D. Hamilton (Duane Hamilton) Hurd.

History of Plymouth County, Massachusetts : with biographical sketches of many of its pioneers and prominent men (Volume 2) online

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repair. They are exempted from service on the
jury ; are required to examine the votes for county
treasurer and register of deeds, and notify them of
their election ; must provide fire-proof offices for
county officers ; cause county maps to be corrected
from time to time; must examine the accounts of the
county treasurer and pass on the same ; make out
annually an estimate for a county tax, and send the
same to the secretary of state, with a statement of
the money borrowed by the county ; apportion taxes
among the towns according to the last State valua-
tion ; have jurisdiction of the laying out of highways,
and appellate jurisdiction of townways, when the
selectmen of towns refuse to lay them out on pe-
tition ; of the laying out of railroads, and the assess-
ment of damages for the same; and of the crossiug
of ways by railroads, and of a variety of other matters
of perhaps less importance.

The county officers at the present time are Jesse E.
Keith, of Abington, judge of prolate ; Edward E.
Hobart, of Bridgewater, register of probate and in-
solvency ; Alpheus K. Harmon, of Plymouth, sheriff ;
William H. Whitman, of Plymouth, clerk of the
courts; William S. Dauforth, of Plymouth, register
of deeds; John Morissey, of Plymouth, treasurer;
Charles H. Paine, of Halifax, Jedediah Dwelley, of
Hanover, Walter H. Faunee, of Kingston, county
commissioners ; Obed Delano, of Marion, Charles W.
S. Seymour, of Hingham, special commissioners;
Hosea Kingman, of Bridgewater, Charles W. Sum-
ner, of Brockton, Arthur Lord, of Plymouth, com-
missioners of insolvency.

The sheriff, register of deeds, and county treasurer
are elected by the people for a term of three years ;
the register of probate and insolvency and clerk of
the courts for five years ; commissioners of insolvency
for three years; county commissioners, ouc annually
and each for three years; and the judge of probate is
appointed by the Governor, by and with the advice
and consent of the Council. The present term of the
sheriff expires on the first Wednesday of Jauuary,
1887 ; those of the register of deeds and treasurer in
January, 1886 ; those of the register of probate and
insolvency and clerk of the courts in January, 1887 ;
that of the commissioners of insolvency on the first
Wednesday in Jauuary, 1887 ; and those of the com-
missioners as follows : Walter H. Faunee, in Janu-
ary, 1885; Jedediah Dwelley, in January, 1880; and
Charles H. Paiue, in January, 1887.

The only remaining courts, which may with any



THE COURTS AND BAR.



propriety be termed county courts, are the District
Courts. The first of these, under the name of the
First District Court of Plymouth, was established
June 8, 1874, and under its establishing act was
given jurisdiction in Brockton, Bridgewater, and West
Bridgewater. By a supplementary act passed Feb.
19, 1875, East Bridgewater was included within its
jurisdiction. Of this court Jonas R. Perkins, of
Brockton, is the justice, and it holds its session at
Brockton. Charles W. Sumner, of Brockton, and
Hosea Kingman, of Bridgewater, are special jus-
tices, and David L. Cowell is clerk. The Second
District Court was established June 22, 1874, and
was given jurisdiction in Abington, Rocklaud, Hing-
hani, Hull, Hanover, South Scituate, and Hanson.
On the 22d of April, 1879, Scituate was added to the
jurisdiction of this court. Of this court George W.
Kelley, of Rockland, is justice, and it holds its ses-
sions at Abington and Hingham. Zenas Jenkins and
James S. Lewis are special justices, and Otis W.
Soule is clerk. The Third District Court was estab-
lished by the same act, aud was given jurisdiction iu
Plymouth, Kingston, Plymptou, Pembroke, Duxbury,
Marshfield, and Scituate. On the 22d of April,
1879, Scituate was withdrawn from the jurisdiction
of this court. Of this court Charles G. Davis, of
Plymouth, is the justice, and it holds its sessions at
Plymouth. William S. Danforth, of Plymouth, is
the special justice, and Benjamin A. Hathaway, of
Plymouth, clerk. The Fourth District Court was
established by the same act, and has always had
jurisdiction in Middleboro', Wareham, Lakeville,
Marion, Mattapoisett, and Rochester. Of this court
Francis M. Vaughan, of Middleboro', is justice, and
it holds its sessions at Middleboro' and Wareham.
Lemuel Le Baron Holmes and Andrew L. Tinkham
are special justices, and William L. Chipman, of
Wareham, clerk.

These District Courts have, concurrently with the
Superior Court, jurisdiction of cases of assault and
battery (except when committed in the commission
of, or in the attempt to commit, some other offense ;
or with a weapon dangerous to life, or where the life
of the person assaulted is in danger, or such person
is maimed), and in such cases may punish by im-
prisonment in the jail or House of Correction, or if the
defeudant is a female above the age of seventeen
years, in the reformatory prison for women for a term
not exceeding one year, or by fine not exceeding one
hundred dollars. They shall also concurrently, as
aforesaid, have jurisdiction of offenses punishable by
fine or forfeiture not exceeding one hundred dollars,
or by imprisonment in the jail or House of Correction



not exceeding one year, or by both said punishments.
They shall also have concurrent jurisdiction, as afore-
said, of larcenies, of offenses of obtaining property by
any false pretense, on privy or false token, or by any
game, device, sleight of hand, pretended fortuue-tell-
ing, trick, or other means, by the use of cards or other
implements or instruments ; and of offeuses of buy-
ing, receiving, or aiding in the concealment of stolen
goods or other property, where the property alleged
to be stolen, or so obtained, bought, received, or the
concealment of which is so aided, is not alleged to
exceed the value of fifty dollars; and in such cases
may punish by imprisonment in the jail or House of
Correction not exceeding two years, or by fine not ex-
ceeding one hundred dollars. They have also con-
current jurisdiction, as aforesaid, of all nuisances and
complaints for defective highways, and may in such
cases punish by fine not exceeding one hundred dol-
lars, or imprisonment in the jail or House of Correction
not exceeding one year, or by both said punishments.
And they may in their discretion decline to exercise
final jurisdiction of a case in which the Superior
Court has concurrent jurisdiction. Their civil juris-
diction is the same as that of trial justices, for a full
description of which the reader is referred to the
155th chapter of the Public Statutes. Any person
aggrieved by the judgment of a District Court has
the right of appeal to the Superior Court.

It would be futile to attempt within the limits of
this narrative, to present to the reader with any de-
gree of justice, all who have been conspicuously con-
nected with either the bench or the bar of the courts
of the county. William Bradford, the first judge
of probate, was so intimately connected with the
Plymouth Colony that his character and the incidents
of his life are well known to every careful reader of
colonial history. By the province charter, the Gov-
ernor and Council had jurisdiction of the probate of
wills and granting of administrations, and conse-
quently without the authority of auy special law
they ordered the appointment of a judge of probate,
and Mr. Bradford was appointed. He was a son of
Governor Bradford, was born in Plymouth, had dis-
tinguished himself in the Indian wars, and was the
last Deputy Governor of the Old Colony. He resigued
his office in 1702, and died in 1704. Nathaniel
Thomas, who succeeded him, was a grandson of
William Thomas, who was one of the merchant ad-
venturers, and who came from England iu 1637. He
had been a member of the Provincial Council under
the charter, and resigned to accept the office of judge
of probate, which he held until his death, in 1718.
He was also a judge of the Inferior Court of Common



10



HISTORY OF PLYMOUTH COUNTY.



Pleas, and in 1812 was appointed judge of the Supe-
rior Court of Judicature. Mr. Thomas was suc-
ceeded by Isaac Winslow, of Marshfield, son of
Governor Josiah Winslow, who held the office until
1738. Mr. Winslow had also been a member of the
Council during a period of thirty-two years. He was
appointment judge of the Court of Commou Pleas in
1712, and afterwards its chief justice. He died Dec.
14, 1738, and was succeeded by John Cushino, of
Scituate, who was also chief justice of the Court of
Common Pleas, and afterwards judge of the Superior
Court. Mr. Cushing was succeeded by William
Sever, of Kingston, who held the office about three
years. Mr. Sever was a graduate of Harvard in the
class of 1745, the first president of the Plymouth
Bank, organized in 1803, and died in 1809, at the
age of seventy-uine. He was the father of the late
Capt. James Sever, of Kingston, post-captain in the
United States navy. The successor of Mr. Sever,
— Joseph Cushing, of Scituate, — a graduate of Har-
vard iu 1731, was succeeded iu 1793 by Joshua
Thomas, of Plymouth, a graduate of Harvard in
1772. Mr. Thomas was a son of Dr. William Thomas,
of Plymouth, and a descendant from William Thomas,
one of the merchant adventurers. He served in the
Revolution as an aid of his kinsman, Gen. John
Thomas, of Kingston, and accompanied him in 1776
to Ticonderoga and Crown Point. He was represen-
tative and senator to the Geueral Court, and the first
president of the Pilgrim Society. He died in 1821,
and was succeeded by Wilkes Wood, of Middle-
boro', a lawyer in full practice, and much esteemed
as a man of high character and sterling attainments
as a lawyer. Mr. Wood was the father of William
H. Wood, who succeeded him, after an iuterval, in
the same office, and of Joseph T. Wood, a late com-
missioner of the county. Mr. Wood's successor in
1844, Aaron Hobart, of East Bridgewater, will be
remembered by many readers as a man of judicial
traits and gentle deportment, and a much-respected
judge. In 1858, William H. Wood succeeded Mr.
Hobart, and died in 1883, beloved by all who came
within the sphere of his influence, either as a judge,
a lawyer, a neighbor, or friend.

Among the early judges of the Inferior Court of
Common Pleas may be mentioned, in addition to
those already referred to as having had seats on the
bench of that court, Ephraim Morton, of Plymouth,
in 1692, a grandson of George Morton, who came in
the "Ann" in 1623; John Wadsworth, of Duxbury,
in 1692, a descendant from Christopher Wadsworth,
who appeared in the Plymouth Colony in 1632 ; Isaac
Little, of Marshfield, in 1696, son of Thomas Little,



who appeared in Plymouth Colony in 1630; James
Warren, of Plymouth, in 1700, a grandson of Rich-
ard Warren, of the " Mayflower," who had been in
the previous year sheriff of the county; John Otis,
of Scituate, in 1723, who had been sheriff in 1700 ;
Nathaniel Thomas, Jr., of Marshfield, in 1715, who
was also register of probate ; Isaac Lothrop, of
Plymouth, chief justice in 1738, who had also been
sheriff; Josiah Cotton, of Plymouth, in 1729, a grad-
uate of Harvard in 1698, and son of Rev. John
Cotton, of Plymouth, who was also register of pro-
bate, and had been clerk of the courts; Nicholas
Sever, of Kingston, in 1731, a graduate of Harvard
in 1701; Peter Oliver, of Middleboro', iu 1747, a
graduate of Harvard in 1710 ; Thomas Foster, of
Plymouth, in 1756, a graduate of Harvard in 1745,
and afterwards a conspicuous loyalist; and John
Winslow, of Plymouth, in 1762, distinguished for
his military services at an earlier period.

Among the justices of the Circuit Court of Com-
mon Pleas may be mentioned Kilborn Whitman, of
Pembroke, in 1811, a lawyer, who stood iu the front
rank of his profession and divided the honors with
Francis Baylies, of West Bridgewater, who for many
years stood at the head of the Plymouth bar. Mr.
Whitman was a graduate of Harvard in 17S5 and,
after a short service on the bench, was for many years
attorney for the county. Nahum Mitchell, of East
Bridgewater, was also an associate justice in this court
in 1S14, and for several years before and after. He
was a graduate of Harvard in 1789. For many
years before his death, which took place in 1S53, he
devoted himself to antiquarian and historical pursuits,
and published a history of Bridgewater, which per-
formed valuable pioneer service in the study of gene-
alogy and the preparation of town histories.

Since the adoption of the Constitution no inhab-
itant of Plymouth County has occupied a seat in one
of the higher courts of the commonwealth. There
have been lawyers practicing in the county worthy
of such a position, such as Francis Baylies of West
Bridgewater, Kilborn Whitman of Pembroke, Charles
J. Holmes of Rochester, Nathaniel M. Davis and
Joshua Thomas of Plymouth, Thomas Prince Beal of
Kingston, and Zachariah Eddy of Middleboro', all of
whom would have filled to the credit of the county a
seat on the bench of either of the higher courts. It
is not unlikely that they were at various times within
the vision of the Executive in his search for incum-
bents of judicial posts. Mr. Baylies, Mr. Whituiau,
Mr. Eddy, and Mr. Thomas, with their large practice
and engrossing occupations, were, nevertheless, men to
whom higher stations, with their more pressing labors



THE COURTS AND BAR.



11



and unreinunerative salaries, furnished no temptations
to entice them away from the placid current of a
country life. Mr. Davis, a graduate of Harvard in
1804, and Mr. Holmes, similar in their mental en-
dowments and temperament and tastes, abundantly
able to grace any position which they would accept,
with large resources of comfort and enjoyment in the
satisfaction of their literary tastes, would have been
struugly disinclined to assume the burdens of a labor-
ious office. Mr. Beal, a graduate of Harvard in 1806,
was too shrewd a man not to see himself as others saw
him, — a skillful, effective, and successful jury lawyer,
whose great gifts as an advocate would have been lost
iu the position of judge.

But Plymouth County blood has found its way to
seats on the bench, though not in the veins of those
who were inhabitants of the county at the time of
their appointment.

John Davis, who in his early professional career
was a member of the Plymouth County bar. should
be remembered in this record. He was the son of
Thomas and Mercy (Hedge) Davis, and was boru in
Plymouth, January 25, 1761. His father was a suc-
cessful merchant, and son of Thomas Davis, who mar-
ried Katharine Wendell, of Albany. He was fitted
for college in the schools of his native town, and
graduated at Harvard in 1781, iu the class with Sam-
uel Dexter, afterwards United States senator, and
Isaiah Lewis Green, Nathan Read, and Nathaniel
Ruggles, all of whom became members of Congress.
He studied law in the office of Oakes Angier, of West
Bridgewater, and Benjamin Lincoln, of Boston, and
was admitted to the bar in 1786, at Plymouth, where
he at once settled in practice. In 1788 he was chosen
a delegate to the convention which adopted the Con-
stitution, and was its youngest and last surviving
member. He represented his native town several
years in the Legislature, and in 1795 was chosen
senator from Plymouth County. In 1795 he was
appointed by Washington United States comptroller
of the currency, and shortly after United States dis-
trict attorney, when he removed from Plymouth to
Boston, after nearly ten years' connection with the
Plymouth bar. In 1801 he was appoiuted by Presi-
dent Adams judge of the United States District
Court, and served on the bench until July, 1841.
From 1800 to 1810 he was one of the Fellows of
Harvard University; from 1810 to 1827 its treasurer;
and from 1827 to 1837 one of its board of overseers.
In 1802 he received the degree of Doctorate of Laws
from Dartmouth College, and iu 1842 from his own
Alma Mater. Iu 1791 he became a member of the
Massachusetts Historical Society, aud served as its



president from 1818 to 1835, when he declined a re-
election. He was for many years secretary and coun-
selor of the American Academy of Arts and Sciences,
aud a member of the American Philosophical Society.

At various times he was called upon to deliver oc-
casional addresses, among which were an address be-
fore the Massachusetts Charitable Fire Association, in
1799 ; a eulogy on Washington, before the Academy
of Arts aud Sciences; an oration at Plymouth on
the anniversary of the landing r>f the Pilgrims, in
1800 ; and an address before the Historical Society in
1813. Among his other literary productions are the
Pilgrim Ode, " Sons of Renowned Sires," and an edi-
tion of Morton's " New England's Memorial," enriched
with copious and profound historical notes, which
have performed an invaluable service in extending the
horizon and enlarging the vision in the field of Pil-
grim history. The Pilgrim Ode, written for the cele-
bration of the anniversary of the landing in 1794,
was an inspiration, and, like the missionary hymn of
Bishop Heber, was the creation of an hour, aud made
the name of its author immortal. On the evening
before the celebration he was told that au occasional
hymn, which had been expected, had failed, aud was
asked by the committee to prepare one. He ueither
yielded to the request nor declined it, but on retiring
to his chamber for the night, he revolved the thought
in his mind, aud as it unfolded itself in satisfactory
measure, he paced his chamber unmindful of the re-
peated calls of his wife, who at waking intervals be-
came solicitous on accouut of what seemed to her his
strange behavior, evolviug line after line and stanza
after stanza until the work was complete. It was
stored, however, in his memory until the next morning,
and then took shape and form on paper to be remem-
bered and repeated and sung ;is long as the memory
of the Pilgrims shall live.

But these literary pursuits — to which must be added
continuous studies of botany, astronomy, mineralogy,
and conchology, in which his attainments were far
from limited — were avocations only, affording him re-
laxation and rest from his arduous judicial labors.
These labors were specially arduous. They were
begun at a period when expounders of admiralty law
were compelled accedere /antes, as was said by Mr.
Franklin Dexter, the representative of the bar, iu ad-
dressing Judge Davis at the time of his resignation,
and fouud little aid in the draughts of others. Ques-
tions, too, arising under the embargo laws were pecu-
liarly perplexing and embarrassing, for these laws, as
oppressive as they were even to his own kinsmen, he
was required to impartially enforce. The following
language uttered by him on the bench illustrates the



12



HISTORY OF PLYMOUTH COUNTY.



difficulties surrounding him, and his conscientious de-
termination to perform his duty: " I lament the pri-
vations, the interruptions of profitable pursuits and
manly enterprise, to which it has been thought neces-
sary to subject the citizens of this great community.
I respect the merchant and his employment. The
disconcerted mariner deserves our sympathy. The
sound of the axe and of the hammer would be grate-
ful music. Ocean in itself a dreary waste, by the
swelling sail and floating streamer becomes an exhilar-
ating object ; and it is painful to perceive by force of
any contingencies the American stars and stripes van-
ishing from the scene. Commerce, indeed, merits all
the eulogy which we have heard so eloquently pro-
nounced at the bar. It is the welcome attendant of
civilized man in all his various stations. It is the
nurse of arts ; the general friend of liberty, justice,
and order ; the sure source of national wealth and
greatness; the promoter of moral and intellectual im-
provement, of generous affections and enlarged philan-
thropy. Connecting seas, flowing rivers, and capacious
havens equally with the fertile bosom of the earth
suggest to the reflecting mind the purposes of a bene-
ficent Deity relative to the destination and employ-
ments of man. Let us not entertain the gloomy ap-
prehension that advantages so precious are altogether
abandoned ; that pursuits so interesting and beneficial
are not to be resumed. Let us rather cherish a hope
that commercial activity and intercourse, with all their
wholesome energies, will be revived, and that our
merchants and our mariners will again be permitted
to pursue their wonted employments consistently with
the national safety, honor, and independence."

It is easy to see that a judge, who displayed the
spirit suggested by this language, would have admin-
istered the laws, however distasteful they might be,
to the satisfaction and with the approval of even those
on whom they imposed the heaviest burdens. So
mild aud gentle and sweet was his invariable deport-
ment, and yet so firm and stern aud unanswerable was
his expressed conviction, that it was said by one of his
eulogists that he was a living illustration of the words
of Malebranche, " Truth loves gentleness and peace."
It was said of him by the late Hon. George S. Hil-
lard, " His was the pure and lofty spirit of the Pil-
grims softened by the influences of a milder age and
a creed less stern. In him were seen the prisca fides,
the ancestral faith of JVIarcellus, and the mites sapient in,
the gentle wisdom of Lislius. He was wise and good,
tender and true ; the calm of age was in his youth,
and the freshness and hopefulness of youth was in his
age."

Judge Davis married, in 1786, Ellen, daughter of



William and Elizabeth (Marston) Watson, of Plym-
outh, and had Ellen Watson, born 1787, who mar-
ried Rev. Ezra Shaw Goodwin, of Sandwich ; Eliza-
beth Marston, born 1789, who married Hon. William
Sturgis, of Boston ; Marcia, born 1790, who married
Miles Whitworth White, of Bostou ; John Watson,
born 1792, who married Susan Hayden, daughter of
Elkanah Tallman, of New Bedford; and Sarah, born
in 1794, who married Ashel Plympton, of Boston.
Judge Davis resigned his seat on the bench in July,
1841, and died at his home in Boston, January 14,
1847, at the age of eighty-six years.

Charles H. Warren, also a native of Plym-
outh, and a Harvard graduate in 1817, an adopted
son of New Bedford, after serving many years as the
attorney for the Southeastern District of Massachu-
setts, became judge of the old Court of Common
Pleas. He was a district attorney who never pre-
pared a brief nor lost an indictment, a judge who
never took a note, nor ever failed in his memory of
the minutest testimony. The brilliaucy of his pro-
fessional career was only equaled by the flashes of
humor which illumined his conversation in social life.

Thomas Russell, also a native of Plymouth, and
a Harvard graduate in 1845, sought wider fields for
legal practice than his native town presented, aud be-
came also a judge of the Common Pleas Court, whose
service was marked by accurate knowledge of law aud
its quick application, as well as by an indefatigable
industry.

Peleo Sprague. — Though never a member of
the Plymouth County bar, Mr. Sprague, as a native
of the county, deserves a place on the roll of its dis-
tinguished men. He was born in Duxbury, April
27, 1793, and was the son of Seth and Deborah
(Sampson) Sprague, and a descendant from William
Sprague, who came to Salem in 1C29. It is said
that the father and mother of the subject of this
sketch lived together under the same roof sixty-four
years. Mr. Sprague was the ninth of fifteen children,
and the family blood, though shared by so many, was
characterized by unusual strength and vigor. Seth
Sprague, the father, lived to an advanced age, aud
was in his later years the patriarch of the town,
which through a protracted period he had served and
honored. He was forty years a justice of the peace
and quorum, twenty-seven years a member -of the
State Legislature, and twice a member of the Elec-
toral College. To the last he retained his mental
elasticity and strength, and at a period of life wheu
most men ride contentedly at the political and social
anchors which they had cast in their earlier manhood,
he boldly left his moorings and entered with euthu-



THE COURTS AND BAR.



13



siastu ioto the anti-slavery cause as one of its pioneers
and trusted advisers.

Mr. Sprague, the son, graduated at Harvard in
1812, in the class with Charles G. Loring, Franklin
Dexter, and Bishop Wainwright, and received the
degree of Doctor of Laws from his Alma Mater in
1847. He studied law at the Litchfield School, and



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