USA > Maine > Cumberland County > Portland > The history of Portland, from 1632 to 1864: with a notice of previous settlements, colonial grants, and changes of government in Maine > Part 53
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The administration of justice was exceedingly loose both before and immediately after the revolution; the public mind was not corrected and enlightened as it has since been by the press and the general diffusion of information ; the country was new, population thin, and that delicate regard of public and private rights was not so strictly observed as it is at this day. We have frequently found in the examination of the papers of individuals, instances of persons having gone before 'magis- trates and privately confessing themselves guilty of violations
1 At the October term, 1790, there were but four jury trials in civil cases ; after the jury were dismissed and were receiving their pay, it was discovered that one of them had answered during the term to another man's name; on being asked his reason for this reprehensible conduct, he said, "that his neighbor Pinkham, who had been drawn, was sick at home, and had got him to come in his room."
2 A MSS. letter of Judge Sewall.
3 "April 15, dined with the court, wished I had not, Mr. Powell said it was a hard case, when there are two of you we can get ne'er a one. I'll bring my own minister, if I can get no body to pray with us here; he said the minister can hear the bell and knows when he is wanted."-Deane's Diary.
615
SUPERIOR COURT.
of law, have been discharged on the payment of a small fine.'
The Superior Court held but one term a year in this county until 1800, when a second term was established. At the time the court first came here, it was composed of Thomas Hutch- inson, then Lt. Governor of Massachusetts, Benjamin Lynde, John Cushing, and Peter Oliver .? The judges of this court, until 1792, appeared on the bench in robes and wigs.3 A term of the Superior Court was first established in Maine in 1699, and was held at Kittery, until 1743, when it was removed to York. In 1761, a term was held in this county, and in 1786 a term
1 I have seen the record of many confessions made before Enoch Freeman, who was for many years an active magistrate in this town, for profane swearing, where a fine of five or six shillings was imposed. In one case of fornication the woman on confession was fined six shillings and discharged. "John Lowther, physician, confessed that he broke the peace by striking Samuel Graffam, cord- wainer, the 22d inst., at Brunswick, being highly provoked, and paid a fine of four shillings to the king." Persons were frequently fined for absenting them- selves from meeting as late as the times of Rev. Mr. Deane. In 1757, "John Hanes confessed he swore one profane oath ye 12th inst., fined four shillings." "1754, Col. Jedediah Preble is convicted of uttering one profane oath in my hearing and Deacon William Cotton's, at Mr. Joshua Freeman's." But the most singular instance of confession and of extra judicial punishment that I have met with took place in 1785, of which notice was publicly given in the following ad- vertisement: "Falmouth, August 20, 1785. I the subscriber being left to the insinuation of the devil, have stolen and carried away from the store of Jabez Jones of New Casco, a part of a side of sole leather, contrary to the law of God and man and the peace of this Commonwealth ; I heartily ask forgiveness for the offence done to God and the public, and submit myself to be publicly whipped in New Casco, at school-house hill, fifteen stripes on my naked back as a warn- ing to others.
ISAAC ROFF, A his mark. Attest, Joseph Wormell, William Blackstone.
The above stripes were decently laid on by Samuel Bucknam, constable."
2 Mr. Hutchinson was appointed chief justice in 1761, as successor to Stephen Sewall, who died in September, 1760; he was succeeded by Peter Oliver in 1769.
3 In summer the robes were of black silk, in winter of scarlet, with black trim- mings ; the occasion of leaving them off was the appointment of Judge Dawes to the bench, who not having been called to the degree of barrister before his ap- pointment, the other judges on that account dispensed with their robes. The court at that time consisted of Francis Dana, chief justice, Increase Sumner, Robert T. Paine, and Nathan Cushing.
616
HISTORY OF PORTLAND.
was granted to Lincoln, to be held the week after its sitting in this town, which was in June. The number of judges was five until 1800, when it was increased to seven, rendered neces- sary by the accumulation of business and the burdensome sys- tem which required the court to consist of a majority of the judges for the trial of all causes. In 1805, this change not remedying the difficulty, it was reduced to its original number, and the only effectual cure applied, the introduction of the Nisi Prius system, by which the issues are tried by a single judge.
Noah Emery of Kittery was for many years the only lawyer in Maine; he commenced practice about 1725, and although not regularly bred to the profession, he was a man of talents, a ready draftsman, and had considerable practice.' On one occasion between 1720 and 1730, an action of trespass was commenced in the Inferior Court of York by Matthew Liver- more of New Hampshire for the plaintiff; William Shirley of Boston, afterward governor of Massachusetts, for the defend- ant, filed a special plea ; but as special pleading was rarely used in that day and by the practicing attorneys of those times little understood' and much less by the court, the plea was answered by some ore tenus observations by plaintiff's coun- sel, and the cause went to trial "somehow or other." The verdict was for the plaintiff, and the defendant appealed to the Superior Court where the cause went again in favor of the plaintiff, and execution issued. The defendant entered a com- plaint to the king in council, and'an order was issued thereon
1 He was descended from Anthony Emery, who settled first in Newbury but moved to Kittery before 1652, when he was admitted a freeman of Massachusetts. His father was Daniel Emery, his mother, Eliza Gowen; he was born in that part of Kittery which is now Elliot, December 11, 1699. He was brought up to the trade of a cooper as was his ancestor, Anthony, who came from Rumsey, England, in 1635, in the James. Noah was twice married, first to Eliza Chick of Kittery, 1722, second to Mrs. Sarah Cooper of Berwick, 1740. He left five sons. Noah Emery was great-grandfather of Judge Nicholas Emery of this town.
617
COURTS-LAWYERS, AND COURT CUSTOMS.
to set the whole proceedings aside, on account of the defective pleadings in the Inferior Court. The order for restitution was addressed to the Superior Court, and Mr. Auchmuty, an able lawyer of Boston, made an earnest application to the court to have the order carried into effect ; the court were somewhat per- plexed on the occasion, but Mr. Emery, as counsel for the plain- tiff, drew up an answer to Mr. Auchmuty's petition in substance as follows : that the Superior Court of Judicature, was a court constituted by a law of the province, whereby they were au- thorized to hear and determine such civil matters therein mentioned as were made cognizable by them, and to render judgment thereon, and to issue execution pursuant to their own judgment and not otherwise. And if the counsel for the de- fendant in this case had obtained a different judgment from what appeared upon their records he must go there for his ex- ecution, as they were not by law empowered to issue any execution contrary to the record of their own judgment. The court were satisfied with this answer, and complimented Mr. Emery upon the manner in which he relieved them from their embarrassment. Mr. Auchmuty acquiesced in the decision of the court.'
Mr. Emery died in 1762, and his place was supplied by his
1 Judge Sewall's MSS. The court consisted at this time of Benjamin Lynde, Paul Dudley, Edmund Quincy, and Addington Davenport. Another anecdote is related of Mr. Emery, which I will venture to preserve as showing something of the early manners of the bar. It was anciently the custom when the business of the court was nearly completed, for the members of the court and bar, made up of gentlemen from Massachusetts and New Hampshire, to assemble together at the tavern for a social meeting ; on which occasions they constituted a court among themselves, appointing one of their number chief justice for the trial of all breaches of good fellowship which had occurred during the term. On one of these meetings Mr. Emery was accused of calling the high sheriff a fool. The fact being proved or admitted, the court taking into consideration the time, manner, and occasion of the offense, ordered said Emery to pay for his offense, one pipe of tobacco. And ordered the sheriff, who it is said was Samuel Wheel- wright, to pay one mug of flip for deserving the appellation.
40
618
HISTORY OF PORTLAND.
kinsman, Caleb Emery, who also lived in Kittery, and who quit the practice soon after the revolutionary war. The first regu- larly educated lawyer who settled in Maine, is believed to have been Wm. Cushing, who graduated at Harvard College in 1751, and established himself in that part of the ancient town of Pownalborough, which is now called Dresden, where he con- tinued in the practice until he was elevated to the bench in 1772.1
David Sewall of York was the next regular practitioner who established himself in this State; he graduated at Harvard College in 1755, and commenced practice in York, his native town .? These two with Caleb Emery are believed to have
1 Mr. Cushing resided with his brother Charles, who was the first sheriff of Lin- coln, and for many years after the revolution, the clerk of the courts in Suffolk. His house stood near the old court-house in Dresden. At the time Mr. Cushing commenced practice there, there was no house on Kennebec river from about two miles above Dresden court-house to the settlements in Canada, except the block-houses at Forts Western and Halifax. The whole country, as a witness once said of it in court, was an "eminent wilderness." William Cushing was ap- pointed the first judge of probate in Lincoln county ; he was made chief justice of the Supreme Court of Massachusetts in 1777, and was the first who held the office under the free government of the Commonwealth. He was transferred to the bench of the Supreme Court of the United States in 1789, and died in 1810. He was the last chief justice who wore the large wig of the English judges, which gave him, upon the bench, an air of superior dignity and gravity. Mod- ern customs have put both the wig and gown out of countenance. The two Cushings and also their brother Rowland, settled in Wiscasset, were sons of Judge John Cushing and were born in Scituate, Massachusetts, William in 1733, Charles in 1734, Roland in 1750, all graduates of Harvard College.
2 Mr. Sewall was raised to the bench in 1777, and in 1789 was appointed judge of the United States Court for the district of Maine, and presided in that court twenty-nine years, until 1818. During the twelve years he held the office of judge in the State court, he usually traveled his circuits on horseback, and in fact this is the manner in which the judges and the members of the bar were obliged to travel before, and some years after, the revolution. Judge Sewall died October 22, 1825, aged ninety ; and so pure had his life been, that he remarked to a friend, that if he were to lead his life over again he did not know that he should wish to alter it. He was twice married, but left no issue.
619
LAWYERS-BRADBURY, WYER.
been the only lawyers in Maine in 1760, when the counties of Cumberland and Lincoln were established. This event by multiplying the sittings of courts in the district, held out en- couragement to persons entering the profession to settle here. Accordingly we find in 1762, two persons, Theophilus Brad- bury and David Wyer, entering upon the practice in this town. Mr. Bradbury was from Newbury, and graduated in 1757, at Harvard College ; he appeared first in our courts at the May term in 1762, previous to which he had kept a school here. Mr. Wyer was not admitted to the bar until October term of the same year, although he appears to have engaged in the busi- ness of the court at the preceding May term in opposition to Mr. Bradbury. He also was a school-teacher. He was born in Charlestown, Massachusetts, and graduated at Harvard Col- lege in 1758. Previous to this time there were no lawyers in what now forms the county of Cumberland ; the courts were attended when it was necessary by practitioners from Massachu- setts.1 Justices of the peace were in the habit of filling writs and attending to the business in court .? This practice of filling writs continued after there were regular practitioners in every county, and those which were not settled, they generally pro- cured some attorney to manage in court ; this custom operated severely upon those persons who had spent much time and money to qualify themselves to discharge the duties of the profession, and produced a rule which was adopted in 1770 by the barristers and attorneys practicing in Maine; by which they agreed that they would not "enter, argue, or in any manner assist in the prosecution of causes where the writs shall be drawn by any
1 In the great case between the Plymouth and Pejepscot proprietors, tried in the Common Pleas here in 1754, Jeremiah Gridley and James Otis of Boston attended for the parties.
2 Enoch Freeman in this town did considerable business of this kind; in 1758, he filled twenty-eight writs for April term, and fourteen for October term, and eleven for the next January term; his price for a writ and summons was eight shillings.
620
HISTORY OF PORTLAND.
person not regularly admitted and sworn, except in cases of necessity."} This rule produced great excitement among that class of persons who had been in the habit of doing this busi- ness, which was brought to a point by the refusal of the Supe- rior Court to admit a person who had drawn a writ in this manner for another, to manage the cause which had been brought up by appeal, and the attorneys refusing, under their rule, to conduct it, the plaintiff was nonsuited. This person, who was the late Judge Freeman, wrote a long article on the subject in July, 1773, in which he reprobated the obnoxious rule, and severely reflected upon the members of the bar and court. Early in 1774, the subject was brought before the town at a public meeting, and a committee was chosen to "repre- sent the lawyers' agreement to the General Court and pray for redress."2 It is probable, as we hear no more of this matter, that political concerns of more absorbing interest prevented any further action upon it ; and after the troubles of the war were over, the actors in the scene had new parts to perform, and were operated upon by motives entirely different from those which before had influenced them. It must not however be understood that prejudice against lawyers was extinguished by the revolution ; it revived with the peace, in some parts of the country, with more than its former spirit, and still continues in many places to prevail. Our town, to its praise it may be spoken, has not since the revolution joined in any crusade against the profession.
Mr. Bradbury and Mr. Wyer were the only resident lawyers3
1 The reason they assigned for the rule was, that they thought it "detrimenta to the public that persons not regularly admitted and sworn as attorneys should be countenanced" by them.
2 The committee consisted of Enoch Freeman, Stephen Longfellow, B. Mussey, Jonathan Morse, and Richard Codman.
3 They were both admitted to the Superior Court in 1765 ; they kept their of- fices in their houses, which are both standing, Mr. Bradbury's at the Corner of Middle and Willow streets, and Mr. Wyer's nearly opposite the north school- house in Congress street.
621
LAWYERS-BRADBURY, WYER.
in town until 1774, and consequently were invariably employed upon opposite sides; nor were their characters less opposed than was their relative position in the courts ; Bradbury was grave and dignified in his deportment, while Wyer was full of gayety and wit, the shafts of which did not always fall harm- less from his adversary; the life of the former was marked by steadiness and uniformity, that of the latter was desultory and irregular ; one was distinguished by genius, the other by method ; they both had qualities to elevate them in society and give them a fair rank in the courts. Bradbury was more of a special pleader, and by the weight of his character and man- ners, had great influence with the court and jury, but Wyer often carried his point by the vigorous sallies of his wit, and when he lost the jury he frequently gained the laugh and the audience. They were also opposed in religious sentiments, and at a time when our little community was divided by a strongly marked line between Episcopalians and Congregation- alists, and legal questions were arising on the subject of taxes and the rights of the two societies, Wyer was advocating the claims of the Episcopalians, while Bradbury was sustaining the fortunes of the old parish ; Wyer was upheld by the royalist party, Bradbury received the patronage of the whigs.
Notwithstanding these two lawyers originated all the actions that were brought into the courts of this county, yet in actions of importance, other and more eminent counselors were called to their assistance. Previous to the revolution, Daniel Farn- ham of Newbury,' John Chipman2 of Marblehead, William
Mr. Farnham graduated in 1739, at Harvard College; he had considerable practice here prior to the revolution. He died in 1776 and left one son, William, who died in Boston a few years ago, and a daughter, who married Dr. Sawyer of Newburyport.
2 Mr. Chipman was the son of the Rev. John Chipman, and father of the elder Ward Chipman of New Brunswick, agent for the British government in the con- troversy with the United States on the boundary line, and grandfather of the late Judge Chipman of the same province. While attending the Superior Court in this town in July, 1768, he was attacked in the court-house by an apo- plectic fit, which terminated his life in two or three hours. He graduated at Har- vard College, 1738.
622
HISTORY OF PORTLAND.
Cushing of Pownalborough, David Sewall of York, Mathew and Samuel Livermore1 and William Parker of Portsmouth, James Otis, Jeremiah Gridley,2 Jonathan Sewall, and John Adams of Boston,4 attended the circuits here.
In 1768 there were but six attorneys at law in Maine, viz.,
1 Samuel Livermore descended from John Livermore of Watertown, graduated at Nassau College, 1752; he was appointed judge of the Superior Court of New Hampshire in 1792, and was several years chief justice ; he was also a senator in Congress eight years from 1793. He was father of Edward St. Loe and Arthur Livermore, each of whom held the office of judge in the Superior Court of New Hampshire, and the latter chief justice. His brother Elijah was chief proprietor of Livermore in Maine.
2 Mr. Gridley graduated at Harvard College, 1725; he was a sound and acute lawyer, was the attorney general of Massachusetts, and died September 10, 1767.
3 Mr. Sewall succeeded Mr. Gridley as attorney general in 1767 ; he gradu- ated at Harvard College in 1748, but did not enter upou practice until 1757, hav- ing in the mean time kept a school in Salem. At the commencement of the difficulties with the mother country, he was caressed over to the royal party and a new office, the "King's solicitor," was created expressly for him. Ile was a good lawyer and advocate, and had a fund of wit and satire always at command, which he employed at the bar and in political controversy. He maintained a discussion in the papers in 1774 and 1775 under the name of Mas- sachusettensis with John Adams, in which the principal subjects of disagree- ment with Great Britain were ably handled. He retired to England in 1775 and settled in Bristol. He died at Halifax, 1796, aged sixty-two years. The authorship of Massachusettensis has been recently denied him and given to Daniel Leonard. See Historical and Gen. Reg. pp. 18, 291, and Sabine's Loy- alists, 2d edition.
4 Mr. Adams attended the court here twelve successive years prior to the rev- olution, and boarded with Jonathan Webb. Jonathan Sewall and Mr. Adams were intimate friends until the crisis in American politics took place. Finding they could not change each others views, they determined not to discuss the subject any more. This resolution was taken in this town when the court was sitting in July, 1774 ; they were walking upon Munjoy's hill before breakfast and earnestly discussing the great questions which were then agitating the country. The conversation terminated by Mr. Adams saying, "I see we must part; and with a bleeding heart I say it, I fear forever ; but you may depend upon it, that this adieu is the sharpest thorn on which I ever set my foot." After their part- ing here, they did not meet again until Mr. Adams called upon him in London, in 1788, as the ambassador of the free American States.
623
LAWYERS.
Caleb Emery, William Cushing, David Sewall, James Sulli- van,' Theophilus Bradbury, and David Wyer. Of these, not one was in practice here at the close of the revolutionary war. Cushing, Sullivan, and Sewall were on the bench, Caleb Emery had retired, Bradbury had removed to Newburyport, and Wyer was dead. Mr. Bradbury was appointed attorney for the State in 1777, and so from year to year, until his removal from the county, which took place in 1779.2 Mr. Wyer was appointed King's attorney for the county frequently before the revolution. On the destruction of the town Mr Wyer moved to Stroudwa- ter, where he died February 29, 1776, aged thirty-five.3
1 Mr Sullivan commenced practice on Arrowsic Island, a part of Georgetown, in 1767. He gave to a friend as a reason for settling in so unpromising a place, that, "as he found he had to break into the world, he thought he had better begin at the weakest place." He moved to Biddeford in 1769; he was ap- pointed a justice of the Superior Court in 1776, and soon after moved to Groton in Massachusetts. It is complimentary to the legal talent of our State, that of the five judges who were appointed to the Supreme Court of Massachusetts in 1776 and 1777, three of them were from our territory, viz., Cushing, Sullivan, and Sewall, and of the sixteen others, subsequently appointed, two chief jus- tices, and three associate justices, commenced practice in this State, viz., Parsons, Parker, Bradbury, Thatcher, and Wilde. Sullivan died Governor of Massachusetts, December 10, 1808.
2 In 1762 Mr. Bradbury married Sarah, a daughter of Ephraim Jones of this town. In 1764 he purchased of Moses Pearson the lot of land on the corner of Middle and Willow streets, and built the house which now stands there. In 1796 he was chosen member of Congress from Essex, and was appointed judge of the Supreme Court in 1797. He died September 6, 1803, aged sixty-four. His son George, subsequently moved here and practiced law ; was chosen member of Congress from Cumberland, and served two terms, 1813-1817, and senator to the State legislature. He was also clerk of the courts of this county. He died November 17, 1823, aged fifty-three. Theophilus was great- great-grandson of Thomas Bradbury who came to Salisbury, Massachusetts, about 1638. He was the son of Theophilus Bradbury and Ann Woodman. He had eight children by his wife, Sarah Jones, all of whom fare dead. Charles married Eleanor Cumming, and George, Mary Kent, both of Portland, and left issue by them.
3 Mr. Wyer was the son of David Wyer, a sea captain, and was born in Charles- town in 1741. His father and brother Thomas, subsequently moved to this
624
HISTORY OF PORTLAND.
The next attorney who settled here was Theophilus Parsons, who was admitted to the practice in this county, July, 1774. He graduated at Harvard College in 1769, pursued his legal studies with Mr. Bradbury, and at the same time kept the grammar school on the Neck. He soon came into full practice and was often employed in opposition to his legal instructor. While keeping school, and after his admission to the bar, Mr. Parsons was unremitted in his studies, devoting to them his whole time.1 He was one of the committee of inspection in
1 Mr. Parsons was born in that part of Newbury now called Byfield, in 1750, his father, Moses Parsons, being the minister of that parish. He boarded about three years with Deacon Codman, on the corner of Temple and Middle streets ; in April, 1775, he went to board with Dr. Deane. On his removal from this town, he es- tablished himself in Newburyport, and subsequently in Boston. He was ap- pointed chief justice of Massachusetts in 1806. It is unnecessary to give here a further notice of the life of this great man and unrivaled lawyer, a brief and interesting view of it may be found in Chief Justice Parker's address on the opening of the court in Suffolk, November, 1813, shortly after his decease. He died in Boston, September, 1813, aged sixty-three, in the full strength of his intellectual faculties. His son, Prof. Parsons of Harvard College, in 1859, published an interesting memoir of his father.
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