USA > Maine > Cumberland County > Portland > The history of Portland, from its first settlement: with notices of the neighbouring towns, and of the changes of government in Maine, Part II 1700-1833 > Part 22
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C. 11.] Courts, Law and Lawyers. . 205
During the existence of the inferior court, the judges were paid by fees, and of course their compensation depended on the quantity of business. In 1762 they were allowed 5s. 4d. for each entry, and 1s. for an appeal. The fees varied at different times ; in 1776 they were allowed for an entry 2s .; in 1779, 4s. ; in 1783, 3s.6d .; and on a jury trial 6s. At the October term in 1777 in this county, the whole compensation received by the justices was 5s. 6d. each ; there were 11 entries. At the March term of the same court in 1778, there were the same number of entries, and the three justices who attended received 1Ss. Sd. each ; in October of the same year there were but 7 entries and 2 jury trials, and the amount of fees divided by the three justices was £8. 14. On the division of the county, John Minot, Ezekiel Cushing of Cape Elizabeth, Enoch Freeman of Falmouth and Edward Milliken of Scarborough were appointed justices.1 In February 1763, Jeremiah Powell of North-Yarmouth was appointed first justice. The first officers of the court were Mo- ses Pearson sheriff, Stephen Longfellow clerk, and Joshua Freeman crier.' The first term of the new court was held in this town, May 5, 1761. There were but two terms a year until after the revolu- tion and the number of entries was small ; in 1776 they were but 9, in 1781 they had advanced to 49, and continued to increase until 1785 when they were 196 ; they then began to decrease, in conse-
1 The following table will show the succession of judges in this Court until 1811 :
John Minot from 1760 to 1761
David Mitchell from 1778 to 1786
Ezekiel Cushing 1760
1764 John Lewis
1782
1803
Enoch Freeman 1760 1788
Jedediah Preble
1782
1783
Edward Milliken 1760 1771
Josiah Thatcher 1784 1799
Jeremiah Powell 1763 1781
Wm. Gorham 1789 1804
Alexander Ross 1766 1767
Stephen Longfellow
1797 1811
Moses Pearson 1770 1775
Jonas Mason 1773
1777
John Frothingham
1804
1811
Solomon Lombard 1776 1781
Robert Southgate, 1801 1811
Judge Southgate is the only survivor, he is living at Scarboro' at a very ad- vanced age. Mr. Lombard had been a minister and settled in Gorham previ- ous to his appointment. Mr. Frothingham was the only regular bred lawyer among the judges of this court.
2 Wm. Tyng succeeded Moses Pearson as sheriff in 1768, but abandoning the country in 1775, John Waite was appointed in his place, and held the office until 1800, a period of34 years. Samuel Freeman succeeded Mr. Long- fellow, who moved to Gorham in 1775, and held the office with the exception of one year until 1820, being 47 years. . It appears by a statement made by Mr. Freeman when he was removed in 1811, that the compensation of his office for 23 years from 1776, had averaged but 8123 a year ; the office is now worth from $1200 to $1500 a year, beside yielding an income to the public treasury.
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[P. II.
quence of the depression of trade and a great excitement and pre- judice which now were displayed against the profession.1 In 1788 there were but 52 entries ; from this time there was a regular increase with the exception of one or two years until 1807, when they had attained the unexampled number of 2422 entries for the year, being higher than they have ever since been, and double the amount at the present day. The great number of failures at that period gave rise to a vast multitude of suits.
In 1790 three terms of the inferior court were established, all held in Portland, but in 1791, one of these terms was removed to New Gloucester and continued to be held there until 1805, when it was restored to Portland, where the courts have ever since been held.2
Anciently when but one court was held in Falmouth, the com- mencement of the term, upon the arrival of the judges, was ushered in by the discharge of cannon at a fort on the west side of Stroudwa- ter bridge.3 The court, as now, was opened by prayer, and on the first day of the term, the court, bar, and minister dined together. In 1765, Mr. Smith and Mr. Deane both neglecting to attend to make the prayer, Judge Powell sharply reprimanded Mr. Deane for the omission. +
The administration of justice was exceedingly loose both before and immediately after the revolution ; the public mind was not cor- rected 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
1 May Term 1785, an action was brought before the court and no lawyer was present. The court heard the parties, examined the witnesses and com- mitted the cause to the jury, without the intervention of any attorney ; they brought in their verdict to the general satisfaction of the people. Fal. Gaz. June 22, 1785.
2 At the Oct. 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 neighbour Pinkham who had been drawn was sick at home, and had got him to come in his room" !!
3 A MSS. letter of Judge Sewall.
4 " 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 nobody to pray with us here ; he said the minister can hear the bell and knows when he is wanted." Deane's diary.
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C. 11.]
the examination of the papers of individuals, instances of persons having gone before magistrates and privately confessing themselves guilty of violations of law, been discharged on the payment of a small fine.1
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 Hutchinson, then Lt. Gov. of Mass. Benjamin Lynde, John Cushing, and Peter Oliver.2 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 re- moved to York. In 1761, a term was held in this county, and in 1786 a term 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 necessary by the accumulation of business and the burthensome system 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
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 swear- ing, where a fine of 5 or Os. was imposed. In one case of fornication the wo- man on confession was fined 6s. and discharged. "John Lowther physician, confessed that he broke the peace by striking Sam'l Graffam, cord wainer, the 22d inst. at Brunswick, being highly provoked, and paid a fine of 4s. to the king." Persons were frequently fined for absenting themselves 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 4s." " 1754, Col. Jedediah Preble is convicted of uttering one profane oath in my hearing and Deacon Win. Cotton's, at Mr. Joshua Freeman's." But the most singular instance of con- fession and of extra judicial punishment that I have met with took place in 1785, of which notice was publicly given in the following advertisement : "Falmouth, Aug. 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, 15 stripes on iny naked back as a warning to others. ISAAC ROFF, K his mark. Attest, Joseph Wormell, Wm. Blackstone.
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The above stripes were decently laid on by Samuel Bucknam, constable."
2 Mr. Hutchinson was appointed chiefjustice in 1761, as successor to Stephen Sewall, who died in Sept. 1700; he was succeeded by Peter Oliver in 1769.
3 In summer the robes were of black silk, in winter of scarlet, with black trimmings, 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 appointment, 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.
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was reduced to its original number, and the only effectual cure ap- plied, 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, and although not regularly bred to the profession, he was a man of talents, a ready draftsman, and had considerable practise.' On one occasion between 1720 and 1730, an action of trespass was commenced in the inferior court of York by Matthew Livermore of New-Hampshire for the plaintiff ; Wm. Shirley of Boston, after- ward governor of Massachusetts, for the defendant, filed a special plea ; but as special pleading was rarely used in that day and by the practising attornies of those times little understood and much less by the court, the plea was answered by some ore tenus observations by plaintiff's counsel, and the cause went to trial " some how 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 complaint to the king in council, and an order was issued thereon to set the whole proceedings aside, on account of the defective pleadings in the infe- rior court. The order for restitution was addressed to the superior court, and Mr. Auchmuty, an able lawyer of Boston, made an ear- nest application to the court to have the order carried into effect ; the court were somewhat perplexed on the occasion, but Mr. Eme- ry as counsel for the plaintiff, drew up an answer to Mr. Auch- muty'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 authorised 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 defendant in this case had obtained a different judgment from what appeared upon their records he must go there for his execution, as they were not by law empow- ered to issue any execution contrary to the record of their own judgment. The court were satisfied with this answer, and compli- mented Mr. Emery upon the manner in which he relieved them from
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 Massa- chusetts. Noah Emery was great grandfather of Nicholas Emery of this town.
Law and Lawyers.
C. 11.] 209
their embarrassment. Mr. Auchmuty acquiesced in the decision of the court.1
The time of Mr. Emery's death is not known ; his place was sup- plied by Caleb Emery, who also lived in Kittery, and who quit the practise soon after the revolutionary war. The first regularly edu- cated 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 Pownalboro', which is now called Dresden, where he continued in the practise until he was elevated to the bench in 1772.2
David Sewall of York was the next regular practitioner who es- tablished himself in this State ; he graduated at Harvard College in 1755, and commenced practise in York, his native town.3 These
' Judge Sewall's MSS. The court consisted at this time of Benj. Lynde, Paul Dudley, Edmund Quincy and Addington Davenport. Another anecdote is related of Mr. Emery, which I will venture to preserve as showing some- thing 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 as- semble 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 dur- ing the term. On one of these meetings Mr. Emnery 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 offence, ordered said Emery to pay for his offence, one pipe of tobacco. And ordered the sheriff, who it is said was Samuel Wheelwright, to pay one mug of flip for deserving the appellation. (Judge Sewall.)
2 Mr. Cushing resided with his brother Charles, who was the first sheriff of Lincoln, 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 practise there, there was no house on Kennebec riv- er from about two miles above Dresden court-house to the settlements in Can- ada, 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." Wm. Cushing was appointed 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 Common- wealth. He was transferred to the bench of the Supreme Court of the U. S. 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. Modern customs have put both the wig and gown out of countenance.
3 Mr. Sewall was raised to the bench in 1777, and in 1780 was appointed judge of the U. S. Court for the District of Maine. During the twelve years he held the office of judge in the State Court, he usually travelled his circuits on horseback, and in fact this is the manner in which the Judges and the mem- bers of the bar were obliged to travel before and some years after the revolu- tion. Judge Sewall died Oct. 22, 1825, aged 90; 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.
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two with Caleb Emery, are believed to have been the only lawyers in Maine in 1760, when the counties of Cumberland and Librola were established. This event by multiplying the sittings of court, in the district, held out encouragement to persons entering the pro- fession to settle here. Accordingly we find in 1762 two persons, Theophilus Bradbury and David Wyer entering upon the practise 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 been engaged in the business of the court at the preceding May term in opposition to Mr. Bradbu- ry. He was born in Charlestown, Mass. and graduated at Harvard College in 1758. Previous to this time there were no lawyers in what now forms the county of Cumberland ; the courts were attend- ed when it was necessary by practitioners from Massachusetts.' 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 procured some attorney to manage in court ; this custom operated severely upon those persons who had spent much time and money to qualify themselves to dis- charge the duties of the profession, and produced a rule which was adopted in 1770 by the barristers and attornies practising 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 person not regularly admitted and sworn, except in cases of necessity."3 This rule produced great excitement among that class of persons who had been in the habit of doing this business, which was brought to a point by the refusal of the superior court to admit a person who had drawn a writ in this manner for another, to
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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 Bos- ton attended for the parties.
2 Enoch Freeman in this town did considerable business of this kind : in 1758, he filled 28 writs for April term, and 14 for October term, and 11 for the next January term ; his price for a writ and summons was &s.
3 The reason they assigned for the rule was, that they thought it "detrimen- tal to the public that persons not regularly admitted and sworn as attornies should be countenanced" by them.
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manage the cause which had been brought up by appeal, and the attornies 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 " represent the lawyers' agreement to the general court and pray for redress.""" 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 extinguish- ed 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 lawyers in town until 1774, and consequently were invariably employed upon opposite sides;2 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 harmless 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 manners, 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 com-
1 The committee consisted of Enoch Freeman, Stephen Longfellow, B. Mussey, Jona. Morse and Richard Codman.
2 They were both admitted to the superior court in 1765 ; they kept their offices 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.
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munity was divided by a strongly marked line between episcopalinns and congregationalists, and legal questions were arising on the sub- ject of taxes and the rights of the two societies, Wyer was advo- cating 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 impor- tance, other and more eminent counsellors were called in to their assistance. Previous to the revolution, Daniel Farnham of New- bury,1 John Chipman" of Marblehead, Wm. Cushing of Pownalboro', David Sewall of York, Samuel Livermore" and Win. Parker of Portsmouth, James Otis, Jeremiah Gridley,4 Jonathan Sewall,' and John Adams of Boston,6 attended the circuits here.
1 Mr. Farnham graduated in 1739, at Harvard College ; he had considera- ble practise here prior to the revolution. He left one son William, who was living in Boston a few years ago.
2 Mr. Chipman was the son of the Rev. John Chipman, and father of the late Ward Chipman of New-Brunswick, agent for the British government in the controversy with the United States on the boundary line, and grandfather of the present 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 apoplectic fit, which terminated his life in two or three hours. He graduated at Harvard College 1738.
3 Sam'l. Livermore graduated at Nassau College ; he was appointed judge of the superior court of N. H. in 1792 and was several years chief justice ; he was also a Senator in Congress 8 years from 1793. He was father of Ed- ward St. Loe and Arthur Livermore, each of whom held the office of judge in the superior court of N. H. and the latter chief justice.
4 Mr. Gridley graduated at II. C. 1725; he was a sound and acute lawyer, was the Attorney General of Mass. and died Sept. 10, 1767.
5 Mr. Sewall succeeded Mr. Gridley as Attorney General in 1767 : he grad- uated at H. C. in 1748, but did not enter upon practise until 1757, having in the mean time kept a school in Salem. At the commencement of the dif- ficulties 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. He was a good lawyer and advocate, and had a fund of wit and satire always at com- mand, which he employed at the bar and in political controversy. He main- tained a discussion in the papers in 1774 and 1775 under the name of Massa- chusettensis 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.
6 Mr. Adams attended the court here 12 successive years prior to the revo- lution and boarded with Jonathan Webb. Jonathan Sewall and Mr. Adams were intimate friends until the crisis in American politics took place. Find- ing they could not change each others views, they determined not to. discu- 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 break- fast and earnestly discussing the great questions which were then agitating
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Law and Lawyers. 213
In 1768 there were but six Attornies at Law in Maine, viz. Caleb Emery, Wm. Cushing, David Sewall, James Sullivan,' 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.ª Mr. Wyer was appointed King's Attorney for the county frequently be- fore the revolution. On the destruction of the town Mr. Wyer moved to Stroudwater, where he died February 29, 1776, aged 35.3
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 parting here, they did not meet again until Mr. Adams called up- on him in London, in 1788, as the Ambassador of the free American States,
1 At this time Mr. Sullivan had recently commenced practice on Arrowsic island, a part of Georgetown. Ile 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 appointed a justice of the Supreme Court in 1776, and soon after moved to Groton in Mass. It is complimentary to the legal talent of our State, that of the five judges who were appointed to the Supreme Court of Mass. in 1776 and 1777, three of them were from our territory, viz. Cushing, Sullivan, and Sewall, and of the 16 others, subsequently appointed, 2 chief justices, and 3 associate justices, commenced practice in this State, viz. Par- sons, Parker, Bradbury, Thatcher, and Wild.
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