested to give its consent to the separation of the District of Maine from Massachusetts, and the erection of said dis- trict into a separate State ?"-requiring the affirmative, the negative, and the whole number of votes in each municipal corporation to be certified and sent under seal to the Secre- tary of State.

At the session in June, 1816, the returns were counted, and it was found that there were 10,393 yeas, 6501 nays, and the whole number of voters 37,828, showing that a

BENCH AND BAR OF YORK COUNTY.

majority of the freemen had not voted upon the question. Notwithstanding this result. the Legislature, upon a petition of most of the representatives from Maine, granted a bill of consent for the separation, which became a law on the 20th of June, 1816.

On the first Monday in September the inhabitants of the towns and plantations of the District met to vote upon the question, and also to choose delegates to meet in conven- tion at the meeting house in Brunswick on the last Monday of the same month, and if they found that a majority of five to four, at least, of the votes returned, were in favor of the proposed separation, the convention was authorized to frame a constitution. The names of the members of this convention we have not been able to obtain. The number of delegates was 185. William King was elected president, and Samuel K. Whiting secretary. There were 11,969 yeas, and 10,347 nays, presenting a result much less than the statute majority required. The report did not satisfy the Massachusetts Legislature that the statute had been fairly compiled with, and the convention, which had ad- journed to meet on the third Tuesday in December, was dissolved by that body.

In May, 1818, about seventy towns in Maine petitioned the Legislature for another separation act, which was granted on the 19th of June. The votes taken under this act showed 17,091 in favor, and only 7132 against the sep- aration. The Governor issued his proclamation announcing the result, and delegates being chosen, assembled October 11th, to the number of 269, at Portland. William King was chosen president, and Robert C. Vose secretary. A committee of thirty-three, selected from each county, was raised to prepare a constitution, John Holmes, of York, being chairman. The committee continued their labors from day to day till the work assigned them was completed, Oct. 19, 1819. The members from York County who signed the constitution, and the towns which they repre- sented, were as follows : Elihu Bragdon, David Wilcox, York ; Alexander Rice, Kittery ; Joseph Thomas, Wells ; William Hobbs, Nathaniel Hobbs, Richard F. Cutts, Ber- wick ; George Thacher, Seth Spring, Biddeford ; Simon Nowell, Arundel ; William Moody, Ether Shepley, George Thaeher, Jr., Saco ; David Legrow, Lebanon ; Gideon Elden, Josiah Paine, Edmund Woodman, Buxton ; John Low, John Burbank, Lyman ; John Leighton, Shapleigh ; David Marston, Abner Keazer, Parsonsfield ; Sammuel Bra- deen, Henry Hobbs, Waterborough ; David Boyd, Liming- ton ; Thomas A. Johnson, Cornish ; John Holmes, Alfred ; Ellis B. Usher, Timothy Hodgdon, Hollis; Benjamin Greene, South Berwick ; John Burnham, Limerick.

CHAPTER XXII.

BENCH AND BAR OF YORK COUNTY.

Progress of the Profession of Law in Maine-Early Lawyers-Irregular Practice-Bar Regulations-Biographical Sketches-Customs of the Early Courts.

DURING the exercise of royal authority in Massachusetts and Maine under the charter of 1691, the administration

of justice went on pretty uniformly, and without essential changes. In none of the common-law courts were any lawyers on the bench, except in the Superior Court, and in that, at intervals, only four, viz., Judges Lynde, Dudley, Trowbridge, and William Cushing. The first aet relating to attorneys was one passed in 1663, by which they were rendered ineligible to seats as deputies in the General Court. The next was passed in 1701, prescribing the form of oath to be taken on admission to the bar, and their fees, limiting them to " twelve shillings in the Superior Court, and ten shillings in the Inferior Court, and no more, any usage to the contrary notwithstanding." This could not be com- plained of, as the judges at this time did not receive over fifty pounds a year for their services.

The clear and eoneise rules for legal practice published in the second volume of Reports were first introduced in 1806. They aimed, among other things, to maintain the character and purity of the profession. Examiners were appointed in each county consisting of the best qualified lawyers, who were carefully to examine candidates for admission, both as attorneys to the Common Pleas and as counselors to the Supreme Court. The requirements for admission were good moral character, three years' study with a coun- selor-at-law, if having graduated at a college; otherwise the candidate was required faithfully to devote seven years at least to the acquisition of scientific and legal knowledge, three years of which should be spent in professional studies with some counselor-at-law. This rule prevailed till 1843, when the Legislature of the State, under some strange in- fluence, enacted that "Any citizen of this State, of good moral character, on application to the Supreme Court, shall be admitted to practice as an attorney in the judicial courts of this State." The evil effects of this act were remedied in the aet passed in 1859, by which " three or more persons learned in the law" were appointed in each county by the Supreme Court to " examine thoroughly into the qualifica- tions of applicants for admission to practice." No person could be admitted under this law without the certificate of the court, the payment of his dues, and the usual oath, which was the one originally preseribed.

Willis, in his " History of the Courts and Lawyers of Maine," says that the profession of law made slow progress in the province, owing to the unsettled state of civil affairs and trouble with the Indians, for more than a century after the beginning of colonization. " It was not until after all fear of Indian depredations had been removed that encourage- ment was given for permanent occupation and extensive improvement. And it was not, therefore, until that very period that educated lawyers began to seek this territory for the practice of their profession."

NOAH EMERY.

Noah Emery, a native of Kittery, was the earliest resi- dent lawyer in Maine. Although not specially educated for the bar, he possessed much legal acumen and good abil- ities. His trade was that of a cooper, and he began the practice of law in 1725. He was descended from Anthony Emery, who came to America from Romsey, England, with his brother John, and settled in Kittery, where, and through Maine and New Hampshire, his descendants are numerous

HISTORY OF YORK COUNTY, MAINE.

and many of them distinguished. Noah Emery was the son of Daniel Emery and Eliza, a daughter of William Gowen, and was born in that part of ancient Kittery now Eliot, Dec. 11, 1699. He married for his first wife Eliza- beth Chick, of Kittery, Jan. 22, 1722, and for his second wife Mrs. Sarah Cooper, of Berwick, Oct. 30, 1740. His will, dated Jan. 1, 1761, was approved Jan. 6. 1762; in this he names but five children, viz., his eldest son Daniel, Noah, Richard, Japheth, and John. To Noah and Rich- ard he devised lands in New Hampshire, from which it is inferred by Mr. Willis that he was the ancestor of the Ex- eter family, in which the grandfather and father of Judge Nicholas Emery, formerly of Portland, were named Noah. They were probably the son and grandson of the subject of this notice. Mr. Emery had an extensive legal practice, and was several times, between 1741 and 1759, appointed king's attorney. He died in 1762.

CALEB EMERY.

Caleb Emery, who was either a brother or a cousin of Noah Emery, succeeded him in practice. He was admitted to the bar of the Common Pleas in York County in 1750, as appears from a record of his oath before the Judges, Sir William Pepperell, Jeremiah Moulton, and Simon Frost. Besides his professional duties, Mr. Emery was generally employed in agricultural pursuits. He commenced prac- tice in Kittery, whence he subsequently removed to York. In 1761 he was appointed king's attorney by the Common Pleas,-the duties of this office being similar to that of county or district attorney at the present day. He retired from practice during the war of the Revolution, and ap- pears never to have resumed it.

JOHN EMERY.

John Emery, another one of this family, was in practice as a lawyer in 1752; but little has been recorded of his connection with the courts, from which it has been inferred that his practice was not continued long.

We find in Willis' " History" the following notes of irregular practice taken from the York records :

" In the .July term, 1767, out of twenty-five entries, Thomas Brag- don, Johu Frost, Col. Donnell, and Col. Sparhawk made ten, while John Sullivan made five, James Sullivan two, and David Sewall eight. In the April term, 1774, Wyer, of Falmouth, made twenty entries, Caleb Emery seven, Sewall thirty-two, Jatues Sullivan twenty-four, and John Sullivan nine : irregular practitioners hut six. John Adams (subsequently President of the United States), iu his diary, speaks repeatedly of the evils arising from the practice of uneducated and ignorant men, as deputy sheriffs, ete., drawing writs and other pro- ceedings. It became so great an abuse that it was prohibited by law. Under date of 1763 (he says) the bar agreed upon four rules : 1st, That nobody should enter a suit but the plaintiff himself, or some sworn attorney, and that a general power should not be admitted. 2d. That no attorney's fee should be allowed where the declaration was not drawn by the plaintiff or a sworn attorney. 3d, That no attendance should be taxed, unless the party attended personally, or by a sworn attorney. 4th, That no attorney be allowed to practice in the Su- perior or Inferior Courts, unless duly sworn. When these rules were presented to the court for adoption, James Otis sharply opposed theu. on the ground that 'al schemes to suppress pettifoggers must te en the honor of the bar." The members of the bar were indig- nant at Otis for his opposition, and abused him without measure. Mr. Adams says that soon after his admission to the bur, in 17ås, he ound the ' practice of law was grasped into the hands of deputy

sheriff's, pettifoggers, and even constables, who filled all the writs upon bonds, promissory notes, and accounts, and received the fees established for lawyers, and stirred up many unnecessary suits.'"

DAVID SEWALL.

David Sewall, a native of York, born iu 1735, was de- scended from Henry Sewall, the first emigrant of the uame, through John Sewall, son of Henry and brother of Chief Justice Stephen Sewall. He was a classmate at Harvard College with John Adams and Charles Cushing, where he graduated in 1755, and, after studying law with Judge William Parker, of Portsmouth,-whose daughter, Mary, he afterwards married,-established himself in practice at York in 1759. He continued to practice, with much suc- cess, in connection with his duties as register of probate, to which office he was appointed in 1766, until his appointment as associate justice of the Supreme Court of Massachusetts in 1777. After an honorable service of twelve years in this court he was appointed by President Washington, in 1789, a judge of the United States Court for the District of Maine. We give the commission, together with the com- mencement of the record of the court, which was made in the elegant handwriting of Henry Sewall, the first clerk :

" Records of the District Court of the U. S., begun and held at Port- land, within and for the District of Maine, on the first Tuesday of December, A.D. 1789, being the fifth day of the same month. " The court being opened, the commissions following were read : [SEAL.] "GEORGE WASHINGTON, President of the U. S. of A.

"To all who shall see these presents, Greeting :

"Know ye that, reposing special trust and confidence in the wisdom, uprightness, and learning of David Sewall, of Maine District, Esq., I have nominated, and by and with the advice and consent of the Senate, do appoint him Judge of the District Court in and for the said Dis- trict ; and do authorize and empower him to execute and fulfill the duties of that office according to the Constitution and Laws of the U. S. And to have and to hold said office, with all the powers, priv- iteges, and emoluments to the same of right pertaineth unto to him, the said David Sewall, during his good behavior."

The commission is dated Sept. 26, 1789, and signed " George Washington."

Dec. 1, 1789, Judge Sewall took the oath prescribed by law before Samuel Freeman, Richard Codman, John Froth- ingham, and Daniel Davis, justices of the peace.

On the same day the oaths prescribed by law were re- spectively administered by Judge Sewall to William Lith- gow, Jr., as district attorney, and to Henry Dearborn as marshal, whose commissions also bear date Sept. 26, 1789.

The next year after his appointment it fell to the lot of Judge Sewall to have the first trial for piracy which had occurred under the new government. The prisoner- Thomas Bird-was convicted and executed in Portland in June, 1790. Gen. Henry Dearborn was marshal, and officiated at the execution. Judge Sewall held this office until 1818, discharging its duties with great fidelity and urbanity, when the infirmities of age admonished him to retire from all active labors. He was president of the Board of Overseers of Bowdoin College fourteen years, and nearly seventeen years register of probate in York County. He died in 1825, at the age of ninety, having filled the office of judge forty-one years. He left no fam- ily. Judge Sewall was a man of great benevolence, unas- suming in his deportment, social and amiable in his manners, and of great purity of character.

MOSES EMERY,

the oldest member of the York County bar, was born July 16, 1794, at Minot Corners, Me. The name of Emery is of Nor- man origin ; was introduced into England in 1066 by Gilbert D'Armory, of Tours, in Normandy, a follower of William the Conqueror, and with him at the battle of Hastings. In 1635, John and son, John, and Anthony, his brother, born in Romsey, in Nantes, England, embarked from Southampton in the ship " James," Capt. Cooper, and landed in Boston, Mass., June 3d of that year. They at once proceeded to Newbury, where John settled, and died in 1683. Anthony came to Kittery, Me.

Moses Emery's grandfather, Moses, came from Newbury, and settled in Minot, Androscoggin Co., where Moses Emery, Jr., father of the subject of this sketch, was born in 1772, and was the first white male child born in that town. He married Susannah Woodward, of Cape Ann, who was born in 1775, and died in 1845. He died in Minot, at the age of eighty- seven. Moses remained with his parents and grandparents until seventeen years of age, and became inured to more than ordinary hardships dur- ing boyhood. It was during this period of his life that he conceived the idea of obtaining an education. In this project he was strongly opposed by his father, who, like many men of the early days, thought manual labor the only way to obtain an honest livelihood.

With the assistance of his Uncle Stephen, afterwards judge of probate, attorney-gen- eral, and judge of the District Court of Maine, he obtained some Latin books, and, unaided by teachers, during his times of rest and nights gained a good knowledge of Virgil, Sallust, and Cicero. In the fall of 1813 he attended Bridgton Academy and pursued the study of Greek, and the fol- lowing winter taught school ; but his labors were all at once cut short, when his father came for him and he was obliged to return to the farm. During this experience away from home he had saved forty dollars, besides paying all his expenses.

In 1814 he went to Brunswick after his Uncle Stephen to come to Minot to spend his vacation, and, through his influence while there, was examined, passed favorably by the board, re- ceived his ticket of admission to Bowdoin College, with leave of absence for one year.

Upon his return home his certificate cleared him from a draft then being made to protect the country from the invasion of the British fleet, and was also a sudden surprise to his father, who knew nothing of his fitting for college, and at once put Moses in charge of his uncle, Nathan Emery, a Methodist minister in Brooklyn, N. Y., who got him a place in a dry-goods store on Broadway, New York, as cashier. In August, 1815, having reached his majority, he came to Boston by boat, thence to Brunswick on foot, and upon examination was admitted to the sophomore class of Bowdoin College, fron; which he grad-

uated in 1818. During his college course he was a teacher at Brunswick, in the Buckfield High School and at Hebron Acad- emy, to get funds to complete his college course. In college he excelled in mathematics and the languages, and ever since he has had a fondness for their review, and even in 1879, at the age of eighty-four, he is engaged in a review of the Latin.

Mr. Emery studied law with Judge Bailey, at Wiscasset, and was there admitted to the bar in August, 1821, where he re- mained in practice with the judge and by himself until August, 1825, when he married Sarah C., daughter of Marshal Thorn- ton, and settled in Saco, where he has been in the practice of the law since. He found a galaxy of talent at the York bar. There were John Holmes, John and Ether Shipley, Daniel Goodenow, John Fairfield, Nathan Clifford, and others ; but he soon gained a large practice, and held it until he was sixty- five years old, when he began to give up his court practice to his son, George A., and has since confined himself to office work.

Mr. Emery was never a studied orator, but always aimed to reach the sympathies and the consciences of the jury. He always took a deep interest in equity cases, and such was his success that in nineteen cases he only lost two. He is known to the bar of York and adjoining counties as a lawyer of sound discretion, safe coun- selor, and honest in the trial of a cause, and his residence in Saco for a period of sixty- four years has made his name familiar, both as a citizen and a lawyer; as a man, esteemed for his integrity of purpose, his honesty of conviction, and for his strong will power to Photo. by Carleton, Saco. carry forward whatever he con- ceives to be right to a success- ful issue. In politics he was a Whig until Webster made his 7th of March speech; was a member of the county committee for twenty years, and of the State committee four years. Without solicitation on his part or being nominated, he was once voted for for member of Congress, and came within three hundred votes of an election. In 1836-37 he was a member of the Legislature, and obtained against the opposition of the Portland delegation and John Holmes the charter of the Portland, Saco and Portsmouth Railroad, which charter he draughted. He has been fully identified with the interest of law and order and the education of the young; and when his place in society becomes vacant the people of Saco will miss one of their most honored and useful citizens.

His children living are Thornton C., of Nevada ; Charles C., a farmer in Kansas ; and George A., a graduate of Bowdoin in the class of '63, studied law with his father, was admitted to the bar in 1866, and has practiced law in Saco since. He was first judge of the Municipal Court of the city of Saco, from March, 1867, for four years; appointed recorder in 1871 for four years; acting judge, from April, 1873, to March, 1874; and reappointed recorder in March, 1878.

BENCH AND BAR OF YORK COUNTY.

DANIEL SEWALL.

Daniel Sewall was born March 28, 1755. He was ap- pointed register of probate by Governor Hancock, March, 1783, and held the office till 1820. In 1792 was appointed clerk of the Court of Common Pleas; had been assistant clerk to Timothy Frost eleven years. His contract with Mr. Frost at first was to work for him from sun to sun for one shilling per day. When the law of 1797 made clerks of the Common Pleas recording clerks of the Supreme Court, he received that appointment for York County, and held it, with the exception of 1811, till 1820. He was appointed postmaster of York by Hon. Timothy Pickering in 1792, which office he retained fifteen years. In 1815 he removed to Kennebunk, where he died.

HENRY SEWALL.

Henry Sewall, already referred to as the first clerk of the District Court of the United States for Maine, was the eldest brother of Daniel Sewall, and was born Oct. 24, 1752; joined the army at the age of twenty-three and served hon- orably through the Revolution, rising to the rank of cap- tain.

DANIEL FARNHAM.

Daniel Farnham was a lawyer of ability, who practiced extensively in the courts both of York and Cumberland Counties before the Revolution. He was a graduate of Harvard College in 1739, and was several times appointed county attorney for York County. He died in 1776, aged fifty-six years. His daughter, Sibyl, married Dr. Micajah Sawyer, a celebrated physician of Newburyport, and was the mother of Dr. William Sawyer, Harvard College, 1788, who died in Boston in 1859, aged eighty-eight. He left also a son, William. Levi Lincoln, the elder, of Worces- ter, studied law with Mr. Farnham.

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.

History of York County, Maine, with illustrations and biographical sketches of its prominent men and pioneers, Part 19

Author: Clayton, W. W. (W. Woodford) Publication date: 1880 Publisher: Philadelphia, Everts & Peck Number of Pages: 730

Author: Clayton, W. W. (W. Woodford)
Publication date: 1880
Publisher: Philadelphia, Everts & Peck
Number of Pages: 730