History of Hillsborough County, New Hampshire, Part 2

Author: Hurd, D. Hamilton (Duane Hamilton)
Publication date: 1885
Publisher: Philadelphia : J.W. Lewis
Number of Pages: 1168

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But one judge has been removed by address of the Legislature (and in this ease nothing worse was charged than inability to discharge the duties of the office by reason of old age), and no judge of our State courts has been impeached; a judge of the United States District Court for the district of New Hamp shire was charged with drunkenness and conduct nnbecoming a judge, and was tried by the Senate of the United States ; he admitted his irregularities, but defended upon the ground that he was not intoxicated as a justice, but as plain Mr. -; the Senate, however, were of opinion that when Mr. - was intoxicated the court was drunk, and he was removed from office.

The next court in order of jurisdiction was the

HISTORY OF HILLSBOROUGH COUNTY, NEW HAMPSHIRE.

Inferior Court of Common Pleas. While the Superior Court of Judicature had cognizance of all questions of law and divorce, and ultimately was clothed with equity powers, the Inferior Court of Common Pleas was the tribunal in which all ordinary controversies were settled; this court, established in 1771, continued under the name of the Inferior Court of Common Pleas and the Court of Common Pleas (excepting that it was discontinued from 1820 to 1825) until 1859, when it was abolished and all the business of the court transferred to the Supreme Judicial Court. In 1874 it was revived and continued to exist until 1876 when its business was transferred to the Supreme Court'

The third and last court provided for by the bill to organize the counties was entitled the Court of Gene- ral Sessions of the Peace ; this court had for judges or justices all the justices of the peace in commission for the county of Hillsborough; it had a limited juris- diction in criminal complaints, and was attended by a grand and petit jury ; it had also the entire control of all financial affairs of the county ; the number of justices attending the earlier terms of this court rarely exceeded ten ; some later terms were attended by forty or more justices, depending upon the number in com- mission from time to time ; the law did not require the justice to reside in the county for which he was commissioned, and some of the most distinguished men of the State, residing in other counties, were commissioned for this county and had the right to sit in this court.

This court continued as at first organized until 1794 it was a cumbersome piece of judicial machinery; it was a matter of choice with the justices how many should sit at any particular term, and it was claimed by Samuel Dana, in the Legislature of the State, at the time the court was abolished, that parties having causes to be heard at any particular term were aceus- tomed to stir up the justices and obtain the personal attendance of their friends at court.

In 1794 the functions of this court were incorporated into the Court of Common Pleas, some of the judges of the last court (side judges, as they were called) attending to financial matters, and special committees appointed for that purpose laying out highways. The sessions docket, which we now have as a branch of the business of our general term in the Supreme Court, but formerly in the Common Pleas, is the remnant of this Court of General Sessions of the Peace.

In 1855 a board of county commissioners was insti- tuted to act in conjunction with the court in adminis- tering the financial affairs of the county and in laying out highways. With the addition of this auxiliary tribunal, the services of side judges, men generally of sound practical sense, but of no legal learning, were dispensed with. It is generally supposed that these judges were but ornamental appendages to the learned judge who actively presided in the court; but, in addi- tion to the discharge of the duties now substantially performed by the county commissioners, they often

aided the court by their sterling common sense in matters requiring not legal learning merely, but an acquaintance with men and the ordinary concerns of life, which is not always possessed by learned law- yers.

There were but three lawyers resident in the county before the Revolution,-Atherton, at Amherst; Champ- ney, at New Ipswich; and Claggett, at Litchfield,- but prominent attorneys from other parts of the State attended all the sessions of the court.

It would be useful, and perhaps not uninteresting, to examine into the condition of the statute and com- mon law at the time of the organization of the county. The limit of this paper will not permit anything like an exhaustive enumeration of the laws then in force, and allusion only will be made to some most at variance with the present code.

In 1771, Lord Mansfield was chief justice of the Court of King's Bench in England, and for nearly half a century had devoted his entire energies to per- feeting the common law of that realm ; neither before nor since has any one man done so much towards making secure the reciprocal rights of the govern- ment and the governed, judged by the standard of the civilization of that day. The common law of Eng- land was brought over and became a part of the law of the colonies by the settlers of this continent ; vari- ous modifications were made in the statutes to conform to the necessities of a new country, but in the main the inhabitants of the State were amenable to the same legal conditions as the inhabitants of England one hundred and fourteen years ago. There were eight capital crimes in the province at that time, now but one; severe penalties were meted out for small offenses; matters which are now left to the tribunal of the individual conscience were then made subjects of statute law, the violations of which were punishable in courts; the whipping-post, the pillory and the stocks were recognized as suitable appliances to have a place in the machinery of a Christian government, and all existed in connection with the jail and court- house until the commencement of the present century. In punishment of crime, distinctions were made founded upon the color or condition of the party to suffer the penalty.

Benefit of clergy, or the exemption of the clergy from penalties imposed by the law for certain crimes was in existence in England and not abolished until the reign of George IV. The history of this exemption is long, and was thoroughly woven into the texture of English criminal law; its practical working was to exempt the clergy from the punish- ment affixed to most crimes ; it was no inconvenient thing to be able to plead benefit of clergy, and at one time not only those regularly in orders, but all retainers of the church and some others claimed the privilege. To make certain who were entitled to this plea, before the time of Henry VII. a statute was passed extending the exemption to only such as could read.

EARLY HISTORY AND ORGANIZATION OF COURTS.

A single instance is found where this plea was made in this county in colonial times. Israel Wil- kins, of Hollis, was indicted at the September term, 1773, of the Supreme Court, for the murder of his father; he was found guilty of manslaughter; he then prayed the benefit of clergy, which was granted; the court branded the brawny part of his thumb with the letter T, confiscated his personal estate and let him go.

A creditor, until the passage of the revised statutes in 1842, upon any debt, could seize his debtor, and, in default of payment, throw the victim into prison and keep him there until he had paid the last farthing.

One of the chief justices of the Court of King's Bench was imprisoned early in life for debt, and dur- ing his confinement of five years entered upon and completed his legal studies and became one of the best of English pleaders.

Defendants held for this purpose at first were con- fined as closely as prisoners awaiting trial or serving out a sentence, but as the minds of men became lib- eralized they were allowed some privileges not com- mon to the average criminal. Jail limits were estab- lished in time, and the debtor allowed the privilege of going a certain number of rods from the jail. Within the present century men have been confined at Amherst for debt, one, two, three and even four years, and in several instances carried on extensive mercantile business while prisoners at the suits of creditors.

A lawyer by the name of Shattuck, held for debt, established his family within the jail limits, built a house and practiced law with considerable success for several years.

The law is now so lenient that it has become difficult to collect honest debts. It is not an uncommon thing to find the wife owning the home- stead-and a pretty large one sometimes-and the hus- band owing all the debts.

The organization of the Court of General Sessions of the Peace was first perfected and was really the act by which the county was organized.

Its first book of records contains twenty pages, six inches by nine, and covered with common brown paper.

The first entry is as follows :

"THE PROVINCE OF NEW HAMPSHIRE."

" At a Court of General Sessions of the Peace, held for the purpose of preparing a prison, raising money, etc., pursuant to an act of said prov- ince, entitled an act for dividing the same into Counties and for the more easy administration of Justice, held in the public meeting-house in Am- herst, within and for the county of Hillsborough, in said province, 'on the sixth day of May, in the eleventh year of his Majesty's reign, A.D. 1771, held by adjournment from the first Thursday after the first Tuesday of April last.

Present, --

" JOHN GOFFE,

" E. G. LEUTWYCHE,

" JOIN HALE,

" JOHN SHEPHERD, JR.,

" SAMUEL HOBART,

" SAMUEL BLODGET.

Esqr's.

" Appointed John Shepherd, Jr., Clerk, pro tempore. Then adjourned to the house of Jonathan Smith, Inn-holder in said Amherst. Instantly met at the house of said Smith.

" Appointed Samuel liobart, John Shepherd, Jr., and Benjamin Whit- ing, Esq'r, a committee to cause said prison to be built.

" Appointed Sanıl. Hobart, Esq., Treasurer.

" Ordered, That the committee aforesaid provide a suitable house in said Amherst and make it fit to keep 'prisoners in until a prison can be bnilt."

In accordance with this vote, temporary accommo- dations were provided.

John Goffe, whose name is at the head of the jus- tices of this court and who seems to have taken the lead in the organization of the county, was one of the early settlers at Goffe's Falls, on the Merrimack River, living at different times on both sides of the stream. He commanded the regiment raised in this vicinity in 1760, and was present at the capture of St. John's, Montreal and Quebec. His regiment mustered at Litchfield, and on the 25th of May he issued the fol- lowing unique order :

"Colonel Goffe requires the officers to be answerable that the men's shirts are changed twice every week at least ; that such as have hair that will admit of it, must have it constantly tyed ; they must be obliged to comb their heads and wash their hands every morning; and as it is ob- served that numbers of men accustom themselves to wear woolen night- caps in the day-time, he allows them hats; they are ordered for the fu- ture not to be seen in the day-time with anything besides their hats on their heads, as the above-mentioned custom of wearing night-caps must be detrimental to their health and cleanliness. The men's hats to be all cocked or uniform, as Colonel Goffe pleases to direct."

Colonel Goffe marched his regiment across the ferry at Thornton's, (then Lutwyche's) Ferry, and thence up the Souhegan River to Amherst ; thence to the ford- way at Monson (now Milford village); thence on the south side of the river for the larger part of the way to Wilton, and thence to Peterborough by way of the notch in the mountains to the east of Peterborough ; thence by way of Dublin to Keene; thence up the valley of the Connecticut to Charleston. From Honton to Keene his route lay mostly through a wilderness, and this distance the regiment cut a road for the transportation of their baggage and provisions.

Amherst and Peterborough were incorporated the year of Colonel Goffe's march through the county ; but there was no sufficient highway from Peterbor- ough to Amherst, the principal route of travel from Peterborough to the sea-coast being through the towns of Mason, and Townsend in Massachusetts. Wilton was not incorporated until two years later, and Milford not until the year 1794.

Colonel Goffe, though a man of war, was a thor- oughly religious man. He often officiated as chaplain in his regiment, and after his military career was ended, and he was a resident of Bedford, he sometimes officiated in the pulpit in the absence of the clergy- man of the town. He was the first judge of Probate for this county, and may justly be ranked with the prominent men of ante-Revolutionary times.

Edward Goldstone Lutwyche, whose name appears as the second justice upon the roll, was an English gentleman not long in the country, at this time resid-

HISTORY OF HILLSBOROUGH COUNTY, NEW HAMPSHIRE.

ing at Thornton's Ferry, then called, from the name of its owner, Lutwyche Ferry. He was colonel of the regiment at the breaking out of the War of the Revo- lution, but on the Declaration of Independence joined the English and left the country. His name appears among the twenty-four whose estates were confiscated at the close of the war.

Captain John Hale, another of the justices, was a prominent citizen of Hollis. He held a military commission and represented his town in the General Court in 1775; was a successful physician, having practiced his profession many years in Hollis ; was surgeon in the army during the French and Indian and also the Revolutionary War. After serving his generation in two wais and in many years of peace, he died in the summer of 1791.

Samuel Hobart, a colleague of Hale, was a resident of Hollis; was register of deeds for this county from its organization to 1776, and its first treasurer. He frequently served the courts in the capacity of auditor and upon financial committees, and was the most practical business member of the court. While regis- ter of deeds he resided in Hollis, and during a por- tion of the time kept the registry at that place. He was also a member of the New Hampshire Com- mittee of Safety.

Samuel Blodgett, another justice, was a resident of what is now Manchester, at that time Goffstown ; was for many years at work upon a plan to put a canal around Amoskeag Falls. Having spent his own large fortune in the enterprise and failed, he subsequently obtained authority from the State to raise large sums of money by lottery to aid in the building of his locks and canal, and afterwards authority for a second lottery was granted, the pro- ceeds of which were to go towards the same object. Massachusetts afterwards gave him the same privilege and repeated the grant in 1806. After a prolonged struggle his enterprise was completed, and he had the satisfaction of seeing his work an acknowledged success. He was an active and useful member of this court, and a most striking example of untiring perseverance.

John Shepherd, Jr., was a resident of Amherst at this time. In addition to many places of trust which he worthily filled, he is found in the year 1766 pre- siding at a town-meeting in Derryfiekl (now Manches- ter). It happened on this wise : a small minority of the legal voters had irregularly called a town-meeting and chosen a full complement of officers for the year in the absence of a large majority of the voters. The Governor and General Assembly, on petition, annulled the proceedings of this meeting, and ordered a new election, and by special act authorized John Shep- herd, Jr., of Amherst, to call a meeting of the legal voters of Derryfield, and to preside in the meeting until a full list of town officers was chosen.

Reuben Kidder, another justice of this court, was distinguished citizen of the town of New Ipswich,

a large farmer and one of the most influential men of his neighborhood. He was the only justice in his town beforethe Revolution, having settled near the hill or mountain in New Ipswich which bears his name. He maintained a style of living superior to most of his neighbors ; having held two offices under the King, the War of the Revolution found him a mod- erate Tory; but the respectability of his character and the rectitude of his intentions saved him from arrest and imprisonment.

Matthew Thornton was a justice of this court five years before he signed the Declaration of Indepen- dence and before he became a resident of the county, (the law then not requiring a justice to reside in the county for which he was commissioned). In 1780 he came to Merrimack; was a physician in good standing, and visited professionally most of the towns in the county. In addition to the many promi- nent positions he occupied in the province and State, he was at one time chief justice of the Court of Common Pleas, and afterwards one of the judges of the Superior Court of Judicature. He died in the year 1803, at the age of eighty-eight, having written political essays for the press after he had completed his fourscore years.

William Clark, of New Boston, engaged as sur- veyor of land, and the only man in town commis- sioned as justice of the peace by royal authority, was a member of this court. His sympathies at first were not with the patriots, but after the Revolution he served his constituents in every position within their gift.

Moses Nichols, one of the justices, was a native of Reading, Mass. He was a physician by pro- fession, and practiced many years at Amherst ; was appointed colonel of the Sixth Regiment in December, 1776; was at Bennington under Starke. He was register of deeds for this county from 1776 until his death.

Wiseman Claggett, one of the justices, had been the King's solicitor-general, and left the office on ac- count of dissatisfaction with the home government. He came to Litchfield to reside in December, 1771; was an efficient prosecuting officer, attaching great consequence to his position ; was active in the Revo- lution, ranking among the foremost in zeal for the success of the colonists. He was made attorney-gene- ral of the State in 1776, and held the position until 1783.

Joshua Atherton, of Amherst, Mathew Patten, of Bedford, James Underwood, of Litchfield, Robert Fletcher, of Dunstable, Noah Worcester, of ITollis, Francis Blood, of Temple, Zacheas Cutler, of New Boston, and other prominent citizens of the county were from time to time justices of this court.

The course of business must have been different from the order pursued in most judicial tribunals, for among the rules promulgated for the government of the court were the following :

EARLY HISTORY AND ORGANIZATION OF COURTS.

"I. No person shall speak without first having obtained leave from the president.

"II. That all speeches intended for the court be addressed to the president.

"III. That every member speaking to the president shall do it stand- ing.

"IV. That no member speak twice upon any motion until every mem- ber has had an opportunity of speaking once."

At the October term, 1771, the first grand jury ever empaneled in the county was called. General John Stark was one of the jury. One indictment made up the sum total of the findings of the grand jury. The unfortunate individual by them presented answered to the name of Jonas Stepleton. He was brought to the bar, and being arraigned, pleaded guilty and threw himself upon the mercy of the court. The merey of the court was dealt out as follows :

"It is ordered that the said Stepleton be whipped twenty stripes on the naked back at the public whipping-post, between the hours of one and two of the afternoon of this 3d day of October, and that he pay Nahum Baklwin, the owner of the goods stolen, forty-four pounds lawful money, being tenfold the value of the goods stolen (the goods stolen being re" turned) and that in default of the payment of said tenfold damages and costs of prosecution, the said Nahum Baldwin be authorized to dispose of the said Jonas in servitude to any of ITis Majesties' subjects for the space of seven years, to commence from this day."

In the Superior Court, a little later, one Keef was convicted of arson, and received the following sen- tenee :

" It is therefore considered by the Court that the said Michael Keef is guilty, and it is ordered and adjudged that he sit one hour on the gal- lows with a rope round his neck and be whipped thirty stripes on his naked back, on Thursday, the tenth day of June next, between the hours of ten and twelve o'clock in the forenoon; that he be imprisoned six months from the said tenth day of June, and give bonds for his good be- haviour in the sum of one hundred pounds, with two sureties in the sum of fifty pounds each, for the space of two years from the expiration of said six months, and pay the costs of prosecution, taxed at nine pounds, seven shillings and ten pence, and stand committed till sentence be per formed."

Benjamin Whiting, one of the committee appointed to look out the place for a jail, was a resident of Hol- lis, and sheriff of the county at the time of its organi- zation. He adhered to the King, quitted the country on the breaking out of hostilities, was proscribed and forbidden to return and his estate was confiseated. He was a zealous officer of the King, as will appear by an account of some of his official doings, and was a representative man among the Tories of his time.

Most of them were men appointed to office by the royal authority, and of course were in sympathy with the general purposes and objects of the government. In a word, like all honest office-holders, they believed in the administration, and had taken an oath to sup- port the laws of their country. May it not be said that the Tories of the Revolution, with few exceptions, were right-minded men, fearful of change and consti- tutionally opposed to innovations? It seemed to them like desertion of a paternal government to make common cause with those who stood to them as rebels ; they also doubted the ability of the colonists to achieve their independence, and were unwilling to put in jeopardy their fortunes in so hazardous an un-

dertaking. The lapse of a century leaves them in a somewhat improved condition so far as the morality of their action is concerned.

Sheriff Whiting had many obnoxious laws to execute, among others the statute giving every white pine tree from fifteen to thirty-six inches in diameter to the King, for the use of his royal navy ; every man in the province held his land subject to this incum- brance, and severe penalties were inflicted upon indi- viduals who might use a stick of white pine within the proscribed diameter.

There was a surveyor of the King's woods, with many deputies, who were naturally obnoxious to the people. The owner of land, before he commenced cutting, was by law compelled to employ the surveyor or deputy to mark the trees upon the premises fit for masts for the navy, and neglecting to do this, or being too poor to pay the surveyor his fees, the whole was forfeited to the King.

Seizures and forfeitures were common wherever the pine-tree grew and mills had been erected. The greatest hostility prevailed against the officers execut- ing the law, and soon extended to the government. The execution of this law in the interior of the prov- ince was with the inhabitants of this county an ex- citing cause of the Revolution.

In the winter of 1771 and 1772 an extensive seizure was made in the northern portion of the county. Although the pine is found in most towns in the southern part of the State, it was more abundant upon the Piscataquog River than in other places in this vicinity. The great road from Manchester to East Weare, known even now as the Mast road, was origi- nally built to facilitate the transportation of masts from Goffstown, Weare, New Boston, Dunbarton and other towns to the Merrimack, to be floated down that stream to the ocean at Newburyport.

A deputy visited this locality in 1771 and 1772 and condemned a large amount of lumber in the mill- yards on the Piscataquog. They were libeled in the Admiralty Court at Portsmouth, and the owners cited to appear and show cause why they should not be forfeited. The citation was published in the New Hampshire Gazette of February 7, 1772, and called upon all persons claiming property in certain enu- merated white pine logs seized by order of the sur- veyor-general in Goffstown and Weare, in the prov- ince of New Hampshire, to appear at a Court of Vice- Admiralty to be held at Portsmouth, February 27, 1772, and show cause why the logs should not be forfeited. The parties interested in the lumber seiz- ure sent Samuel Blodgett, before spoken of as one of the justices of the Court of Sessions, to Portsmouth to effect a compromise. He made an arrangement by which the informations were to be withdrawn upon the payment of certain sums of money in each case. Blodgett was appointed agent to make this settlement, and was also made a deputy by the surveyor-general.

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History of Hillsborough County, New Hampshire, Part 2

Author: Hurd, D. Hamilton (Duane Hamilton) Publication date: 1885 Publisher: Philadelphia : J.W. Lewis Number of Pages: 1168

Author: Hurd, D. Hamilton (Duane Hamilton)
Publication date: 1885
Publisher: Philadelphia : J.W. Lewis
Number of Pages: 1168