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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in the offices of Samuel Hubbard and Levi Lincoln,
and was admitted to the bar in 1815. Soon after his
admission he removed to Augusta, in what was then
the district of Maine, and after a residence there of
two years finally settled in Hallowell. He took an
active part in the movement which resulted in the
separation of Maine from Massachusetts, and was a
member of the first two Legislatures of the new
State in 1820 and 1821. In 1825 he was chosen
representative to Congress, and served in the Lower
House until 1829, when he was chosen United States
senator. After a service of six years in the Senate,
he removed in 1835 to Boston, where he continued
the practice of law in a wider field for the display of
his acknowledged ability and learning.

In July, 1841, after the resignation of John Davis
of his seat on the bench of the United States District
Court, he was appointed by Harrison to fill the vacancy,
and performed the duties of that office — made pecu-
liarly arduous by the novel cases in American juris-
prudence arising during the war of the Rebellion —
with distinguished ability until his resignation in
1865. It was said by one of his eulogists that during
the war a distinguished practitiouer in his court ex-
pressed, in conversation, serious doubts whether the
offense of treason could be committed in Massa-
chusetts where no war existed. He replied, " Bring
me a man who, here in Massachusetts, has by any
act, however slight and however remote from the
field of war, intentionally given aid to the rebels in
arms, as by communicating to them information or
advice, and I will not only show you that I can try
him, but that I can have him hanged." This in-
formal opinion had the flavor of a judicial decision,
and was accepted as law.

During the last years of his judicial life his eyes
were so seriously affected that he was incapacitated
for the work of taking notes, and even the light of
the court-room became a painful annoyance. But so
tenacious was his memory that after a protracted
trial, involving large interests and encumbered with a
large amount of expert and technical testimony, every
witness and every essential piece of evidence were so
clearly photographed on his mind that in his charge
to the jury he was able to reproduce them with un-
erring accuracy. His malady, however, became finally



so heavy a burden that he was compelled to resign his
seat, and the last years of his life were spent in a
darkened room. He died .at his home in Boston,
Oct. 13, 1880, at the age of eighty-seven.

John Holmes. — The subject of this sketch spent
his professional life and won his reputation in Maine,
but as a native of Plymouth County, aud at the
threshold of his career a member of its bar, he should
not be omitted in these narratives. Mr. Holmes
was born in Kingston iu March, 1773. He was the
son of Malachiah Holmes, an iron-manufacturer in
that town, and was descended from John Holmes,
who appeared in Duxbury at a very early period of
the Plymouth Colony. At the age of nineteen, when
a workman in his father's works, his intelligence and
spirit attracted the notice of one of the schoolmasters
in the town, by whose advice and influence he was
placed under the instruction of Rev. Zephaniah
Willis, the pastor of the church in Kingston. In
1793 he entered an advanced class of Brown Univer-
sity, and graduated with Tristam Burgess and Dr.
Benjamin ShurtlefF in 1796. He at once began the
study of law with Benjamin Whitman, a successful
attorney in Hanover, and was admitted to the bar in
Plymouth in 1799. In those days the district of
Maine was what the West is now, — a field for active
and enterprising young men to grow up with new
towns, and thereby win popular favor and professional
success.

To the village of Alfred, with a population of
eight hundred and fifty, and not incorporated as a
town until 1808, Mr. Holmes wended his way imme-
diately after his admission to the bar, and at once
identified himself with the interests aud welfare of a
thrifty and enterprising community. At that time,
as is well known, Maine was a part of Massachusetts,
and in the whole district there were only forty-three
lawyers practicing in its courts. Though never pro-
found in the law, his knowledge of men, his industry
and honesty, his unbounded humor, and his mild tem-
per soou made him a formidable opponent before a
jury, and placed him in the front rauk of advocates.
As a humorist, his chief competitor in the courts was
Joseph Bartlett, who afterwards married iu Plymouth
and there died, after a residence of some years iu that
town, at the close of his career in Maine. Iu the
latter part of his professional life in Maine, Mr. Bart-
lett contracted habits which destroyed his reputation
as a lawyer and reduced him to the lowest range of
criminal cases as a means of support. Iu one instance
he received something in the nature of a reprimand
from the court for appearing as couusel for a negro
named Caesar, whose case, after a short hearing, was



14



HISTORY OP PLYMOUTH COUNTY.



abruptly dismissed. Mr. Bartlett, in defense of his
course, told the court that witli him it was " Aut
Csesar, avt nullus." Mr. Holmes was a stanch
Federalist in politics, and represented Sandford and
Alfred in the General Court of Massachusetts in
1802 and 1803. In 1811 he was a firm advocate of
the war measures of Madison, and was again sent to
the General Court, where he was the candidate for
Speaker of the House of Representatives, in opposi-
tion to the successful candidate, Timothy Bigelow.
Iu 1813 he was chosen a member of the Massachu-
setts Senate, and in 1815 was appointed by Madison
a commissioner, under the fourth article of the Treaty
of Ghent, to make a division between the United
States and Great Britain of the islands in Passaina-
quoddy Bay. In 1816 he was chosen a member of
Congress, and rechosen iu 1818. He took an active
part in the movement to make Maine au independent
State, and in 1820 was chosen senator of the new
State to the National Congress. His service in the
United States Senate continued until 1833, and was
characterized by .that skill in debate and keen humor
which had distinguished him as a member of the bar.
On one occasion, when reminded by John Tyler of
the inquiry of John Randolph, what had become of
James Madison, Felix Grundy, John Holmes, and
the devil, he promptly replied, " The first is dead,
the second has retired, and the last has gone over to
the party of nullifiers, of which the honorable gen-
tleman is a conspicuous member."

Iu 1841, Mr. Holmes was appointed by Harrison
United States attorney for the Maine district, and
held the office until his death, which occurred in Port-
land, July 7, 1S43. He married two wives, the first
Sally Brooks, of Scituate, whom he married in Sep-
tember, 1800, and the second the widow of Henry
Swan and daughter of Gen. Knox, whom he married
in July, 1837. After his second marriage he re-
moved from Alfred to the estate of his wife at Thom-
aston, and during the last six years of his life had a
divided residence in that towu and Portland, the seat
of his official duties.

It may not be improper to say that it is well un-
derstood that Sidney Bartlett, of Bostou,a native
of Plymouth, and a graduate of Harvard in 1818,
who at the age of eighty-four still contests the honors
of leadership of the Massachusetts bar with his only
recognized competitor, William G. Russell, of Boston,
also a uative of Plymouth, and a Harvard graduate
in 1840, has more than once declined the offer of a
commission to the highest court in the State. It is
not only understood, but known, that on the retire-
ment of Horace Gray from the chief justiceship of '



the Supreme Court, after his appointment to the
Supreme Court at Washington, Mr. Russell was urged
to accept the place, and declined it to the regTet of
the Governor, of the bar, and the whole community.

Among the earliest lawyers in the county was
Nathaniel Clark, of Plymouth, a son of Thomas
Clark, who came over in the " Ann" in 1023. Mr.
Clark was the successor of Nathaniel Morton, in
1G85, as secretary of Plymouth Colony, and on the
advent of Sir Edmund Andros, in 1680, he attached
himself to the new Governor, and became one of the
most troublesome instruments of his troublesome ad-
ministration. Unscrupulous smartness, a trait less
popular among the Pilgrims than among their sons,
was his characteristic, and he lived a disturber of
both public and domestic peace.

Most of the members of the bar up to the time of
the Revolution have been referred to iu connection
with some judicial or county office. James Otis,
the patriot, studied law in Plymouth, and practiced
law there for a time after he was admitted to the bar,
occupying the southerly room in the building north
of the engine-house on Main Street as his office.
His sister Mercy, the wife of James Warren, lived at
the same time in the house on the coiner of North
Street, and he was an inmate of her family.

William Cullen Bryant, too, was admitted to
the bar in Plymouth, Aug. 8, 1815. He had been
a student in the office of William Baylies, of West
Bridgewater, and after his examination wrote the
following letter to his father :

" Deaii Sin:

" I went to Plymouth last week, where I stayed four days,
and might perhaps have been obliged to stay a week, had it
not been for good luck io finding a Bridgewater man there with
a vacant seat in his cbaise. I have received a certificate in
the handwriting of A. Holmes, Esii., and sprinkled with his
snurT instead of sand, for which I paid six dollars, according
to the tenor and substance following:

" 'These certify that William Cullen Bryant, a student-at-law
in Brother Baylies' office, has been examined by us, and we do
agree that he be recommended to be admitted an attorney at
the August term, 1815, he continuing his studies during all
that time.

" Joshua Thomas,

"AllltAllAM IlOLSIKS,

" Committee of the Mar."

James Hovey and Pelham WiNSLow.of Plym-
outh, and Oakes Anqier occupied promineut po-
sitions, and must not be omitted in allusions to lawyers
of this period. As the threshold of the present cen-
tury is passed the number of attorneys increases.
Besides those who have been mentioned, there have
been of those now dead John B. Thomas, William
Thomas, John Thomas, Jacob H. Loud, William



THE COURTS AND BAR.



15



Davis of Plymouth, Samuel Stetson of Duxbury,
Charles K. Whitman of Pembroke, Ebenezer T.
Fogg of Scituate, Ebenezer Gay and Solomon Lin-
coln of Hinghani, Eliab Whitman of North Bridge-
water, Austin Packard of West Bridgewater, Jared
Whitman and Benjamin Hobart of Abingtou, Ben-
jamin Whitman, Alexander Wood, and John Wins-
low of Hanover, Seth Miller of Wareham, Welcome
Young and Bartholomew Brown of East Bridge-
water, and Williams Latham of Bridgewater, all of
whom have occupied positions at the bar which justify
their mention.

William Baylies, who for many years stood at
the head of the Plymouth County bar, was the son
of Dr. William Baylies, of Uxbridge. Nicholas, the
father of Dr. Baylies, came with his father, Thomas,
from Colebrooke, England, iu 1737, and settled in
Uxbridge, where he carried on the iron business.
Dr. Baylies was born in Uxbridge in 1743, and re-
moved to Taunton with his father's family after his
graduation at Harvard, in 1760, and died in 1826.
He married Bathsheba, daughter of Hon. Samuel
White, a native of Braiutree, then living in Taunton,
and had two sons, Francis Baylies, a member of Con-
gress and minister to Buenos Ayres under Andrew
Jackson, and the author of a comprehensive history
of the Old Colony, and William, the subject of this
sketch. William was born iu Dighton, Sept. 15,
1776, and was fitted for college in one of the schools
of that town, under the instruction of John Barrows,
a graduate of Harvard iu 1766. He entered Brown
University in 1791, and graduated in 1795 with the
highest houors. After preparing himself for the
practice of law in the office of Seth Padelford, of
Taunton, he was admitted to the bar in that town at
the March term of the Court of Common Pleas in
1799, and settled in West Bridgewater. He repre-
sented his adopted town in the House of Representa-
tives in 1808-20 and 1831, and was a member of the
State Senate in 1825. Iu 1809 he was elected a
member of Congress, but his seat was successfully
contested by his competitor. In 1813 he was chosen
a second time, and held his scat duriug two terms.
In 1831 he was again chosen, and duriug two addi-
tional terms served his district on the floor of Con-
gress. In 1831 he received the degree of Doctorate
of Laws from his Alma Mater. This honor was con-
ferred, however, not so much ou account of a public
career, from which he derived little satisfaction and
upon whose laurels he placed little value, as in recog-
nition of his emiuent and deserved success in the line
of a profession in whose fields he had diligently
labored and whose fruits he was ambitious to gather.



During a full half-century no man in Southeastern
Massachusetts held a more conspicuous place at the
bar than Mr. Baylies. All those mental character-
istics which are the indispensable ingredients of
what is called wisdom — clearness of thought, power
of analysis, a normal intellectual vision, neither far-
nor near-sighted, a mental conscience, an appreciation
of just and accurate views on all questious, a recog-
nition of the two-sidedness of all matters in dispute,
an even, unruffled temper, a healthy body, and great
powers of endurance — were his, and they were not
long in securing and retaining the confidence of cli-
ents and the community. During fifty years he drew
to him all the business which he felt that he could
faithfully perform, aud during many a term of the
court in Plymouth he went from jury to jury, plead-
ing on one side or the other iu every civil case ou the
docket. From the second volume of the " Massachu-
setts Reports" to the sixty-fourth, his name may be
found scattered thickly along the pages of Plymouth
and Bristol decisions, only equaled in frequency by
the name of Zechariah Eddy, of Middleboro', who
was more often than any other lawyer his antagonist
iu the legal arena.

He first appeared before the full court at its law
term in October, 1806, with his old law-teacher, Seth
Padelford, on the other side, in "Joshua Thomas, judge
of probate, against Asa Leach," in which the scholar
proved himself more than a master for his master iu
securing a decision that " an action in the name of a
judge of probate on an administrator's bond cannot be
referred." His last appearance was in January, 1S49,
in Alden B. Weston and others against Alfred Sump-
son and others, with William Thomas, of Plymouth, as
his associate, for the defendants, aud Thomas Prince
Beal, of Kingstou, and H. A. Scudder, of Bostou or
Barnstable, for the plaintiffs. On the question at issue
this was a leading case, the decision of which involved
extended interests along the seaboard of the Old
Colony. It was an actiou of trespass quart: daitsu/n
/regit, originally brought before a justice of the
peace and submitted to the Court of Common Picas.
It was finally brought by appeal to the Supreme
Court on the following agreed statement of lacts :
"It was admitted that the Plaintiffs were the pro-
prietors of a tract of upland described in the writ,
with the flats adjoining, at Powder Point, so called, in
Duxbury, borderiug upon the bay. The defeudants,
inhabitants of Duxbury, went in their boat upon said
flats, and there, at low water, dug five bushels of
clams and put them into their boat aud carried them
away. The place where the defendants dug their
clams was between high- aud low-water mark, and



16



HISTORY OF PLYMOUTH COUNTY.



within one hundred rods of the shore of the plain-
tiff's upland. If the Court shall be of opinioo that
the defendants had a right so to dig and carry away
said clams, the Plaintiffs are to become nonsuit, oth-
erwise the case is to be sent to a jury." The court
decided that fishing was a common law right, as well
fishing for shellfish as for those swimming in the
water, and unless there was some colonial, provincial,
or State law which controlled and limited that right,
the inhabitants had a right to go in boats to flats be-
tween high- and low-water mark and there take shell
or other fish. The plaintiff relied on a law of Mas-
sachusetts Colony, passed in 1641, giving the owner
of uplands the (propriety) so far as the tide ebbs and
flows, when it does not ebb more than one hundred
rods; but the court held that, notwithstanding the
union of the Massachusetts and Plymouth Colonies,
in 1692, the absence of any Plymouth Colony law
or provincial law after 1692, or State law after the
adoption of the Constitution, keeps the old common
law right alive, and justifies the defendants in their act.

Mr. Baylies was never married. He retired from
the bar soon alter 1850, died in Taunton, Sept. 27,
1865, and was buried in Dightou, the place of his
birth.

Ebenezer Gay, of Hingharu, was descended from
John Gay, who appeared iu Watertown in 1635, and
removed to Dedhaui. John Gay, the ancestor, by a
wife, Joanna, said to have been a Widow Baldwicke,
had ten children, — Samuel, born in 1639 ; Hezekiah,
born in 1640 ; Nathaniel, born in 1643 ; Joanna,
born in 1645 ; Ebenezer, born in 1647 ; Abiel and
Judith (twins), born in 1649 ; John, born in 1651 ;
Jonathan, born in 1653; and Hannah, born in 1656.
Nathaniel Gay, one of the above children, married
Lydia Lusher, and had Benjamin, Nathaniel, Mary,
Lydia, Lusher, Joanna, Abigail, and Ebenezer. Eben-
ezer, one of the sons of Nathaniel, was born in 1696,
and graduated at Harvard in 1714. He settled as
pastor over the Hingham Church in 1718, and died
in 1787, after a pastorate of sixty-nine years and nine
mouths. On his eighty-fifth birthday he preached a
sermon from the text, " Lo, I am this day fourscore
and five years old," which, under the title of the
" Old Man's Calendar," was published in America, in
England, and on the continent. In 1785 he received
the degree of Doctorate of Laws from his Alma
Mater. He married, in 1719, Jerusha, daughter of
Samuel Bradford, of Duxbury, grandson of William
Bradford, Governor of Plymouth Colony, and had
Samuel, 1721, a graduate of Harvard in 1740 ; Abi-
gail, 1722; Calvin, 1724; Martin, 1726; Abigail
again, 1729 ; Celia, 1731 ; Jotham, 1733 ; Jerusha,



1735 ; Ebenezer, 1737 ; Persis, 1739 ; and Joanna,
1741. Martin, one of the sons of Ebenezer, carried
on the business of brass-founder in Union Street, Bos-
ton, and was also interested in navigation. He was
deacon of the West Church, and captain of the
Ancient and Honorable Artillery Company. At the
breaking out of the Revolution he adhered to the
crown, and at the evacuation of Boston went with the
British army, in 1776, to Halifax. He returned to
New England iu 1792, and died iu 1809. He mar-
ried, in 1750, Mary Pinckney, and had Celia (1751),
Mary, Samuel (a graduate of Harvard in 1775),
Martin, Prances (who married Dr. Isaac Winslow,
of Marshfield), Pinckney, and Ebenezer. Ebenezer,
one of the above children, and the subject of this
sketch, was born in Boston, Feb. 24, 1771, and re-
ceived his early education in the Boston Latin School,
where he fitted for college. He graduated at Harvard
in 1789, and after spending a year in Nova Scotia,
where his father then resided, he entered the law-
office of Christopher Gore, and was admitted to the
Suffolk bar at the April term of 1793. He at once
opened an office in Scollay's building, which stood on
the spot now marked by the statue of Governor Win-
throp, and stepped so rapidly into practice that at one
of the earliest terms of the Common Pleas Court
after his admission he entered sixty actions. His
business was largely that of collections, though he
was one of the first to explore the field of admiralty
law, at that time little understood. In the early years
of his career the Suffolk bar, though small in com-
parison with its proportions at the present day, was
composed of marked men. It contained thirty-three
men, — five barristers, twenty attorneys of the Supreme
Judicial Court, and eight attorneys of the Court of
Common Pleas. The barristers were James Sullivan,
Theophilus Parsons, William Tudor, Perez Morton,
and Shearjashub Bourne. The Supreme Court at-
torneys were Thomas Edwards, Jonathan Mason,
Christopher Gore, Rufus G. Amory, Joseph Hall,
Edward Gray, John Davis, Harrison Gray Otis,
Joseph Blake, Jr., John Lowell, Jr., John Quincy
Adams, John Phillips, George Blake, Ebenezer Gay,
Josiah Quincy, Joseph Rowe, William Sullivan,
Charles Paine, John Williams, and William Thurs-
ton, and those of the Common Pleas were Edward
Jackson, Foster Waterman, David Everett, John
Heard, Charles Davis, Charles Cushing, Jr., J. W.
Gurley, aud H. M. Lisle.

It was in competition with these men that Mr.
Gay entered the professional arena. Nor was he by
any means one of the last in the race. During six-
teen years of laborious practice — from 1793 to 1809



THE COURTS AND BAR.



17



— lie wod a deserved reputation for industry, fidelity,
and exact methods of business, which had added, as
he thought, sufficient to his store to enable him to
retire to the less burdensome field of a couutry life,
in which business and relaxation might be so happily
blended as to preserve a vigorous constitution and, at
the same time, an active mind. In 1805 he removed
his residence to Hingham, but retained his office in
Boston until after the death of his father in 1809.
Having fiually removed his office also, the distance
of Hingham from Boston, with the existing means of
communication, severed, of course, his connection
with old clients and with the courts of Suffolk, and
thenceforth he became identified with the Plymouth
County bar as one of its ablest and most trustworthy
members. Though not a brilliant jury lawyer, his
docket at the Plymouth courts was always large, and
his well-grounded knowledge of law, mingled with a
conscientious fidelity both to his clients and to the
exacting demands of justice, often carried him success-
fully and safely through the rocks and shoals of litiga-
tion, on which many a more eloquent advocate would
have been irrecoverably wrecked.

His contemporaries at the Plymouth bar were
William Baylies, Zechariah Eddy, Thomas Prince
Beal, Kilborn Whitman, Abraham Holmes, and
Joshua Thomas; and while his dignified bearing re-
pelled familiarity, his companionship was eagerly
sought, for his conversational powers, dealing with a
large fund of information, were always entertaining;
and he was believed to be a genuine honest and true
man. His friendships, where the recipients were
worthy, were always lasting. Though removed from
the professional sphere of his earlier years, he neither
deserted nor was deserted by those comrades at the
bar with whom he had been associated in Boston.
With Harrison Gray Otis, Solicitor Davis, Judge
Minot, James Savage, and Judge Shaw he had con-
tracted a lasting friendship, aud these geutlemen were
frequent guests at his Hingham home.

Mr. Gay married, July 31, 1800, Mary Allyne,
daughter of Joseph Otis, of Barnstable, and at his
death left eleven surviving children, — Mary Otis, born
July 9, 1801, who married Robert T. P. Fiske, M.D.,
of Hingham ; Martin, born Feb. lb', 1803, a distin-
guished physician and chemist, who married Eleanor,
daughter of Frederick Allen, of Gardner, Me. ; Charles
William, born July 17, 1804; Henry Pickney, born
Oct. 24, 1806; Frances Maria, born Aug. 4, 1809;
Elizabeth Margaret, born April 28, 1811; Sydney
Howard, the well-known editor and author, born May
22, 1814, who married Elizabeth, daughter of John
Neal, M.D., of Philadelphia; Abby Frothingham,
2



born May 14, 1816, who married Isaac Winslow, of
Boston; Ebenezer, born March 27, 1818, who mar-
ried Ellen Blake, daughter of Oliver Blood, M.D.,
of Worcester; Arthur Otis, born Aug. 31, 1819;
Winckworth Allan, the distinguished artist, born
Aug. 18, 1821.

Mr. Gay never sought office nor conspicuous posi-
tion of any kind, but was honored by his adopted
county with a seat in the State Senate, aud declined
the appointment by Governor Gore as a justice on the
bench of the Court of Common Pleas. He died at
Hingham, Feb. 11, 1842, at the age of seveuty-one
years.

Zechariah Eddy was descended from Rev. Wil-
liam Eddy, vicar of St. Dunstau's Church, in Cran-
brook, county of Kent, England, who married, iu 1587,



Online LibraryD. Hamilton (Duane Hamilton) HurdHistory of Plymouth County, Massachusetts : with biographical sketches of many of its pioneers and prominent men (Volume 2) → online text (page 4 of 118)