Rufus King Sewall.

Memorials of the bar of Lincoln County, maine, 1760-1900 online

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lOHN A. PKriK>



Bar of Lincoln County



H V K. K. S K AV^V L T^.

" Bcnciiicta est expositio qiiaudo ns redimitiir a destnictione.'''' — 4
Coke, 26.


TiiK SH::i:rscoT Echo Print



' ? '/

riemorials of the Bar of Lincoln County.


1 Chief Justice John A Peters i

2 Pemaquid Harbor, site of Jamestown i8

3 Town of Popham's Fort St. George, by sketch of a

Spanish Spy .■ 19

4 Jamestown and St. Charles, Capital of Cornwall

County, A. D. 1665-1677 24

5 Samuel Denny's Homestead, Arrowsic Island, First

Lincoln County Judge 30

6 Wiscasset, Shire of Lincoln County, as seen from

Edgcomb Heights in 1858 3 i

7 Court House Lincoln County, Wiscasset, erected

18^4 33

8 Water View of Old Fort Edgcomb and Batteries.

from the quay and Penobscot Oak on Folly
Island 36 and 38

9 Court Room Lincoln Bar 40

Tragic Death of Judge Thomas Giles 26 and 29

At a meeting of the Lincoln County Bar Association, held at the
Court House, in W'iscasset, on the sixth day of March, 1900, it was

I'oicd : That Messrs. R. K. Sevvall, Cieo. \\. Sawyer, and Emerson
Hilton be a committee to negotiate and provide for the printing, for
the use of the Bar. of one hundred copies of the report of the proceed-
ings on the occasion of the banquet given by this Bar. Nov. 3, 1899,
in honor of the Hon. John .A. Peters, the voluntarily retiring Chief

Memorials of Lincoln Bar.


I'.V K. K. SEWAI.I., ES(^).

Under the administration of the late Charles Weeks,
Esq.. as Clerk of the Courts, Lincoln bar held an historical
reunion at Squirrel Island on Saturday, August 18, 1883.
Organized and executed with success by the clerk, the
literary exercises consisted of an historical sketch by R.
K. Sewall, a poem b)- Benjamin F. Smith, and "post
prandial exercises" by addresses from Judge Barrows,
Nelson Dingley, Jr., M. C, and gentlemen of the bar
of Lincoln and Sagadahoc. The entertainment was served
at the Samoset House, on Mouse Island. It was the
first service of the bar relating to its historical incidents,
and a formal, distinguished and successful gathering
under conduct of the Sheriff of Lincoln County and a
Judge of the Supreme Court of Maine.

The suppletor)- matter of the present issue was then
and there elaborated and is now introductory to the
colonial narative of this memorial issue.

As an outgrowth of pre-existing conditions of
colonial civil life, forces prevailing in England, having
organic effect in the charter of the loth of April,
1606, the charter part)- of the Popham voyage and
landing on the coasts of Maine, in August, 1607, and
practicall)- applied on the peninsula of Sabino of
Sagadahoc, in a formal act of "seizure and possession"'

I (lorgfs. Mass. Hist. cul. \ul. iS.

of New England under the English theories and
application of the law of valid land title, Lincoln bar is
the legal representative of this English common law
antecedent in New England. In its personals eminent
men have practised more or less at Lincoln bar. John
Adams attended Court at Pownalboro in i 765.' William
Gushing, a graduate of Harvard, 1737, came to Lin-
coln and was the only resident lawyer prior to 1769.
He was Chief Justice, and Sargent, Sewall and Sumner,
associates, at the opening of the S. J. Court in 1786.
Cushing was created associate justice of the Supreme
Court of the U. S. on its organization in 1789. Daniel
Webster, it is said, attended a case at Lincoln bar and
George Evans, John Holmes, and Benj. F". Butler have
practised at Lincoln bar; and our honored senator, Wm.
P. Frye, acting president of the Senate of the U. S., was
admitted to practice law at Lincoln bar.

Our record of notable men at this bar would be
incomplete without the names of Hon. Samuel E. Smith,
for four years governor of the state ; Hon. John Ruggles,
late of the senate of the United States ; and the fact
that the Hon. Chief Justice of J;he Supreme Judicial
Court of Massachusetts died on the bench in this County
of apoplexy on the second day of the court, whose
monument in marble is yet standing in the old Wiscasset
graveyard, inscribed "Erected by the members of the bar
practising in the Supreme Judicial Court of this Common-
wealth, to express their veneration of the character of
Hon. Samuel Sewall, late Chief Justice of this court,
who died suddenly in this place, June 8th, 1814."

I Frontier Missionary, p. 82.


La7u of ''Seizin and Posscssioii' as a Factor of I'alid

Land Title. Jts Origin and Application as a

Colonial Factor in Xcio England.


Law and the Christian rehgion are types of the
highest developement in human civilization, and are not
only props but pillars of state. Both are rooted in the
principles of natural right and justice ; and summarily
expressed in the Mosaic code of the rock-written

It is a philosophical axiom that order is nature's
first laio. Hut order is a fruition — the creation of law.
Back of all order, in the chaos, where cause and effect
w^ork out issues, there must be a law-maker ; and while
law marshals organic relations of each molecule of matter,
every throb of thought, all acts of the will, in material,
mental, moral, social, civil and religious organism, it is
only an expression of purpose, developement of design,
movement of a plan by force of an intelUgent cause. The
law^-maker is behind all. Law links the chain which
holds all creation to its activities, and in its proper place
all its forms, natural, moral and civic. Society is one of
them, and the state an aggregation thereof, an outgrowth
of law. The integrity of the state is upheld by force of
law which keeps in proper action to their true functions
the underlying forces of right and wrong in life's drama.
Law is therefore a science, and right and wTong the
sphere of its operations.

Law as related to valid land title in English juris-
prudence, known as that of "seizin and possession" is. of
ancient origin and as held and applied, is a common law,
appurtenant to, and safeguard of, homestead rights in
land. This common law force was brought into use as
a factor in colonial adventure in foreign lands early in
the history of North American empire, by England as an
initial step.

In 1492 the fact of a new continental world in the
west from Europe was revived and certified to the
niaritime nations of Europe. In 149^^ the lands of the
new continent were partitioned to Spain and Portugal in
virtue of alleged Divine vice-geral authorit)-, by Pope
Alexander VI, as a dotal act. This act startled and
excited England and PVance. The question of the
validity of such title was raised. France wanted Adam's
will produced and the clause in it shown by which she
was barred from a share in the new world. England
appealed to natural right, and declared there was no
good title in newl)- disco\'ered land without possfss/o;i.
It was her common law doctrine of scizhi and possession.
A legal issue of international scope was started and grave
questions of homestead holdings abroad opened among
the nations. The British lion shook his mane in
parliamentar)- ferocity. Bristling with resentment at
Papal presumption, England roared : ^'prcscriptionc sine
posscssionc Jiaiid valcat'' and prepared to enforce her
common law jjostulate of homestead holding, as an
element of international law applicable to trans-atlantic
titles instead of Papal dotal title. The English dogma
was novel. It was also revolutionary. Spain was
supreme in prestige and power on land and sea and a
favorite of Rome.


National issues of trans-atlantic title had become
involved with other matters of state. England was
resolute. The issue narrowed to more or less of religious
prejudice and church perquisite. Spain was incisive and
led oH, not only as the champion of her right to the
exclusive possession of her church dotal in the choice
lands of the American continent, but also in the
assumption of the Divine vice-geral authorit)- and
persquistes of the Pope. More than a centur)- had
passed since the Papal grant, when, in 1580. England
declared' that by the law of nature and nations seizin
and possession were the sole grounds of good title to
newly discovered lands ; whereupon this issue became
the battle ground of statemanship and diplomac\- in the
leo^al arena of international ri^ht.


The argument ended in 1588. Spain decided to
cut the Gordian knot with the sword. She marshalled
an "Armada," heralded the invincible, and called her
great American captain and dog of war, Pedro Menendez,
to lead it. Death intervened to defeat his leadershij-,
and the fleet entered the English channel on the 19th
of July, 1588, under another command.

Encrland fathered her wooden bulwarks, massed her
guns in defense, to storm the channel waters under her
Admiral Drake. On the 21st of Jul)- battle was joined.
Fifteen different engagements were fought. The con-
flict raged to the 27th of July. For six da)s a cyclone of
fire and shot swept the sea around the shores of England.

I Holmes annals \'ol. i. p. i.


Spain lost five' thousand men and seventeen ships
of war, sunk, burned and scattered. This catastrophe
of arms and storm cleared the sea of Spanish supremacy ;
and Eng'land vaulted to empire and became herself
mistress of the sea, a position she has ever since held.
Thereafter the English common law of "seizin and
possession" became a great colonizing force.

England and France at once applied the beneficent
principle to trans-atlantic homestead life on North
American shores. English maritime restlessness and
enterprise in the west organized to discover and take
"seizin and possession" of eligible sites in the new world.
In 1602 the Concord, Gosnald, master, was chartered
and started in execution of the enterprise. This ship-
master conceived the plan of a new and direct route
across the sea to American shores as the winds and
currents would permit. It was within the parallel of the
43d degree N. L. In seven weeks he struck New England,
on the coast of Maine, in a land full of hillocks,, an out
point of tall grown trees ahead north, a rocky coast at a
point fringed with white sands. It was a sunrise view
of a May morning. A Spanish sloop with native sea-
men, some clad in European costume, came along side
and chalked a map of the country on the Concord's deck
and called it "Ma-voo-shan." The relation of Gosnold
arrested the attention of the commercial circles of Eng-
land. In 1605 a "new- survey" of this Gosnold land
was projected, and the ship "Arch-Angel," Capt. Geo.
Weymouth, was sent out from the west of England to
execute it, which was done before autumn and in latitude

1 I'eig's Hist. Chronology.

2 Strachv.

1 1

north, 43 and 44 degrees. This survey made discovery of
a magnificent harbor, the Httle River I'emaqiiid and the
notable River Sagadahoc, the great river of the country
of Mavooshan. the landfall of the Gosnold voyage of
1602. This landfall of harbor facilities, hillocks, rocky
shores, fringed with white sands, and rivers described,
became in England a coveted point of commercial and
colonial attraction, valuable for "seizin and possession."
The relation of Gosnold supplemented by the Wey-
mouth survey fixed in England the 'louts in quo of emi-
nent domain for a "great State."

The spacious harbor, grand river tributaries, mag-
nificent woods of great mast trees and oak ribs for ships,
abounding seashore fisheries, beaver haunts and otter
ponds, were the appreciated features of commercial and
industrial promise "of places fit and convenient for
hopeful plantations."'

Gosnold's landfall of the Ma-voo-shan country, the
beaver haunts of the Sheepscot and Kennebec, Pema-
quid and Muscongus, environed with the "strangest of
fish ponds" in the sea, and land marks most remarkable
from Monhegan and its island archipelago with hills north
and east and the twinkling mountains of Aucocisco in the
west, in 1606 had become a land of promise to the
commercial industries of England for a seat of empire in
North America.

But France had forestalled England in the applica-
tion of her law of seizin and possession to the lands of
the new w^orld and planted colonial foothold in New
F^no^land on the St. Croix River, east of Ma-voo-shan
in 1604. Nevertheless, recognizing the legal tenure of

I L barter, 1620.


the French occupancy, England hastened to make good
her legal hold in the lands west. On April loth, 1606,
the English purposes to utilize her common law of seizin
and possession in North America in the latitudes of her
surveys took form and expression in legal muniments of

The Chief Justice, Popham, of the bench of England,
organized a corporate body on a crown grant hedged
with specific agreements. "We do grant and agree,''
is the opening of the contract. In tenor it was a license
conditioned to the issue of future and further conces-
sions. The grantees were government contractors. The
transaction was a formal, legal conception of a valid
permanent title of possession of homestead holdings of
the English race at the points of seizure, discovered and
seized as "fit and convenient"' places for making of
habitations and leading out and planting of volunteer
subjects of Great Britain. The contractors agreed to
build and fortify where they should inhabit ; and could
lawfully colonize onl)- such residents as would voluntarily
emigrate. Permanency of possession, homestead estab-
lishment of English people, alone could fulfill the
conditions precedent of the colonial undertakings. Such
a colonization accomplished, insured, under ro)al stipula-
tion, endowment of plenary- right to the fruits of their
undertaking to the contractors, their heirs, assigns and
successors, in letters patent or crown deed to the lands
by them seized and occupied, which issued in the great
New Elngland charter of 1620.

I need not say the facts above stated were a practi-
cal- expansion and enforcement of the English common

I Cliarter, 1606.

law doctine of valid land title to North American soil, to
serve purposes of state as well as corporate interests.
The contract of the loth of April, 1606, pregnant with
the forces of English common law land title, at once
began to untold the era of English colonization north of
Florida, in E^nglish cartography marked "Verginia."

Two colonial adventures were started within definite
bounds for the shores of North America, known as the
first and second colonies. This scheme for seizing and
• establishing a legal land title in right of the English race
on North American soil, was applied in Maine and set
to work (Hit natural results with all the machinery of
law into which the civilizing forces of Christian ethics,
natural right and justice fully entered to shape an embryo
state on the 20th of August, 1607.


The PVench, who had forestalled the English in a
'"seizure and posscssioir east, alert to extend the posses-
sion of the Celtic race in New England, some three years
after the English seizure witliin the 43d degree and a
supposed abandonment, on rumor thereof at St. Croix,
planned an expedition to seize the abandoned region, led
by Captain Plastrier, the French commander. Reaching
Monhegan, a dependency of Pemaquid off Popham's
Port, two PLnglish ships from the little harbor of Monhe-
gan captured Plastrier and held him prisoner by force
and arms till he promised to return east and abandon his
purpose of expansion of French territory ^t the expense
of English rights of possession in the latitude. The
Englishmen produced letters of royal authority in
justification of their acts,' saving" they were masters of

I Caryon's letters. Dairil's narrative.


the place," probably the charter of the loth of April,
1606, of the Popham colonial enterpise. This public
assertion of land title in rioht of the English race was
the earliest outgrowth of the English law of seizin and
pessession recognized as an element of international law
now put in force in the colonization of North America.

The charter licence of April loth, 1606, (and
charter party of the Popham colony), is therefore the
guarantee of land titles to colonial life in New England.
The common law of land titles in P^ngland applied as an
international right to the soil of the North American
continent, in its expansion and application to colonial
holdings prior to 16 19 and in virtue of the Popham
colonial startat Sagadahoc, established legal possession
of New England in right of the P^nglish race and settled
English homestead life in more tJian one place, agreeable
to the desire of the colonial settlers on the coast of Maine.
On the 20th of August. 1607, the climax of P^nglish land
title was consumated, on Thursday, when all the colonists
landed at Sagadahoc, and the President, Popham, ''sef f/ie
first spit of ground^' to fortif}', and after him all the rest
followed, thus waiving and merging the ancient symbolic
act of seizure by "turf and twig," by breaking the soil
with a spade.



lis Colonial Rootlets i6oj. and Climax iSy(^.

In English jurisprudence the bar represents a
conception and contri\ance in the administration of law,
founded on the Roman idea of a tribunal of justice. The
bar is a factor of our civilization. It is, in fact, a duly
organized body of men. schooled and skilled in the
principles of justice to be an organ of sovereignty, to
determine questions of right and wrong in society, and
enforce the demands of natural justice, agreeably to good
conscience and fair dealing'.

Lincoln bar is the representative of legal procedure
in the earliest appliances of the common law of England
in New England as a colonial factor. Originally its
jurisdiction embraced a section of the coast of North
America in and about 44 degrees N. L. : — a country
specifically located between Cape Small Point and the
eastern expansion of Pemaquid dependencies, on dis-
covery, in 1602. called b\- the natives "Mavoo-shen"' ; in
the PZnglish colonial transactions of 1607 contracted to
"Moashan"^ ; and in the annals of colonial P^nglish
literature described as "The Kingdom of Pemaquid. "^
The earliest civil organization for general legal jjrocedure,
was formed into a ducal province, as the count)- of
"Cornwall." after that of England, the home in the
fatherland of man\- of the earK" imm it-rants thereto.

1 Hutchinson Hist. Ma[)

2 Popham's despatch.

3 Strachy.


Lincoln was applied to the same civil jurisdiction in
1760, in honor, (it is supposed), of the ancestral home of
(jovernor Pownal, who signed the act creating the county.

With these facts relating to the origin, succession,
name and jiwisdictiojial territory of Lincoln bar, we
proceed to the facts of antecedent administration of law
and justice within its bounds; together with the princi-
ples of civil polity on which the administration vested
underlying legal rights.

We therefore go back to the reign of Queen Eliza-
beth of England, when her nobility besieged the throne
with calls of urgency for English colonial seizure and
planting of North American soil. "The wings of a man's
life," they cried in her ears, "are plumed with the feathers
of Death,"' till the hesd of the English bar was autho-
rized to act in the premises, and the Royal Licensure of
April 10, 1606, was issued, — the charter-party of
the Popham colonial exodus from England, in 1607,
embracing a code of civil principles which were organized
on the colonial landing, and into its Pemaquid expansion,
and enlarged in the patent of February 20, 1631, and
there reduced to practical use in the judicial construction
of a civil polity on the basis of the common law of

The hrst court organized in New England was
within the ancient jurisdiction of Lincoln County and in
Popham's town of Fort St. George, where first were
applied the forces of the common law of England as a
colonizing agency. The antecedents of Lincoln bar were
the outgrowth of the royal charter aforesaid : — an inden-

I Brown's Genesis.

ture drawn up by Lord Chief-Justice Popham of England.

Its execution began in the English seizure and
possession August 20. 1607, of the peninsula of
"Sabino," the west shore of the mouth of the Kennebec
river, then, as now, known as the "Sagadahoc," its
Indian name. The colonial grant was a pregnant act,
having fuller expansion at Pemaquid and old "Sheepscot
farms," up to 1689; ^^^'-^ matured in the administration
of law, as now\ at Wiscasset Point in i 794.

The unfolding of the charter of April 10, 1606,
started English homestead life and industries on North
American shores in lat. N. 43 to 44 degrees. One
hundred and twenty English colonists landed under
the English tlag. The site of a town was chosen. The
hrst act was solemn consecration of the spot by the
worship of God and a sermon, according to English
canonical law and formularies of the English Episcopal
Church. A code of law was promulged and civil polity
organized, and a court of law^ opened.

Sir George Popham was nominated, not as a vicero)-,
governor or mayor, but as president of the embr\o
state, to wield the sovereignty thereof, and duly inducted
to office, with subordinates, by solemn oath.

The material fruits of the movement were an English
hamlet of fifty houses, a warehouse, a church with a steeple
to it, an elaborately entrenched fort, well mounted with
guns, a ship)ard with a thirty-ton vessel on the stocks
and a court of law.

The president, with sworn assistants, were the Court
officials. It had a seal. "Sigelluni Regis Magnae Brit-
ianiae, Franciae .et Hiberniae,"' was the legend of one

I l''ipham Memorial vol., Appendix S. p. 133.


side ; and on the other, "Pro ConciUio Secundae Colo-

niae, V^irginiae,"

All the rights, privileges and liberties of English
home-born citizenship were guaranteed. Trial by jury
and the writ of habeas corp2is were grants of right to the

Every safeguard of life, personal liberty and
l)roperty, to the English common law appurtenant, was
set about the new homestead life of the English race here,




(Site (if "Jiuiiestown." Capital nf Conwall County. (1665), and Fort Charles. )

as a hedge, even to the use oi the elective franchise in
the civil office of chief magistrate.' So all the forces of
Christian civilization were planted at Sagadahoc. Tumults,
rebellion, conspiracies, mutinies, sedition, manslaughter,

1 hleni, Appendix A, p. 94.

2 "These my loving subjects shall have the right annually to elect a president and
make all needful laws for their own government," etc. Memo. vol. page 94.

incest, rape and murder were capital crimes. Adultery,
drunkenness and vagrancy were penal offenses."

All offenses were required to be tried within the
colonial precinct. Magistrates were ordered to hold
sentence on judgments recovered, in abeyance for appeal
to royal clemency to secure a chance for pardon. To

ao of Si Ge5rg-c e rjf( I Pop*^a"

» Spar-'

facilitate this feature of legal mercy, the court was
required to keep full records and preserve the same.
Preaching of the Christian religion was ordained as
matter of law, as well as Christian teaching- and civili-
zation of the Indians.

It will be seen the scope of jurisdictional issue of the
court at its colonial start in this county was substantiallv,

1 See Charter, April lo, l6o6.


as relates to crime, the same in its cognizance as now.

No records of the adjucHcations of the court of
Pophani's town of F'ort St. George have yet been re-

The only legal public paper extant is a dispatch of
President Popham to the King of England, dated at the
old town, December 13, 1607, detailing present success
and incidents of promise of the colonial holdings, written
in Latin, the then language of state papers.

Lord George Popham, the first president of a civil
magistracy (shall we say within the United States?) and
first chief justice of a court of law within the ancient
jurisdiction of Lincoln County, is described as having'
been an aged, God-fearing man,' stout built, honest, dis-
creet and careful, somewhat timid and conciliatory ; but
he was the life of the colony, made up of London men
and West of England rural life.

Rawley Gilbert, second in command, representative

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Online LibraryRufus King SewallMemorials of the bar of Lincoln County, maine, 1760-1900 → online text (page 1 of 3)