USA > New Hampshire > Grafton County > Plymouth > History of Plymouth, New Hampshire; vol. I. Narrative--vol. II. Genealogies, Volume I > Part 17
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COUNTY RELATIONS.
Here David Webster for many years opened court in solemn form. Here upon the bench in superior court sat the Livermores, Simeon Olcott, Jeremiah Smith, Josiah Bartlett, John Dudley, Paine Wingate, Caleb Ellis, and Levi Woodbury; and among the several judges of the inferior court were Samuel Emerson and the Wood- wards. Enter, rejoicing that this historic building, for many years unsuitable for the dignified purpose for which it was erected, is now dedicated to the mission of literature and knowledge and is speaking to us in the language of books and memories. Enter reverently, the men who made it what it is, a shrine of Plymouth, are dead.
The Court of Sessions which, in 1820, succeeded the Court of Common Pleas, exercised a general control in county affairs. The records of the court directing the building of the second court- house in Plymouth follow : -
State of New Hampshire.
Grafton ss.
At the Court of Sessions holden by adjournment at Haverhill on the first Thursday being the third day of October in the year of our Lord one thousand eight hundred and twenty two.
Present
Daniel Blaisdell Chief Justice
The Honble
Hugh Ramsay Abel Merrill
Samuel Hutchins Associate Justices Samuel Burns - 1
It is ordered by this Court that the Clerk publish the following notice by causing copies of the same to be posted up in three places in Plymouth, to wit :
The Justices of the Court of Sessions for the County of Grafton will receive proposals at Plymouth on the fourteenth day of November next at ten o'clock in the forenoon for the erecting and completing a building for a court house in Plymouth in said county. The same to be erected on land, the title to which not less than one acre to be vested in the County of Grafton, of the following description. The building to be
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HISTORY OF PLYMOUTH.
sixty feet long and forty-five feet wide, with walls sixteen feet high from the underpinning. The foundation to be of stone and sunk so far below the surface of the ground as that the same shall be four feet under ground when the earth is levelled, with two tier of hewed granite stone, each not less than fifteen inches in width for underpinning laid with broken joints in a workmanlike manner ; with a flight of granite stone steps with risers on three sides with a top stone seven feet long and four feet wide. The superstructure to be of good well burnt bricks laid in good lime mortar one foot thick and laid in a workmanlike manner, the threshold to the door and the window caps and stools to be hewed stone. An entrance way or door four feet wide and seven feet two inches high with double folding doors to be in the front end of the building. Four windows to be placed at a suitable heighth and place on each side of the building, two at the front & three at the back end, each window to con- tain 24 squares of crown glass 15 by 11 inches with a fan light over the outer door. The court room to occupy the whole width of the building and forty eight feet of the length from the back end and to be finished in the style and form of the court room at Haverhill with an arched ceiling or roof. The remaining part of the building to be divided from the court room, by a brick wall, and to be divided into two stories, with a passage way or entry ten feet wide from the front door to open by an inner door into the court room, the remaining part of the lower story to be finished into two rooms with suitable benches for the accommodation of Petit Jurors, and the upper story to be finished in one room in a suitable manner to accommodate a Grand Jury, with a suitable flight of stairs to ascend to the same, with a railing round the opening in the upper floor formed by the stair case, with a door at the bottom of the stair case and a door to each Jury room below.
The roof to be of a square or barn form, well supported in the frame and well boarded and shingled, with a window in the front gable end. Two small chimnies, one resting on the brick partition wall & the other on a flat perforated stone to admit a stove pipe, lying on the plates, to be carried through the roof at the ridge pole at 12 feet distant from each end of the building.
The walls and ceilings of all the rooms to be plaistered and white- washed, and all the wood work (shingles and floors excepted) well painted. The doors to be all hung with suitable butts with suitable handles and latches and all with good locks and keys.
The whole to be completed by the first day of September next.
The courthouse was erected on the site of the present courthouse and on land purchased of William Webster. The contractors were
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William Webster and David Moor Russell. The building was completed in the summer and early autumn of 1823. The report of Arthur Livermore, concerning the quality of the work of the contractors, dated Nov. 17, 1823, follows: -
Pursuant to the trust imposed on me by the Honorable Court of Ses- sions for the county of Grafton, I have inspected the new court house at Plymouth and do certify that the contract on the part of Messrs Webster and Russell has been faithfully performed according to the spirit thereof and in every instance wherein there is any deviation from the letter of the agreement the same has been as well or better for the public.
ARTHUR LIVERMORE.
The third courthouse, standing on the site of the second, was constructed in accordance with a vote of the county convention in 1889. The contractor was Emerson of Campton.
THE TRIAL OF JOSIAH BURNHAM.
In 1805 there was a schoolmaster and a surveyor living in Warren; his name was Josiah Burnham. At the same time Joseph Starkweather was tilling the fertile fields of Haverhill, and Russell Freeman, formerly a merchant of Hanover, was beset by many debts and was embarrassed by many suits, instigated by honest but unfortunate creditors. Mr. Freeman was a gentleman of recognized ability, having been appointed to positions of trust, but was unfortunate in business. In December of the same year, 1805, Burnham, Starkweather, and Freeman were confined in the jail at Haverhill. Starkweather and Freeman were committed for debt, and Burnham for a more serious offence. The news- papers of the time allege that he was arrested for forgery, and Judge George W. Nesmith, in an interesting article in the Granite Monthly, asserts that he was arrested for a crime of which there was a corespondent. If Josiah Burnham had governed his temper there would have been no murder trial the following May in Plymouth. The following account of the tragedy in the jail appeared in the New Hampshire Gazette, Dec. 31, 1805: -
VOL. I .- 13
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HISTORY OF PLYMOUTH.
Horrid Deed ! !
The following unprecedented affair happened at the gaol in Haver- ' hill, in the county of Grafton. We cannot better give the particulars of this horrid transaction than by the following extract of a letter from a gentleman of respectability in that quarter : -
" On the morning of the 18th instant, Russell Freeman, Esquire, and Captain Starkweather, being confined in the same room in the prison at Haverhill with Josiah Burnham, a person confined for forgery -owing to some misunderstanding that had existed between the prisoners, Burnham in cool blood drew his knife, which was a long one which he carried in a sheath, and taking advantage of Starkweather's absence in another part of the room, he inhumanly stabbed Freeman in the bowels, which immediately began to gush out. At the noise occasioned by this, Starkweather endeavored to come to the assistance of his friend Free- man, when, horrid to relate, Burnham made a pass at him and stabbed him in his side, and then endeavored to cut his throat, and the knife entered in by his collar bone. Burnham, after this, made a fresh attack on Starkweather, and stabbed him four times more - by this time he had grown so weak that the monster left him and flew at Free- man, who all this time was sitting holding his bowels in his hand, and stabbed him three times more. This abandoned wretch then attempted to take his own life, but did not succeed. By this time the persons in the house were alarmed and came to the gaol door, and, after consider- able exertion, entered and secured the murderer. - Freeman lived about three hours, and Starkweather about two from the time the assistants entered the prison. Our informant mentions that Burnham appeared in good spirits, and said he had done God's service." [Dover Sun.]
The grand jury, at the May term holden in Plymouth, 1806, found two indictments: one for killing Freeman and one for killing Starkweather. Burnham was tried on the Starkweather indictment. The grand jurors from Plymouth were Enoch Ward and James Harvell. In the indictments it is alleged that the murders were committed Dec. 17, 1805, and that the victims died the following day.
At the same term of the Superior Court of Judicature, Chief Justice Jeremiah Smith presiding, May, 1806, the trial ensued. The jurors were: David Atwood, Alexandria; Daniel Pingree, Bridgewater; Benjamin Boardman, Bridgewater; Samuel Noyes,
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Campton; David Gibson, Wentworth; William Powers, Groton; Ebenezer Kendall, Hebron; William Cox, Holderness; Timothy Sargent, New Chester; Jonathan Cummings, Plymouth; and John Palmer, Wentworth. The attorneys for the State were George Sullivan, attorney-general, and Benjamin J. Gilbert of Hanover, county solicitor. Alden Sprague of Haverhill and Daniel Webster, then of Boscawen, were assigned by the court as coun- sel for Burnham, the defendant. In reference to this trial Judge Nesmith, in the Granite Monthly, records that Daniel Webster informed him that " Burnham had no witnesses. He could not bring past good character to his aid, nor could we urge the plea of insanity in his behalf. At this stage of the case Mr. Sprague, the senior counsel, declined to argue in defence of Burnham, and proposed to submit the case to the tender mercies of the court. I interfered with this proposition and claimed the privilege to pre- sent my views of the case. I made my first and the only solitary argument of my whole life against capital punishment; and the proper time for a lawyer to urge this defence is when he is young and has no matters of fact or law upon which he can found a better defence."
The New Hampshire Gazette, June 10, 1806, contains the following account of the trial: -
At the last term of the Superior Court in the county of Grafton, two bills of indictment were found against Josiah Burnham; one for the murder of Joseph Starkweather, Jr., and the other for the murder of Russel Freeman, Esq. - On Monday, the 2d instant, he was brought to trial on the first indictment. The Attorney General discharged the painful duties of his office with fidelity and ability, and the counsel for the prisoner managed his defence with great ingenuity. The evidence was too clear and explicit to admit of doubts. - The jury retired, and after a short consultation agreed that the prisoner was guilty. The Chief Justice, on Tuesday morning, in a solemn and impressive manner, pronounced against the prisoner the awful sentence of the law, in which he stated the aggravations of his offence, the candid and impartial trial which had been granted him, and the clearness of the proof against him, and after recommending to him sincere repentance for his sins and a firm reliance on his Saviour for mercy, condemned him to death.
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HISTORY OF PLYMOUTH.
The prisoner appeared affected with the heinousness of his offence, and regretted that he had not prevented the trouble and expense of a public trial by pleading guilty.
Tuesday the 15th day of July next is the time appointed for his execution.
As stated by the Gazette, Burnham was sentenced to be hanged on the fifteenth day of July. Gov. John Langdon granted a reprieve of four weeks. Burnham was executed at Haverhill, Aug. 12, 1806.
Except the sheriff and two of the grand and one of the petit jurymen, this memorable trial did not involve Plymouth people, but it occurred in the old courthouse, and here, in the second year of his professional career, Daniel Webster made a plea for the defendant. It has been current in Plymouth many years that this was Webster's first plea in court.
Daniel Webster was admitted to the bar in Boston in March, 1805, and immediately opened an office in Boscawen, then a town in Hillsborough County. Ebenezer Webster, the father of Daniel, was one of the judges of the Court of Common Pleas, and the county seats were at Amherst and Hopkinton. At the September term, 1805, at Hopkinton, Daniel Webster entered twenty-two cases, of which two were jury cases, and were tried at this term. In the well-known Blatchford letter, written by Webster at Frank- lin, May 3, 1846, he states that his first speech at the bar was made in 1805, and that his father heard him. Judge Ebenezer Webster, the father, died in April, 1806, several weeks before the Burnham trial at Plymouth. In Curtis' Life of Daniel Webster the author erroneously states that the Burnham trial was in 1805, and referring to other causes tried by Webster in 1805 he ex- presses an inability " to determine which of them is to be regarded as his first cause." If Curtis had written with a knowledge that the plea of Webster at Plymouth was made in 1806, and after the death of Judge Ebenezer Webster, his statements and conclusions would have been changed. It is evident that the defence of Burn- ham at Plymouth was not the first plea made by Daniel Webster in the courts of New Hampshire.
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CONSTITUTIONAL CONVENTIONS.
XV. CONSTITUTIONAL CONVENTIONS.
YTHE history of the constitution and the proceedings of the constitutional conventions of a State present a wide field of investigation and many comprehensive topics for discussion, but the history of a town permits only a narrative of the action and the attitude of a single community.
It has been truthfully stated that the temporary constitution which was in force from January, 1776, to June, 1784, became operative through the action of a representative body and without submission to the people. This statement is not complete without mention of the call and the comprehensive character of the precepts issued for the election of representatives to the fifth provincial congress. The legislature of 1776 was practically instructed by the people to adopt a plan of government. On account of the exigencies of the time, and realizing that some measure of irregu- larity is incident to a revolution, the people cheerfully waived the right or privilege of a voice in the premises. In contrast with many in Grafton County and a majority in several towns, the people of Plymouth were satisfied with the constitution and the administration organized under its provisions. During the years of the Revolution the town was loyal to the Exeter government, and no expression of dissatisfaction is found in any local or State record. In January, 1776, when the temporary constitution was adopted, New Hampshire was neither a colony nor a State. It was a territory, joining with other territories in revolution. The future was uncertain, and in a most significant manner the people applied the word " temporary " to their statutes and organic law. Two years later the future was more propitious, and attention
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was given to an enlargement of the foundations of their govern- mental structure. Experimental measures were abandoned. With confidence in the future, the legislature called a convention " to be a free representation of all the people," not to revise the existing constitution, but " to form a permanent plan or system for the future government of this State." To this convention, which was called to assemble at Concord, June 10, 1778, every town was privileged to send a delegate, and any two or more adjoining towns were permitted to unite in the choice of a delegate. At a town meeting duly called and assembled, May 12, 1778, Francis Worcester was chosen a delegate to represent this town. Mr. Worcester and Moses Baker of Campton probably were the only delegates from Grafton County. Lyon's Register, 1852, states that Obadiah Clement of Warren probably was a member of the convention.
The journal of the convention is not preserved, but it is assumed that Mr. Worcester approved a majority of the provisions adopted by the convention. The proposed constitution was submitted to the people in June, 1779, and town meetings were generally held in July and August. Aug. 23, 1779, Plymouth voted "not to accept the plan of government by every one present which was forty four." Hampton, Chester, Amherst, Pembroke, Temple, and New Ipswich almost unanimously approved; Concord was evenly divided, and the towns in the western part of the State were nearly unanimous in an expression of disapproval. It re- quired a three-fourths vote to adopt the instrument, and it was rejected. In March, 1781, proceedings were inaugurated which terminated in the adoption of the constitution of 1784. The con- vention convened at Concord on the first Tuesday of June, 1781, and was continued by adjournments until a constitution was adopted. As in the preceding convention, every town was allowed one or more delegates, and small towns were permitted to join in the election and share in the expense of a delegate.
The voters of Plymouth assembled in town meeting May 8, 1781, " to elect one or more persons to represent them in the con-
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vention." The meeting was adjourned to May 28 and to June 4, when it was voted not to choose a delegate to the convention.
The convention submitted the first draft of a constitution for the approval of the people in the autumn of 1781. A town meeting assembled in Plymouth, Dec. 27, 1781. The pro- posed constitution was referred to a committee " to consider the same and remark thereon." The committee were Samuel Emer- son, Benjamin Goold, Francis Worcester, Stephen Webster, James Brown, William George, and Noah Worcester. The mecting adjourned to meet at the house of Lieut. James Brown, Jan. 3, 1782.
At the adjourned meeting the town was not ready for a final vote upon the subject, and to the committee formerly chosen Jonathan Robbins, David Webster, Richard Bayley, and John Willoughby were added, and then the men of Plymouth adjourned to meet Jan. 15, 1782, at the house of Samuel Emerson. At this meeting the committee made a report which was unanimously adopted by the voters of Plymouth. It is known that the report approved many of the provisions of the proposed constitution, but objected to others; but a copy of the report is not at hand. The deliberate action of the town is worthy of note and commendation. In the meantime the constitution had been rejected by the people of the State, and a new session of the convention had been called. At the same meeting the town of Plymouth voted to send a dele- gate to the future sessions of the convention, and chose Francis Worcester. Another town meeting was called in May, at which Samuel Emerson was elected a delegate " in addition to Francis Worcester who is already chosen." Thus it appears that Ply- mouth was not represented in the session of the convention which formulated the first draft of a constitution, but was represented by two delegates in the subsequent sessions.
The second draft of the constitution was submitted in August, 1782, and was rejected. A town meeting was called, and the printed copy was referred to a committee who were instructed to report at an adjourned meeting. The names of the committee
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HISTORY OF PLYMOUTH.
are not known, but a copy of the report is found in the town archives.
The first and second drafts of the proposed constitution con- tained the following provision : -
There shall be a supreme executive Magistrate who shall be styled the Governor of the State of New Hampshire and whose title shall be His Excellency.
In resistance to the oppressions of the provincial government, the people of New Hampshire had borne the grievous burdens of the Revolution. They had been successful in war, and were zealous in the preservation of the liberty their valor had won. To them the name of governor was a synonym of oppression, and in the abstract they were opposed to the delegation of executive powers to a single individual. The report of the committee to whom the second draft of the constitution was referred contains the follow- ing expression of opinion : -
F. That after having carefully and deliberately examined the same we approve of that part called the Bill of Rights but to the other part called the Form of Government we make the following objections with the reasons thereof
1 That the words Protestant Religion be expunged from the said Constitution in every part where it is mentioned as a qualification and that no person shall be disqualified for any station whatsoever on account of his religious sentiments as that appears to be no reason why he should not be a good subject to the State.
2 That the Qualifications of Senators being within this State be three years instead of seven years, as that appears longer than is necessary to be acquainted with the dispositions and circumstances of persons and which also may deprive the community of many abilities of mankind.
3 That there be no governor and council in the Constitution, and that every part, sentence or word treating of or mentioning the governor or council or the governor and council be expunged from the Constitution ; that there be no delegation of power known in the Constitution to any such person or body as governor or governor and council.
For we apprehend that when by delegation the power of the people is drawn out to a proper degree, it is sufficient to enliven and set in motion every part of this political body in the best order and with alacrity ; yet if the same power is by delegation drawn to an extreme, it might destroy
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every part of the Constitution or if by arbitrary ambition of power, such extreme should be exceeded it might terminate in monarchy.
Therefore we humbly conceive it safest to delegate and deposit the supreme executive power, now naturally in the people, in a Senate and House of Representatives and that the Senate and House of Representa- tives have all and every the powers and authority mentioned in said proposed form of government to be vested in the Governor or Governor and Council and if in recess of the General Court to a Committee of Safety.
The question being put whether said proposed Constitution be ac- cepted with the foregoing exceptions alterations and amendments and whether the parts not objected to be accepted and it passed in the affirmative.
The temporary constitution, by its terms, was operative only during the war. If peace was declared before another constitution was adopted, New Hampshire would be left without organic law or government. To provide against such a dilemma, the general court desired the towns to vote upon a proposition to continue the temporary constitution in force until June 10, 1784.
The town of Plymouth, March 11, 1783, voted unanimously : -
That the present plan of government be lengthened out to the tenth day of June 1784, provided a permanent plan of government for the state should not be established antecedent to said date.
The third draft of a constitution was submitted to the people in the summer of 1783. The word " governor," to which considerable objection had been made, was now eliminated, and the chief ex- ecutive was styled president, and was required to preside in the senate. It was approved by the people, and declared to be the civil constitution of the State of New Hampshire, to take place on the first Wednesday of June, 1784.
The final vote of Plymouth on the adoption of the constitution has not been discovered, but at a meeting in April, 1783, the town reaffirmed the objections made to the second draft, and ordered that a new copy of the same be sent to the convention when it reassembled in June.
The framing and adoption of constitutions was the necessary
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work of a new government. About midway between the conven- tions for the creation and the first convention for the amendment of the State constitution was the convention for the approval or rejection by New Hampshire of the Federal constitution. In the convention called for this purpose the plan of representation was the same as then existed in the house of representatives. Plymouth and the near-by towns were represented as follows: Plymouth, Rumney, and Wentworth by Francis Worcester; Holderness, Campton, and Thornton by Samuel Livermore; and New Chester, Alexandria, and Cockermouth by Thomas Crawford.
It was the province of the earlier conventions to formulate a constitution for submission to the people. This convention was a body of representatives authorized to approve or reject a constitu- tion already framed. Amendments if adopted were advisory, and the only vital issue was a consent or refusal to ratify. On the main issue the convention was quite evenly divided, and the debate was animated and earnest. On the fourth day of an adjourned session the Federal constitution was ratified by New Hampshire by a vote of 57 to 47. The eleven members from Grafton County, except Joseph Hutchins of Haverhill, voted for ratification. The journal of the convention is printed in Volume X, State Papers, and for an interesting story of the proceedings, see The New Hampshire Federal Convention, by Joseph B. Walker of Concord.
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