USA > Rhode Island > Providence County > Providence > State of Rhode Island and Providence Plantations at the end of the century : a history, Volume 3 > Part 15
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"Providence 27, 10t 1676 (so called This Writing Witnesseth, That, Whereas Resolued Waterman of providence died intestate at Newport on Rode Jland in ye year (so called) 1671; ye Towne Coun- cjll of providence then in being made a will in ye deceased Roselued Waterman his stead & agreed yt ye Widow Mercy Waterman should enjoy ye howse & howse Lot & the other Lands & Meadows and Cattell for her Maintenance & ye bringing up of ye orphans fiue small chil- dren. And whereas Samuel Windsor of providence and Mercy Water-
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man ye widow are vnder publieation of marriage & ye former Towne Counjll by reason of hinderances did not perfect thejr agreement with such Formalities of Signing Sealing & Recording as js vsual ; We the present Towne Counejll judge jt fit and necessary yt We testifie & declare our eoneurrenee & Agrement with ye former Agreement of ye formr Towne Counejll although We are but few by reason of ye Sieknes of Some of us & ye Absence of Some & ye death allso of Some of vs yet notwithstanding We agree with ye former Towne Couneil as also with ye Wil and Testamnt of ye Grand Fathers Riehard Water- man viz yt js to Say yt Richard & Rseolved Waterman shall enjoy betweene them ye Meadowes
at pawtuxet & ye Land & Meadow at Saxifrage with ye Commonage to ye 4 mile line west ete.
"Jtem that ye Exeeutrix widow Waterman shall pay fiue pound a piece to each of ye daughters Wajt and Mary Waterman when they Come to ye Age of Eighteen
" Arthur ffenner Assistant
"Roger Willjams
"Thomas Arnold".
Many other sueh wills ean be found by examining the early records of the various towns of the State. The town as a sort of parens patriae distributed the property of its citizens as in its wisdom it should go. Although this power was exercised, it is at least doubt- ful whether even under the broad powers of the charters there was any authority for it. When it eeased eannot be exactly determined. In the digest of 1705 there is no trace of it. Power to settle the aeeounts of executors and administrators was not given to Town Couneils by the eode, but conferred at a later date. Other and inereased powers were a matter of growth. In 1721 power was given them to inquire into the misuse of property held in trust for charitable uses; in 1742 power to appoint guardians was given; and in 1748 to determine the settlement of paupers and order their removal to the towns where they should be found to have a legal settlement. After this, power to make partition of estates of persons deceased intestate, to assign dower to widows and to sanetion the adoption of children. Gradually the pro- eedure and praetiee before Probate Courts has beeome more complex, and as the necessities of the time have required, their jurisdiction has been inereased and broadened to meet the new requirements. Many of the most difficult questions that arise in the praetiee of the law are questions of probate law and practice. And yet this law has been administered for nearly two hundred years by the Town Couneils of the various towns, with a few exceptions, by men taken from the ranks of the people. Not only has it been so exercised, but exercised as well to the satisfaction of the people. In the eities special eourts have been established to exereise probate jurisdiction. In the city of Providenee
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this power is exereised by the Municipal Court, consisting of a judge and clerk cleeted by the City Couneil annually. The right of appeal from the decisions and rulings of Probate Courts is a safeguard to the rights of the parties, but yet exeepting in eases of the probate of wills it is rarely exercised. This speaks much for the sound common sense employed by the Town Couneils which have for so many years passed upon the many and intricate questions that are constantly arising. It is to be considered in this connection that probably in many eases, as a matter of striet law, many mistakes are made in the administration of probate law throughout the country towns, but what is sought in sueh cases is a eourt that will see that the property of a deeedent testate or intestate goes where cither the deceased or the law says it shall go. A body that, acquainted with the deceased, with an intimate knowledge of his affairs and his family and life, will see that justiee is done; that no fraud is perpetrated, and that the estate is honestly administered. This is what is sought and what is obtained, and the faet that it is satisfactory is shown by the further faet that when, some years sinee, a movement arose to establish special courts in the various towns of the State, it was strenuously opposed by the towns themselves.
Before elosing this short mention of the Probate Courts of the State mention must be made of a very eurious will that is to be found among the records of the Municipal Court of Providence. The testator had been unsueeessful in some previous litigation. Whatever his contempt for the court and jury may have been in his lifetime, he probably found it wiser to remain silent, but in his will he plaeed upon rceord, where it remains to be read of all, his opinion of the court that administered justice in his day. The will speaks better than any extended eomment can :
"I, John Martin of Providence in the county of Providence and state of Rhode Island, in the 71st year of his age, born September 9, 1762 being of sound mind and memory thanks be to God, and ealling to mind the mortality of my body and the immortality of the soul, do therefore make this my last will and testament in manner following.
"First and principally I eommit my soul into the hands of Him who gave it, and my body to the earth. Cursed is he who parts man and wife! And to entail this curse upon the state of Rhode Island and their judiciary for subjeeting me to pay unjustly a reward of $500 offered for the recovery of stolen money (I ever had a fond desire that I and my wife when dead might be interred side by side) the ill treat- ment I have received caused me to promise my body should not be interred in the state. Therefore my beloved wife and I must be separated here and maybe separated hereafter. Should this be the case I shall ascribe my ruin to the state of Rhode Island. It is my will not to be located in another world either with court or jury and
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should I die in the state of Rhode Island I hereby direct my executor to cause my body to be carried to Woodstock in the state of Conneeti- cut there to be buried in a christianlike manner by the side of my honored father and grave stones of the first rate Braintree slate to be set up in memory of the grantor".
In speaking of the lawyers who have added luster to the name of this bar and State, it is to be regretted that the limitations imposed upon the length of this work will prevent but the most passing men- tion. Many who are entitled to mention must be omitted, while those who are famous even beyond the limits of the State ean receive but a word. It is to be noted, however, in passing, the great change that has taken place in the relation of the bar to the State at large, and especially to each other. But fifty years ago there were probably not over fifty practicing attorneys in Providenee county. There are now fivefold that number. In those days the bar was not too numerous to constitute a true fraternity. As said by Judge Durfee in an address delivered at the dedieation of the present court house: "Its members met often in social and professional intercourse, and they met always as familiar friends. To-day many members of the bar are strangers to each other. They meet too seldom; there are too many of them; they are too segregated in pursuit to feel the bond of professional fellowship. Hence they are losing their esprit de corps; forgetting the traditions of their order and eeasing to have any common senti- ment of professional honor or any common criterion of professional merit. This is to be regretted. The tone of the bar suffers in conse- quence. The tendency is to degrade the profession to the level of a trade and to obscure the idea of its publie and quasi-official char- acter". These wise words cannot be too much laid to heart by the bar of this and other States in this age when things are moving at high pressure. Only by holding to the old ideals of the profession can it be saved from the dangers to which in many ways it appears to be sur- rounded. That it has in the larger cities sunk to the level of a trade, as suggested by Judge Durfee twenty-five years ago, the past quarter of a century has proved. Fortunately in Rhode Island as yet this is not true to any extent.
It is to be regretted that so little is known not only of the per- sonalities but also of the characteristies and habits of these early mem- bers of the bar of this State. In faet, prior to the Revolution there is hardly any record that throws light upon this subject. And yet it cannot be doubted that there were many men, from the early days of the Colony down to a period subsequent to the establishment of a regular system of courts, who were learned in the science of the law. The eode of 1647, unknown as its author is, shows that at that date there was in the Colony at least one, perhaps several, who were not only versed in the common law, but had a remarkable grasp of the
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principles of constitutional law and the science of government. A writer upon this subjects remarks: "Natural geniuses existed then as well as now, and like brilliant meteors they dazzled, delighted and died. Probably more native talent went into the profession at that early period than now, in proportion to numbers; for native power and strength of intellect were then more necessary to sustain the advo- cate. He was not assisted by other sciences, as the profession is at this period ; nor could he be helped along by reports and authorities as lawyers are at the present time. It must be apparent that much that was then unknown to the student can now be gleaned from re- ported arguments and from the opinions of learned courts, besides the vast number of elementary writings and other productions discussing all questions and collating all authorities which are poured upon the profession through the cheapness of the press. The labor of thinking and of mental origination is greatly diminished by the rich produc- tions emanating from learned brethren, emulous of fame. Before the Revolution, 'Coke upon Littleton', 'Doctor and Student', 'Salkeld's' and. 'Strange's Reports' and 'Cowell's' and 'Jacob's' law dictionaries were the principal authorities that were used. The lawyer's library, like Petrarch's, could be transported in his saddle-bags. The most eminent and successful in the profession relied more upon intense mental application than upon books and precedents. They habituated themselves to the most rigid study and thought deep and long upon particular cases. Those who were gifted with strong native intellects, with nerve and constitution enough to bear up against such labor, suc- ceeded, and those who were deficient in these sturdy attributes, flagged on the course.
"The mode of arguing cases then partook much more of the nar- rative character than at the present day. The advocate before a jury gave minutely the history of the case and the character of the parties, and freely used familiar anecdote and popular illustration.
"Appeals to the passions of the triors were the most powerful engines of success. When satire or anger was kindled against an ad- versary, it was a consuming fire. If a client had been unfortunate or oppressed, the chord of sympathy was touched to tears. The principal business of the court was to see fair play between the legal gladiators, and the judges who sat to listen, rather than direct, esteemed them- selves fortunate if by their silence they escaped unwounded in the conflict. But it must be borne in mind that except in cases when cir- cumstances called out such sturdy efforts the manners of the bar of that day were highly dignified and courteous"'.
It is related of Henry Bull, one of the ancient attorney-generals of the State, that wlien he made up his mind to study law, he went into the garden to exercise his talents in addressing the court and jury. He then selected five cabbages in one row for judges, and twelve in an-
1
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other row for jurors; after trying his hand there a while, he went boldly into court and took upon himself the duties of an advocate, and a little observation and experience there convinecd him that the same eabbages were in the court house which he thought he had left in the garden, five in one row and twelve in another. He afterwards occupied the position of chief justice himself in the Court of Common Pleas upon its first establishment in 1749.
Among the early members of the bar, tradition has preserved the name of Oliver Arnold as an advocate of unusual ability. With whom he studied his profession or in what year he was admitted to the bar is unknown. That he possessed a strong, elastie mind with much early professional talent is shown by the following aneedote, related by Levi Lineoh. "When at the bar", said Lincoln, "a eause of considerable interest was intrusted to me; and on retainer, I was informed by my client, that I should be opposed only by a young man, by the name of Arnold, from Gloseester, R. I. Not expecting much display of talent from any one in that region, I was slovenly prepared for arguing the case; nor was my eaution increased by the appearance of my antag- onist-a tall, green-looking youth, who, awkwardly seating himself at the bar, impressed me that I had nothing but a stripling to contend with. I made my speeel with very little expectation of being an- swercd, and eondueted my argument throughout with less skill and arrangement than usual, and awaited the reply of my youthful op- ponent. But what was my amazement to see him rise with the most perfeet self-possession and state his defense and argue his eause with an ability that would have done honor to Temple bar. He went on, ealmly leading the reason of the jury and audience captive and leaving myself in the background as far as I confidently expected to have left him". The manner of Mr. Arnold was graceful and easy. He was a severe student and was master of the few books that constituted a law- yer's library at that period.
He was remarkable for the great retentiveness of his memory. What he onee learned he is said never to have forgotten, and he could repeat his authorities verbatim. He once repeated several passages to fortify the position he had assumed in the argument of a cause, the correctness of which was strenuously denied and as positively re- asserted. The court for the due settlement of the controverted question desired that the authorities might be produced. The demand was aeeeded to and the quotation proved to be correet to the letter. So effectually eould he abstract his mind that he could study "Coke on Littleton" by the family fireside or in a tavern bar room with perfect composure. His character has been handed down as a lawyer of candor, probity and great uprightness. When engaged in a cause which his eonseience approved, nothing could turn him in his course or stay his exertion. The general impression of the probity of his char-
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acter obtained for him with court and jury an influence that carried great weight. He died at the early age of thirty-five years, while attending court in Washington county.
Among the most illustrious names in the early annals of the bar of this State is that of James Mitchell Varnum. After graduating from Brown University he entered the office of Oliver Arnold in Provi- dence, thien attorney-general of the Colony, and was admitted to the bar in 1771. He settled at East Greenwich, where his talents early
acquired for him an extensive practice. After serving with dis- tinguished honor throughout the Revolution, he resumed the practice of law at his home in East Greenwich upon the close of the war. At that period great and important cases arose growing out of the new position in which the State and Nation were placed. The case of Trevett v. Wecden, which has been referred to at length in a former portion of this paper, was one of these. Varnum appeared in this case, not as a lawyer mechanically discharging a legal obligation to his client, but as the representative of an oppressed people at an ominous crisis. The arguments which he employed to enforce his premises were then, are now, and ever will be as sound in doctrine as they are eloquent in expression. It was eulogium enough upon Varnum that the power of his speeches in this case and before the Assembly wrought such a triumphant victory over public opinion, that the dom- GEN. JAMES MITCHELL VARNUM. inant party, to save themselves from political prostration, were compelled to repeal their arbitrary and unconstitutional acts within sixty days from the time of their passage.
Varnum was described by a contemporary, upon his appearance at a celebrated trial, as follows: "On the other hand, appeared General Varnum, with his brick-colored coat, trimmed with gold lace, buckskin small clothes, with gold lace knee bands, silk stockings and boots, with a high, delicate forehead, with a cowlick on the right side, eyes promi- nent and of a dark hue, his complexion rather florid. Somewhat cor- pulent, well proportioned, and finely formed for strength and agility, large eyebrows, nose straight and rather broad, teeth perfectly white, a profuse head of hair, short on the forehead, turned up some and
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deeply powdered and clubbed. When lic took off his cocked hat he would lightly brush up his hair forward; with a fascinating smile lighting up his countenance, he took his scat in court opposite to his opponent".
Varnum was a warm and unwavering advocate for a Federal con- stitution ; he knew the inefficiency of the confederation and the selfish considerations that governed the States. The legal profession, with Varnum at its head, urged the Legislature of Rhode Island, at their June session, 1787, in the strongest terms to send delegates to the Federal convention assembled at Philadelphia, but the measure was defeated. Varnum was appointed one of the judges of the newly established Northwest Territory in 1787, and died shortly after his arrival therc. He possessed in a rare degree the power of great mental abstraction. He was master of his cases and all the facts were well arranged and digested for trial. He once told a friend that he studied his cases in bed and often had his books brought to him. He was a fine scholar and profound lawyer, but it was as a brilliant orator that he excelled.
Matthew Robinson, who studied law and established an office in Newport about forty years before the Revolution, was one of the best read of the earlier lawyers of the pre-revolutionary period. He re- moved to Narragansett about 1750 and became the owner of a large estate and mansion house. He was deeply and critically read in the old and intricate doctrine of estates. His library was large and well selected in law, history and poetry ; probably the largest possessed by any one in this State at that day. He was a great antiquarian himself and embraced in his character the elements of great curiosity, in- quisitiveness and research. He prided himself upon his critical knowl- edge of English history, and every circumstance relative to the settle- ment of America, and particularly of Rhode Island. He was a great student to the end of his life. He had treasured up a great mass of queer and comparatively useless knowledge, unserviceable for human life.
He enjoyed a great share of practice and was generally engaged in all the causes in the courts. He was opposed to the Revolution in principle, but was neutral in action. He felt himself conscientiously bound by the oath of allegiance and questioned the sufficiency of the causes of separation. He had lived quietly under the government for seventy years. He feared that the country was not ripe for the change and doubted its success. His constitution was nervous, his disposition irritable and naturally impatient of contradiction. He had been pro- voked by some one into some hasty, imprudent and sarcastic remarks upon the character of the contest, which, coming to the knowledge of the Legislature, was the means of his incarceration in the Kings county jail, but he was shortly released upon his parole to restrain
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himself in his own house. In the latter part of his life he became so infirm that he was employed but occasionally. He died at the age of eighty-six years.
Coming down to a less remote period, the following graphic descrip- tion of an attorney's office in the year 1840 is offered as probably a faithful description of the average office of that time ; in some respects, doubtless, if anything it was superior. The office in question was that of Gen. Thomas F. Carpenter, at that period one of the leading mem- bers of the bar.
The office of General Carpenter was a single large room up one flight of stairs, in the building at the junction of Westminster and Weybosset strects, known as Turk's Head. The room was uncarpeted; it con- tained a moderate book case with a small collection of law books, an old-fashioned desk and a very limited supply of pigeonholes, a large table covered with green baize cloth, an old-fashioned cylinder stove, a few common chairs and a wooden settee. At one end of the room was a coal bin and there was a small safc.
Of General Carpenter himself, his old student, in writing of the time when he sat in his office as a young man sceking the opportunity of entering the office, says: "He came in and laying down his green satchel upon the table, greeted me with much dignity and courtesy, and asking me to be seated, commenced conversation by explaining to me that a lawyer should make himself familiar with the Bible, and taking the book, read some passages in confirmation of this advice". General Carpenter is described as of middle height, with a very large head, and uniformly wearing a blue coat with brass buttons, black pantaloons, black satin vest, ruffled shirt and black cravat. His manners were dignified and affable. When appearing before the courts he was a model of dignity and deference to the tribunal.
It is said that he rarely looked at a law book, and yet he was a remarkably good lawyer. His clients were mostly from the country towns. He had little office business. He spent little time at his desk, being occupied mostly in the trial of his cases in the courts. He was at his best when engaged in the trial of a cause ; he knew exactly what to say to a Rhode Island jury and a Rhode Island court, and as a result he rarely failed to obtain the verdict of the jury.
At the period now referred to John Whipple was the leader of the bar in the State. He had obtained his position in contests with such men as Tristam Burges and Daniel Webster in the State courts and the courts of the United States. Mr. Webster is reported as stating that John Whipple and Jeremiah Mason were the two ablest opponents he had ever met at the bar. Mr. Whipple belonged to that class of lawyers who rarely take notes of the testimony produced during the hearing of a case. It is related that on one occasion a client, who feared that the attorney was not paying sufficient attention to the
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testimony which was being introduced, spoke to him, and failing to elieit any reply, asked: "Mr. Whipple, how much do you intend to eharge me for the trial of this ease?" "I don't know", replied Mr. Whipple, "I am building a boat and when I get the bills in and find out what it eosts, I will let you know the amount of my fec". In one case before the United States Court Judge Story called him to the bench as he arose to make his argument for the State which he repre- sented at that time, and whispered something in his ear. * After listen- ing to the remarks of the court, he turned to the jury and commenced his argument by saying: "Gentlemen of the jury, I had intended to present to you my view of the case, but the judge tells me that he wants to leave by the next train, and that he will take care of the eause of the State. I shall therefore be brief". It is further stated that the judge did take care of the State.
John H. Weeden, a practitioner before the courts at this time, is deseribed as a man of habitually neat apparel, of deliberate step, and a remarkable characteristie for a lawyer, a man whose papers were always neatly and legibly written. He was a lawyer of the old- fashioned school, industrious, honest and faithful. The following anecdote has been much quoted. He had prepared an elaborate brief in a ease and as he rose to address the court the chief justice remarked : "Mr. Weeden, we have considered this question and made up our minds about it". "I have prepared a brief", said Mr. Weeden, "which I should like to submit to the court with some remarks". "We don't want to hear you", shortly answered the chief justice. "Then", said Mr. Weeden, "I have no desire to be heard". After this diseussion he summed the matter up by saying that he intended during the remainder of his life to take things easy, for when the court was with you, there was no need of saying anything, and when they were against you, there was still less.
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