USA > New Hampshire > Colony, province, state, 1623-1888: history of New Hampshire > Part 40
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Upon coming to the bench, Judge Smith promptly introduced the practice
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[1803
of allowing a single judge to direct the course of trials, at the trial terms, of reserving cases and questions for the consideration of the whole court, and of preparing written opinions.
This brought order out of chaos, but the labor was immense. Besides that expended on the great work of his life, the treatise on probate law, he pre- sided at the trial terms, examined the cases, and prepared the written opinions in all cases heard in banc, numbering from sixty to seventy yearly, and making fourteen manuscript volumes with a manuscript digest.
Partisan madness prevented the publication of these opinions when that publication was demanded by every rational consideration of the public in- terest. Had they been published when they ought, thousands and tens of thousands of the money of individuals and the public would have been saved, for a very large proportion of the questions heard before Judge Smith have since been litigated at great expense.1
2 The curious traveller may still trace with little difficulty the line of the old Middlesex Canal, with here and there a break, from the basin at Charlestown to its junction with the Merrimack at Mid- dlesex village. Like an accusing ghost, it never strays far from the Boston & Lowell Railroad, to which it owes its untimely end.
Judging the canal by the pecuniary recompense it brought its projectors, it must be admitted a dismal failure ; yet its incep- tion was none the less a comprehensive, far-reaching scheme, which seemed to assure a future of ample profits and great pub- lic usefulness. Inconsiderable as this work may appear com- pared with the modern achievements of engineering, it was, for the times, a gigantic undertaking, beset with difficulties scarcely conceivable to-day: Boston was a small town of about twenty thou- sand inhabitants ; Medford, Woburn, and Chelmsford were insig- nificant villages ; and Lowell was as yet unborn, while the valley of the Merrimack northward into New Hampshire supported a sparse agricultural population. But the outlook was encourag- ing. It was a period of rapid growth and marked inprovements. The subject of closer communication with the interior early be- came a vital question. Turnpikes, controlled by corporations, were the principal avenues over which country produce, lumber, fire- wood, and building-stone found their way to the little metropolis. The cost of entertainment at the various country inns, the frequent tolls, and the inevitable wear and tear of teaming, enhanced very materially the price of all these articles. The Middlesex I John M. Shirley. 2 L. L. Dame.
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Canal was the first step towards the solution of the problem of cheap transportation. The plan originated with the Hon. James Sullivan, a judge of the Supreme Court of Massachusetts, attor- ney-general, and governor in 1807 and 1808. He was a brother of General John Sullivan, of Durham.
A brief glance at the map of the New England States will bring out in bold relief the full significance of Sullivan's scheme. It will be seen that the Mer- rimack river, after pursuing a southerly course as far as Middlesex village, turns abruptly to the north-east. A canal from Charlestown mill-pond to this bend of the river, a distance of twenty-seven and a quarter miles, would open a continuous water-route of eighty miles to Concord, N. H. From this point, taking advantage of Lake Sunapee, a canal could easily be run in a north-westerly direction to the Connecticut at Windsor, Vt .; and thence, making use of intermediate streams, communication could be opened with the St. Lawrence. The speculative mind of Sullivan dwelt upon the preg- nant results that must follow the connection of Boston with New Hampshire and possibly Vermont and Canada. He consulted his friend, Colonel Bald- win, sheriff of Middlesex, who had a natural taste for engineering, and they came to the conclusion that the plan was feasible. Should the undertaking succeed between Concord and Boston, the gradual increase in population and traffic would in time warrant the completion of the programme. Even should communication never be established beyond Concord, the commercial advan- tages of opening to the market the undeveloped resources of upper New Hampshire would be a sufficient justification. A charter was granted, bearing date of June 22, 1793, " incorporating James Sullivan, Esq., and others, by the name of the Proprietors of the Middlesex Canal," and on the same day was signed by His Excellency John Hancock, governor of Massachusetts.
Colonel Baldwin, who superintended the construction of the canal, re- moved the first turf September 10, 1794. The progress was slow and at- tended with many embarrassments. The purchase of land from more than one hundred proprietors demanded skillful diplomacy. Most of the lands used for the canal were acquired by voluntary sale, and conveyed in fee-sim- ple to the corporation. Sixteen lots were taken under authority of the Court of Sessions ; while for thirteen neither deed nor record could be found when. the corporation came to an end. Some of the land was never paid for, as the owner refused to accept the sum awarded. The compensation ranged from about $150 an acre in Medford to $25 in Billerica. The only instrument used for engineering purposes was a level imported from England. Of the two routes considered, the rejected route was forty years later selected for the Lowell Railroad. The canal was thirty feet wide, and four feet deep, cost $500,000, was twenty-seven and a quarter miles long, connected Charles river with the Merrimack above Lowell, and was opened to public navigation in 1803.
As the enterprise had the confidence of the business community, money for prosecuting the work had been procured with comparative ease. The
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stock was divided into eight hundred shares. The stock had steadily ad- vanced from $25 a share in the autumn of 1794 to $473 in 1803, the year the canal was opened, touching $500 in 1804. Then a decline set in, a few dol- lars at a time, till 1816, when its market value was $300 with few takers, although the canal was in successful operation.
1 The Federal party was carefully organized in the spring of 1804 by Senator Plumer to carry the fall elections. Although Governor Gilman had been re-elected in March, a majority of both Houses was Republican. Associating with himself five other persons, one from each county, he formed a self-constitu- ted State committee, of which he was chairman. Under their auspices county committees were formed, who in turn organized town and school district committees, whose duty it was to bring out every Federal voter to the polls, and to secure as far as pos- sible every wavering and doubtful voter for their party. This is believed to have been the first instance in this State in which a systematic attempt was made to bring the whole force of a party, thoroughly organized, to bear with undivided weight on the result of an election. Newspapers were provided for gratuitous distribution : post-riders were employed to distribute them in every part of the State. An address was prepared by Mr. Plumer : six thousand copies were distributed, in every town in the Commonwealth. The election occurred in August for rep- resentatives to Congress, and through these unusual exertions the Federalists carried the State by an average majority of nearly eight hundred votes.
At the presidential election, however, the Federalists suffered a fearful defeat by the Republicans, losing New Hampshire by over five hundred votes. Even Massachusetts voted for the re- election of Thomas Jefferson as president. He received all but fourteen of the one hundred and seventy-six electoral votes. The opposition to him was confined to Connecticut, Delaware, and Maryland.
2 Hon. John Pickering of Portsmouth was removed from the office of judge of the district court for New Hampshire in the year 1804, and died in 1805. He was born in Newington in 1738, graduated at Harvard College in 1761 ; soon became eminent in the profession of the law in Portsmouth ; was an
I William Plumer, Jr. 2 G. W. Nesmith.
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active partisan in defence of the rights and liberty of America ; as early as 1773 was on a committee to prevent the importation of tea; in 1775, 1776, and several other succeeding years, was an influential member of the legislature from Portsmouth ; was a member of the convention, and assisted in framing our State constitution ; was chief justice of our Supreme Court for five years, commencing with 1790; was previously attorney-general for one year; served as governor most of one year, after John Langdon was chosen senator; was one of the electors of president for 17SS and 1792, and had the privilege of voting for Washington and sustaining his administration ; was appointed by his fellow citizens to address Washington in 1789, when Washington visited Portsmouth. His address and Washington's answer may be found in Brews- ter's " Rambles about Portsmouth." About the end of the year 1795, upon his resignation of the office of judge of our State court, he was appointed by Wash- ington to the office of district judge of New Hampshire. It was suggested that the health of Judge Pickering at this time was not firm, and this change of office was made because the duties required of the incumbent of the district court were less laborious than the requisitions of the State bench. And there is the authority of Governor Plumer for the assertion, that the hypochondria of 1794, of Judge Pickering, as it was then called, had, in IS03, been developed into such a condition, bodily and mental, as to render him incompetent to the proper discharge of his official duties. It was not doubted his mental powers were deranged. Then the question arose how to get rid of the judge from the bench. In February, 1803, President Jefferson sent his message to the House of Representatives, enclosing a letter and affidavits exhibiting a complaint against Judge Pickering. The message and papers were referred to a committee consisting of Nicholson of Maryland, James A. Bayard of Delaware, John Randolph of Virginia, Tenney of New Hampshire, and EI- mendorf of New York, with instructions to report thereon. On the 1Sth of February Mr. Nicholson made his report, recommending the adoption of the following resolution : Resolved, That John Pickering, judge of the New Hampshire district court, be impeached of high crimes and misdemeanors.
This report came up for consideration in March, 1803, a day or two before the close of the session of that Congress. Goddard of Connecticut moved its postponement to the next session. This motion was sustained by the mover, Mitchell of New York, Dana of Connecticut, and Mott of Pennsylvania. It was rejected by the House, and the resolution was adopted. Messrs. Nichol- son and Randolph were appointed managers, by the House, to conduct pro- ceedings before the Senate. The House resolution was transferred to the Senate, and was there postponed to the next session. At the session of 1804 the trial came on. Governor Plumer was then one of the senators from this State. He states that both of the New Hampshire senators were examined as witnesses as to the character of Judge Pickering, and testified to the high moral worth of the judge so long as he retained the use of his reason. Here then was exhibited, before one of the highest tribunals of our land, the ex- traordinary attempt to interpret mental insanity, in its meaning and conse- quences, as tantamount to crime and misdemeanor -an unwarrantable
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attempt to confound all distinction of law and justice which, when carried into practice, would pervert the constitutional provision of impeachment for crime into an unconstitutional mode of removal from office without crime. Senator Samuel White of Delaware, on this occasion, used the following strong denunciatory language. He said; "The accused is in default, not in consequence of contempt of court, but under the awful visitation of God, and as he is mentally deranged, our proceedings scarcely deserve the name of a mock trial." Nicholson, senator from Virginia, here called out, "Order ! Order! Order! I will not permit our proceedings to be called by the name of a mock trial."
Mr. White said to the president : " I am in order, sir; I repeat it, it is a mock trial. I have no wish to give offence, but if that gentleman is offended, I am ready to give him satisfaction at any time and place." The president gave no rebuke to the parties. No meeting followed their words. Governor Plumer informs us that the impeachment met with strenuous opposition in the Senate. The measure was carried at last by the vote of seventeen to seven nays - several senators refusing to vote. The whole Senate then con- sisted of thirty-two; only twenty-four voted for the resolution; two-thirds were required to impeach. Judge Pickering was not present, nor was he rep- resented by counsel. It occurs to us his removal may have been justly de- manded, because his disease was shown to have been incurable, and his office probably required an incumbent able to work. Yet, admitting the public necessity of his removal, we cannot come to the conclusion that the Consti- tution of the United States, or its wise framers, ever contemplated that, in order to effect the removal of a judge admitted to be insane, the sole remedy must exist in the open and serious charge or allegation of committing some crime or misdemeanor, when it is obvious to every one that his mental status is of that character as to render him not responsible for the commission of any offence. The provision for removal by impeachment was evidently de- signed to apply to cases of actual guilt, fully sustained by ample proof. In this case the severe charge is alleged, but the proof of guilt is wanting. Hence, the trial deserved Senator White's denunciation. If the public good demanded Judge Pickering's removal from office, why not resort to such a remedy, rather than to the harsh, unjust remedy of imputing crime where none has been committed. We are glad to know that all our New Hampshire delegation in Congress, and such men as Huger, Griswold, John C. Smith, James A. Bayard of Delaware, and many other able men in both branches, were found in opposition to this wicked proceeding. 1
2 The year 1804 had witnessed the completion of the great enterprise-the fourth New Hampshire turnpike; that is, the road-to use the common speech of the times -had been " built through " and in some sense was open for public travel thereon ; but the cost had far exceeded the expectations of the pioneers in the enterprise. Instead of costing $600 or less per mile, it had cost $61, 157.00, or more than $1200 per mile. No toll-houses had been erected. No turnpikes or gates were set up till March 2, 1806. The repairs were expensive, and the prospect of fat dividends was remote.
IG. W. Nesmi.h. 2 J. M. Shirley.
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Until the turnpikes were set up, there was little disposition to pay toll. The location of these turnpikes was regarded as a matter of great importance, second only to the location of the road itself. Besides other places, tradition says that a gate was erected at George Hill in Enfield, which we know was afterwards removed to Fishmarket. Another was erected at the low Gay House in what is now Wilmot, some thirty or forty rods on the road to Springfield from the Porter K. Philbrick stand. The most important, with perhaps one exception, was that at West Andover. It barred not only the fourth, but its great feeder the Grafton turnpike. It was erected almost op- posite to the great elm tree which now stands near the house of George M. Babbitt.
There was another, known as the " Parker Gate," not far from the " Pet Webster place" in Salisbury, near what is now known as the Heath premises. The site of the old cellar of the toll-house may vet be seen.
There was another in Boscawen, about which there was no end of con- tention.
These gates were sometimes set up temporarily in one place and then re- moved to another for the greater security of the interests of the corporation. All sorts of lies, tricks, and evasions were resorted to to get rid of the pay- ment of toll. Selectmen sometimes laid out roads or changed the route of old ones in order to enable the traveller to leave the turnpike before he reached the gate, and then resume his travel on the turnpike beyond it.
Sinners evaded the payment of toll by claiming that they were passing with their horses and carriages to or from " public worship," when they never intended to attend anything of the kind in any sense known to the religious world. Among themselves they claimed that the charter did not define public worship, that going a-courting, attending a card party or a drinking bout where parties regaled themselves with that choice elixir of the saints, West India or New England rum, was religious service. Good chris- tians cheated the corporation out of its due by claiming that they were going to mill when they were going a-visiting or attending to their private busi- ness, and that they were engaged in their common or ordinary affairs of business concerns within the town where they belonged when they were not engaged in such business, and were out of the town where they belonged.
The winds blew, the floods came and washed away the road-bed, and ren- dered the travel thereon and upon the bridges unsafe.
There were no stages here in those days to aid in swelling dividends. They were the product of a later epoch. There was a rumor that such things had been seen in New York, in 1804. It was said, though not fully believed, that there was a New York and Albany stage line on the east side of the Hud- son river, that the stage left the city every morning at six o'clock and reached Albany on the third day, that the fare of each through passenger was cight dollars, and that every way passenger had to pay a York sixpence a mile. It was also said that a like stage ran daily on the west side of the river between New York and Albany, that the through fare was the same as on the other route, and that way passengers only had to pay five cents a mile.
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There were then no great transportation companies, and the canal craze which came on at a later day had not even reached this part of New Hamp- shire. 1
Down to 1805 New Hampshire was a Federal State; but in that year, after an exciting contest, the Republican party pre- vailed, choosing for a governor John Langdon, and carrying every branch of the State government by a majority of nearly four thousand. Simon Olcott's term of service in the United States Senate having expired in March, Nicholas Gilman, a Re- publican, was chosen in his place. He was the first Republican who had represented the State in either House of Congress, and his election was considered a great party triumph.
William Plumer, in 1805, wrote Uriah Tracy as follows :-
"Democracy has obtained its long-expected triumph in New Hampshire. John Langdon is governor-elect. His success is not owing to snow, rain, hail, or bad roads, but to the incontrovertible fact that the Federalists of this State do not compose the majority. Many good men have grown weary of constant exertions to support a system whose labors bear a close affinity to those of Sisyphus."
To comprehend all that was implied in the popular conception of this political change, one needs to reflect in part upon a con- dition of society no longer obtaining. The dominant Federal element was largely embodied in the professional and official classes, who formed a kind of select aristocracy, more separated from the sympathy and co-operation of the common people than any considerably influential class in New Hampshire to-day. In a sense, the triumph of Republicanism was the success of the masses of the people. The commonalty, so to speak, had asser- ted their right to lead as well as to be led. The rights of the people have formed the theme of every Anti-Federalist since the adoption of the constitution.2
The Republicans came into full possession of the State govern- ment in 1806, re-elected Governor Langdon ; and the legislature elected Nahum Parker to the United States Senate, to succeed William Plumer. In August five Republican members of Con- gress were chosen, thus making the whole delegation solid in supporting the administration of Thomas Jefferson.
I John M Shirley. 2 William Plumer, Jr.
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The establishment of post-offices in many of the less impor- tant towns, in 1806, was without doubt very welcome to the inhabitants, and may be justly considered an important event in their history.
In earlier times it was customary to intrust to some friend or acquaintance, who might be travelling in the right direction, a missive for an absent friend or relative. Doubtless the post- rider, in his journeying through the town, accommodated those living on his immediate route, and the blowing of his horn an- nounced his welcome approach. As a matter of course, few letters were written in those days, so that high rates of postage were not onerous.
1 In 1806, as tradition has it, the Grafton turnpike was for- mally opened. The travel upon the great feeder as well as upon the trunk line steadily increased. Year by year new taverns were put up on the line. Year by year the pod and gimlet teams with their precious freight from beyond the State increased in number and their freight in importance.
No coaches ran from Boston to Concord till 1807.1 The main public means of conveyance in 1806 was by the post-horse, which carried the packet while the post-boy walked by his side.
We have no means of fixing the precise time when the stages ran north from Concord. Pettengill of Salisbury drove up the first trip. This was a two-horse coach. Harvey and others afterwards controlled this line of two-horse coaches. The larger ones came afterwards. The stages were passing up the turnpike just prior to the war of 1812.
James Rowe, Esq., of Wilmot, acted as post-boy and carried the mail from West Andover over the Grafton turnpike to Or- ford in 1822, " and did errands." There were no stages which ran over that route, to his knowledge, at or before that time.
Between 1815 and 1818 the Boating Company was organized, and the Canal Company located its northernmost boat-house and store at Concord. The big teams became one of the perma- nent institutions, and then came the stages with their whir and rattle, and the mails. This gave a ready market in every town
1 John M. Shirley.
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for all kinds of provision for man and beast and for the farmer's horses.
The pressure of this increased travel demanded greater ac- commodations both as respects the road and along the line. Changes in the route were made to facilitate the transit of heavy freight, and some of them at great expense.1
2 Following the construction of the Middlesex Canal came the requisite works to render the Merrimack river navigable from the head of the Middlesex to the town of Concord, being a series of dams, locks, and short canals to overcome the natural
The old Blodgett Mansion at Amoskeag Canal. Erected in 1795. Pulled down in 1870.
rapids and falls of the river. The first of these works was a lock and short canal at Wicasee Falls, three miles above the head of the Middlesex, at what is now known as Tyng's Island. No fall is now perceptible at that point, the Lowell dam having flowed it out. The second work, fifteen miles further up the river, at Cromwell's Falls, consisted of a dam and single lock. Then came dams and single locks at Moor's, Coos, Goff's, Grif- fin's, and Merrill's Falls. About a mile above Merrill's Falls were the lower locks of the Amoskeag - a canal next in importance to 1 John M. Shirley. 2 General George Stark.
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the Middlesex. It was only about one mile in length, but sur- mounted, by works of very considerable magnitude, the great fall of between fifty and sixty feet that now furnishes the water
....
Higado fritti
WITH WIND AND CURRENT.
power for the manufactories of Manchester. Its construction was first undertaken by Samuel Blodgett as early as 1794, but it was not completed until 1807.
BOAT ENTERING LOCKS.
Eight miles above Amoskeag the locks and short canal of Hooksett overcame a fall of some seventeen feet ; and six miles further on the Bow locks and canal afforded the final lift of
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twenty-seven feet, to the level of the navigable water of the Merrimack river at Concord.
Short side canals with locks were subsequently built at the . junctions of the Nashua and Piscataquog rivers with the Merri- mack to facilitate the passage of boats from the Merrimack to the storehouses in Nashua and Piscataquog villages.
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