Gazetteer of Grafton county, N. H. 1709-1886, Part 6

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 6

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The accession of Chief Justice Taney, prefigured a change in the course of decisions in that court. The case of Charles River Bridge vs. Warren Bridge was felt by all the judges to be a great departure from the application of the principles referred to. There can be no doubt, had Marshall lived, the decision would have been the other way. Judge Story dissented, feeling that the constitutional doctrines formerly held by that court were fading away, and in consequence he became very desirous of resigning his great office. The so-called Granger cases, and those that have followed in their train, wrought another revolution. These cases, while affirming the general power of the State to tie itself by contract-grants, hold that that power does not apply where the police power of a state is concerned. That this loose and ill-defined attribute of sovereignty, unlike others, cannot constitutionally be made the subject of bargains and sale, or be knocked off under the hammer, and therefore hold that the so-called Granger legislation, which regulated the con- trol of railroads and gave a board of commissioners the power to determine prima facia what should be a reasonable tariff, is not prohibited by the Fed- eral constitution. There has from the first been an ebb and flow in the tide of judicial opinion in the highest tribunal in the land, but as a rule that court has been swift to see a contract in a grant, charter and the like, and slow to release one from the operation of the obligation clause of the con- stitution. Under the varying decisions the court practically has the power to treat a contract as binding or not, and views of public policy seem to domi- nate in determining that question. The departure in the Granger cases and in the case of the Boston Beer Company vs. Massachusetts, has been succeeded by various decisions like those in the New Orleans Gas-light Company vs.

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Louisiana Light and Heat Producing and Manufacturing Co., and the New Orleans Water Works Company vs. Rivers, decided at the October term, 1885, which seem to go far in the opposite direction and give quite as stringent an interpretation to the constitutional provision as that in the college causes. And probably from the very nature of things this must go on to the end. And thus the decision in Judge Woodward's case is likely to be as immortal as the memory of the republic.

A marked reform in the administration of the law, followed the appoint- ment of Jeremiah Smith to the office of chief justice in 1802. By reserving important questions of law, and the preparation and filing or publication of the written opinions of the judges, greater certainty and consistency was attained. In the next fifteen years political and other considerations impelled the legislature to make several successive changes in the judicial system ; and in that period the tenure of the judges was uncertain and dependent, in a measure, on party supremacy. From the time of the restoration of the courts in 1782, to 1816, the bar of the county gradually increased in numbers, and was strengthened in professional ability. Among the principal resident prac- titioners, besides those already named, were Aaron Hutchinson, Arthur Liver- more, Alden Sprague, John Porter, Jr., Benjamin J. Gilbert, William Wood- ward, Payson, Thomas Thompson, Phineas Walker, Richard C. Everett, of Lancaster,* Abiathar G. Britton, Jeduthun Wilcox, Mills Olcott, George Woodward, Henry Hutchinson, David Smiley, Swan, Joseph E. Dow, Moses Dow, Jr., David Sloan, Pettingill, John Nelson, James Hutchinson, Ira Good- all, John Rogers, Ira Young, S. C. Webster, and Joseph Bell.

The court established in 1816, continued for the longest period of any in the history of the State, without "overthrow by political tornadoes." Its opinions on questions of law were published with only occasional, or perhaps accidental, checks. From 1816 to 1840 ten volumes of decisions were re- ported. Those for a previous period were preserved in manuscript, by Judge Smith, but not published till recently. These ten volumes are a very good index to the personnel of the bar of that time, and indicate the character of the litigation of the county. It appears to have been largely in the depart- ment of commercial law, and the law of real property. Many points of pleading, practice and evidence were tested. The rights and duties of towns under the pauper law received considerable attention. Other corporate bodies contributed to the causes on the dockets ; and, with the multiplication of cor- porations, this class of litigation rapidly increased. The first ten volumes of reports contain opinions in not less than 267 cases from Grafton county. In those years it is understood that a very small portion of the causes actually in suit were transferred to the law terms. The clerk's dockets indicate an entry of some 1, 100 cases at a single term. Now the term entries will not average 120, including equity matters, in the county. The business in Justice Courts then

*Coos County was organized in 1805, under the act of corporation of 1853.

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was immense. Now it is comparatively nothing .* Many attorneys became wealthy by prosecuting the business of collectors. It was customary to sue every claim in the office once or twice a year. The claim would of course, increase by the addition of costs and interest, in rapid arithmetical pro- gression. The law of exemptions of persons and property from seizure, in its liberal modern growth, and the refuge provided in courts of bankruptcy and insolvency, have compelled the lawyers to look elsewhere than in the business of collections for simple sustenance, to say nothing of wealth. The minutes of council in the printed reports may not designate all the leaders in the business of collections. Those who excelled in the science of the law, of course, were heard in the trial of the issues of law. Of the council in the law cases, as shown by an examination of the first ten volumes of reports, the counselors from abroad, who most frequently appeared in this county, were Jeremiah Smith, Ezekiel Webster, Richard Fletcher, Parker Noyes, Levi Woodbury, Ichabod Bartlett, and Joel Parker. Their contemporaries in the county, who are oftenest mentioned in the records of the law trials, were Bell, Sloan and Nelson, of Haverhill ; Blaisdell and Freeman, of Lebanon ; Gil- bert, Perley, Olcutt and Haddock, of Hanover ; Walker, Thompson and N. P. Rogers, of Plymouth ; Bradley and N. G. Upham, of Bristol; Bellows and Ainsworth, of Littleton ; Britton and Wilcox, of Orford ; Kittredge and Weeks, of Canaan ; Quincy, of Rumney ; Payson, Swan, Jonathan Smith, Goodall, and Woods, of Bath. Some of these, it is presumed, were in the law courts principally as juniors, and are named in the reports rather as attorneys of records than as having been responsible for the brief or argu- ment. Joseph Bell appears as of counsel in as least 176 of the 267 Grafton cases reported in the first ten volumes of the New Hampshire Reports. This remarkable record would be augmented by continuing the examination of the the records of the cases in the later reports. Since 1840 more than six- sevenths of the whole body of the case law of the State has been added. Grafton county has furnished its full proportion. Counsel from abroad have had considerable dockets in this later period ; but this has resulted, in a great measure, from considerations of convenience to clients .; The early neces- sity of calling in leading counsel from other counties has, in the later times, been very nearly reversed. The history of the administration of the law in our own time is complicated by the rapidly increasing domain of corporate action. Municipal agencies multiply. The individual is made subordinate to the social connections, and the great mass of the accumulated wealth of the people is yielding its return through the instrumentality of a thousand forms of corporate organization unknown to the earlier lawyers and legisla-

* See also "Statistics of Litigation, "Appendix to Senate and House Journal, N. H., 1860, T. 731 ; same 1886, (Report of Minority of Com. p. 847.)

{ See for summary of the later progress of the administration of the law in New Hamp- shire, address of Daniel Barnard, Proceedings of Grafton and Coos Bar Association, p.87.

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tors. The interests of these innumerable agencies, coming in hostile contact with each other, or with the individual and the body politic, in every direction, must continue to exhaust the industry of the bar, and the wisdom of the courts. To ascertain rights and limit encroachments of all these complicated modern activities, will demand of those who shall adopt the profession of law, no less of integrity, learning and industry, and indeed of genius, than belonged to our predecessors who stand out in history as the founders of our jurispru- dence.

The administration of the criminal law in this county has been marked by substantially the same features as are elsewhere observed.

A glimpse of the methods that obtained among the Indian occupants of the Connecticut valley in dealing with capital offenses, is permitted by the light of traditions preserved in local histories. A remnant of the St. Francis tribe, whose home had been at Coos before the French and Indian war, returned to the vicinity after the close of hostilities. The story of several tradgedies among them is told by Rev. Grant Powers. One of the most vicious of this remnant was a low browed fellow named Toomalek. In a fit of jealousy, in- tending to kill his rival, one Mitchel, he stealthily came upon Mitchel who was sitting with his bride, Lewa, by the fire in the evening, and without warn- ing shot at and wounded him, and by the same discharge killing Lewa. Mitchel recovered. A trial was had after the Indian customs. The president of the court was an influential and cruel old warrior, known as Captain John. Toomalek was acquitted, Judge John holding that the killing of Lewa was no murder, for it was not intentional, and, though he meant to kill Mitchel, he did not succeed, and of course that was no capital crime. This court did not trouble themselves with questions of emotional insanity. Toomalek was encouraged by this result to follow up the business of manslaughter. Mitchel had married another dusky maiden as attractive, perhaps, as Lewa. Toomalek, accompanied by a white man and a bottle of firewater, visited Mitchel's wigwam. Mitchel drank much and Toomalek litttle. When Mitchel had taken so much that he was practically helpless, Toomalek encouraged him in the utterance of some bitter reproaches against the former for the murder of Lewa, and the quarrel in words resulted in Mitchel's making a feeble pass at Toomalek with a knife. Toomalek promptly made this the occasion for dispatching Mitchel on the spot. Toomalek had his trial and was acquitted because Mitchel made the first assault and Toomalek argued that he killed Mitchel in self defence. Old John again saved the life of Toomalek. Retribution however soon followed both. A party of Indians were on the Haverhill side near the old court house. Pi-al, the son of Captain John, had some bantering talk with a young squaw from Newbury. She took umbrage at some of Pi-al's sallies, and going aside with Toomalek whispered with him. Toomalek returned to Pi-al, and as he was walking by his side drew a long knife and by a back-hand stroke plunged it into Pi-al's throat. Pi-al fell dead a few rods away. Old John was almost frantic with agony when he learned

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that Toomalek had killed his son Pi-al. He confessed his sin in sparing the life of Toomalek. The next day in the forenoon a court was called to try Toomalek. All the evidence was taken and it was unanimously agreed that he was guilty and must be shot. They sent a deputation to Rev. Mr. Powers to learn whether that decision was agreeable to the word of God. The minis- ter heard the evidence and affirmed their judgment. "By the Indian law, Old John must be the executioner as he was the nearest by blood to the slain and he must avenge the blood of his son. The ground floor of the old court- house* was the place designated for the execution. Toomalek came to the place himself, without guard or attendance, where John stood in readiness with his loaded musket. He seated himself upon the floor, said his Catholic prayers, covered his eyes and said 'mack bence ;' that is, 'kill me quick.' John stepped forward, put the muzzle of his gun near his head and he was dead in an instant." The celerity with which justice was meted out in this case is one of the notable features of the proceedings. Toomalek had the benefit of two great miscarriages of justice. But in the comparison of results of the civilized and barbarous methods of dealing with such offenders, some things will occur to those familiar with modern instances which may tend to decrease the disparity.

The Kings court, in Grafton county administered a severe code of criminal law. There were many cruel and unusual punishments. including whippings, brandings, cutting and piercing of ears, wearing letters on conspicuous parts of the outer garments, as a perpetual evidence of conviction, sales of convicts into servitude, and a large list of offences punishable with death.t

In the case of King vs. C -- N-, June, 1774, is a record stealing one yard of cloth, trial by jury, verdict guilty sentence to pay ten shillings fine or be whipped ten stripes by the public whipper ; also to pay complainant nine shil- lings, being trebble the value of the stolen goods, costs, etc., and in default of payment of the nine shillings to be sold into servitude by complainant for six months.

For forgery, the same party at the same term was sentenced to imprison- ment for one year without bail or mainprize and to be set in the pillory and to have one of his ears cut off.

At the October term, 1783, respondent was found guilty of counterfeiting, sentenced to be set in a pillory and have an ear cut off and be imprisoned for one year.

In May, 1796, State against Holmes, a transient person, there was a ver- dict, guilty of horse stealing, and a sentence, "that he be marked with a line of India ink well and deeply inserted, across the forehead from the hair of

* Historical Sketches of the Coos Country, 2d edition, p. 183.

+ The criminal code of 1680 made fifteen crimes punishable with death. In 1718 there were but five. In 1791, there were eight. In 1812 the death penalty was abolished except for treason and murder, and in 1836 treason was taken from the list.

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the temple on one side to the hair of the temple on the other side, and with a line from the center of the line aforesaid to the tip end of the nose on the most prominent part thereof, and pay to the said Elisha Paine the sum of one hundred and seventy dollars, being two-fold of the value of the mare stolen, and costs, &c., &c."

Parties were often sentenced to be sold into servitude for specified terms, down to a time within the memory of men now living.

As the office of county solicitor was not created till 1789, the court, in the absence of the State's attorney, appointed some attorney to act for the time being. Moses Dow or Aaron Hutchinson was almost always the one named for this duty. The latter became the first county solicitor. Elsewhere in these pages a full list of the incumbents of this office is given. Several im- portant and closely contested trials of capital causes have occurred in the county. The trial of Cummings for wife murder in 1843 brought out some of the best legal talent that the State afforded and was the occasion of its fullest exercise. For the State the counsel were Hon. L. B. Walker, attor- ney-general, and Harry Hibbard, Josiah Quincy, Leonard Wilcox and C. E. Thompson. The case was reported in full, with the confession of Cum- mings. The more recent case of State vs. Sawyer was twice tried and twice resulted in a verdict of disagreement. This will be regarded as one of the celebrated capital causes of this State. Hon. L. W. Clark, attorney-gen- eral, and Geo. F. Putnam, solicitor, represented the State, and John H. George and Harry Bingham made the defence.

The ancient practice of circuit-riding generated among the practitioners a social element which is unknown in the metropolitan practice or that which is of the same style. The lawyer who attends to his business in court in rea- sonable hours in the day and never fails, except by some exceptional circum- stance, to spend his nights at home, has no such fellowship with his legal associates as would result from the long tours and intimate acquaintance of the old circuit riders. The northern counties of this State have preserved more of the necessities and habits of former times in this respect than their southern neighbors. The county seats are still in a measure isolated. Trial by jury survives in considerable vigor. Those who are engaged in contested cases are of necessity thrown together in close relations for protracted periods occupying a large part of their whole time. A certain esprit de corps neces- sarily results.

Haverhill has always been one of the landmarks of the old time practice. Its court-house has been the scene of the display of the best legal talent of this and other counties. Its hotels have been the rendezvous of the wit and wisdom of the bench and bar, and within their hospitable halls they have made merry for a hundred years. The reader will welcome the reproduction of a para- graph of reminiscences of some of the characters who have been familiarly known at this old county seat.

The late William H. Duncan, Esq., of Hanover, in writing of the death of 4*

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Mrs. Elizabeth T. Morgan, the widow of the late Dr. Morgan, of Haverhill, said : " The bar of the county of Grafton will lose many of her reminiscences, so long treasured up in her memory, of the judges'and distinguished lawyers who have been in the habit of attending the courts at Haverhill for the last forty years ; perhaps I may say that her recollection of some of them would extend back for half a century. When she was a child, or at any rate quite young, her opportunities for being acquainted with them were such as does not often fall to the lot of many young women. For many long years her father, and then her mother, kept one of the most famous hotels that was ever kept in our State, where the judges and leading lawyers were accus- tomed to board. This house was burned at the March term of the court in 1848, and with it was burned out the last relic of the old colonial aristocracy and exclusiveness which lasted longer at this house than anywhere else in New Hampshire. It was a custom coming down from colonial times to have a room and a table set apart for the court and the bar, and to this judicial and legal alliance no lay gentlemen were admitted, however great his wealth or high his social position. The young, unfledged lawyer, who owed his tailor for his coat on his back, was entitled to a seat at the table, but no millionaire was ever admitted into these legal precincts.

" Mrs. Morgan's recollections went back to the time, when, with a child's wonder and curiosity, she saw Mason drive up to the house in his 'one horse shay,' bringing along his huge person, and his still greater learning and intellect. And there, too, came Judge Smith, the great judge in his 'one horse shay' with his fun, his humor, and his genuine Scotch-Irish wit, ever ready with his joke, and his repartees, which scintillated and sometimes burned like the sparks from a blacksmith's anvil. And there, too, came also Governor, Senator, Judge of the Supreme Court of the United States, with his handsome, ponderous person, full of labor and learning, Levi Woodbury.

"And of the number came the late Judge Fletcher, who was, in the opinion of the late Judge Wilcox, the best advocate who ever appeared at the Graf- ton bar. And there, too, drove up in his rather dilapidated 'one horse shay,' which the writer well remembers, George Sullivan, the elder, so long the able and accomplished attorney-general of the State, still retaining in his dress the fashions of the Revolution of '76, the small clothes, the white top boots, the queue, as well as the high bred, high tone courtesy of the olden time. I well recollect his voice and manner. His language was fluent, beautiful, and rapid. His silver-toned voice was an appropriate accompaniment to his poetical language. Having the same blood coursing in his veins which warmed and fired the hearts of the great Irish orators. I have frequently thought-indeed I can have no doubt-that he possessed in a degree, more or less, the same power of graphic description-the same poetical imagery- the same beautiful language, the same sweet silver-toned voice, for which Flood, Grattan, Curran, and Emmett were so distinguished. I would not say that he was the ablest advocate who ever appeared at our bar, but I have

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no hesitation in saying that he was by far the most eloquent. Those who heard him might well say, when they went away, with the music of his voice still ringing in their ears, what Shakespeare makes the Archbishop of Can- terbury say to Bishop Ely in the Historical play of Henry the V. about the King : ' When he speaks, the air, a chartered libertine, is still.'

"There, too, came Ichabod Bartlett, the skilfull and artistic advocate, who, when a case before a jury was about equally balanced, if he was for the plain- tiff, was pretty sure to carry the verdict away from his able competitor, the late Joseph Bell, although the latter was far the abler lawyer, and while Bart- lett carried away the verdict, Bell was as equally sure in carrying his law points against Bartlett, and by the way, when the writer of this sketch was admitted to the bar more than forty years ago, no lawyer lead off in the trial of a case of any importance, except Bell and Bartlett. It would have been looked upon as audacious presumption for any one else to have made such an attempt. Bell and Bartlett were emphatically the leaders of the bar, always pitted against each other. Bartlett had been in Congress and, when there, did not fear to measure swords with Henry Clay; and, it is said, sent Clay a challenge. When in Congress he gained the reputation of being an eloquent speaker, and an able parliamentarian. He possessed a wit that was as keen and trenchant as a Damascus blade ; it was as spontaneous, quick and sud- den as the lightning flash, and in another respect it was heaven's artillery, as some one has described it, when, he says, "it strikes, as well as dazzles." Many of his witticisms and sarcasms will be long remembered by the bar of New Hampshire. I leave it for others to speak of his great competitor Joseph Bell.

"But Mrs. Morgan's acquaintance with the bench and the bar was with a later generation. From the decease of Chief Justice Richardson, in 1838, till within a few years, there was hardly a judge or a lawyer of our bar with whom she was not more or less acquainted, and there was no season of the year to which she looked forward with more pleasure than the sessions of the court. Having been so much accustomed to meet the legal fraternity not only at the 'Old Towle Tavern.' but also at Smith's, where she so long lived with her husband, and at her own house, she was, so to speak, 'to the manor born,' and it was usual for those who had long known her, always to call upon her whenever at court. She had no hesitation in saying that she liked the society of lawyers, and the feeling was reciprocal. There were Par- ker, and Perley, and Bellows, and Woods, and Britton, and Hibbard-I men- tion only the dead-of whom she often spoke with a deep sense of their loss. I well recollect how often she was in the habit of speaking of Judge Bellows and his delightful society. There was much in Judge Bellows to charm any woman of intelligence and refinement-his unvarying kindness of heart, his courtesy and gentlness of demeanor, and his deference and loyalty to the sex.

"In calling up the memories of the judges and lawyers who have adorned and illustrated our bench and bar, I am reminded of what was said in the

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"American Law Review," in an article upon the life and labors of that great magistrate, Chief Justice Shaw, of Massachusetts. After speaking of his birth, and graduation at Harvard, is said that he studied his profession in Amherst, New Hampshire, " that cradle-land of lawyers." In the past it has certainly deserved that title, what it may be now it would be hardly becom- ing in one of the present generation to say ; but we may hope and wish that its title so freely accorded may never be shaken.

"In calling up these reminisences I may seem to have wandered from the subject with which I commenced, but they have naturally sprung from the thought that with the death of Mrs. Morgan, has also passed away so many delightful recollections of our bar and bench which can never be re- called. Job said, 'Oh, that my enemy should write a book.' With as deep a wish I would say, Oh, that my friend would write a book, so that the recol- lections-the personal anecdotes, the sarcasms, the witticisms, the forensic triumphs of the bar, and the nobility, and authority, and influence of our bench might not pass away forever out of the minds and memories of men. We are too careless of the memories of our bench and bar. Why can we not be as proud of and careful to hand down to those who shall come after us the reputation-the character and services-I may well say the renown of our distinguished judges and lawyers, as our sister State of Massachusetts."

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Gazetteer of Grafton county, N. H. 1709-1886, Part 6

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