USA > New Hampshire > Merrimack County > Concord > History of Concord, New Hampshire, from the original grant in seventeen hundred and twenty-five to the opening of the twentieth century, Volume II > Part 30
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In the meanwhile the court of sessions, of which, at this time, the chief was Hall Burgin of Allenstown, and the associates were Israel Kelley of Salisbury, and Peter Wadleigh of Northfield, met at Con- cord. Its first term, held in October, 1823, was enlivened by the eloquence of Ezekiel Webster, and the logic of Horace Chase, oppos- ing counsel in a celebrated highway case. Mr. Webster spoke for three hours with " sound argument, wit, and humor," holding and delighting the large audience in attendance.
In April, 1825, the court of common pleas, with Arthur Liver-
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more as chief, and Timothy Farrar, Jr., and Josiah Butler, associates, began its first Merrimack sitting. Its sessions were held on the last Tuesday of October and the second Tuesday of April, but on this occasion it adjourned after a term of one day, although not until one hundred and twenty-six new entries graced its docket, and John George had been appointed crier.
The probate court of this period had Samuel Morril of Concord as judge, and Henry B. Chase of Warner, register. This court was ambulatory in its movements, holding regular terms in Concord, Salisbury, Pembroke, Hopkinton, Loudon, and Warner.
The first trial in Merrimack county in which a deep public interest was manifested was the Roger E. Perkins will case, as it was called. It arose by an appeal from the probate court, and came on for hear- ing at the January term, 1826. Mr. Perkins was one of the richest men in the county, and his estate was a large one for that day. The coming trial had been talked over among the people, and the occasion reminded one of a holiday. Not only the cause but the distinguished array of attorneys retained in its management served to attract to Concord an unusual number of visitors. The public and private accommodations of "the street " were well tested, for the people kept coming and going until the last word was said. The remodeled, yet pinched and inconvenient, town house and court house in one was often filled to overflowing, and those that secured front seats were objects of envy. Chief Justice Richardson held the term, and Richard H. Ayer was sheriff. Of this official, who was a prominent man in the community, a comical anecdote is related which illustrates the sharp political rivalries of the period. " When Governor Wood- bury appointed Mr. Ayer sheriff," exclaimed a Federalist, "the pigs squealed in Boscawen Plain." " Precisely," responded a fellow par- tisan, " there is always sympathy among the brethren."
For the first time in the annals of the court the ladies of Concord were invited to seats within the bar, where, no doubt, their presence inspired the professional gentlemen to unwonted exertions.
The array of counsel embraced the leading lawyers in the state, and among them was one whose fame was nation wide, for on the side of the executors was Jeremiah Mason, and associated with him was Ezekiel Webster, then in the plenitude of his remarkable pow- ers. Opposing them were George Sullivan, the attorney-general, Moody Kent, and Richard Bartlett. The contest lasted a week, during which more than fifty witnesses were called. The closing arguments of Mason and Sullivan, who spoke three hours cach, were remarkable for force and beauty, and prolonged were the traditions and reminiscences of their well-remembered efforts. For some rea-
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son Sullivan had the public on his side, and he made a lively impres- sion on his hearers. Mason was not a popular speaker, his strength lay in another direction, but Sullivan's " elegance of person and dress, logical skill and weight of personal character, combined with his charming diction and elocution, rendered him the most attractive advocate of his time in the state." It only remains to say that the end of all this preparation and intellectual treat was the disagreement of the jury.
Three years after this celebrated case was heard, a sudden and tragic visitation of death fell upon one of the prominent actors in that trial, carrying with it private affliction and public sorrow. It was the death of Ezekiel Webster. The court of common pleas was in session, and the bar and public seats were filled with lawyers and spectators. The forenoon had been occupied in examining witnesses, and Mr. Webster was in his happiest mood. During the noonday recess he strolled up and down Main street with a friend, and soon after passed into the court-room. He had spoken half an hour with all his accustomed force and effect when he suddenly stopped and sank to the floor. Every assistance was at hand, even medical gentlemen being present, but Mr. Webster was dead. So startling was this solemn scene as to overcome the court and bar and the spectators. Tenderly the body was placed in a carriage, and with the judges, the lawyers, and the public walking behind, was borne to the boarding-house kept by Mrs. Mary Ann Stickney, where the de- ceased made his home while attending court. This sad occurrence took place on Friday, the 10th of April, 1829. The next morning Charles II. Atherton rose in court and spoke feelingly upon the sad event. Resolutions were adopted, and the court, owing to Mr. Web- ster's numerous engagements, came to an end, though not before the judge, with the lawyers and many citizens, marched to the meeting- house, where Dr. Bouton offered the consolations of prayer and appro- priate words.
Not long after this tragic event the court became the scene of the first murder trial held in Concord. In some respects this case and that of LePage, forty years later, have many points in common. Pembroke was the scene of both tragedies, women were the victims in both crimes, and each murderer had two trials. In June, 1833, Abraham Prescott, a young man working as a farmer, killed Mrs. · Sally Cochran by striking her with stones and beating her with a stick or club. Prescott was at once arrested and lodged in Hopkin- ton jail. At the September term of common pleas, 1833, an indict- ment was found charging him with wilful murder, to which he plead not guilty. The court assigned Prescott eminent counsel in Ichabod
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Bartlett and Charles H. Peaslee. An adjournment was had to the spring term, and again to the fall term, when the case was called for trial Tuesday, the 9th of September, 1834. So great was the public interest and so small the court-room as to cause the sessions to be held in the Old North meeting-house. Besides two judges of the common pleas, two judges of the superior bench were also necessary, so the tribunal on this occasion consisted of Chief Justice Richardson with Judge Joel Parker, both of the superior court, and Judges Wad- leigh and Whittemore of the common pleas. The state was represent- edby George Sullivan, the attorney-general, and John Whipple, the county solicitor. There was no question as to the killing, that was admitted, but the defense relied on the insanity of the prisoner. Among the witnesses for the prisoner were Dr. Rufus Wyman, of the Charlestown asylum, and Dr. George Parkman,1 of Boston, both testi- fying strongly as to facts pertaining to diseases of the mind. Thurs- day brought the arguments, and the next day the charge, after which the jury retiring remained out all night, coming in on Saturday morn- ing with their verdict of guilty.
This finding was duly set aside by the superior court and a new trial ordered. The second trial began on Tuesday, the 8th of Septem- ber, 1835, before Judges Parker and Upham of the superior bench, and Wadleigh and Whittemore of the common pleas. There was no change in the array of counsel, nor was the testimony different from that offered before. Besides the eminent medical witnesses seen on the former trial were Drs. Woodward, Cutter, and Perry, all leaders in their profession. Ichabod Bartlett exceeded his former perform- ance, and spoke to the jury for more than four hours. Judge Parker delivered the charge, and on the evening of Friday the jury went out to consider their verdict. The next morning the foreman an- nounced the fatal words, and a few days later, Prescott, indifferent, stupid, and listless, was brought into court, and Judge Upham sen- tenced him to death. The date set for the execution was the 23d of December, 1835. Among the legal profession, and to a certain extent among the thoughtful men in the community, there arose grave doubts as to the justice of this verdict. Public sentiment, however, lacked organization, and the law took its course. There appears to have been a strong prejudice against Prescott, and an insatiable desire for retribution ; so the well-meaning efforts of calm and even- tempered men were aspersed and ridiculed as maudlin sentimentality. So deeply, however, had these doubts influenced the judges that the chief justice and his associates, on the 15th of December, only a few days prior to the day of execution, wrote a strong and humane peti-
1 Murdered by Professor Webster, 1849.
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tion requesting the governor to respite the prisoner until the meeting of the next legislature, when that body could inquire into the facts and do justice to the case. Governor Badger, moved by a petition so unusual and dignified, respited the death sentence until Wednesday, the 9th of January, 1836. This was the least he could do in the face of a judicial opinion that the death penalty would not tend to pro- mote justice, but the governor lacked courage to withstand public passion. His council, however, made short work of judicial sentimen- tality and public interference with the vested rights of the people to witness a hanging, and voted that the sheriff do his duty. As illus- trating the state of the public mind on the Prescott reprieve, there were burned in effigy in Epsom figures purporting to represent Gov- ernor Badger and Isaac Hill, who had also interested himself in the matter. A concourse of people faced the severe cold and the biting winds, and covered the hillsides surrounding the rude gallows on the morning of the appointed day when the wretched and mentally guilt- less youth expiated his deed of blood.
Another of Concord's famous trials was the libel suit of State vs. Parker, heard in common pleas at the March term, 1838. It was, in fact, a case having its rise in the heated political rivalries of the time; and as such it divided the town on party lines and engendered an enmity and friction which lasted for several years. The prominence of the parties, both then and subsequently, added interest to the proceeding and gave to it an extensive publicity. The indictment charged the respondent with falsely and maliciously composing, mak- ing and publishing a certain false, scandalous, and defamatory libel in an affidavit sworn to before Samuel Fletcher, accusing one Barton of having voted twice at the annual town-meeting held in Concord a few weeks before.
Caleb Parker, the respondent, was at that time in the employ of Lewis Downing as a coach builder, while Cyrus Barton, the party aggrieved, was a leading citizen, a democratic politician, and withal the editor of the New Hampshire Patriot.
The court-room was closely packed with eager spectators, and even the space reserved for members of the bar was occupied by promi- nent citizens, by witnesses, and by excited and hot-tempered partisans of both sides. The presiding judge was Nathaniel G. Upham, with Benjamin Wadleigh and Aaron Whittemore as associates. For the · state appeared Charles F. Gove, the attorney-general, and Charles H. Peaslee, and for the respondent were Ira Perley and Ichabod Bart- lett.
The occasion brought forth the commanding resources and abilities of both sides, and the case was tried with a sparkle and thoroughness
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long remembered. Through it all ran the thread of politics, giving to every phase more or less bias, according to the party predilections of jurymen and witnesses.
After a trial lasting three days and affording a rare exhibition of wit and learning, the jury were unable to agree and were discharged. The matter stood as before the trial, although so bitter had been the feelings aroused by the contest that society was divided, and harsh epithets were bandied round for some time to come.
The year 1839 was marked by the retirement of Judge Green, after a long and conscientious service on the bench. The high standing of this judge, together with the deep esteem in which the community held him, combined to give the occasion public significance. On the 22d of September the court-room was filled with professional men and ladies and gentlemen attracted by friendly sentiments towards the retiring official. Here it was that Franklin Pierce, who had be- come a resident of Concord a year before, charmed the audience with his eloquence as he laid his chaplet wreaths at the foot of the aged judge.
Concord had now reached a period in the history of the legal pro- fession when its bar stood pre-eminent, and gave brilliant promises for the years to come. In 1840 the Concord bar had the following attor- neys: Samuel A. Kimball, Samuel Fletcher, and George Kent, already mentioned ; John Whipple, Ira Perley, Franklin Pierce, Charles H. Peaslee, Hamilton Hutchins, George Minot, Asa Fowler, Ephraim Eaton, Nathaniel P. Rogers, Stephen C. Badger, Arthur Fletcher, and Nathaniel Dearborn. For a town of scarcely five thousand inhabitants this was certainly a distinguished and unusual array of professional talent, embracing, as it proved, a president of the United States, a chief justice, and an associate justice of the supreme court.
Besides these members of the bar Concord had on the superior bench at this period a learned jurist in Nathaniel G. Upham. Judge Upham was born in Deerfield the 8th of January, 1801, was gradu- ated at Dartmouth in 1820, and came to Concord in 1829. In 1833 he became a judge of the superior court, remaining on the bench ten years, during which he proved his deep learning and sagacity. From the beginning Judge Upham was a leading citizen,-his aid was always prompt in local affairs, his judgment safe, and his execu- tion thorough. How powerful his support was remains to this day one of the refreshing memories of the great state house contest of 1864. For twenty-three years Judge Upham was the managing force in the direction of the Concord railroad; as superintendent and pres- ident his best years were devoted to the novel and complex prob-
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lems of that corporation. Until the Civil War he was a leader of the Democracy, and it was largely through his skill that the presidential nomination of Franklin Pierce was brought about. Recognizing his abilities, Mr. Pierce appointed the judge as commissioner on the part of the United States to proceed to London for the pur- pose of composing certain international claims, a mission he conduct- ed with success. Again ten years later President Lincoln made him umpire of a commission created to adjust differences between our citizens and the Republic of New Grenada. As orator on various occasions Judge Upham took high rank, his eulogy on Lafayette and his address on "Rebellion, Slavery, and Peace," being among his best-known efforts. In all things touching the welfare of Concord, no citizen exceeded Judge Upham; his long life was a success, and at his death, in 1869, Concord lost one of its strongest sons. Park street owes its origin to Judge Upham, for in 1831 he built a brick residence (now occupied by his grandson, Dr. Charles R. Walker), and soon after was successful in extending the street through to Main.
John Whipple's native place was Hamilton, Mass., his birthday being the 21st of January, 1789. Graduating at Dartmouth in 1812 he practised law in several towns, finally settling in Concord in 1833. At no period did he attempt an extensive practice at the bar; his inclinations led to advice and consultation and to business mat- ters. He was register of deeds, secretary of the New England Fire Insurance company, and police justice. Politically Mr. Whipple was prominent. He served one term as county solicitor, and so became prosecuting attorney in the two Prescott murder trials. Mr. Whipple was a social man whose house was bright with hospitality, and often among its guests might be seen Salmon P. Chase, whose sister was Mr. Whipple's first wife. Mr. Whipple died the 28th of August, 1857.
If intellect and attainments were measured, Ira Perley deserves a volume to himself, for in these gifts he occupied an unique position. Born in Boxford, Mass., the 9th of November, 1799, and graduating at Dartmouth in 1822, Mr. Perley came to Concord in 1836. His motto might have been "First among peers," for he never knew what it was to come in second. At college, at the bar, and on the bench he was leader by right of mental superiority. His advent at · the Concord bar conferred lasting distinction and brought to the town both repute and honor. " He handled questions of jurisprudence with the ease of a master. He had no need in ordinary cases to refer to books; his familiarity with principles gave him the key to most of the problems that came before him. He talked law out of the
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abundance of his knowledge. His printed decisions are models. In point of manner and matter, of style and substance, they are unsur- passed in the judicial reports. By the common consent of the pro- fession Judge Perley takes rank with the great jurists of the land, the Marshalls, the Kents, the Parsons." He was a remarkably wide reader, his mind exploring all subjects. Latin, Greek, French, and Italian were his constant companions. His memory was as strong as his mind was acquisitive, and he once surprised his students with a dissertation on trotting horses, giving their pedigree and records, yet no man knew less about horses practically than he. In the words of Sadi, the Persian poet, he reaped a golden ear of corn from every harvest. In 1850 he first went on the bench of the superior court, remaining two years. Five years later under the political reorgan- ization Judge Perley was made chief justice of the supreme judicial court, holding that position until 1859, when he resigned. In 1864 he was again appointed chief justice, continuing as such until 1869 when he reached the age of constitutional retirement. In the truest sense he was a law-giver,-that was his province. At trial terms his manner was not happy, for his temper was quick and easily irritated. Stupidity and rascality sent him into a rage, making the surroundings anything but cheerful. His power of tongue-stinging was phenomenal, and the victims of his wrath had something to remember the rest of their lives. But Judge Perley knew his weak- ness, and sometimes it caused him profound sorrow. Not always, however, as this anecdote shows. A miserly landlord, after stating his case, told the judge how he had compelled the tenant to pay the same account twice, and chuckling at his shrewdness asked the judge his opinion. "My opinion is that you are a damned rascal, and my fee is five dollars," replied the irate attorney. Judge Perley possessed a social side of great attractiveness, was a fine story-teller, and in his younger days was good at a convivial song. Whist was one of his dearest pastimes, and in it he was a master hand. Those who knew the judge recollect his short stature, his long coat, and in cold weather his fur cap and woolen mittens, his thoughtful gait with bowed head and shaggy eyebrows shading twinkling gray eyes, his abrupt salutation, his originality all his own. Popular, as men go, he was not; but he was deeply respected for his probity and his sterling citizenship, while his mental attainments commanded the profoundest admiration. For many years he resided on the south corner of Spring and Cambridge streets, surrounded by books and every comfort and watched over by his devoted daughters. In this house he died the 26th of February, 1874.
When Franklin Pierce came to Concord in 1838 he brought a
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reputation for professional skill and political preferment singularly his own. He was already known as a public speaker of command- ing talents both at the bar and on the stump, and this distinction he steadily increased. As a lawyer of the Perley class Mr. Pierce was not a leader, his forte was at nisi prius or trials of fact, but whatever he lacked in erudition and application he supplied by most advanta- geous partnerships, first with Asa Fowler, then with Josiah Minot. As a public man his rise was remarkable, for by the time he joined the Merrimack bar, at the age of thirty-four, he had been twice speaker of the house of representatives, twice elected to congress, and was serving his second year as a senator of the United States.
The presence of such a lawyer could but attract attention, while his prominence as a townsman made the name of Concord a house- hold word throughout the country. In 1842 Mr. Pierce resigned his seat in the national senate, and for the next ten years de- voted all his talents to his profession. But the party organization was by no means content with his retirement, for within that decade he was strongly besought by President Polk to accept the attorney- generalship, Governor Steele offered him the place in the senate made vacant by the resignation of Levi Woodbury, and shortly after the Democratic convention tempted him with the governorship. In 1847, however, Mr. Pierce abandoned his law cases on receiving the appoint- ment of brigadier-general, and sailed for Mexico. On his return to Concord there was a grand reception, a sword was presented by the legislature, and various honors were conferred on the popular general. Mr. Pierce presided over the constitutional convention of 1850 with ex- ceeding grace and competency, winning for himself a wide popularity.
After his term as president expired Mr. Pierce lived a life of com- fortable ease, giving up his practice, yet remaining in touch with his brothers at the bar and keeping close watch over the public questions of the day. In company with his wife the ex-president passed three years in European travels, returning home in 1860. Three years later Mrs. Pierce, a lady of the deepest refinement and sensibilities, died, leaving her husband the sole survivor of the family, the three children having preceded her to the tomb. At the time of his nomi- nation as president Mr. Pierce lived in the house now standing on the south corner of Main and Thorndike streets, now occupied by Mrs. Augustus Woodbury, but after Mrs. Pierce's decease he changed his residence to the Williams mansion on South Main street, where he died. His law office in 1840, while in partnership with Asa Fowler, was in the Merrimack county bank building, now the prop- erty of the New Hampshire Historical society. He afterwards moved as business changed to an office on Park street.
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Mr. Pierce could not escape from the bitterness aroused by the Civil War ; his relations with Southern statesmen had been too long and intimate for that, and yet so uniform was his courtesy towards his fellow-men as to disarm much of the harshness incident to that period. He is remembered for his kind nature, his generosity in local concerns, and his bounty to those in distress. Fond of riding horseback, his figure was a familiar one on our streets as he rode his beautiful animal, a picture of consummate grace. To young people he was unfailing in attention ; and often as he passed along he paused to speak to his youthful friends, to comment, perhaps, on their sports or to wish them a happy hour. His probity was beyond question : he was ambitious without being avaricious, and his long and eventful career enabled him to accumulate an estate of only moderate size, the whole amounting to seventy thousand dollars. He died on the 9th of October, 1869, and was interred in the Minot plot of the old cemetery.
Another of these brilliant brothers of the bar was Charles H. Peaslee. Mr. Peaslee was born in that well-known nursery of lawyers, Gilmanton, on the 6th of February, 1804. Like so many of his contemporaries he was an alumnus of Dartmouth, 1824. Soon after leaving college he took up his residence in Concord, remaining here until about the outbreak of the Civil War. As an advocate Mr. Peaslee will be remembered, for in that branch of his calling few were his equals. As a student he did not excel, yet want of preparation could not be charged against him. The methods prevalent in those days were peculiarly congenial to his dis- position, his social amenities making him a welcome companion on all occasions. Genial, kindly, and affable, his claim to popularity was not disputed. It will be recollected that Mr. Peaslee was junior counsel in the Prescott trials, where he added largely to his reputa- tion as a graceful and eloquent advocate. In politics he was a mov- ing force, and held high rank among the leaders of the dominant Democracy. Thrice Mr. Peaslec represented Concord in the legisla- ture, 1833-'36, and signalized his service by strenuous efforts to estab- lish an asylum for the insane. Unsuccessful at first, he never lessened his labors, but traveled over the state addressing audiences on that subject until the object was accomplished. He was really a founder of the asylum, and properly enough served as a trustee from its open- ing to the day of his death. In military affairs he manifested an active interest, and in 1839 he was appointed adjutant and inspector- general of New Hampshire. Party services, like his, bore fruition in an election to congress, his terin embracing the years 1847-'53. When his friend Franklin Pierce became president, the collectorship
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