USA > New Hampshire > The bench and bar of New Hampshire : including biographical notices of deceased judges of the highest court, and lawyers of the province and state, and a list of names of those now living > Part 7
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The course of Judge Smith and his excellent associate Judge, Caleb Ellis, at this critical juncture, was worthy of all praise. They did not attempt to resist the proceedings of the late judges, but simply ignored them, and kept on in the performance of their
1 The eminent Judge Story, a friend and admirer of Judge Smith, at the Circuit Court over which he presided in October, 1812, bestowed upon him and Jeremiah Mason the " honorable degree of sergeants at law," and the degree of barristers of law upon Mr. Sullivan, Mr. Webster, and two others.
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duties as if there were nothing in question. After two or three terms of empty pretensions, the attempt to keep alive the old court collapsed. Judge Smith remained at the head of the new judiciary for three years, and fully maintained the high reputation which he had acquired, as a learned, able, and upright magistrate.
The political revolution of 1816 brought in a new court, and Judge Smith returned again to the bar. Among the important retainers which came to him about this time was that of Dart- mouth College, in the celebrated suit concerning the rights of that corporation under its charter. His able and learned argu- ment in behalf of the college is reported in Farrar's History of the case.
In 1820 Judge Smith retired from practice. He had then acquired a competency of property, and had reached a time of life when he had the right to rest from severe labors. He was not without occupation ; he was the president of the bank and treasurer of the Academy of Exeter, and never allowed his powers to become rusty by disuse. He read much and wrote no little, and enjoyed heartily the social and domestic pleasures of home life. A few of his last years he passed in Dover, in the midst of the relatives of his wife, and there he died, September 21, 1842.
Judge Smith did more, perhaps, for the improvement of the jurisprudence of the State than any other man. Like the mon- arch who changed a city from brick to marble, he found the law without form and void, and during his connection with the courts he reduced it to order and harmony. His genius was construc- tive ; he had the systematizing faculty. He did not conceive of the law as a mass of detached, independent rules ; in his mind it was a series of requirements, each connected with and deducible from great central principles. Before his day the judges were mostly unversed in the technique of the law, and aimed at what they deemed to be equitable conclusions. The result was that no man could foresee with any confidence the issue of any cause. Judge Smith drew straight the lines which had been confused or obliterated, and gave the bar and the public firm ground on which to stand. The counsel who knew the law began to take his place above the mere tonguey man who saw nothing beyond the case in hand. The influence of this upon the bar and upon the administration of remedial justice could not fail to be of the
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most beneficial character. Fortunately we have now the evidence of Judge Smith's reformatory work in a durable form. A vol- ume of his decisions, from his own manuscript, has been recently published, which bears unmistakable testimony to his vigorous and scientific administration of the law. Upon its appearance, it was remarked by an eminent judge that it was unfortunate that it had been withheld so long, for if the opinions contained in it had been at once promulgated, great expense would have been saved to parties who subsequently litigated the very questions which Judge Smith had before settled so conclusively.
Judge Smith himself repudiated the idea that he was possessed of what is termed genius. He attributed his success to the gifts of hard work and a tenacious memory. It is certain that he possessed these, and more. He may not have been a great origi- nator, but he certainly was unsurpassed in the art of making the utmost of the materials in esse. His logic, his method, his expression, his wit, made him a power in every situation. He resorted to no artifices to gain advantage; he despised appeals ad captandum vulgus ; he won his way by sheer force of power and skill.
His wit was as keen as a Damascus blade. When the repeal of the law establishing the United States Circuit Court left him for a short time briefless, he was at court in Hillsborough County, and two of the humorists of the bar slightingly offered to pass up to the clerk his list of new entries. Smith gravely wrote and handed them the following: -
Common Sense vs. Baruch Chase.
Common Honesty vs. Nathaniel Green.
The defendants felt that they took nothing by their motion.
Chief Justice Parsons of Massachusetts was a friend of Judge Smith, and knew well his power of repartee. After a social even- ing in which Judge Smith had shone, as usual, in a select com- pany, his absence was noted at breakfast the next morning and the inquiry was made where he was. "Oh !" said Parsons, " he is in bed, resting that - tongue of his."
Numerous instances of his bright and sarcastic sayings are still related, but one characteristic one is sufficient. In an Exeter town meeting, the question was considered of building a new fence about a burying-ground. Judge Smith opposed it. " What is the need, Mr. Moderator," said he, " of a new fence about such a
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place ? Those who are outside of it have no desire to get in, and those who are inside cannot get out ! "
Unlike many men who have passed the age of anticipation, Judge Smith found his later days his happiest days. He lived, to use the expression of his friend Daniel Webster, "among his books and his friends," and each ministered in turn to his hearty enjoyment.
One who knew him well wrote of him: "Smith in his old age, even more perhaps than at an earlier period, was the delight of both young and old by the rare gift of his conversational powers. While his good sense and his industry made him an able lawyer, there was high originality, true genius, in his humor. What gayety, what waggery and exuberance of youthful spirits in this arch and facetious old man. ... In his graver moods Smith was equally interesting with the stores of his learning and his remi- niscences of Washington, Hamilton, Marshall, Ames, and other great men with whom he had become acquainted while in Con- gress."
The estimate of Judge Smith by Daniel Webster, in a letter to Chancellor Kent in 1825, ought to be preserved. "You know Judge Smith of New Hampshire, at least in his public and profes- sional character. I wish to recommend him to you on the score of private worth and social qualities. There are few men in the world, I think, more to your taste. I entertain for him the high- est regard and true gratitude. When I came to the bar he was Chief Justice of the State. It was a day of the gladsome light of jurisprudence. . . . He knows everything about New England, having studied much its history and its institutions ; and as to the law, he knows so much more of it than I do or ever shall, that I forbear to speak on that point."
Of Judge Smith's writings there have been published a eulogy on Washington at Exeter, in 1800; his argument in the Dart- mouth College case, in Farrar's History ; his oration on the two hundredth anniversary of the settlement of Exeter, in the sixth volume of the New Hampshire Historical Society's Collections ; and the volume of his legal opinions, etc., already referred to.
His eminence as a jurist and in letters was recognized by the bestowal upon him of the honorary degree of LL. D. by Dart- mouth College in 1804, and by Harvard in 1807.
His first marriage was with Elizabeth, daughter of Alexander
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Ross of Bladensburg, Maryland, March 8, 1797. She died June 19, 1827. He was united, September 20, 1831, to Elizabeth, daughter of Hon. William Hale of Dover, who survived him. Their son, Jeremiah Smith, since a lawyer and Judge of the Su- perior Court, was the only child who outlived the subject of this sketch.
WILLIAM KING ATKINSON.
J. 1803-1805.
Son of William and Mary (Wendell) King ; born, Portsmouth, January 6, 1765 ; Harvard College, 1783 ; practiced, Dover ; died there, September 29, 1820.
Young, King, which name he bore until he was about twenty- five years of age, received good preliminary instruction in the schools of Portsmouth, and under a private teacher, so that he was admitted to college at the age of fifteen. He was a fair scholar, and good in mathematics, insomuch that he was subsequently an . aspirant for the appointment of professor in that department. Shortly after his graduation he began the study of the law in the office of John Pickering in Portsmouth, and combined therewith the quite as agreeable study of making himself acceptable to Mr. Pickering's daughter. After being admitted an attorney, he set up an office in Berwick, Maine, for a year, and then removed in 1787 to Dover, his permanent home.
In the February preceding, his uncle, George Atkinson, died, through whom a large, valuable estate passed to him upon the condition of his taking the surname of Atkinson, which he accord- ingly did, and had the adoption sanctioned by an act of the legis- lature. He also about the same time received the appointment of register of Probate for Strafford County, as successor to John Wentworth, Jr. The next year a law was enacted providing for the appointment of a solicitor in each county to conduct the crim- inal business in the absence of the Attorney-General, and Mr. Atkinson was designated as the first solicitor in his county.
The offices which he held were not lucrative, but they brought him in some pecuniary returns, and contributed to extend his acquaintance and his professional engagements. He was indus- trious and attentive to business, an excellent collecting lawyer, and prudent in his own concerns ; and the road seemed open to
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him to fame and fortune. He had some literary pretensions, also, and wrote wittily. In 1791 he was selected to deliver the Fourth of July oration at Dover, which was thought worthy of publica- tion.
In the year 1803 Mr. Atkinson was appointed a Justice of the Superior Court of Judicature. He sat upon the bench about two years and a half, when he resigned his commission without reluctance. On accepting the office, he still retained the place of register of Probate and continued to perform its duties, notwith- standing the provision of the state Constitution which forbade judges to hold any other office than that of justice of the peace. Moreover, he did not resign his appointment of county solicitor, though he never assumed to act as such, it is believed, while he was Judge. But his apparent clinging to offices which were clearly incompatible with the proper performance of his judicial functions was the occasion of much animadversion. Mr. Mason, in particular, excepted in court, where Judge Atkinson was pres- ent, to the admission of certain records from the Probate office certified by W. K. Atkinson, Register, on the ground that the register had by accepting the judgeship vacated the other place. Mr. Mason, who was also Attorney-General at the time, threat- ened to absent himself from the court when the criminal business came on, that Judge Atkinson might descend from the bench and perform the duties of solicitor. In June, 1805, the legislature increased the salary of the Chief Justice from one thousand to fifteen hundred dollars a year, still leaving that of the associate Justices at eight hundred dollars each. The object was to secure the continuance upon the bench of Chief Justice Jeremiah Smith, who had declared that he could not afford to hold the appoint- ment for a less salary. Thereupon Judge Atkinson presented a memorial to the legislature at their autumn session, stating that his salary was inadequate, and praying that it might be enlarged, with an intimation that he could not continue to hold the posi- tion in case his wishes were not complied with. The legislature having adjourned without granting his request, he resigned. In February, 1807, he received from the Executive of the State the appointment of Attorney-General, the duties of which he dis- charged for about five years. All this time he had been a plural- ist, for he had retained, and acted in, the office of register of Probate also. But the tenure of two or more public positions,
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even if incongruous, was not without example in the early history of the State ; and it is not alleged that it led, in the case of Judge Atkinson, to any injurious results.
After the expiration of his term as Attorney-General he re- sumed his practice at the bar, but held no public station, except that of register of Probate, which he resigned about a year before his decease. Judge Atkinson was unquestionably a man of uncommon talents. For many years he managed with skill and success an extensive law business, and was selected by successive state administrations for duties of importance and responsibility.
Towards the close of his life he is said to have fallen into habits of inebriety, so that there were times when he was unfitted for business, and his own affairs were neglected, and suffered in consequence.
He was united in marriage, September 3, 1788, to Abigail, daughter of Judge John Pickering of Portsmouth. His daughter Frances married Asa Freeman, a counselor at law.
RICHARD EVANS.
J. 1809-1813.
Son of John and Susanna (March) Evans ; born, Portsmouth, May 13, 1777 ; died, Hopkinton, July 18, 1816.
This gentleman was of Welsh descent, and was not regularly bred to the profession of the law. The public schools of Ports- mouth afforded him his early education, which he supplemented by private reading afterwards, having a strong desire to acquire information. At the age of seventeen he entered into trade on his own account. By an advertisement in a Portsmouth newspaper in 1798, it appears that he dealt in "muffs, tippets, blankets, and other merchandise." Though he was successful in his business for a while, it ended in failure.
His first essay in the law is said to have been in a suit wherein he was the defendant, in the year 1804. He tried it for himself, and though he was opposed by able counsel, acquitted himself with much credit, and is stated, in spite of the adverse charge of the judge, to have gained the verdict. However that might be, there was but a single opinion of the remarkable ability with which he conducted his defense. He became at once a conspic- uous figure, and the next year by invitation delivered a Fourth
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of July oration in Portsmouth. Being a Republican in politics and an ardent partisan, he was soon recognized as a leader, and wrote for the newspapers and made addresses at meetings of his party friends. He was made a representative in the state legis- lature from 1805 to 1809, inclusive, and was an active and earnest member. He spoke with fluency and force, and became a chief of his party, though it is intimated that his zeal sometimes outran his discretion. While he was a representative, about the year 1808, he was one of several gentlemen concerned in the establish- ing and editing a political journal in Concord, called the " Ameri- can Patriot," which was the next year disposed of to Isaac Hill, and by him, under the name of the "New Hampshire Patriot," made the most influential paper in the State.
After his success in managing his own cause in court, Mr. Evans gave a considerable time to the perusal of treatises upon the law, with a view to qualify himself for practice, it is alleged. But rather unwisely, as the event proved, he determined to do his studying by himself, and not to enter the office of a practicing lawyer. He was a friend of Governor Langdon, and in 1809, on the occurrence of a vacancy on the bench of the Superior Court, the governor appointed him a Justice of that court. His Excel- lency had witnessed the success which laymen of ability had won in that field in former years, and not being aware that a new generation of lawyers had sprung up, better educated in the tech- nicalities than their predecessors, undoubtedly thought he was doing a wise act to place a non-professional man upon the bench.
Judge Evans gave as his reason for accepting the office, " that it was in a great measure to gratify the wishes of many who thought it important to have one judge who possessed some practi- cal knowledge of commercial affairs and the ordinary pursuits of life, and who, not having engaged in the active practice of the law, although possessing some knowledge of its general principles acquired by a course of private study, might be free from those prejudices which too often attach to those whose pursuits are con- fined to the practical part of professional life."
But upon entering on his judicial functions, he soon found reason to regret the want of the very training and experience which he had before undervalued. The abler lawyers, especially those of the opposite political party, in disgust at the appointment of a person from outside the bar, made it their business to show
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the unwisdom of the selection by worrying the judge. A plenti- ful crop of pleas in abatement, special demurrers, and other like legal refinements came suddenly before him for determination, and made his life a burden. He attended to his duties in the courts with regularity for a time, but at length his health suffered, and he became incapable of meeting the requirements of his position. His political friends regarded the treatment which he received from a large portion of the bar as simple persecution, but the more impartial could not fail to see that he had undertaken duties which neither his training nor his delicacy of constitution enabled him to perform to complete satisfaction.
Four years after his appointment a political revolution in the State put the power into the hands of the opposite party, and they made use of it to repeal the law establishing the Superior Court, and to create a Supreme Court in its stead. This whole- sale mode of disposing of obnoxious judges was deemed by the victims and by their supporters a violation of the state Constitu- tion ; and had the judges thus summarily dispossessed of their authority been men of acknowledged judicial ability, their entire political party would probably have sustained them in insisting that the repealing statute was unconstitutional and inoperative. What infinite confusion and collision this would have occasioned may easily be imagined.
But though the ousted parties, Messrs. Evans and Clagett, made for some months continual claim that they were still the lawful judges, and attended the courts as such, and made abortive attempts to go on with the judicial business ; and though Arthur Livermore, their late chief, who had accepted an appointment on the new bench, arraigned the very statute under which he was act- ing, yet their efforts were so fruitless, and their condition was so helpless, that they excited derision rather than indignation or sympathy. And when, in 1816, by the return of their party to power, the judiciary law of 1813 was repealed, they shared the fate of their successors in being removed by address, and an entirely new set of judges was nominated.
Judge Evans, having been for three or more years in failing health, and in narrow pecuniary circumstances, presented to the legislature, at their June session 1816, a memorial in which he recited his condition, and prayed for the payment of his salary as judge, from 1813 to 1816, " to relieve his pressing necessities."
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The committee to whom his petition was referred must have been in a dilemma. By removing Messrs. Evans and his associ- ates by address, the legislature had treated the judiciary act of 1813 as a nullity, and had recognized their tenure of office up to 1816 as valid. If that were so, then as Judge Evans continued ready to perform the duties, he was legitimately entitled to the emoluments attached to his office, and logically they should have granted his petition. . But the committee felt that it would never answer to pay the judges their stipend when all the business was transacted by another court. They therefore postponed the con- sideration of the memorial to the session of the legislature to be held the succeeding November. Before that time the petitioner was in his grave.
Judge Evans was unquestionably a man of superior intellect, of undoubting confidence in himself, and of indomitable pluck and tenacity of purpose. The want of a thorough, and especially of a technical education and a lack of prudence and careful judg- ment were the most serious obstacles in the way of his attainment of the highest success in the station to which his talents and honesty had elevated him. His was the last instance of the ap- pointment of a non-professional man to the position of Judge of the highest court in this State.
Three years before his death, Judge Evans, in the hope that a country residence would be beneficial to his health, as well as from motives of economy, removed to Hopkinton, near the border of Concord, and dwelt upon a farm. It was too late, however, to arrest the progress of his fatal malady.
He had married, in 1810, Ann, daughter of Samuel Penhallow of Portsmouth. Their son, Richard S. Evans, was a lawyer.
JONATHAN STEELE.
J. 1810-1812.
Son of Captain David and Janet (Little) Steele ; born, Londonderry, Sep- tember 3, 1760 ; admitted, 1787 ; practiced, Nottingham and Durham ; died, Durham, September 3, 1824.
After obtaining the nearest approach to an academical edu- cation which was to be had at that early day, young Steele be- came a student at law with John Sullivan in Durham, and in due time established himself in practice there. Diligent in study, he
e
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was equally assiduous in guarding the interest of his clients, and soon became known as a lawyer of more than ordinary learning and skill. He was said, however, to have little knowledge of human nature, and never to have acquired the arts of popularity.
In 1789 he was appointed by his father-in-law, John Sullivan, who was United States Judge for the District of New Hampshire, the clerk of his court, and after Judge Sullivan's decease in 1795, he was reappointed by Judge John Pickering his successor in the office. When the latter, by a perversion of justice, was removed from the judgeship, Steele, who had been one of the witnesses against him, was tendered the appointment of United States dis- trict attorney, but declined to accept it, avowedly because he was unwilling to profit by the misfortune of his former chief, to which he had been made to contribute by his testimony.
In 1804 he was chosen one of the presidential electors for New Hampshire, and in 1805 was the representative of Durham in the legislature. In 1810 Governor Jeremiah Smith, who knew him well and thought him an eloquent advocate, not easily to be sur- passed, gave him a place upon the bench of the Superior Court. He kept it but two years, when he sent in his resignation, finding his situation uncongenial and the salary insufficient.
Judge Steele returned to his legal practice, but though he was then only fifty-two years of age, and had the standing of a leader at the bar, he appears to have accomplished very little outside of his own town afterwards. His friends thought him too diffident to assert his proper place in society, and it is clear that he was sensitive to adverse criticism, contentious about matters of trifling consequence, and unhappy in his domestic circumstances. He became unsocial, and withdrew from intercourse with his fellows. He labored upon his farm as diligently as his hired hands, and most of the residue of his life seems to have been to him dies non juridicus.
In his later years he became much interested in religious con- cerns, and gave liberally for the maintenance of public worship.
He was married, January 23, 1788, to Lydia, daughter of General John Sullivan of Durham, and had a daughter and a son, who lived to maturity.
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CLIFTON CLAGETT.
J. 1812-1813.
Son of Wyseman and Lettice (Mitchell) Clagett ; born, Portsmouth, Decem- ber 3, 1762 ; practiced, Litchfield and Amherst ; died, Amherst, January 25, 1829.
Acquiring his professional training under the direction of his father, Mr. Clagett began practice in Litchfield as early as 1784. There he continued to reside until 1811, when he went to Amherst, in which he made his subsequent home. From Litchfield he was repeatedly elected a representative in the General Court, and from Amherst in 1816. Three terms he was chosen and served in the Congress of the United States, in 1802, in 1816, and in 1818. In 1810 he was appointed Judge of Probate for the county of Hillsborough, and resigned the office on being commissioned a Justice of the Superior Court in 1812. The latter position he occupied but a single year, when by a change in the organization of the judiciary the Superior Court was abolished. In 1823 he was again made Judge of Probate for his county, and continued in the discharge of his duties as such during the remainder of his life.
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