Gazetteer of Grafton county, N. H. 1709-1886, Part 4

Author: Child, Hamilton, 1836- comp. cn
Publication date: 1886
Publisher: Syracuse, N. Y., Syracuse Journal Company, Printers
Number of Pages: 1266

USA > New Hampshire > Grafton County > Gazetteer of Grafton county, N. H. 1709-1886 > Part 4

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THE ADMINISTRATION OF THE LAW IN GRAFTON COUNTY .*

As early as January, 1755, a proposition to divide the Province of New Hampshire into counties was entertained in the Assembly. The Merrimack river was to be the dividing line and there were to be two counties-Ports- mouth and Cumberland. The Council rejected the bill because it provided for a court at Exeter as well as Portsmouth, and they "could by no means consent" to that. The two branches of the Assembly continued to consider this question in various forms and continued to find grounds of disagreement as to details until 1769, when an agreement was finally reached and the es- tablishment of the counties effected by the Crown's approval of the act of March 19, 1771. (Laws of 1771, Ch. 137, p. 204.) Under this legislation

*For this admirable sketch of the legal history of Grafton county we are indebted to Mr. A. S. Batchellor of Littleton.

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five counties were erected. These were Rockingham, Strafford, Hills- borough, Cheshire and Grafton, so named by the Governor after some of his friends in England. The counties of Strafford and Grafton, being much less populous than the others, were to remain annexed to the county of Rocking- ham, till the Governor, by the advice of Council, should declare them com- petent to the exercise of their respective jurisdictions, which was done in 1773. At this date the towns included in the county were New Chester (now Hill. Bristol and Bridgewater), Protectworth (Springfield), Grafton, Relhan (Enfield), Lebanon, Hanover, Canaan, Cardigan (Orange), Plymouth, Cock- ermouth (Groton), Dorchester, Lyme, Orford, Wentworth, Rumney, Treco- thic (Ellsworth), Warren, Piermont, Haverhill, Peeling (Fairfield, then Wood- stock), Lincoln, Landaff, Bath, Lyman, Gunthwaite (Concord, then Lisbon), Franconia, Apthorp (Littleton and Dalton), Lancaster, Dartmouth (Jeffer- son), Shelburne, Chatham, Conway, Northumberland, Woobury (Strafford), Alexandria, Burton (Albany), Coventry (Benton), Dryden (Colebrook), Pres- ton (Columbia). Thornton, and all other territory northerly of a line from the northwest corner of Plainfield by the northerly side lines of Plainfield and Grantham, to the northeast corner of Grantham, thence by the easterly side line of Grantham and the northerly side line of Saville to the north end of Sunapee pond; thence by the westerly line of Dantzick, Hiedleburgh, and by northerly side lines of Hiedleburgh and northwesterly side line of Emerys- town to Pemigewasset river; thence up the river to Compton; thence round the westerly end of Compton, and by the northeasterly side lines of Comp- ton, Sandwich and Tamworth ; and thence easterly to the Province line on the same course with the northerly side line of Eadeton.

A census taken in 1773 contains returns from twenty-five towns in this county, and gives a population of 3,549, of which ninety were students at Dartmouth college, and twenty were slaves. (10 Prov. Papers, 635.)

The Revolutionary convention in the Province, in 1775, "ordered a sur- vey to be made of the number of people in the several counties." It appeared from this enumeration that Grafton county had a population of 4, 101. Dur- the long period of the French-English and Indian hostilities, which did not case until the peace of 1763, and by which the French possessions to the north- ward were ceded to England, the region of Grafton county could not be set- tled. The French and Indian marauding parties killed and pillaged in com- parative security for themselves, at points far south of the present county boundaries. Immediately upon the overthrow of the French dominion, how- ever, there was a rush of settlers to the northward. Hardly any settlements had been effected previous to 1763, and in 1767 the population was only 747 ; but in the succeeding decade a considerable portion of the vigorous elements in the surplus population of the old settlements found homes in

NOTE-Emerystown is now Andover. Dantzick and Hiedleburgh were laid on the an- cient maps, one nearly east of "Sunapee pond " and the other adjoining the first on the north.

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Grafton county. Grants of townships were eagerly sought and surveys extended up the branches of the Merrimack and the Connecticut valley and into the country on either side of the river. Much of the territory now re-granted by Governor John Wentworth had been previously disposed of by his predecessor, Benning Wentworth. Various conditions were annexed to the grants, among which was that of forfeiture in case of a failure of the grantees to effect a settlement in five years. By taking advantage of this clause he assumed the disposal of a vast territory. The grantees of Benning Wentworth protested against the forfeitures as arbitrary and unwarranted. In the distribution of official favors by Governor John Wentworth, one of the council, Peter Livius, conceived himself to be unduly overlooked, and returned to England in a belligerent frame of mind. He proceeded immediately to an agitation of New Hampshire affairs, and filed charges of maladministration against Wentworth. His first article of complaint was "that the Governor and Council, without any legal process, or the intervention of a jury, had deprived the grantees under the Crown of their lands, on suggestion only that the conditions had not been complied with." (Belknap, P. 345.) To this it was replied "that the resumption of grants forfeited by non-compliance with the conditions of settlement, was supported by the opinion of the attorney and solicitor-general, given in 1752 ; that the invariable usage in these cases, had been to issue notice to delinquent proprietors, that they should appear on a set day, and show cause why their shares should not be forfeited and re-granted ; that their allegations had always been treated with proper respect, and that no complaint of injustice had been made by any persons whose grants had been thus resumed."

The lords of trade before whom the complaints were first laid found that they had been fully verified, but they also reported that Wentworth's adminis- tration had been successful

A rehearing was had before a committee of the privy council who reported a judgment on the several articles. On the first one they said in substance : " That by the law of England, when lands were granted, upon condition, the breach of that condition must be found by a jury under a commission from the Court of Chancery ; but that no such court existed in New Hampshire ; and though the general rule was, that the law of England extended to the colonies, yet it must be understood to mean such part of the law as is adapted to the state and constitution of them. That though the Governor had re- sumed and regranted lands, yet there was no evidence that such resumption had been made without proof or public notoriety that the condition of former grants had not been complied with; and that no complaint had been made by any person supposed to be injured. That it had not been proved that resumptions had been made without notice to the proprietors ; and it had not even been suggested, in cases where time had been allowed, that grants were resumed before the expiration of it."

The people of Grafton county were settled on lands which were subject

1169866

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to grants successively made by these governors by the methods investigated in these proceedings. Wherever the grants were renewed to the same proprietors, as was the case with Chiswick, afterwards Apthorp, then Little- ton and Dalton, great difficulty was avoided. A large number of towns, how- ever, were granted under rival charters to different sets of proprietors. This was the case of Corcord, regranted as Gunthwaite; of Franconia and Lin- coln, regranted as Morristown ; Landaff, regranted by the same name. The cir- cumstances of these grants raised some of the first important questions for litigation in the county. The great haste and carelessness which characterized the survey and location of the grants and the allotment among the individual proprietors, gave further occasion for angry controversy without and with re- course to the remedies of the law. The result of the incidental considera- tion by the home government upon the complaint of Livius, of the questions of forfeiture under these grants, was not known in New Hampshire until the political condition of the colony was much disturbed by the rapid evo- lution of the sentiment of revolution. It would indeed, under more favorable conditions be regarded as an evasion rather than a decision of the question. The local courts of the county, organized in 1773, had only come fairly into working order when they were overtaken by the revolutionary storm and their doors closed. Proprietary rights found no peaceful settlement while the war progressed except in a summary manner through the home-made tribunals or by legislative disposition. The important questions relating to the prior- ity of the township grants were among those which remained in abeyance.

The Superior Court of Judicature included Grafton county in its circuit upon the organization of the county. Its members were Theodore Atkinson, of New Castle, chief justice Mesech Weare, of Hampton Falls, Leverett Hubbard and William Parker, both of Portsmouth, associate justices. Samuel Livermore, then of Portsmouth, was attorney-general. There was no practice, such as now prevails, of reporting opinions in the causes deter- mined in order to inform the public of the reasons for the decisions.

A Court of Common Pleas of four justices, and a Court of Sessions com- posed of the justices of the peace, were erected in the county with the other departments of civil government. The members of the Common Pleas were men of mark in their time. Col. John Hurd, of Haverhill, was chief, and Asa Porter, of Haverhill, David Hobart of Plymouth and Bezalee Woodward, of Hanover, associate justices. Col. John Fenton, of Plymouth, was clerk. Col. Hurd was a graduate of Harvard, who was also county treasurer, register of deeds and receiver of quit rents. He made Haverhill a half-shire and was one of the largest land-owners and most influential men in the county. It is remarkable that the Rev. Grant Powers, in his history of the Ccos country, should have disposed of this career by only relating the story of the escape of Col. Hurd's cow from the Haverhill settlement and her safe return to her old home at Portsmouth through the wilderness without accident. Col. Porter was also a wealthy, land-owner and a graduate of Harvard. Col. Hobart was

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a prominent citizen at Plymouth and foremost in military affairs. His career is sketched in a note to Potter's War History. (Adjt. Gen.'s Report. 1866, Vol. 2, p. 320.) Judge Woodward * was a professor in the college at Hanover, who came from Connecticut with President Wheelock. He was a graduate of Yale college and was for thirty-five years the " end of the law " for the vicinity of Hanover. He acted as trial justice under the authority of New Hampshire and Vermont at different periods, and his dockets were voluminous and are still extant.

The New Hampshire Register for 1772 gives the following as at that time members of the legal profession in the State.

Barristers at law :-

Samuel Livermore, Portsmouth ; Wiseman Claggett, Portsmouth ; Noah Emery Exeter ; William Parker, Exeter; John Sullivan, Durham ; John Pickering, Portsmouth ; Joshua Atherton, Amherst ; and Simeon Olcott, Charleston.

Practicing Attorneys : -

Ebenezer Champney, New Ipswich ; Peter Greene and Stephen Scales, Concord ; John Prentice, Londonderry ; Samued Hale, Portsmouth ; Jolin Wentworth, Dover ; Elijah Williams, Keene ; Richard Cutts Shannon and Oliver Whipple, Portsmouth.

There were none in Grafton county. Legal advice and assistance were sought in the older counties.

In those red republican days the King's courts were not acceptable to the people.f They ceased to dispense justice in Grafton county in 1775. The Provincial Congress reorganized them with the same machinery but with a reformed personnel. The Common Pleas in Grafton, appointed in 1776, have left no records of any business transacted and probably they never organized. The war of the Revolution occasioned unusual burdens and difficulties in this county. The Cohos country, so-called, was constantly garrisoned against the common enemy. Heavy levies of men and means were repeatedly made from the infant settlements. The courts of justice were closed and law was ad- administered by local committees or the military. At the same time also that the war with the mother country was in progress, the towns in the Con- necticut valley were in revolt against the provisional revolutionary government of New Hampshire. The spirit of disaffection was so intense that the towns on the western side of the county refused to send any representatives in the manner prescribed by the New Hampshire Assembly. They were mean- time represented in the independent assemblies of the valley towns, or in the Assembly of Vermont. The controversial papers of the period which emanated

* For sketch of Prof. Woodward, see Records Gov. and Council, Vermont, Vol. 2, p. 114.

t See Boylston's History of the Early Courts and Committees of Safety, Hillsborough county.

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from Judge Woodward, Judge Payne* and others, have been reprinted in Bou- ton's Collection of Province Papers, Vol. 10. They contain evidence of the great polemical ability of the men of Grafton county in that day. Many of them dis- play a masterly understanding of the fundamental principles of government. Occasion is not given in this place for a detailed examination of this interesting epoch. It has however a place in the legal history of the county. These agitators sought by all the means at their command to erect a state in the Connecticut valley whose back-bone should be along the river and whose capital should be at Hanover. They had little sympathy with the political doctrines that obtained in Eastern New Hampshire. One of the cardinal prin- ciples with them was the individuality and independence of the town. The classification of towns for purposes of representation was the rock on which the sections split, and in Vermont no such practice is permitted to this day. The sentiments of the popular leaders were entertained by the common people to a considerable extent. There is an indication of it in Mr. Coroner Crocker's reply to Mr. Hurd, "that he did not choose to accept the office for he did not like our form of government," when Hurd informed him "that the body of poor John Presson, drowned this afternoon, is just now taken up, and they are in quest of a coroner to set upon him." (Town Papers, Vol 12,-Hammond, p. 199.)

The eastern part of the county was not involved in the movement. The people were well disposed towards the Provincial Government. Hon. Samuel Livermore, of Holderness, was, at a critical point, appointed to undertake the settlement of the controversy on some basis which would secure the rights of New Hampshire and maintain her boundaries. The Continental Congress took the matter into serious consideration, and Washington threw the weight of his influence by active, advice and suggestion in favor of adjustment of the causes of dispute. By the operation of these and other influences the limits of New Hampshire were set at the west bank of the Connecticut river. The inhabitants generally accepted the situation in good part and peaceably resumed their functions in the State. Some of the leaders had become em- bittered against the State and removed permanently into Vermont. The restoration, however, took place in Grafton county with less friction than in Cheshire.t

There was at the same time throughout the whole county a considerable tory clement .¿ Col. Fenton, the clerk of courts and judge of probate, had

* Hon. Elisha Payne first resided in Cardigan, now Orange, and subsequently in East Lebanon. The New Hampshire legislature elected him to the office of chief justice of the Common Pleas for the county in 1779, perhaps as a " sop to Cerberus ; but he paid no heed to the compliment. He was made chief justice of Vermont in 1781, and held the office till the allegiance of the courts on the east side of the river was restored to New Hamp- shire. For a sketch of his life see Records of Gov. and Council, Vermont, Vol. I, p. 275, and article on "Lawyers of Lebanon."-Post.

+See Amory's life of Sullivan, 192.

#The patriots of Lebanon proposed the "purging out of this detestable leven." 3*

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been deprived of his office and sent out of the country, for this cause .¿ Judge Asa Porter was under surveillance and was subject to an investigation as to his loyalty. A portion of the evidence in his case is given in the Province Pa- pers, Vol. 8, pp. 324, 331. The soldiers, spies, scouts and Indians allies of the hostile armies constantly traversed the territory of the county. Yet the people remained true to the main cause, and were never lukewarm in supply- ing men and means for the prosecution of the war. They were on the very scene of hostilites, and their soldiery, under Hobart, Webster. Chase, Bellows, Bedell, Hazen, Morey, Johnson and Wheelock, rendered distinguished ser- vice on many fields.

Amidst all this confusion, distrust, uncertainty for the present and future, internecine strife and public danger, we can but wonder how the scattered settlers bore their difficult part in the struggle for independence and main- tained themselves so well in this great wilderness frontier.

While the courts were closed the King's Common Pleas judges were vari- ously occupied. Chief Justice Hurd was the member of the Committee of Safety for the county of Grafton. He took a prompt and positive stand for the cause of independency and was the minister of war for the northern sec- . tion of the Province until his influence was undermined by the New State fac- tion which surrounded him in the Connecticut valley. (Province Papers, Vol. IO, p. 318.) Judge Woodward was engineering the scheme for annexation of Vermont to New Hampshire or the western New Hampshire towns to Ver mont, in either of which events the capital should be established in the Con- necticut valley and in the vicinity of Dartmouth college. Judge Hobart was in the saddle at the front, pounding the scales of justice with the sword ; and Judge Porter was considerably occupied with the case that was pending against himself on the charge of toryism.

The first reorganization of this court was in 1782, when Samuel Emerson, Ezekiel Ladd, James Woodward and Enoch Page were made judges, with George Willamson Livermore, of Holderness, which was then annexed to the county, as clerk. The record is that the causes pending in this court at the April term, 1775, were brought forward. They were ten in number.

The Vermont controversy and the war with the mother country having ended almost contemporaneously, and the courts having been reopened, the people lost no time in waking the causes of litigation that had slumbered during the progress of the conflict at arms. There was ample material in the confused state of the Royal grants of the townships and the subdivisions un- der them. The people had for a considerable time realized the necessity of a more regular administration of justice. An illustration of this may be found in the petition of Enoch Bartlett, now published in Hammond's Town Papers, Vol. 12, p. 180. He said " a sort of banditti" had pillaged his mill

#See the interesting and exhaustive paper on Colonel Fenton by Charles R. Corning, Proceedings of Grafton and Coos Bar Association.

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at Northumberland, and that he had " suffered much at the town of Bath in said county for that he could not enforce the contract against his tenant :" and was put to trouble to prevent him from getting possession again without leave ; "that a due consideraton of the many instances of Fraud, Injustice and oppression that prevails in that County since the laws were suppress'd- will influence You to Make the Necessary Provision Pray'd for."

It is not certain who was the first lawyer to locate in the county. Jonathan Mitchell Sewall, the poet lawyer, was made register of probate in 1773, pre- sumably with a view to his location in the county, but he soon resigned the office and continued in practice at Portsmouth. Moses Dow succeeded Mr. Sewall as register of probate in 1774, holding the office continuously till 1808, when his son succeeded him. Gen. Dow was in all probability the first perma- nently settled lawyer in the county. The Register for 1787-'88, names only three in Grafton-Moses Dow, at Haverhill, John Porter, at Plymouth, and Aaron Hutchinson, at Lebanon. The local bar gradually increased in num- bers and ability. Something concerning each is given in articles relating par- ticularly to what may be termed the law towns. No attempt, however, can be successfully made in the space allotted to this subject to give in detail the characteristics and accomplishments of the gentlemen of the profession who have given the bar of Grafton county the prestige it has enjoyed before the · courts and people of the State for the past hundred years.

One of the most discriminating and authoritative records of the state of our jurisprudence in the latter part of the eighteenth century is given in the life of William Plumer. In legal equipment the disparity is shown to have been very wide between the members of the court and the leaders of the bar. The salaries paid the judges were insufficient. It was as much the usage of the times to appoint clergymen, physicians and merchants to the bench, as professional lawyers. It is asserted on excellent authority that the laymen were the better judges. This was because the lawyers who were competent could not afford to take places in the courts. From 1782 to 1790 Samuel Livermore was chief justice ;* but of him it is said (" Life of Plumer," p. 151,) that "though bred to the law, he was not inclined to attach much importance to precedents, or to any merely systematic or technical rules of procedure," In a manu-

Since the Revolution six of the chief justices of the highest court have been identified with the Grafton county bar as local practicioners, viz .: Samuel Livermore, 1782 to 1790; Arthur Livermore, 1809 to 1813; Andrew S. Woods, 1855; Ira Perley, 1855 to 1859 and 1864; Henry A. Bellows, 1869 to 1873: J. E. Sargent, 1873 to 1874. Arthur Livermore, William H. Woodward, Jonathan Kittredge, were chief justices of circuit courts. Nearly all the gentlemen named as chief justices of common law courts, also served as associate justices. To the list of associate justices who had been local members of the bar of this county, may be added the names of Nathaniel G. Upton, at one time of Bristol, Leonard Wilcox, of Orford, Ellery A. Hibbard, at one time of Plymouth, George A. Brighanı, of Littleton, A. P. Carpenter, of Bath. Charles R. Morrison, of Haverhill, Josiah Minot, of Bristol, Edward D. Rand, of Lisbon, and Isaac N. Blodgett, of Canaan.

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script report, which I have, of one of his charges, I find him cautioning the jury against " paying too much attention to the niceties of the law. to the prejudice of justice," a caution of which jurors do not ordinarily stand much in need. He was himself governed little by precedents. When once reminded of his own previous decision in a similar case, he made no attempt to reconcile it with his present ruling, but dismissed at once the objection with the familiar proverb, " Every tub must stand on its own bottom." If he paid little attention to the decisions of his own court, he was not likely to defer much to those of other tribunals. The question was once argued before him as to the authority of the English law reports, and he then decided that those of a date prior to the Declaration of Independence might be cited here, not as authorities, but as enlightening by their reasonings the judgment of the court ; but that those of a later date we had absolutely nothing to do with.

The salary of the chief justice at this time was six hundred dollars. Liver- more was succeeded as chief justice by Josiah Bartlett, a physician. Of him we are told that " when the law was with the plaintiff, and equity seemed to him to be on the other side, he was sure to pronounce in favor of the latter." The object of the law being in all cases to do justice as between the parties, that must, he said, be law, which in any given case conduced to this end. It was, at any rate, better to be governed by a right principle than by a wrong decision. The next chief justice, from 1790 to 1795, was John Pickering, who was a well read lawyer. His successors have all been of the same pro- fession, though one of them, Simeon Olcott, who held the office from 1795 to 1801, was more distinguished for the uprightness of his intention than his knowledge of the law. " In his office of judge," says his biographer, " he mani- fested less regard for the letter of the law than for the spirit of equity." This is a mild way of saying what was often true, that he made the law to suit the case.

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Gazetteer of Grafton county, N. H. 1709-1886, Part 4

Author: Child, Hamilton, 1836- comp. cn Publication date: 1886 Publisher: Syracuse, N. Y., Syracuse Journal Company, Printers Number of Pages: 1266

Author: Child, Hamilton, 1836- comp. cn
Publication date: 1886
Publisher: Syracuse, N. Y., Syracuse Journal Company, Printers
Number of Pages: 1266