Gazetteer of Grafton county, N. H. 1709-1886, Part 5

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 5

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The Common Pleas in Grafton county was reenforced in 1785 by the res- toration of Prof. Bezaleel Woodward to his place in the court. His associates for many years were Samuel Emerson, of Plymouth, chief, and James Wood- ward and Ezekiel Ladd, both of Haverhill. From what the contemporary writers says of the Supreme Court it would seem that matters once heard by Judge Woodward's court would not ordinarily be bettered by appeal.

The local bar of Grafton were assisted by the legal giants of the day,- Jeremiah Mason, Jeremiah Smith, William Plumer, Sullivan and their con- temporaries. Later on came Webster, Bartlett and Woodbury. Those were the days of the circuit riders, when the people flocked to court as for a holiday, to behold the encounter of the great men and to listen to forensic eloquence which will not be excelled in this matter of fact age. Mr. Curtis, in his "Life of Webster," says: "It is not easy to determine whether Mr. Webster's first speech, which he says was made when his father " was on the bench," was made in the Common Pleas Court, of which his father was judge,

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or in the Superior Court of Judicature of which the Hon. Jeremiah Smith was chief justice. The local tradition in the county of Grafton at the period of Mr. Webster's death, was that his first cause was a case of some notoriety that was tried in 1805, at Plymouth, in the Superior Court and that Judge Smith was on the bench. If this was the case in which his father heard him, Judge Webster must have been invited to take a seat on the bench accord- ing to the usual courtesy, but he could not been present in his official capacity, as he was a member of an Inferior Court. Nor could his son, in the year 1805, have been entitled to argue a case before the jury in the Superior Court, since he was not admitted as a counselor of that court till 1807. On the other hand there is something more authentic than a tradition, respecting a case which was tried before Chief Justice Smith in what was then the county of Hillsborough, in 1806, and in which Mr. Webster was allo ved to take the part of a junior counsel ; and it is after hearing him in this case that Judge Smith is said to have remarked on leaving the court house, that 'he had never before met such a young man as that.' Both of these were civil cases. There is also an account of a very powerful speech which he made in defense of a person indicted for murder and tried in the Superior Court of Grafton county. It is said that the senior counsel abandoned the cause after hearing the evidence, leaving to Mr. Webster the whole burden of summing up to the jury. But it is scarcely needful to trace the precise degree of accuracy with which these several accounts have come down to us, or to determine which of them is to be regarded as his first cause. It is enough to know that before he left the interior of the State, he had produced an impression which is even now not effaced, and that different counties have contended for the honor of having been the scene of his first efforts at the bar." The inference from the incident given in Morrison's life of Chief Justice Smith, p. 179, would seem to be that the place of Webster's first trial was not in Grafton county, though this authority does not in terms contradict the common tradition.

In the older counties, debt, discontent and the demoralization of army life, created open sedition soon after the declaration of peace. Beside an unlimited issue of paper money and a general division of property, a large party of malcontents demanded the abolition of lawyers Grafton county had had only two or three at that time and could not well raise mobs for this cause .* Those that arose for the practice of the law in the county were taught in the rough arena were the giants contended. As a result of such tutilage, the local leaders in Grafton at length became a match for all comers and have so maintained themselves to the present time.

As would be expected the re-opening of the courts was soon followed by litigations on the old questions which Livius raised against Wentworth. The validity of the forfeitures which had been declared by himself or the council

* Certainly in Canaan and Orford, and probably in other towns, there was much oppo- sition manifested to the settlement of any lawyer in the community, even at a much later date.

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was again tested. Dartmouth college had a grant of Landaff and the same territory had been previously granted by Benning Wentworth to other parties. Settlers were in, claiming under both titles. Bouton's collection of Town and State Papers, Vol. 10, p. 412, under the title Landaff, shows how serious the strife was on this account in that township. A decision was reached which ousted the college and restored the proprietors of the first grant. In other towns the situation was similar to that in Landaff. We cannot wonder at the consternation and indignation that followed this decision. The settlers had purchased their lands in good faith, they had transformed the rocky wil- derness of the mountain country into productive farms and comfortable homes, in the midst of hardships and dangers of which we can have but a faint appre- ciation. The law was of course defied and the court denounced in vigorous terms. The grievances of the settlers under Morristown are vigorously set forth in John Taylor's petitions to the General Court (Hammond's Papers, Vol. 2, Title Franconia,) in the course of which he says " they have been de- feated in the possession of the land granted to them by an alteration in our judi- cial determinations." Even in these days of enlightened jurisprudence, something similar to the complaint of John Taylor is occasionally heard ; the utterance comes still with equal vehemence if not with equal cause. The settlers relied on the juries and often got relief from the suits brought by the proprietors, on technicalities and on account of betterments. That was at a time when the jury was no inconsiderable part of the court.

The act of February 6, 1789, empowered the Superior Court of Judicature to try any causes relating to forfeitures of lands within this State and to judge and decree as a Court of Chancery in certain cases.

The relations of the Church and State furnished a plentiful source of liti- gation. The biographer of Plumer says :-

" The Congregational clergy in the State had been originally settled by the towns or parishes where they preached ; and the inhabtants were all taxed for their support. But many individuals of their congegations having now come Baptists, Methodists or Universalists, were no longer willing to pay for preach- ing which they did not attend. Property had been taken in many cases in dis- traint for taxes so assessed, and suits were commenced to ascertain the rights of the parties. The sectarists were nearly all Republicans : while the Congrega- tionalists, especially the clergy, were generally Federalists. The Constitution of 1792 was intended to secure to all religious denominations the most perfect religious freedom, and to prevent the " subordination of any one sect or de- nomination to another." But much was yet to be done with both courts and juries, especially the great mass of the religious community, before the equality of all sects in the eye of the law and their independence of each other could be brought home to the understandings of the people, and carried out in courts of law to its practical results. These religious prosecutions were among the most important means, though not so designed, for effecting this desirable ob- ject. It was not, however, till the Toleration Act of 1819 that full effect was given to those principles of religious freedom."

The court might be Congregationalists or Federalist, or both. The juries were almost certain to contain some of these elements. The difficulty

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which a secretary would encounter in proving himself to be of " another per- suasion, sect or denomination," would be formidable. Judge Wingate, for illustration, charged juries that there must be some greater difference than that which separated Calvinists from Universalists. They were both Chris- tians, agreeing in more points than they differed : both were Christians and consequently must support the same minister. This interpretation of the law raised a species of protective tariff in favor of the standing order. It was regarded as an infant industry, which though already privileged for a hundred years under the law, must not be crushed by outside competition. Woes in- numerable were foretold if the Toleration Act should be carried. Prominent divines said it would be equivalent to a decree to burn the bibles and close the doors of the churches. Undoubtedly this law was a source of profit to the legal profession. Yet Plumer and other leaders at the bar upheld the agitation and assisted in accomplishing the reform of 1819. Grafton county furnished two notable advocates of the Toleration Act. These were Dr. Thomas Whipple, the eminent physician of Wentworth, who was both able and eloquent, and Rev. Daniel Young, of Lisbon, the famous itinerant Methodist minister. Dr. Whipple championed the measure in the house and it bears his name. Young was sent to the Senate five terms in succession from the Grafton district, and advocated the Toleration Act from the introduction of the proposition until its enactment. He devotes a chapter to the subject in his biography. This reform was partly social, religious, political and legal.

Another controversy somewhat involved in it and prosecuted in the same period, was the Dartmouth college case. That was beyond question the most important litigation that ever has originated in this county or with which its people or institutions have ever been intimately connected. It was at a time when Judge Story could listen in his Circuit Court with undissembled admiration and delight, to what he called " the vast law learning and the pro- digious intellectual power, of the New Hampshirer bar." " Webster," referring to the same period, "after practicing in the first courts of the Union, told Choate that he never met anywhere else abler men than some of those who initiated him into the rugged discipline of the New Hampshire courts." Vastly important as was the issue, the bar of New Hampshire was equal to it. Hon. John M. Shirley, a prominent practitioner at the bars of Merrimack and Grafton counties, has in his recent work, The' Dartmouth College Cases, earned the distinction of being the historian of that extraordinary litigation .*

* This, the only college in the state, was established at Hanover in this county in 1769. Her great defender in this litigation was her foremost son, Chief Justice Chase, and a multitude of other eminent lawyers were also educated at Darmouth. Chapman's Biog- raphies of the graduates gives the names and many details of each career. The address of Chief Justice Perly, published in the proceedings of the centennial celebration of the foundation of the college, contains a more general treatment of the same subject. Another valuable contribution to the department of legal biography is the series of memorial ad- dresses upon the lives of destinguished judges, then deceased, who had been graduates of the college, published in 1880.

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It engaged the greatest legal talent of the age ; it was determined by the great judges who made the Constitution what it has become by construction, in the jurisprudence and political fabric of the Federal Union ; and its far reaching consequence cannot yet be measured. The following summary is contributed by Mr. Shirley, who has attempted to condense the statement of that case within the space here allotted :-

From the beginning, arms have reconstructed the political map of the world. They have moulded the policy and shaped the course and destinies alike of empires, kingdoms and republics. Legal warefare has not unfre- quently had the same effect where the form of government was not personal but rested upon written constitutions.

Since the existence of the Federal Union no judgment has ever been ren- dered so far reaching in its consequences as the decision in the Dartmouth college causes which arose in Grafton county. These decisions not only put all state agreements and grants upon the same basis as private contracts, but made the Constitution of the United States retroactive, and a part of all these arrangements entered into before its existence, and put it beyond the power of their Creator to impair them.

Many things which relate to these famous lawsuits cannot be properly un- derstood without a brief history of the steps which resulted in their insti- tution.

In 1735 Eleazer Wheelock settled in what is now Columbia, Conn. He had become a christian and stood in the van of what is known in religious circles in New England as the "the great awakening of 1740." He was set- tled on an insufficient salary over the church at Columbia where he remained till late in 1770. To eke out a livelihood he kept a private school consisting of a few pupils. Among those, December, 1743, was the Indian, Sampson Occum. Occum became a christian and proficient in his studies and after- wards a noted preacher both at home and in Great Britain.

Wheelock was of cleanly life, deep religious convictions, a staunch Presby- terian, but tolerant to those whose doctrinal views differed from his own. He was a man of marked ability and possessed great knowledge of men, and tact and sagacity in dealing with them. He believed that his duty to God required him to devote his life to christianizing the Indians. To this end he devoted his whole life with all the fervor of a religious enthusiast. To this everything else was subsidiary.

On July 17, 1855, Joshua Moor, a farmer of Mansfield, Conn., gave a house, shop, and two acres of land "for the foundation, use and support of an Indian charity school." From this humble origin sprang " Moor's Indian charity school," which has still at Hanover, N H., a legal but nominal ex- istence. Funds for this school were gathered slowly at first from the Colo- nies and the mother country. To facilitate this, Smith and other eminent friends of Wheelock here and elsewhere, suggested a charter. None could be obtained from the crown of Great Britian nor an act of incorporation from

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the legislature of Connecticut, which the crown officers affirmed to be the proper authority.

The next step was to secure a charter, not from the King or from the legis- lature of New Hampshire, but from the Governor of the latter Province, whose power to grant one was to say the least very questionable, and from neither his own nor the zealous clergy of the dominant religious denomina- tion in New Hampshire had ever been able to obtain one for themselves.

Wheelock, with the assistance of his accomplished legal friends, framed a draft for such a charter for the Indian school, and an academy at Hanover. It was changed in some essential particulars by the former in conformity with the views of his legal advisor. At the suggestion of Wheelock the term " college" was substituted for " academy" in the draft. More than £12,000 had been collected for this Indian school. The bulk of these funds was held in trust by the trustees in the mother country, and these were still left in their hands. They had been collected specifically for Moor's Indian school and not for any academy, college or university.

On December 13, 1769, the Governor granted the re-constructed charter of Dartmouth college. Of this the trustees of the funds for the school and the King were wholly ignorant. The trustees, with the Earl of Dartmouth at their head, when they found out what had been done, were much dissatisfied, and the Earl protested that Wheelock was "going beyond the line by which both you and we are circumscribed." In a word, that Wheelock was attempt- ing to pervert the trust. The trustees of the college voted that they liad no control over the Indian school, and hence the funds were long kept separate.

There had been a struggle as to whether the school should be located on the Mississippi, at Albany, N. Y., Springfield, Mass., or at Landaff, Bath, Haverhill, Piermont, Lyme, Orford, Hanover, Lebanon, Cornish, Hinsdale, Canaan, Plymouth, Rumney, or Campton, or other towns in New Hampshire and Massachusetts. The Governor and trustees preferred Landaff, but yielded to Wheelock who by dint of good management caused it to be located at Hanover.

The Governor undoubtedly desired to make the institution a university and to give its authorities the domination over the college town exercised by those of Cambridge and Oxford, and in this Wheelock heartily concurred.

The corporation was duly organized on October 22, 1770. The charter declared Dr. Wheelock the founder, made him the first president, and author - ized him by his last will to appoint his successor.

Wheelock and the trusteets of the college acted in harmony, and the church (Presbyterian) at Hanover, the Indian school, and the college, were practically under the personal government of Wheelock until his death, on April 24, 1779, when John Wheelock, son of Eleazer, became, by force of his father's will, his dynastic successor, and retained the office until on August 26, 1815, when, against the earnest protests of Jeremiah Mason, he was removed by a hostile majority of the trustees, after a service of thirty-six

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years. On August 28th, Rev. Francis Brown was elected in his stead. This was the culmination of troubles between Wheelock and a minority which for six years had been a majority in the board of trustees. Political and religious differences were not the primal source of these troubles for the second Whee- lock, and nearly all the trustees were federalists, and professed the same religious faith. It was the result of personal antagonism and a determin- ation, as Judge Crosby put it, "to rid the board and the college of the family dynasty."

The result, as Mason, whose penetrative power bordered close upon inspir- ation, foresaw, opened Pandora's box, made the cause of Wheelock and the trustees the personal quarrel of thousands who had never known either, and brought in legal, constitutional, personal, party, and religious differences to swell the angry stream by a flood.

The agitation drove the federalists, who had controlled the organization of their party, from power, and made an old-time federalist governor. In his message of June 6, 1816, he brought the college question to the attention of the legislature, which, after a most determined struggle on the part of the able men who championed the cause of the trustees, amended the charter of the college, changed the name to university, provided for enlarging the board of trustees to twenty-one, and for the creation of a board of overseers of twenty - five, and required the president and professors to take an oath to support the constitution of the United States and of New Hampshire.

The trustees and their friends were at first in doubt whether to bend to the legislative will or defy it, but finally determined to contest every inch of the ground, and did so,

On February 8, 1817, the trustees brought an action of "trespass on the case," in the Court of Common Pleas, for the county of Grafton, against Will- iam H. Woodward, of Hanover, the chief justice of that court, and former secretary of the college, for the conversion of certain books and records of the corporation and its seal. The damages were laid at $50,000, and a chair valued at $1.00 was attached. This case was entered at the February term, 1817, and was transferred to the May term of the Superior Court. It was argued at this term by Mason and Judge Smith for the trustees, and by the attorney-general, Sullivan, and perhaps Ichabod Bartlett, for the defendant, and was continued for further argument to the September term of the court, at Exeter, in the county of Rockingham, where the argument lasted for two days. Mason occupied two, Judge Smith four, and Daniel Webster who had the close, a little less than two hours. The argument of Mr. Webster, was one or the most brilliant and eloquent of his eventful life. The attorney- general and Bartlett occupied three hours. The judges continued the cause for advisement till the November term, at Plymouth. On November 6, 1817, Chief Justice Richardson read the unanimous opinion of the court sustaining the act of the legislature. In form the case was taken from this term to the Supreme Court of the United States, upon the special verdict of a jury, but in

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fact there was no trial, but a special verdict was drawn up by Judge Smith, and agreed to by the attorney-general, and filed December 29, 1817. It was argued before the federal Supreme Court at Washington, on March 10, 1818, by Judge Hopkinson and Webster for the trustees, and discussed by John Holmes and William Wirt for the defendant. On March 13, 1818, Chief Justice Marshall announced that the judges were unable to agree, and that the cause must be continued for a year.

The friends of the university, dissatisfied with the way in which their cause had been handled, employed William Pinkney, of Maryland, the only man who could meet Webster before that court on equal grounds, to re-argue the cause. Early in November he gave notice to the opposing counsel, that he should move for a re-argument, and made the most elaborate preparation for it. All the judges knew it. On the morning of February 2, 1819, the instant six of the judges had taken their seats, the chief justice commenced reading his famous opinion, which sustained the trustees at all points. One of the judges was absent. Judge Duvall dissented, and the other four "concurred in the result," but delivered no opinions. Some of their essays on the subject were afterwards filed with the clerk, and published in the reports. Mr. Web- ster forthwith followed up his advantage, by moving that judgment be entered up as of the last term, Judge Woodward having died during the vacation. Mr. Pinkney opposed it upon the ground that he wanted to avail himself of a stipulation in the case, and to argue the questions in the other suits which Mr. Webster had caused to be instituted, and which he thought could be sus- tained upon other grounds than those raised by the first case. The court refused to hear Mr. Pinkney, and Mr. Webster refused to allow the case to be amended according to the stipulations, and forced Mr. Pinkney to consent that the other causes should be "remanded to the circuit court for the district of New Hampshire, for further proceedings." On May 1, 1819, Judge Story, sitting in the circuit court, rendered an elaborate opinion in these causes, and soon after ordered judgments against the defendants.

Technically this was the end of these causes. These judgments over- turned the university and established or re-established the college. Great changes had been wrought since these controversies had arisen. The war- fare at College Plain had been bitterer than in the courts. Old friends had become alienated and old enemies had become friends. The newspapers were full of gibes by one party against the other. Social intercourse in some intances had been broken off. Wheelock went to his grave in an early stage of the litigation. Judge Woodward followed him in a little more than a year, and President Brown early in 1820. After Marshall's opinion the old trus- tees, on February 8, 1819, without waiting for a judgment, took possesion and reasserted their domination over the buildings, etc., which had been controlled by the university.

The decision was put by the Supreme Court upon the ground that the act of the legislature impaired the obligation of contracts and was, therefore,

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prohibited by the federal constitution. This was not the original view en- tertained by Mr. Webster. He regarded the strong ground as the one on which the suits which he caused to be instituted in the federal court were based, to-wit : that the legislative act transcended the general principles upon which our form of government rests. To review all or'any considerable portion of the causes which have been decided upon the clause referred to, would not only overstep the limits of an article of this kind, but serve no good pur- pose. These decisions must be analyzed, compared, and then studied to- gether. Great differences have arisen between the judges of the Supreme Court upon this question. Some of the judges have dissented, and others, like Chief Justice Chase, who did not believe that the decision in Trustees vs. Woodward was sound, have been restive under the authority of that case and have been the means, under the guise of distinctions more or less subtle or refined, of withdrawing a host of causes from the grasp of the foundation principle laid down by Judge Marshall. In Sturges vs. Crowinshield a com- promise was effected among the judges upon a great constitutional principle. In Ogden vs. Saunders, Judge Marshall, for the first time since the decision in what was in effect the Moot case of Fletcher vs. Peck, failed to carry a majority of the court with him.

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Gazetteer of Grafton county, N. H. 1709-1886, Part 5

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