Illustrated history of Kennebec County, Maine; 1625-1892, Part 34

Author: Kingsbury, Henry D; Deyo, Simeon L., ed
Publication date: 1892
Publisher: New York, Blake
Number of Pages: 1790

USA > Maine > Kennebec County > Illustrated history of Kennebec County, Maine; 1625-1892 > Part 34

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It should be observed here that under the colonial charter of Massachusetts prior to 1692 there was in Massachusetts no supreme or superior court properly so-called. The jurisdiction and powers which were subsequently conferred upon that court had been exer- cised under the charter of 1628 by the governor or deputy governor and his councillors or " assistants," who constituted the upper branch of the " Great and General Court." They at first assumed unlimited jurisdiction, including all matters of divorce and the settlement of estates, and subsequently exercised appellate jurisdiction over all matters from the county courts.

It must not be overlooked, however, that the province of Pema- quid had been under a different jurisdiction. Although as early as

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1630, the year that Boston was founded, this province is said to have had a population of five hundred persons and Pemaquid "City " to have been a port of entry with paved streets; yet for a period of twenty years from that time there seems to have been a weak govern- ment and a very inefficient administration of the laws. Abraham Shurt was agent of the proprietors and chief magistrate of the colony; but there appears to be no record of the enactment of laws or the establishment of courts. To Shurt's skill as a scrivener, however, is attributed the concise formula for the acknowledgment of deeds which is still in use in this state and Massachusetts.

In 1673 Pemaquid province became an appendage of the colony of New York under the Duke of York, and was represented in its gen- eral assembly. On the 24th of June, 1680, it was ordered by the coun- cil sitting in New York "that a person be appointed to go from here to Pemaquid for holding courts;" and June 26th: " Sagadahoc magis- trates and officers to continue, the courts to try only for forty shillings instead of for five pounds as formerly." A " court of sessions " was also established " to act according to law and former practice."

The inhabitants on the Kennebec, however, had meanwhile been under the dominion of the Plymouth colony by virtue of a charter granted to William Bradford in 1620, and by him assigned to the Plymouth colony in 1640; but the settlers were few and scattered and no regular government was established until the Duke of York took possession. But in 1686 the duke, now James II, transferred to Massa- chusetts all his interest in the port and county of Pemaquid; and in 1691 the new charter was granted to Massachusetts, which united with the old Bay colony that of Plymouth and the whole territory of Maine.

A new era was now inaugurated in the history of these provinces. Under the new charter of 1691 an act " setting forth general privi- leges " was promptly passed by the general court of Massachusetts, comprising the familiar doctrines of Magna Charta, and the cardinal principles afterward enunciated in the Declaration of Independence and her own bill of rights. Courts were also promptly established substantially the same as they existed for the next fifty years. There were justices of the peace for the trial of small cases, the quarter ses- sions corresponding to our court of county commissioners, the inferior court of common pleas and the superior court. The governor and coun- cil were by the new charter made a court of probate.

The superior court of the province consisted of a chief justice and four associate justices, namely, William Stoughton, C.J., Thomas Dan- forth, Wait Winthrop, John Richards and Samuel Sewall, none of whom had been educated as lawyers. Two sessions of this court were held in the several counties each year, except that all causes

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HISTORY OF KENNEBEC COUNTY.

arising in Maine prior to 1699 were tried in Boston and Charlestown. Thereafter one term was granted to the state of Maine until 1760, when the counties of Cumberland and Lincoln were established. At that time Lincoln included the territory of the Kennebec patent, and the proprietary company erected buildings for the new county at Pownalborough, now Dresden. The old court house has been con- verted into a dwelling house and is still in a good state of preserva- tion, a conspicuous object of historic interest to all those passing up and down the river. The first term of the superior court held in Lincoln county was in 1786, and the first term at Hallowell, now Au- gusta, commenced July 8, 1794, in a church prepared for the occasion, the court house in Market Square erected in 1790 being insufficient in size for the accommodation of this court. It was held by Judges Rob- ert Treat Paine and Sumner and Dawes. They were attended by three sheriffs wearing cocked hats and carrying swords, each with his long white staff of office, and they were accompanied by such cele- brated lawyers as Theophilus Parsons and Nathan Dane. Judge Weston relates that having no bell to summon the court, the judges " moved by beat of drum in a procession not a little imposing, pre- ceded by their officers and followed by the bar." It was an important event, which caused " the elite" of the surrounding country to as- semble.

After the organization of Kennebec county in 1799, Augusta, which had been set off from Hallowell two years before, became the shire town of the new county, and July 16th of that year a term of the superior court of Massachusetts was held there by Judges Paine, Bradley and Dawes, and thereafter regularly each year. At the famous trial of the Malta Indians, charged with the murder of Paul Chadwick, the court was held at Augusta November 16, 1809, by four judges-Sedgwick, Sewall, Thatcher and Parker.

SUPREME JUDICIAL COURT .- The constitution of 1780 changed the title of the superior court to that of the Supreme Judicial Court, but with the same powers and jurisdiction as its predecessor and with the same number of judges. Those first appointed by the new govern- ment were William Cushing, Nathaniel P. Sargent, James Sullivan, Daniel Sewall and Jedediah Foster. At first all jury trials were had in the presence of not less than three members of the court, but the nisi prius system was gradually introduced, under which the law terms only were held by a majority of the judges and the trial terms by a single judge, except in capital cases. Until 1792 the judges appeared on the bench in robes and wigs, the robes being of black silk in the summer and of scarlet cloth in the winter.

The records of this court were kept in Boston until 1797, when they were transferred to the custody of the clerks of the common

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pleas of the several counties, except those of Lincoln, Hancock and Washington in Maine. Jonathan Bowman, jun., was appointed by the court clerk for this county, his residence to be at Pownalborough.

When Maine became a separate state, in 1820, it was provided in the constitution that the "judicial power of the state shall be vested in a supreme judicial court and such other courts as the legislature shall from time to time establish." By act of June 24, 1820, a supreme judicial court was established, consisting of a chief justice and two associate justices, any two of whom should be a court and have cog- nizance of all civil actions between party and party which might be legally tried before them by original writ, writ of error, or otherwise, and of all capital crimes and other offences and misdemeanors which might be legally prosecuted before them. They also had general superintendence of all courts of inferior jurisdiction, with power to issue writs of error, certiorari, mandamus, prohibition and quo warranto, and to exercise its jurisdiction agreeably to the common law of the state not inconsistent with the constitution or any statute. They also had jurisdiction as a court of equity of specific classes of cases where the parties did not have a plain and adequate remedy at law. It was also made the supreme court of probate.

By the act of 1823 and subsequent amendments this court was re- quired to be holden annually by a majority of the justices in each of the twelve counties, the term of Kennebec to be held at Augusta in May; and an additional term for jury trials was to be held by one of the justices in each of the counties except Franklin, Piscataquis, Washington and Hancock; that for Kennebec to be held on the first Tuesday of October. Capital cases were to be tried by a majority of the court. In 1847 the number of judges of this court was increased to four, and in 1852 to seven.

As now constituted, the supreme judicial court of Maine consists of a chief justice and seven associate justices, appointed by the gov- ernor for a term of seven years, whose jurisdiction extends over the whole state. The general jurisdiction and powers are substantially the same as when first established, with the exceptions to be hereinafter noted. In 1874 the equity powers of this court were enlarged, and in 1881 the procedure in equity was definitely prescribed and greatly sim- plified. The court now has full equity jurisdiction, according to the usage and practice of courts of equity, and is always open in each county for the transaction of equity business. When sitting as a court of law to determine questions arising in suits at law or in equity, the court is composed of five or more justices who hear and determine such questions by the concurrence of five members; and in any civil action in which there is a subsisting verdict, if a majority of the justices do not concur in granting a new trial judgment must be ren-

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dered on the verdict. For the purposes of the law courts this state is divided into three districts, the western, middle and eastern, and the annual sessions of the law court are held at Portland on the third Tuesday of July, at Augusta on the fourth Tuesday of May, and at Bangor on the third Tuesday of June. For the trial of civil actions or persons accused of offences two or more sessions of the court are annually held by one justice in each county, the terms for Kennebec being holden on the first Tuesday of March and the third Tuesday of October of each year. Although no general code of civil procedure has been adopted in this state, the rules of common law pleadings have been so far abrogated or modified, and in the administration of the law such liberality is exercised respecting amendments to declara- tions and pleas, that the substance of right is never sacrificed to the science of statement.

In the supreme judicial court the following from Kennebec county have been justices: Nathan Weston, of Augusta, appointed in 1820, and chief justice 1834-41; Richard D. Rice, Augusta, 1852-63; Seth May, Winthrop, 1855-62; Charles Danforth, Gardiner, 1864-90; Arte- mas Libbey, Augusta, 1875-90, being reappointed in the latter year; and William Penn Whitehouse, Augusta, appointed in 1890. Samuel Wells, of Portland, who was appointed in 1847, and resigned in 1854, practiced at one time his profession in Hallowell.

REPORTER OF DECISIONS .- This office was established in 1820, and the decisions of the supreme judicial court, sitting as a " Law Court" from that time to 1893 have been published in eighty-four volumes of " Maine Reports." The reporter is appointed by the governor, and is to be a person " learned in the law." It is made his duty to publish at least one volume yearly, and he is entitled to the profits of the work. The names of the two reporters from this county, with their respective terms of service, are: Asa Redington, Augusta, 1850-54, who published volumes 31 to 35; and Solyman Heath, Waterville, 1854-56, who published volumes 36 to 40.

COURT OF COMMON PLEAS .- Reference has already been made to the "inferior court of common pleas," organized for each county un- der the province charter of 1692. This court was composed of four justices in each county, three of whom to be a quorum for the trial of all civil actions of whatsoever nature, the party " cast" in this court to have the liberty of a new trial on appeal or writ of error to the superior court by giving recognizance to prosecute the appeal with effect and abide the order of court. The judges were to be substan- tial persons, but practically were not learned in the law. Indeed, there seems to be no evidence that prior to the beginning of the pres- ent century any member of this court in Maine was an educated law- yer. Prior to 1736 no term of this court was held east of Wells; after

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that time one was held annually in June at Falmouth, now Portland, William Pepperell, afterward Sir William, being then chief justice. When the county of Lincoln was organized, in 1760, one term of this court was held for that county at Pownalborough, now Dresden. Un- der the Massachusetts constitution of 1782 this court was continued with all its jurisdiction and powers, and in 1786 provision was made for an additional term in Lincoln county, to be held annually at Hallo- well, now Augusta. In North's History of Augusta, it is said: " The first term was held on the second Tuesday of January, 1787, at the Fort Weston settlement in Ballard's tavern, by William Lithgow, James Howard and Nathaniel Thwing. These with Thomas Rice were the four persons commissioned as judges of the Court of Common Pleas. Judge Howard died in May following, and Joseph North was appointed in his place. At that time no lawyer resided on the river above Pownalborough. In the following year William Lithgow, Jr., removed to town and opened an office in Fort Weston." At the time of the organization of Kennebec county the judges of this court were Joseph North and Daniel Cony, of Augusta, and Nathaniel Dummer and Chandler Robbins, of Hallowell.

In 1804 the number of justices was reduced to three for each county, and in 1811, under the administration of Governor Gerry, the old system, which had existed for 112 years, was superseded by the "circuit court of common pleas," with a chief justice and two asso- ciates for each of the three circuits in Maine. For the second circuit, embracing Lincoln, Kennebec and Somerset, Governor Gerry appointed Nathan Weston, of Augusta, chief justice, Benjamin Ames and Eben- ezer Thatcher, associates. In 1814, Josiah Stebbins, and in 1821 San- ford Kingsbury were judges in this court. This court continued until 1822, when a " court of common pleas" was established, consisting of a chief justice and two associates, with jurisdiction extending over the entire state, the terms to be held by a single judge, who received a salary instead of fees for compensation. The justices first appointed for this court were Ezekiel Whitman, of Portland, chief justice, and Samuel E. Smith, of Wiscasset, and David Perham, of Bangor, asso- ciates. In 1833 John Ruggles, of Thomaston, and in 1837 Asa Red- ington, of Augusta, became judges of this court. In 1839 the court of common pleas was superseded by the establishment of a district court comprising the counties of Lincoln, Kennebec and Somerset, in each of which three terms of this court were annually held by one of the justices. It had original and exclusive jurisdiction of all civil actions where the debt or damage demanded did not exceed two hun- dred dollars, and concurrent jurisdiction above that sum. It had also jurisdiction of all crimes and misdemeanors previously cognizable by the court of common pleas. The aggrieved party could carry his ·cause forward by appeal or on exceptions to the supreme judicial court,

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HISTORY OF KENNEBEC COUNTY.

held by a single justice, by giving recognizance to the adverse party to prosecute his appeal and pay the intervening damages and costs. Judge Redington, of the court of common pleas, was appointed judge of the district court for the middle district, and continued on the bench until 1847, when he was succeeded by Richard D. Rice, of Augusta, who served until 1852, when this court was abolished, and he was transferred tothe bench of the supreme court.

Thus this intermediate system of courts which had existed for 150 years under different names, and with slightly varying jurisdiction and powers, had become so inefficient in its practical operation that it could no longer endure. The facility with which appeals could be taken to the supreme court was its fatal defect. Two trials were thus granted to parties almost as a matter of course, when one would ordinarily have answered the same purpose. It was therefore abol- ished by act of the legislature of 1852, and all its duties and powers, including appeals from justices of the peace, transferred to the supreme court, the number of judges of that court being increased to seven.

But under the great accumulation of small cases resulting from this change, the docket of the supreme court in the larger counties soon became crowded and unwieldy, and as a consequence suitors were unreasonably delayed. A .demand for a more prompt adminis- tration of justice was heard; and in 1878, in pursuance of the example in Cumberland county ten years before, an act was procured estab- lishing a superior court for Kennebec county, which obviated the ob- jection to the old system of common pleas and the district court by giving to the jury trial the same legal effect it had in the supreme court. The act provided for five terms of this court to be holden at Augusta, but by amendment in 1889 provision was made for holding two terms in the city of Waterville. William P. Whitehouse, of Au- gusta, was appointed judge of this court in February, 1878, for the term of seven years, and served by re-appointment until April 15, 1890, when he resigned to accept an appointment on the bench of the supreme court. Oliver G. Hall, of Waterville, was appointed to fill the vacancy occasioned by the promotion of Judge Whitehouse. After the establishment of this court its jurisdiction was enlarged by suc- cessive amendments to embrace all civil matters except real actions, complaints for flowage, and proceedings in equity, including libels for divorce, and exclusive original and appellate jurisdiction of all criminal matters, including capital cases. By act of 1891 the jurisdic- tion was restricted to cases where the damages demanded do not ex- ceed $500, and in trials upon indictments for murder one of the judges of the supreme court must preside. All appeals from municipal and police courts and trial justices in civil and criminal cases, are cogniz-

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able by this court. The clerk of the supreme court is also clerk of the superior court.

COURT OF SESSIONS; COUNTY COMMISSIONERS .- Prior to the prov- ince charter of 1691 the county court of Massachusetts, held by the magistrates living in the different counties, combined the principal duties of the superior, inferior and probate courts which were subse- quently organized, the general court or court of assistants retaining original appellate jurisdiction in certain cases. Under the province charter " a court of General Sessions of the Peace " was established, to be held in each county by the justices of the peace of the same county, empowered to hear and determine all matters relating to the " conservation of the peace and the punishment of offenders," to lay out highways, to superintend houses of correction, and to have charge of the prudential and financial affairs of the county. In 1804 all its criminal jurisdiction was transferred to the court of common pleas, and in 1807 the court was reorganized so as to have a fixed number of judges instead of an indefinite assembly of justices of the peace. The number of judges in Kennebec was six, besides the chief justice. In 1808 the name was changed to the " court of sessions." In 1819 it was made to consist of a chief justice and two associate justices. In Maine the court of sessions continued to exist until 1831, when it was superseded by the present court of county commissioners, composed in each county of three persons elected by the people. Its records are kept by the clerk of the supreme court. The names of the several Kennebec county commissioners, with the year in which their terms respectively commenced, are as follows: William Read, Barzillai Gan- nett, Thomas Fillebrown and Charles Hayden, 1807; Samuel Titcomb, James Parker and Ithamar Spaulding, 1808; Ashur Spauldin, 1809; Ariel Mann and Solomon Bates, 1811; Nathan Cutler, 1812; Nathan Weston, Josiah Stebbins, Ebenezer Thatcher, Samuel Wood and Sam- uel Moody, circuit court of common pleas. 1814; Samuel Redington, court of sessions, 1819; Charles Hayden, Samuel Moody and Ariel Mann (the latter of Hallowell), 1820; James Cochran, Monmouth, 1821; Samuel Redington and Charles Morse, 1822; Asa Redington, jun., and Asaph R. Nichols, of Augusta, 1831; Edward Fuller, Readfield, 1833; Benjamin Wales, Hallowell, 1835; John Russ, 1836; J. B. Swan- ton, Hallowell, 1838; Joseph Stuart and Stillman Howard, 1839; Wil- liam Clark, Hallowell, David Garland, Winslow, and Levitt Lothrop, 1841: Benjamin Cook and David Coombs, 1843; John S. Blake, 1844; Moses B. Bliss, Pittston, 1845; Daniel Marston, Monmouth, 1847; Thomas Eldred, Belgrade, 1849; Moses Taber, Vassalboro, 1850; Wel- lington Hunton, Readfield, 1853; John B. Clifford, Clinton, 1855; Sam- uel Wood, Augusta, John Merrill and William C. Barton, Windsor, 1856; Nathaniel Graves, Vienna, 1859; Ezekiel Hubbard, Hallowell,

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1860; Nathaniel Chase, Sidney, 1861; Asbury Young, Pittston, 1865; Mark Rollins, jun., Albion, 1867; Orrick Hawes, Vassalboro, 1873; Daniel H. Thing, Mount Vernon, 1874; Reuben S. Neal, Farmingdale, 1875; E. G. Hodgdon, Clinton, 1876; George H. Andrews, Monmouth, 1880; Horace Colburn, Windsor, 1881; Japheth M. Winn, Clinton, 1882; C. M. Weston, Belgrade, 1883; James M. Carpenter, Pittston, 1885; Charles Wentworth, Clinton, 1889; and John S. Hamilton, Hal- lowell, 1891, and Samuel Smith, Litchfield, elected in 1892 to succeed G. H. Andrews. The board in 1892 consisted of George H. Andrews, chairman, Charles Wentworth and John S. Hamilton.

The clerks of courts since 1799, have been: John Tucker, Edmund P. Hayman, Joseph Chandler, John Davis, Robert C. Vose, William Woart, John A. Chandler, William M. Stratton, A. C. Otis, and the present incumbent, W. S. Choate. Mr. Stratton served as assistant to Mr. Chandler for a period of ten years, succeeding him as clerk in 1844, and continued to occupy the place by successive elections until 1881.

PROBATE COURT .- It has been noticed that under the Massachu- setts colonial charter of 1628 the "general court," composed of the governor and deputy governor and the " assistants," exercised juris- diction in matters of probate until 1639, when it was transferred to the county courts. The general court assumed jurisdiction in Maine in all matters relating to the administration of estates until 1691. By the province charter of that year probate jurisdiction was conferred on the governor and council, but being authorized to delegate their power they appointed judges of probate in each county. In March, 1784, the Massachusetts legislature passed the first probate act. This established a court of probate in the several counties, to be held by some able and learned person in each county to be appointed judge, from whose decision an appeal lay to the supreme court. As thus constituted this important court, through which passes all the estates in the community once in about thirty years, was continued with essentially the same jurisdiction and power by act of the Maine legis- lature of 1821. In 1853 the office of both judge and register was made elective, with a tenure of four years.

" Each judge may take the probate of wills and grant letters testa- mentary or of administration on estates of all deceased persons who at the time of their death were inhabitants or residents of his county, or who, not being residents of the state, died leaving estate to be ad- ministered in his county, or whose estate is afterward found therein; also on the estate of any person confined to the state prison under sentence of death or imprisonment for life, and has jurisdiction of all matters relating to the settlement of such estates. He may grant leave to adopt children, change the names of persons, appoint guar- dians for minors and others according to law, and has jurisdiction as to persons under guardianship." The probate judge is also judge of the court of insolvency.

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Since the organization of Kennebec county, the judges of this court, and their first year of service, have been as follows: James Bridge, Augusta, 1799; Daniel Cony, Augusta, 1804; Ariel Mann, Hal- lowell; H. W. Fuller, Augusta, 1828; Williams Emmons, Hallowell; Daniel Williams, Augusta; Henry K. Baker, Hallowell; Emery O. Bean, Readfield, 1881; Henry S. Webster, Gardiner, 1885; and Greenlief T. Stevens, Augusta, 1893.

The registers of probate have been: Chandler Robbins, Hallo- well, 1799; Williams Emmons, Hallowell; and E. T. Bridge, George Robinson, Joseph J. Eveleth, J. S. Turner, Francis Davis, William R. Smith, Joseph Burton, Charles Hewins and Howard Owen, of Augusta.

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Illustrated history of Kennebec County, Maine; 1625-1892, Part 34

Author: Kingsbury, Henry D; Deyo, Simeon L., ed Publication date: 1892 Publisher: New York, Blake Number of Pages: 1790

Author: Kingsbury, Henry D; Deyo, Simeon L., ed
Publication date: 1892
Publisher: New York, Blake
Number of Pages: 1790