History of Merrimack and Belknap counties, New Hampshire, Part 4

Author: Hurd, D. Hamilton (Duane Hamilton), ed
Publication date: 1885
Publisher: Philadelphia [Pa.] J. W. Lewis & co.
Number of Pages: 1520

USA > New Hampshire > Merrimack County > History of Merrimack and Belknap counties, New Hampshire > Part 4
USA > New Hampshire > Belknap County > History of Merrimack and Belknap counties, New Hampshire > Part 4

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Rufus Choate thus describes the qualifications of the good judge: "In the first place, he should be profoundly learned in all the learning of the law, and he must know how to use that learning. In the next place, he must be a man not merely upright, not merely honest and well-intentioned,-this, of course,-but a man who will not respect persons in judgment. . . And, finally, he must possess the perfect confidence of the community, that he bear not the sword in vain. To be honest, to be no re- specter of persons, is not enough. He must be be- lieved such." We shall see how well Judge Bartlett answered these requirements.

His legal learning was profound. He had an ex- traordinary genius for learning everything quickly and accurately, and remembering it during life, and without effort. We have shining and encouraging examples of what can be done by men of moderate abilities. Judge Bartlett was not of that class, and, therefore, as an example, he is worth far less than many others. As a brilliant legal scholar, a brilliant legal thinker and practical logician, capable of ap- plying ancient legal principles to the facts of new cases, and working out for the benefit of modern life the best results of that common law that has been constantly growing out of the last thousand years of English and American civilization, he was not sur- passed by any one judge who has sat upon the bench of New Hampshire. It is not uncommon for a man of intellect to succeed in mastering much of the special doctrine and general theory of the law, and to fail as a practicing lawyer and working judge from a lack of ability rightly to apply his learning to the varying and novel circumstances that constitute most of the cases that are carried to the office of a lawyer and to the courts of justice. Nearly infallible as Judge Bartlett was in his opinion on an abstract question of law, he equally excelled in perceiving

what rule was applicable to each case. His remark- able powers were equally accurate in theory and practice.

All great lawyers are naturally conservative; so was Judge Bartlett. Generally inclined to follow precedents, he was strong enough to disregard them when they disregarded fundamental principles. Witness his opinion in Bassett v. Salisbury Manufac- turing Company, 43 N. H. 569. The action was case for maintaining a dam, thereby causing water to per- colate through the plaintiff's meadow. On the fifth jury trial, the present chief justice presided, and ruled the law in accordance with the English case of Acton v. Blundell, 12 M. & W. 324, and numerous cases that followed in its train. The cause was carried to the full bench on exceptions, and an opinion prepared affirming the ruling of the court below, which received the assent of a majority of the court ; but the judge who drew up the opinion re- signed, and the cause was continued for further ex- amination, and assigned to Judge Bartlett, who suc- ceeded him upon the bench. Few cases have re- ceived such careful consideration (50 N. H. 444). Four opinions were drawn up by different members of the court, of which three sustained the English doctrine. The opinion published in the reports was drawn up by Judge Bartlett, at the sea-shore, when in feeble health and hardly able to be about. It re- versed the English authorities, those of a majority of the States, the decision of the court below and the opinions of all his associates except one; yet, when read in consultation, every judge yielded his objec- tions and assented to the opinion, because it was found unanswerable. But for him, the contrary er- roneous doctrine would have been established in New Hampshire. The logic of the opinion, and its clear and precise style, are only equaled by the modesty which marked his dissent from the English and American authorities.

As illustrating his way of summing up a case and instructing a jury, I might cite Hayes v. Waldron, 44 N. H. 580, where his charge is fully reported, and so admirably and clearly did it set forth the law of the case, that little was left for the judge who delivered the opinion in banc except to adopt the reasoning and substance of the charge.

The decisions of the court, written and delivered by him, will be his lasting monument. Models of brevity, of perspicuous statement and logical deduc- tion, of legal thought, and literary, unornamented style, they will endure. But they are very brief. Those that are published are but a small part of his work, and will carry to other generations a very in- adequate idea of how much was lost at his decease. His associates at the bar and on the bench, who en- joyed the benefits of a personal acquaintance with him, and felt the refreshing power of his fellowship, will never lose the benefit of his personal influence, nor cease to grieve that he did not live to lead them

BENCH AND BAR.

to the end of their labors. It was not an uncommon thing for him, whether he delivered the judgment or not, to cause a decision to be put upon ground not thought of by other members of the court or by counsel. His learning was so complete, and his grasp of the law and facts so comprehensive, that while he seldom changed in consultation an opinion he had formed in his library, other members of the court not infrequently found occasion to correct theirs by the light of his expositions.

Judge Perley says of him,-" When he went upon the bench, his high qualifications.for the office were at once recognized by the legal profession. His youthful appearance, his unpretending manners and his easy and rapid way of dispatching business might have led a careless observer to fear that he would be found wanting in solidity and soundness of judgment; but the character of his mind was emi- nently judicial. His examination of authority in cases which required it was faithful and exhaustive. He weighed conflicting arguments and reasons with equal impartiality. He had great sagacity in per- ceiving the practical bearing of any question under consideration, and its connection with the whole complete system of the law; and his opinions and rulings were received with the greatest respect and deference by the legal profession throughout the State. In presiding over trials, I never learned that he was known, in the most irritating circumstances, to lose the sweetness and equanimity of his own temper, and he often had the rare felicity of winning from both sides the commendation of perfect fairness and impartiality."

Judge Bartlett never failed to show that he had the courage of his convictions whenever the occasion called for it. Witness his action upon the Soldiers' Voting Bill, so called, introduced in 1863 in the midst of political excitement, when he united with three other members of the court in an opinion which set aside the act as a violation of the constitution.

In 1866 was passed, under similar circumstances, an act disfranchising deserters from the army, the constitutionality of which was brought before the full bench. Not long before his death he drew up an opinion setting aside this act, also, as a plain viola- tion of the fundamental law of the land. The fact in some way came to the knowledge of the Legisla- ture, which forthwith did itself and him the honor to repeal the law before the opinion could be read in court.

History tells us that the celebrated court of the Areopagus, when Athens was at the height of its civilization, sat in the dark, that the judges might not see or know who were the suitors, aud so be en- abled to dispense impartial justice. I suppose for the same reason the Goddess of Justice is represented with eyes blindfolded, that her hand may feel the " trepidations of the balance," uninfluenced by the presence or appearance of the contending parties.

All systems of judicial tenure suppose judges to be imperfect because mortal. The constitution recog- nizes this in that clause which secures the right to the subject "to be tried by judges as impartial as the lot of humanity will admit."

But I do not hesitate to say, that if there ever was a judge who was a living personification of the blind- fold goddess ; one who watched not the faces of his suitors, to inquire who they were, or what their standing or influence, but only the movements of the scales held in an even hand; one who, unlike his ancient brethren of Athens, had no need to sit in the dark, because wholly oblivious to all surrounding circumstances ; one who, when a whole city, Athens- like, came "to demand that the cup of hemlock be put to the lips of the wisest of men," would deliver him if he believed he " had not corrupted the youth, nor omitted to worship the gods of the city, nor introduced new divinities of his own,"-such an one was Judge Bartlett.

His good-fellowship placed him on terms of inti- macy with his brethren of the bar; but no one presumed, on the strength of former intimacy, or of close and friendly relations, to influence his rulings or decisions; or, if any one did so far forget himself, the success of the attempt was not such as to encour- age its repetition.

It must not be inferred that, while he was noted for his patient, courteous and urbane manners, he was tolerant of fraud, or failed to rebuke chicanery or improper interference with the course of justice. On such occasion he

"Carried anger as the flint bears fire, Which, much enforced, shows a hasty spark, And straight is cold again."

The testimony of one of his associates1 upon the bench affords a fitting close to this review of Judge Bartlett's judicial life, --

" His career was brief, but it was long enough to satisfy those who knew him best, and whose judgment was trustworthy, that, with life and health, he would have become the great American jurist of his generation. No mental or moral weakness impaired the operation or influence of his great powers.

"There have been great men who were not loved, and did not deserve to be loved. There have been good men who were not great. Ilere was a man equally great and good ; equally superior by nature on the intel- lectual and on the moral side. Incapable of selfishness, envy or any meanness, whole-souled in the best sense, incapable of uttering an un- kind word or entertaining an unkind feeling, he would have hed ouly pity for his enemies, if it had been possible for him to have an enemy. He had neither a single enemy, nor a single cold or indifferent friend. He involuntarily held all whom he met, bound to him by those ties of affection which draw all men to a character the most amiable and lovely as well as by those tice of reverence which draw all men to mental su- premacy. With health and life, what a judge he would have become ! And, what is so much more to he said, with health and life, what a teacher and leader of youth-what a head of an educational institution- he would have been ! Where he presided, there was no thought of legal power provided for the maintenance of judicial dignity. In him all meu recognized the unconscious majesty of the law, and the unconscious majesty of whatever is greatest and best in human nature. With such as he in many places of government and personal control, it would not

1 (Chief Justice Doe.

HISTORY OF MERRIMACK COUNTY, NEW HAMPSHIRE.

be too much to hope that the word ' discipline,' in the sense that is often disagreeable and offensive, might become obsolete."

There is another aspect of Judge Bartlett's char- acter which, although already considered to some extent, because so closely interwoven with his intel- lectual character, yet remains to be spoken of .. allude to his moral and Christian virtues. He was valned more for his character than for his intellect. He was witty, bright and genial, faithful and judi- cious; a thoughtful friend, a self-denying brother, a most affectionate son and husband. His professional life was passed in the near vicinity of his native town; and, in their declining years, the hearts of his parents turned much and constantly to him for sympathy and kindly care, and never were they disappointed. He visited and wrote to them often ; and for years, what- ever were his engagements, almost never did a Mon- day pass without bringing them an affectionate letter. And during the last months of his life, it was an occasion of almost uncontrollable grief to him that he had been frustrated of being present to comfort the last hours of his father not long before.

In his own home he seemed to be whatever a host and a husband ought to be.1 So warmly was he at- tached to his home, and to her who was its star and its light, that he was loath to leave it, even when called away by professional engagements. The one trait that fixes itself most deeply in the memory of his friends is the kindly spirit that, in his maturer years, followed him in all his relations, and made him always considerate of the feelings, and actively attentive to the wants, of all around him. It was a pleasure to him to make others happy; and he loved to do a kind office to those who could not repay. It seems, as we look back upon it, the practical benevolence of the gospel. He became a diligent and deeply-interested reader of the Scriptures ; and to those who knew him best, he seemed to exemplify the spirit of the gospel in a most important aspect.

At the close of the summer of 1867 he returned to his home from the sea-shore, without having been benefited by the invigorating air of the ocean. For a few days he struggled cheerfully against physical weakness and disease,-more for the sake of others, perhaps, than for himself,-his pallid countenance illumined as with the lustre of a beautiful spirit. On Tuesday, September 24th, as gently as a child falls asleep, without pain or a struggle, consciousness pre- served to the last moment, that life, which had been so noble and beautiful, changed its course, as a river, to a smoother channel, and put on immortality. Three days later, on a bright and beautiful day in early autumn, his professional brethren, representing nearly every county in the State, and the surviving members of the court, with his inconsolable relatives,

in tenderness committed to his mother earth all that was mortal of him who had been a dutiful child, a quick and ready scholar, a profound lawyer, an up- right magistrate, an affectionate brother and devoted husband, to rest till the resurrection morning.

IRA PERLEY was born in Boxford, Mass., No- vember 9, 1799. He graduated from Dartmouth Col- lege in the class of 1822 and was tutor in that insti- tution from 1823 to 1825. He read law with Benjamin J. Gilbert, of Hanover, and commenced practice in that town in 1827. Here he remained until 1834, when he removed to Concord, where he resided until his death.

Upon his removal to Concord he soon acquired a large practice, and ranked among the leaders at the Merrimack bar. In July, 1850, he was appointed a justice in the Superior Court of this State, which position he held until October, 1852, when he resigned and resumed the practice of law. In 1855 he was appointed chief-justice of the Supreme Judicial Court, and held the position until 1859, when he resigned and again resumed the practice of law. In 1864 he was appointed chief justice of the same court, and held the position until September, 1869.

Judge Perley had no taste for political office, but served at three different times as a member of the House of Representatives,-first from Hanover in 1834 and from Concord in 1839 and 1870. He received the degree of LL.D. from Dartmouth College in 1852. He manifested an interest in historical matters, and for several years was an active member of the New Hampshire Historical Society and was vice- president of the New England Historic Genealogical Society at the time of his death.

As a scholar, Judge Perley ranked among the fore- most in the State and in New England. He kept up his interest in classics to the day of his death, and read German, French and Italian with readiness. In social life he was modest and unassuming, but was nevertheless a rare conversationalist.

In January, 1840, he united in marriage with Mary L. Nelson, of Haverhill. Judge Perley died February 26,1874.

JOHN Y. MUGRIDGE was born in Laconia, N. H., then a part of Meredith, April 15, 1832. He received his preparatory education at the Gilford Academy and commenced the study of the law in the office of Colonel Thomas J. Whipple, in Laconia. He con- cluded his studies with the late Hon. Asa Fowler, of Concord, with whom he formed a copartnership for the practice of his profession soon after his admission to the bar, in 1854. He was subsequently in partner- ship with Hon. Josiah Minot and later with Hon. Mason W. Tappan, but at the time of his death was alone in practice. Mr. Mugridge never sought polit- ical preference, but devoted himself almost entirely to his profession. He served as city solicitor from 1861 to 1868, was a representative in the Legislature in 1863 and 1864, Senator from the old Fourth Dis-

1 May 8, 1856, he was married to Miss Caroline Baker, daughter of the late Abel Baker, Esq., of Concord, and sister of the late ex-Governor Nathaniel B. Baker. Mrs. Bartlett survives her husband and still re- sides in Concord.

Yours truly. Asa Fowler,

BENCH AND BAR.

trict in 1868 and 1869, being president of the Senate the latter year, and again representative in 1875.

As a lawyer Mr. Mugridge held a commanding position at the Merrimack bar, and probably enjoyed a more extensive practice than any other man in the county, especially excelling in criminal cases. He was a man of great personal popularity, had a large heart, full of generous impulses, and he gave them free course in all the relations of life. He was a Republican in politics.

HON. ASA FOWLER .- The origin of the name and the antiquity of the family of Fowler in England have never been ascertained. It is probable, from the large number of families of that name known to have existed in various sections of that country early in the sixteenth century, and the high standing of some of them, that the name was adopted soon after surnames came to be used. Edward Fowler, eldest son and heir of Sir Richard Q. Fowler, is said to have entertained Queen Catharine of Arragon at his manor, near Buckingham, in September, 1514. Froude, in his " History of England," vol. v. pp. 129 and 131, mentions John Fowler, a member, in 1547, of the household of King Edward VI., who was so influ- ential with that young monarch that he was em- ployed by Lord Seymour to secure the royal assent to his contemplated marriage with the Princess, after- wards Queen, Elizabeth, and subsequently the royal approval of his already secretly accomplished mar- riage with Catharine Parr, widow of Henry VIII. Christopher Fowler, an English clergyman, born in 1611, left the Established Church in 1641 and joined the Presbyterians, among whom he became eminent, and died in 1676. John Fowler, a learned printer, born in Bristol, removed his press to Antwerp more effectually to aid the Catholics, and died in 1579. Edward Fowler, born at Westerleigh in 1632, was distinguished as a divine, published a discourse on "The Design of Christianity" in 1676, which Bunyan attacked, and another on "Christian Liberty" in 1680 ; was made bishop of Gloucester in 1691, and died in 1714. William Fowler, born about 1560,-died in 1614,-was one of the poets that frequented the court of James VI., whose works have been preserved. He was a lawyer and clergyman, as well as a poet.

The Fowlers in this country, now quite numerous, as their namesakes were in England three centuries ago, and are still more so at the present day, sprang from several different pioneer ancestors who emigrated to America from various parts of England at different periods, and, so far as known, were in no way related to each other. The subject of this sketch is of the sixth generation in lineal descent from one of the founders of New England, the common ancestor of the great majority of the Fowlers in Massachusetts, and of most, if not all, of those in Maine, New Hampshire and Vermont.1

Philip Fowler, Sr., born about 1590 in the ancient town of Marlborough, in the county of Wiltshire, England, where no less than five families of Fowlers are shown by the records to have been living contem- poraneously early in the seventeenth century, came from thence with his family to Massachusetts in 1634 in the ship "Mary and John," of London, having taken the oath of allegiance and supremacy to qualify him as a passenger at Southampton on the 24th of March. He must have embarked in February, since, by an order of Council, dated February 24th, the ves- sel was detained in the Thames until the captain gave bond in one hundred pounds, conditional, among other things, that the service of the Church of England should be read daily on board and attended by the passengers, and also that the adult male pas- sengers should take the oath of allegiance and su- premacy. All this having been done, the ship was allowed to proceed on her voyage, but did not reach New England until May. September 3, 1634, he was admitted freeman at Boston ; obtained a grant of land in Ipswich the same year, on which he settled in 1635, and where he resided until his death, on the 24th of June, 1679, at the age of eighty-eight. Dur- ing his long life he made a variety of records, but none that any descendant need blush to read. It is remarkable that his homestead in Ipswich has ever since been, and still is, occupied by one of his de- scendants bearing the family name. His wife, Mary, mother of his children, died August 30, 1659, and he again married, February 27, 1660, Mary, widow of George Norton, early of Salem, afterwards Repre- sentative from Gloucester. There came over in the same ship with Philip Fowler, Sr., and family, his daughter, Margaret, and her husband, Christopher Osgood, whom she had married the previous year, and who was the common ancestor of most of the Osgoods of Massachusetts and New Hampshire.

Joseph Fowler, son of Philip, Sr., born in England, date unknown, married, in Ipswich, Mass., Martha Kimball, who came over from Ipswich, England, in 1634, in the ship " Elizabeth," with her parents, and is stated to have been then five years of age. Her father, Richard Kimball, settled in Ipswich, Mass., and is believed to have been the ancestor of nearly all the Kimballs in this country. His wife, Ursula Scott, was the daughter of the widow Martha Scott, who came over with the Kimballs at the age of sixty, supposed to have been the wife of Hou. John Scott, of Scott's Hall, Kent County, England. Joseph Fowler was killed by the Indians near Deerfield, Mass., May 19, 1676, on his return from the Falls fight. He was a tanner by trade.

Philip Fowler (second), eldest son of Joseph, was

1 For a sketch of the ancestors of Judge Fowler we are greatly indebted

to Matthew A. Stickney, Esq., of Salem, Mass., author of the admirablo genealogy of the Stickney family, who is preparing for publication the genealogy of the Ipswich family of Fowlers, from which he is de- scended.

HISTORY OF MERRIMACK COUNTY, NEW HAMPSHIRE.

born in Ipswich, Mass., December 25, 1648. When only two or three years of age, he was adopted, with the consent of his parents, by his grandfather, Philip, Sr., who made him his heir by deed dated December 23, 1668. He received the rudiments of his educa- tion at the famous school kept by Ezekiel Cheever. He was a man of superior ability, and as a merchant, deputy marshal and attorney quite distinguished. He acquired a large landed estate, which he divided by deeds of gift among his four sons, a valuable farm to each. He married, January 20, 1674, Elizabeth Herrick, born about July 4, 1647. He died Novem- ber 16, 1715. His wife died May 6, 1727. She was the daughter of Henry and Editha (Laskin) Herrick. Henry Herrick, born at Bean Manor in 1604, was the son of Sir William Herrick, and came from Leices- ter, England, to Salem, Mass., where he arrived June 24, 1629.

Philip Fowler (third), ninth child of Philip (second), was born in Ipswich, Mass., in October, 1691 ; mar- ried there, July 5, 1716, Susanna Jacob, daughter of Joseph and Susanna (Symonds) Jacob, and great- granddaughter of Deputy Governor Samuel Symonds, of that town. He is reported to have fitted for Har- vard College, but did not enter, engaging instead in trade and carrying on the tanning business, until he sold out and removed to New Market, N. H., in May, 1743, where he died May 16, 1767. His widow died there in 1773. Before removing to New Market he purchased of his brother-in-law, Joseph Jacob, for the consideration of two thousand pounds, two hun- dred and thirty-six acres of land in "New Market, in the township of Exeter and province of New Hampshire, with two houses and two barns thereon."

The deed is dated February 14, 1737. For fifty-six acres of this land, including the homestead, he was sued by Josiah Hilton in 1760, and after two trials, one in the Common Pleas and the other in the Su- perior Court, both resulting in verdicts in Fowler's favor, Hilton appealed to the Governor and Council, some of whom were directly interested in the event of the suit as lessors of the plaintiff, and they, in 1764, rendered judgment in favor of Hilton, from which the defendant appealed to the King in Council aud furnished bonds to prosecute his appeal in Eng- land. The Governor and Council granted this appeal, which vacated their judgment, and then at once issued a writ of possession founded thereon, upon which Fowler was turned out of the land and com- pelled to pay costs. He had executed his will May 22, 1754, therein devising his large landed estate to his three sons,-Philip, Jacob and Symonds,-and re- quiring them to pay legacies to his daughters. The land in controversy with Hilton was devised to the two former sons. The appeal was prosecuted in Eng- land by the father and these devisees until after the Declaration of American Independence, and in 1777 the Legislature of New Hampshire passed an act authorizing these devisees to bring an action of re-

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History of Merrimack and Belknap counties, New Hampshire, Part 4

Author: Hurd, D. Hamilton (Duane Hamilton), ed Publication date: 1885 Publisher: Philadelphia [Pa.] J. W. Lewis & co. Number of Pages: 1520

Author: Hurd, D. Hamilton (Duane Hamilton), ed
Publication date: 1885
Publisher: Philadelphia [Pa.] J. W. Lewis & co.
Number of Pages: 1520