Joseph Lyon Miller.

American monthly review online

. (page 46 of 54)
Online LibraryJoseph Lyon MillerAmerican monthly review → online text (page 46 of 54)
Font size
QR-code for this ebook


ward from the Atlantic, and frequently to an equal degree in
their northern and southern boundaries ; nor could it well be
otherwise in the universal ignorance that then prevailed
touching the geography of the northern continent.

The river Piscataqua was discovered by Captain John
Smith, who sailed along the shore from Penobscot to Cape
Cod in 1614, and made a map of the coast, which we con-
fess to be one of the greatest curiosities of the kind we ever
saw, and know not well how to describe it. In 1621, Cap-
tain John Mason, a merchant in London, procured from the
Plymouth Company in England a grant of all tbe land froo)
the river of Naumkeag (Salem) round Cape Anne to the Mer-
rimack ; with a west line running from the head of the on€{
river to the head of the other. This was called Mariamjk^
The following year a grant was made to Mason and Sir Fer-
dinando Gorges of all the lands between tbe rivers Merrimac)|(
?ind Sagadehoc, extending back to the great lakes and rive^
of Canada. This was called Lacania. It was under tbi^
last grant that the settlements were made at Piscataqua.

In 1629 Mason obtained another grant of all the land?
between the Merrimack and the Piscataqua, and extending
sixty miles into tbe country. Much more than this, as ha9
just been remarked, had been previously granted tq Maspq
and Gorges ; and it is difficult to account for the new patent|
unless we adopt the conclusion that it w^s intendeg as ao
equivalent for the patent of Mariana, which tbe ye^ befor<9
had been granted to Massachusetts, and that it was agreed
lietweea Cradpck, the first Governor of tbe l^qr Qplftvy^ w4



Digitized by



Google



1889.] BeHcnap'i SUtory of New Hampshirt. 441

MasoD, that tbe bounds of Massachusetts should be tbre^
loiles north of the Merrimack, and that the remaining lands
to tbe Piscataqua should be taken to belong to Mason's pa-
tent, which was called New Hampshire. The whole of this
territorjr was reserved to Mason when, in 1635, the Council
at Plymouth, fearing that their charter would be taken away,
resigned it into the hands of the king.

Under this last reservation Mason founded a claim to the
territory of New Hampshire, most injurious to its prosperity,
and the occasion of a wearisome and protracted .dispute.
Mason died in 1635, and by his last will gave this estate in
entail to bis erandson, John Tufton, who was to take the
surname of Mason, The settlement at Newichwannock was
abandoned by his widow a few years after as an unprofitable
speculation, A part of the land at Newichwannock was
afterwards recovered by J. Tufton Mason in a suit against the
tenant ; but the &mily being of the royal party no attempt
was made to recover any other part of the territory till after
the restoration of Charles the Second. In the mean tim^
the number and wealth of the inhabitants upon the debatable
land bad considerably increased. Opinions were repeatedly
given by the crown officers in England in favor of his titl^,
and finally, in 1679, New Hamnshire was made a distinct
province by tbe king, principally, if not wholly, that be
might direct the trials and appeals in Mason's claims at hip
jpleasure, apart from the Massachusetts courts. Mason ao
cordingly came over to the province, assumed the title of
Lord Protector, apd endeavoured to collect rents and pom^

Eel the people to take leases from him. But at every turn
e met with new difficulties, and in spme instances wub
open resistance. The tenant^ had been in possession som?
fifty years, under fair purchases from the Indians, and were
qot pf a te^nper to yield quietly to the imperious demand of
the claimant. Fipding all his attempts thus far unsuccessful^
be commenced a suit s^gainst one of the principal mhabitapfii
in 1683, in a cpurt packed for the purpose by his partisan
and creature Governor Cranfield, aad, with the fiid of an 'mr
terested and packed jury, obtained a verdict in his favqr.
Aft^r this, many other suits were instituted against the prin-
pipal landholders, who made np resistance |n court, weU
ftware that it would be ineffectual. " ThP jufy*" says B^r
iu^p ^' oev^y besitftt^d in ihm^ VQjrditJta, fiQWK SW6» $9



Digitized by



Google



443 Belknap*s History of New HampMhire. [June,

twelve causes were despatched in a day, and the costs were
multiplied from five to twenty pounds. Executions were
issued, of which two or three only were levied ; but Mason
could neither keep possession of the premises nor dispose of
them by sale ; so that the owners still enjoyed them. Sev-
eral of them threatened to appeal to the king, but Major
Vaugban alone made the experiment." p. 102.

Vaughan's appeal was decided against him by James the
Second of arbitrary memory. But the court in New Hamp-
shire suddenly becoming jealous of the large territory, that
seemed now to be already within the grasp of Mason, delay-
ed issuing executions. He obtained a writ of certiorari from
Chief Justice Dudley for the removal of the causes to the
Superior Court then held at Boston for both governments,
but his sudden death in 1688, and the Revolution in that
year, for a time checked all further proceedings.

In 1691, his sons and heirs John and Robert Mason,
weary probably of this hereditary litigation, sold all their
interest in the province to Samuel Allen, a London mer-
chant. The new purchaser, on examining the records of the
court, found that twenty-four leaves were missing, in which
it was supposed the judgments recovered by Mason were
recorded. This novel mode of abridging a work was to be
sure somewhat of a damper ; but Allen persisted in his claim,
and brought a suit against one of the largest landholders to
try his title. The cause was given in favor of the defend-
ant. Allen appealed to the kmg, and judgment was again
given against him, on the ground that there was no evidence
of Mason's possession. He then petitioned the king to be
put in possession of the waste land ; this petition was grant-
ed, dna embraced as waste all unenclosed and unoccupied
land, within as well as without the bounds of settled towns.
He again sued and was again unsuccessful. He next at-
tempted to compromise with the Assembly, and certain
terms were stated by them, which would probably have been
satisfactory on all sides ; but his sudden death the day after
the articles of settlement were presented to him (1705) pre-
vented so desirable an issue.

In 1706 and 1707, his son, Thomas Allen of London,
made a last and determined effort to establish his title to this
large territory, that was every year increasing in value. He
renewed the action brought by his father. Both parties pre-



Digitized by



Google



:.J Belknap^ s History of New Hampshire. 443

pared for the trial with great industry, and the cause was
managed on both sides with zeal and ability. It was a mat-
ter of intense interest to the public on the one hand and to
the claimant on the other. Aiter a full hearing the jury found
a verdict in favor of the defendant. Allen appealed to the
Queen in Council, and the appeal was allowed. "But,"
says Belknap, '' the loyalty of the people, and the distresses
under which they labored by reason of the war, prevailed on
the queen's ministry to suspend a final decision ; and before
the appeal could be heard, Allen's death, which happened in
1715, put an end to the suit, which his heirs, being minora,
did not renew." p. 166.

The sale by John and Robert Mason to Allen in 1691 ^
having been made in England, it was supposed by some that
the breaking the entail there for the purpose of making that
sale was of no validity, for, the lands being in New HamiH
shire, the English courts could have no jurisdiction of the
matter. Accordingly John Tufton Mason^ a nrandson of
Robert, suffered a recovery in the courts of New Hamp-
shire by which the entail was docked, and he obtained the
right of selling his interest. He finally sold, in 1746, all his
title to several of the principal gentlemen in the province, who
were anxious to see an end of this perplexing business. The
grantees relinquished all claim to the towns which had been
settled and granted within the limits of their purchase, and
by adopting a very liberal policy in their grants of new town-
ships in the province, they obtained great popularity. The
heirs of Allen, it is true, threatened to molest them ; but
the latter, having consulted council both here and in Eng-
land, were satisfied that their own title was valid.

Thus after a period of nearly one hundred years, after
long and bitter altercation and much real distress, this con-
troversy was brought to a close ; for no farther attempt was
made by Allen's heii-s to revive their claim.

There are many other interesting points in the history of
New Hampshire. The question of boundary was long un-
settled, and Massachusetts, partly by claiming too much of
the territory north of the Merrimack, and partly through the
jealousy with which she was always regarded by the Eng-
lish government, except during the protectorate of Cromwell,
lost a large tract of land to which she was fairly entitled ;
while New Hampshire, on the other hand, obtained more than



Digitized by



Google



444 Belknap* s History of New Hatupshin. [June,

nh^ dvw expected, or erett asked. The grswt* made by
Governor B^nDiog Weotworth w«t of Connecticut river,
btid to ivithin twetity mil^d of the Hudson, and which were
known by the name of the New Hampshire Grants, were the
occasion of Severe discussion between that government and
IVew York. The inhabitants of the contested territory,
which now constitutes the State of Vermont, for a long time
Wrove to constitute themselves a distinct political commu-
nity, and to embrace many towns to the east of the Con-
tteciicut river, belonging to New Hampshire ; and it was not
tintil after a state of alnoost open war with the latter prov-
ince, and after mutual encroachments, that the jurisdiction
cm ekber side was settled and limited, and Vermont was
brought into the confederacy.

Like the other provinces, New Hampshire suffered from a
wretched paper currency, bills of credit, tender laws, &c.',
which did so much to embarrass and impoverish the whole
country. But a youthful and vigorous people will grow and
flourish despite of every obstacle. They may be depressed
awhile ; bad institutions and bad laws may injure, but cannot
erush them ; they will always recover at last by their own
elasticity.

From other causes frequent calamity visited this province.
Her sea-coast was narrow and comparatively barren, and she
bad not strength to push her population to the i^itile lands
in the interior till nearly a century after the first settlement.
For a long period Dover and Durham were frontier towns ;
and there was no division into counties til! 1771. The In-
dian was about her path and spread desolation on every side,
and occasioned probably more suffering and death in propor-
tion to^the population, than in the neighbouring province of
Massachusetts. But her sons were hardy, brave, and enter-
prising, and ever ready to meet the savage enemy in the
numerous conflicts that took place. They were distinguish-
ed in the expeditions against Canada, at the siege of Louis-
bourg, and in the war of the Revolution, for vigor and cour-
age, and bore their full share with willing hearts in the
defence of their country.

We are glad to see a new edition of Dr. Belknap's " His-
tory." The author has always been a favorite with us for
his catlK)lic spirit, and his historical impartiality. His narra-
tive is excellent, and bis disquisitions and reflections are



Digitized by



Google



188fi.] BelknapXHistary of New RampOiire. 445

always well timed and never break the contiouity of bis rela-
tion. His delineations of character are forcible and judicious,
and, while marked with the strictness of truth, impress the
reader with the benevolence of the character of the author
himself. It is a great merit of his style, that in reading we
seldom think of it, but are carried along by the interest of
the story. The attention is not called to censure a slovenly
or inaccurate, nor an ambitious or inflated style. When a
writer makes you forget his style, it cannot be very faulty.
Dr. Belknap never seems to think of it himself, while it pos-
sesses great simplicity* and strength. He leads us along
pleasant paths, where nothing is sterile, nothing rank, but
every thing is pleasant to the eye.

The present volume contains the whole of the original
history, together with the last corrections of the venerable
author, and several valuable papers that were added by him
to the Appendix. The editor, John Farmer, Esq., was for-
tunate enough to obtain this corrected copy from John Bel-
knap, Esq. of Boston, a son of the historian. Mr. Farmer
has added three papers of historical interest, and has made
divers corrections throughout the work.* His Notes are
Dumeroua, full, and to the purpose. He has well executed
all and more than all be promised. It is fortunate that the
undertaking fell into* such competent hands. AH who have
seen hisr ekoellent ^^ Gazetteer of New Hampshire," and
other useful works that he has prepared, and his numerous
contributions to the history of the country, will be very
ready to commend the extent of his antiquarian lore, hxi
great industry^ his sound judgment, and the ardor and suc-
cess of bis investigations. We sincerely hope that he will
find encouragement to continue the history, and that he will

i'ive to the public another volume, which we understand has
or some time been in preparation, together with a Map of
New Hampshire, and a copious Index to the whole work.

* We are remiDded that there should be one addition to the list, in
the Appendix, of the public officers of the Province, viz. that of Sir
John Temple, who was appointed Lieutenant Governor of New Hamp-
shire in 1761, arrived in Portamouth in Januarji 17(^ puhlished his
commission, and took the oaths of office.

VOL. I. NO. VI. 57



Digitized by



Google



446 Ryan** Medical Jurisprudence. [June,



Art. II. — A Manual of Medical ifurisprudencey eompUed
from the best Medical and Legat Works ; being an Anal-
ysis of a Course of Lectures on Forensic Medicine, an -
nually delivered in London. By Michael Rtan, M D.,
Member of the Royal College of Physicians in London,
&c. First American Edition. With Notes and Addi-
tions, by R. Eglesfeld Griffith, M. D., Lecturer on
Materia Medica and Medical Jurisprudence in the Phila-
delphia School of Medicine. Philadelphia. Carey &
Lea. 1832. 8vo. pp. 327.

This is rather a bulky '^ Manual '' ; and while reading it,
the question often occurred to us, how it might have been
put together so as to have answered the title better, and still
to have been quite as useful as it is likely to be in its present
dimensions, in answering this question, which we now pro-
pose to do, we shall have an opportunity to give our opinion
of this volume, and state with sufficient distinctness what we
bold that subject to be upon which it treats.

There are about three hundred pages in this book, and
about one hundred of them are given to what is technically
called Medical Ethics. We have much doubt whether the
morality, or rather the immorality, of the medical calling de-
serves so much room as all this. Is there in truth any demand
for this new code of morals ? Does it not belong to good prin-
ciple in any and every calling to show each and every mem-
ber of the same what he should do and what he should for-
bear? And where good principle has place, and a fixed
and large place too, will a code of laws keep men in the
right way ? We can never forget the remarks of one not of
the profession of medicine, who by accident took up a vol-
ume of medical ethics, strangely named Medical Police. He
was surprised, and uttered his astonishment in no weak
measure, that it should ever for a moment have been thought
necessary to bind a whole profession to such observances ;
as they seemed to belong necessarily to the very being of
right thinking and right acting. And is it not a singular fact
in the history of this enlightened, dignified, truly noble pro-
fession, that the sanctions of oaths and subscriptions should
ever have been thought necessary to the well-being of its
morality. The work of Percival, which is so frequently-



Digitized by



Google



188S.] RyanU M€dical Juruprudenee. 44T

referred to in this matter, was wi-itten under circumstances
and for a purpose which distinguish it from works of which
it is made the model. He began to write it for a son of ex-
traordinary promise, who died before it was finished ; and
before he had resumed the labor, death again came into his
fiaimily and added new poignancy to his sufferings. It was
at length finished, in the hope, as the author expresses it,
^ that it may prove beneficial to another son, who has lately
exchanged the pursuits of general science at Cambridge for
the study of medicine at Edinburgh." This work of Jrerci-
yal, though afterwards enlarged and made to embrace some
of the public duties of physicians, those, namely, which re-
gard public health, and those which relate to the adminis-
tration of public justice, — we say, this work originally was
designed for an individual, a beloved son ; and was strictly
a part of the education of that son. The author was encour-
aged to add to, and to publish it, and it has been largely used
by all who have since written on the subject. But the ques-
tion recurs, Is it necessary in a work whose great purpose it
b to give a physician some general views of his public pro-
fessional duties, to fill more than a third of it with what he
owes to his brethren ? Do not the obligations of duty in the
case of a liberal profession belong to something else than .to
a written code; and is it very likely that the individual
would find them, or be governed by them, should we tell
him to look for them in one ?

We have another objection to the first part of this volume.
It gives an account of the laws relating to the medical profes-
sion in England, and in the United States. The first might
well have been omitted in the American reprint. And we
question much the advantage of increasing the size of the
volume by what is added on American medical law. It is
very concise, indeed, but this makes it less useful ; for if the
knowledge in this regard be at all valuable, it can be so
only by beine complete. But we consider the addition out
of place, anct for the following reason. In almost every
State of the Union, a society exists which enjoys by law the
privilege of regulating medical practice ; every regularlv
educated phvsician in each Slate may belong to such a soci-
ety, and he learns immediately on his admission all that the
law of the commonwealth has done for his profession. Now
we hold that this is all he need know, and here he gets the
knowledge in the readiest and most authentic manner.



Digitized by



Google



449 Jtyan^s Medical Juri^^mdenee. [June,

The next fieventy pages of the woA ireat of matters wbioh
cannot well be discussed in a popular journal. They are

Juestions of physiology ; of medical theory ; of facts and
octrines which interest the physician, and form a part in
every complete medical education. In answering the ques-
tion with which we began, we may say of this part of the
work, that it might have been advantageously shortened.
It has a pretty lai^e admixture of statute law in it, both
foreign and domestic, and the American editor says, he
would have enlarged on the latter, were it not that Dr. Beck
is so full in his legal references. We think it well that he
has said so little about this matter, whatever the reasons
are ; and in passine we cannot refrain from saying, that we
have always thought Dr. Beck's truly valuable work is only
encumbered by the elaborate digest he has given of the
criminal law of the several States.

The next hundred pages treat of those medico-legal ques-
tions which relate to attempts against health or life. Thb is
an important part of this and similar works. The student
will not, however, understand its whole value, if he looks to
this volume alone for what he is to do in the various emer^
gencies which may call for his services. He is rather to
learn from it what these occasions may be, whilst he roust
prepare for them by the study of the more extended works,
the abler monographs, which are devoted to the most import-
ant questions on which he may be publicly consulted. Thus
he must find in his perfect and full knowledge of the whole of
the principles of sureery, and in all the details of actual cases,
the preparation for his high function as a witness in alleged
homicide by wounds, and all relate means of violent death.
And for cases of suspected poison, his preparation must be
no less complete ; which can be made only by a profound
study and practice of analytical chemistry, and the truly
philosophical application of all its methods as given in
the thorough and admirable works of Orfila and Christison.
The author and editor of this '^ Manual " refer to both of
these writers, and quote largely from them. But bow small
a part of either do they or can they give us of voluminous
works, emphatically practical, in the few pages of the ^' Man-
ual" devoted to them. The physician may take up the
volume for reference, but we exhort the student, if he would
be faithful to the public, to his profession, or to himself, to



Digitized by



Google



188SL] Bftm'i. Medical Juri^rudwee. 449

go to the fountain-hel^the original sources of knowledge in
this, as in all other ^cases. We know of no other safe or
honorable road for hin»

We have, in Chapter xvii, medico-legal questions relating
to mental alienation. This is a short chapter; but most of
its few pages are filled with law references and legal techni*
calities. All this we regard as quite out of place. What
does the physician, the medical witness, learn of his public
duties from the following, at page 288 ? " No traverse after
the recovery of the insane. Or from this, at page 293?
'^ Purchases and feofments by non compos ^ are not void, but
yoidable." FoUowine this we have three short chapters on
Feigned and Disqualifying Diseases, and on Age and Identity.

The twenty-first Chapter is entitled, Medical Evidence.
This is short, but we regard it as the best chapter in th^
volume. Its purpose is to show what is the nature of pro-
fessional evidence and testimony. To understand this is to
make all the detail of public duty easy. The physician has
before him his whole responsibility, and a wise check is
placed upon the disposition natural to many men to exceed
this. This is a department of medical jurisprudence^ so
named, that a physician is not obliged to study in order to
an admission to practice. All its other departments' belong
to a regular medical education. To this then his attention
should especially be directed, and, in this respect, Perci-
val's ^' Medical Ethics," and especially Dr. John Gordon
Smith's work on the ^' Analysis of Medical Evidence," de-
serve particular study. From this last work, Dr. Griffith,
the American editor of Ryan's << Manual," has as largely
borrowed as his limits weuld allow. We cannot but express
our regret that he has not republished Smith's work, for with
this and Beck's systematic treatise our literature on lega}
medicine would have been much more complete. We can-
not but think also, that the medical public would bear an
edition of Christison ; the latest we would of course recom-
mend, and, with this, we could hardly ask for more.

From what we have said, our opinion of the volume under
review may be gathered, and more especially our views of
its subject. The latter is resolved into the duties of a phy-
sician and their nature, when he is called upon to aid in the
means of public health, and in evidence affecting life, charac-
ter, or property. He is a vntness ; a witness of fact, and of the



Digitized by



Google



490 RyanU Medical Jurisprudence. [June,

reasonings which such fact may and does inFolve. It is as
a physician that he is a witness, and he comes forward, or is
called upon by the public, to tell what be has seen, in all its
connexions with what he has before seen, studied, and rea-
soned upon. He has nothing to do with law, and he is to
act as if there were to be no application of law to the matter
at issue. He has nothing to do with what construction the
law puts on human aciion, and with motive he has less con-
cern. It is, we repeat it, as a physician, one profoundly



Online LibraryJoseph Lyon MillerAmerican monthly review → online text (page 46 of 54)