USA > New Hampshire > State builders; an illustrated historical and biographical record of the state of New Hampshire at the beginning of the twentieth century > Part 11
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He administered the law in a manner that reflected great credit upon himself, and his administration gave universal satisfaction. He was a judge at a period in the history of the province when a sentiment for liberty and indepen- dence moved the hearts and minds of the people, and when revolution was the war cry. He was in full sym- pathy with the American cause, and a patriot who had the confidence of the people. There was also Matthew Thorn- ton, who was appointed a judge in 1776, and held that position for six years. He was a man of uncommon in- telligence, and took a deep interest in the revolutionary movement and was in full accord with the people who were then struggling for independence, and active in pro- moting their cause. He was a delegate to the Continental Congress, and a signer of the Declaration of Independ- ence; a man of great influence in his day, who labored with much zeal to throw off the yoke of oppression and establish a republican form of government. He took an active part in preparing a constitution for the new state government, was honest and upright in his judicial career, and died honored and respected by the entire com- inunity.
There were many men of marked character connected with the Bench and Bar during this period, but many of them were not learned in the law. Samuel Livermore was a man of this character. His name is intimately connected with New Hampshire history. He was chief justice of the Supreme Court for eight years, and prac- tised his profession in Portsmouth, Londonderry and Holderness, N. H. Notwithstanding the fact that Liver- more was never regarded as a learned lawyer, Dartmouth College conferred the degree of LL. D. upon him in 1792. He was appointed by the General Court to the Continen- tal Congress to support and enforce the claim of New Hampshire to the so-called New Hampshire Grants during that exciting controversy. He was not only a
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Judge and a lawyer, but he was a statesman, and was a member of both branches of Congress and one who exerted the widest influence in his day in state and nation. He had great will power, and was a man of excellent judgment, which enabled him to perform his judicial duties without much regard to precedents or text books. The lawyers of his time criticized him, but this had little effect upon his conduct as a judge, and he decided cases according to his own sense of justice. He had a long and eventful career.
Josiah, Bartlett was another judge of marked ability and prominence. He was appointed a judge in 1792, and held the court with distinguished ability. Not only this, but he was a statesman and an earnest patriot. He took an active part in all the measures that led up to the War of the Revolution. He was a delegate to the Con- tinental Congress and one of the signers of the Declara- tion of Independence from New Hampshire. His great ability placed him in the front rank, and he rendered the cause of liberty great service. He was a man of unblem- ished honor and integrity, and his memory is held in high esteem.
John Pickering, LL. D., was another judge who made his mark and was an important factor in the administra- tion of justice. He was Chief Justice from 1790 to 1795, and afterwards was appointed United States district judge for the district of New Hampshire. He was a lawyer of distinction and a very able jurist. He was a representative in the assembly of the provincial govern- ment, and was there a leader who exerted a great influ- ence. In 178; he was a delegate to the Convention held for the purpose of forming a constitution of the United States, and also a member of the New Hampshire con- vention held in 1788 to ratify the United States constitu- tion, and used all of his great power and will in favor
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of its adoption. He was also active in revising the con- stitution of New Hampshire.
About the time the state constitution was adopted, and for some years after, there appeared a large number of great lawyers who performed valuable services for the state and for their profession, and they have left names and reputations of which the state may justly be proud. They seem to have been especially prepared for the great work assigned them. As we look over this period of our state's history, we can but admire the brilliant array of legal minds at this time connected with the jurispru- dence of the state. Names that at once present them- selves are Jeremiah Smith, Daniel Webster, Jeremiah Mason and Ichabod Bartlett.
Judge Smith was Chief Justice from 1802 to 1809, and again from 1813 to 1816. He was educated at Harvard and Rutgers colleges, was a man of great learning, and no man in his time did so much as he to place the judic- iary of the state on an independent basis, and give to it a standing and character that commanded the respect and confidence of the people. Judge Smith was not only a great scholar and judge, but he was a statesman, and gave his best efforts to aid and strengthen the cause of liberty. He was a thorough patriot, and his whole heart was filled with the spirit of the times. He was with General Stark at Bennington, was elected to Congress in 1790, and occupied a seat in that body for six years. It is said that he was an intimate friend of Washington and visited him at Mount Vernon. He was elected governor of the state, but this office was not agreeable to him, and he held it only one year.
Daniel Webster regarded him as an able lawyer and judge, and often expressed his great admiration for Judge Smith's legal talents. In the famous Dartmouth College case (so called) he took an active part, and there, as else- where, displayed his great learning and legal ability.
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During the formative period of our state government the lawyers and jurists were active in directing and shap- ing the different branches of the state government, and great credit is due the profession for the part taken therein. They in fact put the wheels of government in motion, and after the War of the Revolution was over, the people were ready, under the direction of the legal profession, to take up the burdens and perform the duties of citizenship in an intelligent and rational way. Then it was that the great legal minds planned and pointed the way, and the people, inspired by the spirit of liberty, made an advance and the ship of state was successfully launched. Then it was that the courts settled constitu- tional questions in a wise and safe manner, and the interests of the people were securely guarded.
That intellectual giant among giants, Daniel Webster, appeared and cleared away the rubbish and lighted up the pathway, so that constitutional liberty was made clear and plain in state and nation. Any account of the law- yers of New Hampshire would be defective without some- thing more than a mere reference to Daniel Webster. Webster was admitted to the bar in 1805, and practised his profession in Boscawen and Portsmouth in this state before removing to Boston. When he was twenty-four years of age he was appointed by the Court to defend one Burnham, who had been indicted for murder, and it is said that at that time he made an argument or address to the jury in this case that called forth the highest praise from Judge Jeremiah Smith. At this early period in his brilliant career he exhibited some of those rare qualities that in after years gave him the first place in American statesmanship, and placed him at the head of the Ameri- can Bar. Had he done nothing but argue the Dartmouth College case before the Supreme Court of the United States, his reputation as a lawyer would be fixed for all tinie.
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Jeremiah Mason and Judge Jeremiah Smith were con- temporaries of Webster, and each had an exalted opinion of the legal abilities of the other, and often expressed it. While the name of Webster stands out first among the lawyers of his time, and while no other character has left so deep an impress upon the state and nation, still there was at least one other name that still stands out in bold relief in New Hampshire, and that is the name of Jeremiah Mason. Many regarded Mason as fully equal to Webster as a constitutional lawyer, and he gave to the law and to the state the force of his wonderful power of intellect.
The Bench and Bar at this time began to take a more independent stand, and insisted with all the power it possessed that the legislative, judicial and executive departments of the state government should be entirely separate and distinct. There were other great lawyers at this time, who were active, as lawyers and as leaders, in the state government. Among them should be men- tioned Ichabod Bartlett, William Plummer and Levi Woodbury.
Levi Woodbury, LL. D., was a judge from 1816 to 1823. He graduated at Dartmouth College in 1809, and in 1823 was elected Governor, and in 1825, United States Senator, to which office he was again elected in 1841. He was appointed by Gen. Jackson Secretary of the Navy and later of the treasury. He was offered the position of ambassador to the Court of St. James, but this he de- clined, and was then appointed one of the justices of the Supreme Court of the United States. Those who had occasion to practise in his court called him an ideal judge, who had all the characteristics of a model jurist, and re- flected great honor upon his state.
The New Hampshire Bar was at this time distinguished for its ability. Besides those already mentioned, there were the Sullivans, Benjamin West, Arthur Livermore,
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Governor Hubbard, Ezekiel Webster, James Bell and many other lawyers of state and national reputation. Such were the men who not only laid the foundation of the state government, but who in a large measure built the superstructure.
Judge William M. Richardson opened up a new chap- ter in the history of the jurisprudence of the state. He was Chief Justice from 1816 to 1838, and did as much to shape and mould the judiciary as any other man. No cases which had been decided by the highest court in the state had been printed and reported before his day. He brought order out of chaos, and reduced the practice of the law to a science. During his long service he rendered a large number of important decisions. His opinion in the Dartmouth College case was regarded at the time and to-day as a great contribution to the legal literature of that period. He was a great student and was familiar with several ancient and modern languages.
Since the days of Chief Justice Richardson there have been published seventy volumes of the decisions of the court of last resort, and in these volumes is found a wide range of subjects, fully discussed and considered, so that the New Hampshire Law Reports stand to-day as a mon- ument of labor, learning and fidelity of the judges who have occupied the bench. These reports are in all the well selected law libraries of the land, and have been quoted and referred to by lawyers and jurists in all the states of the Union. It has often been said by jurists that these decisions are regarded by the courts as among the highest and best authorities extant, and as the years come and go they lose none of their value and importance.
While Judge Richardson did a noble work for the profession, and brought the law and practice up to a much higher and better standard, many of the judges who followed him have taken a high rank in the profession. Andrew S. Wood, LL. D., was a contemporary of Judge
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Richardson, and in some respects was considered his equal. He was a judge for fifteen years, and discharged the duties of his office to the entire satisfaction of all. He had a brilliant career, and his opinions stand out in the reports as models, and have always commanded the respect of the bar.
By the casual observer it may be considered that the lawyers and judges who took such an active part in the formation of the state government and who administered its laws during the first fifty years after the adoption of the state constitution, were superior to those who have come after them, but one who gives the subject more careful study and consideration will arrive at a different conclusion. When we study the life and character of such jurists as Joel Parker, John J. Gilchrist, Samuel D. Bell, Ira Perley, Henry A. Bellows, W. S. Ladd, Charles Doe and Alonzo P. Carpenter, all of whom have lived since the days of Judge Richardson, we are led to believe that the standard has been elevated instead of being lowered. All of these held the office of Chief Justice, except Judge Ladd.
Judge Joel Parker has had few equals. Everything connected with his professional life was done in the most brilliant and satisfactory manner. He was an ornament to the profession, and closed his career as judge in 1848, when he was appointed Royall professor in the Harvard law school. He performed all of the duties of that responsible position in a manner highly creditable to him- self and to the institution with which he was connected. He occupied this position for twenty years, and the profession in New Hampshire has always been proud of Joel Parker, and regarded him as a model judge and a lawyer of unblemished character.
John J. Gilchrist was Judge Parker's contemporary, and the more his judicial career is examined and his
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opinions studied, the more he is regarded as an able jurist.
Ira Perley was a great student, and had many of the qualities of a great judge. He was accurate and learned, but at times irascible; still, he held the scales of justice with an even hand.
Judge Bell was one of the most courteous and amiable gentlemen who ever occupied a seat upon the Bench. Especially kind and considerate to the young lawyer, by whom he was much loved and respected, Senator William E. Chandler speaks of him as "one of the ablest and purest of the judges who have graced the New Hampshire Bench."
Charles Doe was a unique character in his adminis- tration of the law of New Hampshire. He revolution- ized, to a great degree, the practice of the law in the state, by sweeping away technical pleadings and bringing par- ties face to face on the broad ground of right and justice. By many he is regarded as the ablest jurist of modern times.
Alonzo P. Carpenter was his immediate successor as Chief Justice, and he has left a name that is honored throughout the state, and he is justly classed as among the ablest judges. Many of his decisions are regarded as the best type of judicial wisdom and reasoning, and are prepared with great care and learning.
These jurists who have held the courts, in part, during the last half century, are not surpassed in any jurisdiction. Thus far we have confined our discussion very largely to the bench, but the practising lawyer is so intimately connected with the judge on the bench that it is difficult to separate them. Judges and lawyers must act in har- mony to secure the highest and best results in the adminis- tration of justice. It would be very embarrassing for any member of the Court to occupy that position when opposed by any considerable portion of the bar. In fact,
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judges as a rule hold their places through the influence and by the co-operation of the bar.
Fifty years ago cases were tried in court very differ- ently from the course now adopted. In the early days lawyers took more liberties in examining witnesses and addressing juries than they do to-day. Then it was quite common to go outside the record and to make statements and refer to matters and things wholly irrelevant, and discuss many subjects not involved in the trial of the cause. To-day the supreme court would set aside a verdict for such a course of procedure, and this is well under- stood by the profession. Counsel have been taught to adhere strictly to the evidence in the case. This makes the practice of the law much more accurate and satisfac- tory. In brief, nothing is allowed to be considered but the facts brought out in evidence, and the law applicable to these particular facts. In this way the results are more satisfactory, and justice is surer and more likely to be obtained than by the earlier methods. It has been thought by some that the modern method is too restrictive, and that advocates have lost much of their influence and power by being held too closely to this rule. While to-day the advocate may not have that unlimited sway that he exercised in former times, and then often to the prejudice of exact justice, still there is ample room at the present time for the exercise of those high qualities of mind and heart that gives to the orator a marvellous power over his hearers. The office of the advocate has always been regarded by the profession as of the highest importance. Only a few of the leading lawyers can be personally referred to in this paper, but any history of the Bench and Bar in New Hampshire would be very unsatisfactory without mentioning the names of some of the leading practitioners and advocates. Many of those who have been referred to as judges were active lawyers,
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practising at the bar before receiving their judicial ap- pointments.
Judge Jeremiah Smith, Webster, and Jeremiah Mason all regarded Benjamin West of Charlestown as the most successful advocate of that time in the state. He held a prominent place in state and nation, as member of Congress, as member of the convention that framed the constitution of the United States, and as a member of the Convention to ratify the same-but he appeared at his best when arguing a difficult case before a jury.
Some years later in the same town lived Henry Hub- bard, who was a very influential lawyer in western New Hampshire, and who occupied a seat in both branches of Congress.
Then, as now, the leading lawyers were active in all the affairs of the state, and the political parties were usu- ally led and controlled by them. There was about this time a group of lawyers and advocates of great promi- nence in the state. In this group in active practice were Charles G. Atherton, Franklin Pierce, John S. Wells, James Wilson and John Sullivan.
Atherton and Pierce were often engaged in the trial of the same cases, and the court room would be crowded when these great lawyers met, and crowds listened to their eloquence with breathless attention. It is said that Atherton excelled in the trial of causes, and has few equals in this department. He distinguished himself not only as a lawyer, but as congressman and United States senator. In Franklin Pierce he had a formidable antag- onist. He was a model advocate and had all the graces of the orator. Attractive in his personality, with a clear, musical voice, cultivated in all the arts of public speaking, he carried the juries along with him. He had few if any equals in marshalling the facts in a case and presenting them in a manner that carried conviction to the mind of the jury. He was in his day the idol of his party, and in
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1852 was triumphantly elected president of the United States. President Pierce was severely criticized during his administration, and it was claimed that he was in sympathy with the pro-slavery party of the South. This was at a time when party spirit was at a high mark, and the passions and prejudices of political parties were un- duly excited and aroused. That he loved his country and was a patriot no one can doubt.
The name of John Sullivan brings to mind one who was a tower of strength in the administration of the crim- inal law of the state. He was for many years Attorney General, and in the trial of criminals rendered the state valuable service. All of his efforts were in behalf of justice, and he never insisted upon a conviction unless the evidence fully warranted such a result. In his ad- dresses to the jury he was earnest, logical and eloquent, and when he brought all the force of his intellectual power against the respondent at the bar, escape seemed impossible.
There are many more lawyers whose influence and whose merits might be set forth if space allowed. Such names as Daniel M. Christie, George W. Morrison, John H. George, William P. Wheeler, Edmund Burke, Ed- mund L. Cushing, Gilinan Marston, Mason W. Tappan and Harry Bingham. These were men who belonged to a recent period, and were all celebrated not only as lawyers, but were distinguished for their valiant service to the state, to their country and to their fellow men.
The name of Harry Bingham is known by every mem- ber of the bar in the state. He was great in every depart- ment of life. Had he lived in the days of Daniel Web- ster and Jeremiah Mason his reputation would not have suffered in comparison with theirs. He was a pillar in support of the temple of justice. While we admire the brilliant advocate, and are charmed by his eloquence, he is not always the most useful member of the profession.
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The honest, quiet, hard-working lawyer in his office, often best serves his fellow men. He has their confidence; they feel that their varied interests are safe in his keeping. It was declared by the Roman Emperors that if the law- yer performed his duty aright, he was as much a benefac- tor of mankind as the warrior upon the field of battle who saved his country from defeat and ruin. Who can estimate the great responsibility of the lawyer as he stands in a Court of Justice as an advocate when the life of a fellow citizen is being weighed in the balance. It should be remembered that the duties of the lawyer are not strictly confined to the courts, and the practice of his profession. He is, and always has been, active in all the duties of citizenship. The cause of education has ever found in him a friend and supporter. The community is ever looking to him for counsel and advice in all public and private enterprises. He is truly a public servant, and when we realize how varied are his duties, how wide his influence, and how great are his opportunities to serve the public, no one can doubt the exalted character of the profession. He stands as a sentinel to guard the people's interest and to protect them against approaching danger. In legislative bodies in this country as well as in popular assemblies, the majority rules. This is a fundamental principle of our government. While all admit that this is the best rule that can be promulgated for the government of such bodies, still there is and always has been some danger in its operation, and nothing has contributed more to hold majorities in check and prevent wild and extravagant action, than the conservative influence of the legal mind. Thus it will be seen how important it is that lawyers should be in the forefront in all legislative bodies. Our state has always recognized this, and we find in the first and second provincial congresses, held at Exeter in 1774 and in 1775, that the controlling influence then and there was the action of the few lawyers who
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were members of those bodies. The same is true in. all the constitutional conventions from 1778 to the last one in 1889. By referring to some statistics compiled by the Hon. J. H. Benton and given in an address of much merit and importance before the Southern New Hamp- shire bar association in 1894, he states: "Of the speak- ers in the House of Representatives in N. H., from 1791 to 1894, fifty of the sixty-two who have occupied that position were lawyers, and of the presidents of the senate, thirty-four of the seventy-five were of this pro- fession." We shall find that this rule holds good in the office of governor and other state officials. The same is also true in the election of senators and representatives in congress and even in the election of presidents of the United States. In short, lawyers have always guarded every department of government, and this is acknowl- edged to be true by all classes, and not only is it for the best good of the people, but absolutely necessary for the safety and security of the government. Every depart- ment of the state government has been shaped and con- trolled by the legal profession. While the number of lawyers in the legislature has not always been great, they have at all times directed its action to a very large ex- tent. The judiciary committee of the house has been the controlling influence and the lawyers of this committee have always carefully investigated all measures of im- portance before giving them a favorable report. It would be impracticable for any class of legislators to do this work unless they had received a legal education. This committee has at all times held a firm grasp upon all legis- lative action. All acts of any public interest have invari- ably been examined by them. A legislature without the guiding hand of the lawyers would be like a ship at sea without a chart or compass. Legislation should be a healthy public sentiment fashioned and moulded into law. Sir Edward Coke tells us, "Reason is the life of the law,
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