William Willis.

A history of the law, the courts, and the lawyers of Maine, from its first colonization to the early part of the present century online

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HISTORY



THE LAW, THE COUKTS^



AND



THE LAWYERS



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FROM ITS FIRST COLONIZATION TO THE EARLY TART OF THE
PRESENT CENTURY.



By WILLIAM WILLIS.



PORTLAND:
BAILEY &z NOYES.

M DCCC LXIII.



7 2i 3 ;?^> ''■ '.^



Entered according to an Act of Congress in the year 1863, by
In the Clerk's Office of the District Court for the District of Maine.



PRINTED BY BROWN THURSTON,

COR. OF EXCHANGE ANO MIDDLE Srs.



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IS BESPECTFLLLY



BY THEIR DROTHEK,

WILLIAM WILLIS.



4.'JS5ay



PREFACE.



The present work originated in the preparation of a lecture for tlie Maine
Historical Society, in which I proposed to present brief sketches of the
early lawyers, with anecdotes of the bar, in Maine. The materials became
so copious that they stretched far beyond the limits of a discourse, and have
assumed the shape in which they now appear.

I had for a long time desired that some aged member of our bar would
collect and preserve, for the instruction and amusement of his brethren and
successors in the profession, reminiscences of the early lawyers and prac-
tice, as well as of the usages which prevailed at the bar, in former days.
1 had hoped that Judge Mellen, who was very free and felicitous with his
pen, and was more familiar with these subjects, with perhaps one exception,
than any of our old lawyers, would have favored the profession with his
recollections and observations, during the half century in which he was an
active and leading member of the profession. Or that Judge Whitman, who
h id a similar experience, and a keen relish for the curious anecdotes, the
peculiar customs and racy jokes, which lingered around the courts, and in
the memory of the old practitioners, long after the eccentric characters, who
had not only wit in themselves, but were the cause of wit in others, had
l)assed to a higher bar, would have rendered this service. But these hon-
ored brethren were luiwilling to undertake the task of transmitting these
valuable memorials.

Solicitor General Davis, more competent perhaps, than any one, kindly
replied to my letters. In one of his answers, dated in February, 1828, he
writes, " If I were to give you a full answer to all your inquiries, it would



II • rUEFACE.

amount to a volume of the size of Butler's Reminiscences. I am so much
engaged at present, that I cannot write a book of reminiscences, but I will
answer some of your inquiries." The next extract Mill show how much we
have lost in the foilure of Mr. Davis to record his observations. " From my
earliest acquaintance with the country, in every part of which I have dis-
charged my professional duties, I can recollect and farnisli more sketches of
the nature you request, than any other man now alive, because I am the
oldest of the whole of them ; but I cannot do it at present." In another
letter he says, " If I should ever think of putting my reminiscences on
paper, they would embrace a work of more extensive character, in what
relates to the professional gentlemen in Maine, than could easily be obtained."
Mr. Davis was at that time seventy years old, and still filling the oflice of
Solicitor General. Before he left it, his health and memory failed, and the
profession and the public lost anecdotes and reminiscences of the bar
which can never be recovered.

At this late day, I have undertaken to preserve some of the memorials of
the past. I have been obliged to range over a wide field, and to ask the
contribution of facts, and even memoirs, from gentlemen who have had large
experience at the bar and in general society. Among these, I must not fail
to acknowledge my obligations to my good friends, the venerable Jacob
McGaw of Bangor, John H. Sheppard of Boston, Robert H. Gardiner of
Gardiner, William Allen of Norridgewock, and William B. Sewall and Judge
Bourne of Kennebunk. These, with Mr. Dummer of Ilallowell, Mr. Abbot
of Castine, Dr. Bradley of Fryeburg, and Governor Crosby and Judge
Williamson of Belfast, and others, have rendered me cheerful and valuable
services, for which the profession, as well as myself, are their debtors.

I have traced the history of the law and of the courts from the founding
of the first colony on the shores of Maine to the present time, and have
accompanied the progress of tho Courts by a chapter on reports and
reporters, from the origin of this important department of the law down to
our day. I have also, as I believe, presented a sketch of every lawyer who
practiced in our courts to the year 1800, with memoirs of prominent members
of the profession from that time to tho period of our separation from
Massachusetts.

I should liavo been glad to extend ray notices to all the principal



PREFACE. Ill

lawyers who entered the practice previous to 1820, when we became an
independent State. Many of those gentlemen have, in years subsequent
to that event, taken the highest positions at the bar, on the bench, and in
public life, and have honored the profession by distinguished talents and
upright lives. But my work had already so much exceeded my original
design and reasonable dimensions, that I felt obliged to deny myself the
pleasure of speaking of those eminent men as their standing and merits
deserve. Their names will endure, and some future gleaner will transmit
them to the coming time.

I could wish that my labors might be justly entitled to the commendation
which Lord Bacon, in the dedication of his Essays to the Duke of Bucking-
ham, bestows upon that nobleman, — " You have planted things that are
like to last." If mine do not last, I hope that they may, at least, interest
the passing generation.



NOTE.

While this volume was going through the press, some changes took place on
the bench of the Supreme Court. The constitutional terms of Chief Justice
Tenney and Justice Goodenow, having expired in October, 1862, their
places were supplied by the appointment of Justice John Appleton of
Bangor, as chief justice, and Edward Fox of Portland and Jonathan Q.
Dickerson of Belfast, as associates.

Judge Texxey had held a seat upon the bench of the Supreme Court
twenty-one years, having been appointed a justice in 1841, and chief in
1855. lie was born in Rowley, Massachusetts, graduated at Bowdoin
College in 181G, and after a successful and brilliant practice of twenty
years in Norridgewock, he was raised to the bench. In 1850, he received
from Bowdoin College the degree of LL. D., and has been a lecturer at the
college, on Medical Jurisprudence, thirteen years.

Judge Goodenow was born in Ilenniker, New Hampshire, in 1793, and
came to Maine with his father in 1802. lie was awhile at Dartmouth
College, but left before taking his degree. lie pursued his professional
studies with Mr. Holmes at Alfred, and commenced practice there in 1818.



IV PREFACE.

He became the partner of Mr. Holmes, and married bis daugbter. In 1838,
be was appointed attorney general of tbe State, and beld the office four
years. In 1841, be was appointed judge of tbe District Court for tbe west-
ern district, wbicb office be beld during tbe constitutional term of seven
years. In 1855, be was raised to tbe bencb of tbe Supreme Court. Bowdoin
College conferred upon bim, in 1820, tbe degree of A. M., and in 18G0, that
of LL. D. In 1838, be was cbosen one of tbe trustees of tbat institution,
and continues in tbe office. Judge Goodenow bas taken a distinguished
part in the politics as well as the law of the State, is, and ever bas been, a
firm supporter of all its good institutions : be retires to private life with
unsullied reputation.

Since the above note was prepared, another change bas taken place on
tbe bencb of the Supreme Court, by the resignation, in February, 18G3, of
Judge Fox, who had been appointed from tbe Cumberland Bar to the place
made vacant by the elevation of Judge Appleton to tbe chief justiceship.
Mr. Fox is a native of Portland, a graduate of Harvard College in the class
of 1834, and of tbe Cambridge Law School in 1837. He occupied a promi-
nent position at the Cumberland Bar, to which be again returns : be bad
been solicitor of the city of Portland several years previous to bis appoint-
ment as judge.



PORTRAITS



James Bridge,


154


Prentiss Mej^len,


. 163


EzEKiEL Whitman, ....


2S9


Stephen Longfellow, . . . .


. 300


Samuel A. Bradley, ....


409


Eeuel Williams,


. 444


Timothy Boutelle, ....


464


Frederick Allen,


. 478


AViLLiAM B. Sewall, ....


488


William D. Williamson,


. 517


Simon Greenleaf, ....


522


Samuel Fessenden, . . . . ,


. 541


Alkion K. Parkis, ....


665


Luther Pitch,


. 592


William P. Preble, ....


597


Ether Shepley,


. 619


John II. Sheppard, ....


600


Henry W. Puller, . . . .


. 700



CONTENTS.



CHAPTER I. Page 9

THE EARLIEST JURISPRUDENCE IN MAINE GORGES, GOVERNOR OP

NEW ENGLAND : GRANT OF MAINE TO HIM : HIS COURTS AND THEIR

JURISDICTION FORMS OF PROCEEDING REVOLUTION IN ENGLAND

AND ITS EFFECTS ON GOEGES AND HIS PROVINCE.

CHAPTER II. Page 25

THE ADMINISTRATION OF THE LAWS UNDER THE COLONY OF MASSA-
CHUSETTS THOMAS MORTON.

CHAPTER III. Page29

PEMAQUID PROVINCE I ITS JURISDICTION AND JURISPRUDENCE.

CHAPTER IV. Page36

MAINE UNDER THE CHARTER OF 1C91 DECLARATION OF PRINCIPLES

COURTS AND JUDGES COURT OF COMMON PLEAS GENERAL SES-
SIONS PROBATE COURT CONDITION AND PROGRESS OF THE BAR

— ADMISSION OF MEMBERS COUNTY OFFICERS IN 1800.

CHAPTER V. Page G3

REPORTS AND REPORTERS — JUDGES OF THE SUPREME COURT AND
ATTORNEY GENERALS.



VI CONTENTS.

CHAPTER VI. PageTG

PRACTITIONERS UNDER THE CHARTER : CHECKLEY, WATSON, BULLIVANT,
RICHARDSON, READ, AUCHJIUTY FEES SALARIES EARLIEST PRAC-
TITIONERS IN MAINE.

CHAPTER YII. Page 83

IRREGULAR PRACTITIONERS BAR RULES DAVID SEWALL DISTRICT

COURT LAWYERS FROM OTHER COLONIES.

CHAPTER "V'lII. Page92

TRAVELLING THE CIRCUIT RESIDENT LAWYERS PRIOR TO THE REV-
OLUTION : BRADBURY, AVYER, PARSONS, THE SULLIVANS, LA'NGDON,
CrSHING, STOCKBRIDGE.

CHAPTER IX. PageIOI

SOCIAL USAGES OF THE BAR JOHN FROTHINGHAM ROYAL TYLER

GEORGE THACHER WILLIAM LITHGOW, JR.

CHAPTER X. Page 111

FIRST LAWYERS AFTER THE REVOLUTION : DANIEL DAVIS, JOHN GARD-
INER BARRISTERS WILLIAM WETMORE BUSINESS AND POPULA-
TION OF MAINE EBENEZER SULLIVAN.

CHAPTER XI. Page128

LAWYERS FROM 1790 TO 1800: THEIR NAMES AND TIMES ISAAC PAR-
KER SALMON CHASE SAMUEL C. JOHONNOT MANASSEH SMITH

LAW BOOKS DUDLEY HUBBARD GEORGE STACEY.

CHAPTER XII. Paoe148

WILLIAM SYMMES PHINEAS BRUCE SILAS LEE JAMES BRIDGE

PRENTISS MELLEN SAMUEL 8. AVILDE GEORGE WARREN AMOS

STODDARD WILLIAM HODGE THOMAS RICE ADMISSION TO THE

BAR — JOSEPH THOMAS JOB NELSON.



CONTENTS. VII

CHAPTER XIII. Page193

BENJAMIN UASEY REUBEN KIDDER NATHANIEL PERLEY TUOMAS

S. SPARHAWK ALLEN GILMAN JOHN HATHAWAY ISAAC STORY

EDWARD P. HAYMAN SAMUEL P. GLIDDEN DANIEL CAMPBELL

JONATHAN G. HUNTON JEREMIAH BAILEY.

CUAPTER XIV. Page 225

SAMUEL THATCHER PETER O. ALDEN CYRUS KING JOSIAH STEB-

BINS BENJAMIN WHITWELL JOHN MERRILL JAMES D. HOPKINS

JDDAH DANA NICHOLAS EMERY THOMAS BOWMAN NATHAN

BRIDGE WILLIAM WIDGERY.

CHAPTER XV. PAGE275

JOHN HOLMES EZEKIEL WHITMAN LEONARD MORSE JOSIAH W.

MITCHELL JOHN P. LITTLE BOIIAN P. FIELD ANDREAV GREEN-
WOOD DANIEL P. UPTON TEMPLE HOVEY HENRY V. CHAMBER-
LAIN EBENEZER BRADISII SAMUEL DAGGETT NUMBER OF LAW-
YERS, THEIR INCREASE, AND COURSE OF PROCEEDINGS IN COURT

LAWYERS IN PRACTICE IN ISOO.

CHAPTER XVI. Page 338

JACOB MCQAAV BENJAMIN ORR STEPHEN LONGFELLOW WILLIAM

LAMBERT BENJAMIN GREENE WILLIAM ABBOT WILLIAM CROSBY

BARRETT POTTER ERASTUS FOOTE.

CHAPTER XVII. Page 89G

EBENEZER THATCHER JOSEPH DANE HORATIO SOUTHGATE WIL-
LIAM JONES SAMUEL AYER BRADLEY JOHN WILSON GEORGE

HERBERT JUDAH MCLELLAN NATHAN CUTLER JOSEPH BARTLETT.

CHAPTER XVIII. Page 445

REUEL WILLIAMS THOMAS BOND TIMOTHY BOUTELLE WOODBURY

8TORER ELISIIA P. CUTLER FREDERICK ALLEN WILLIAM B.

SEWALL SAMUEL HUBBARD — BENJAMIN AME!3 NATHAN WESTON

WILLIAM D. WILLIAMSON.



VIII CONTENTS.

CHAPTER XIX. Pagb523

SIMON GREENLEAF CALVIN SELDEN SAMUEL FESSENDEN WILLIAM

ALLEN HAYES EDMUND TLAGG ALBION KEITH PARRIS IIIRAM

BELCHER.

CHAPTER XX. Page577

CHARLES STEWART DAVEIS CHARLES SHAW< — LUTHER FITCH WIL-
LIAM PITT PREBLE SAMUEL EMERSON SMITH ETHER SHEPLEY

PELEG SPRAGUE ASHUR WARE.



APPENDIX. Page 647

CLERKS AND SHERIFFS.

CLERKS OF THE COURTS. Page 648

DANIEL SEW ALL SAMUEL FREEMAN JONATHAN BOWMAN WILLIAM

ALLEN JOHN H. SHEPPARD HENRY SEWALL JOHN MUSSEY

OFFICERS OF THE COURTS OF THE UNITED STATES IN MAINE FROM
THEIR ORGANIZATION.

SHERIFFS. Page 678

JOHN WAITE — ICUABOD GOODWIN — CHARLES GUSHING — EDMUND
BRIDGE.



HENRY W. FULLER, Page 700

INDEX, Page 703



LAW AND LAWYERS.



LAW AND LAWYERS.



CHAPTER I.



THE EARLIEST JURISPRUDENCE IN MAINE.



The adventurers who first settled on the coast of Maine,
from the Piscataqua River to Pemaciuid, were detached com-
panies, without government or any bond of union. They
were pursuing their private gains, and were generally em-
ployed in lumbering, fishing, and traffic with the Indians.
The largest of these companies, those at Agamenticus,
Winter Harbor, and Richmond's Island, adopted certain
regulations for their government, called combinations. We
have some fragments of records referring to such doc-
uments, and to the existence of a court among the colonists
at the mouth of Saco River, prior to the arrival, in the sum-
mer of lt);U), of Wm. Gorges, the nephew and deputy of
the chief proprietor, of which the following is a specimen :
" Feb. 7, 1G80. It is ordered that Mr. Thomas Lewis shall
appear the next court day at the now dwelling house of
Thomas Williams (Winter Harbor), there to answer his
contempt, and to shew cause why he will not deliver up the
romhiiia/ioii belonging to us, and to answer such actions as
arc commenced aa;ainst him."



10 KARLY JURISPRUDENCE.

Ill consequence of freedom from restraint, and the roving
life of the adventurers, there were, among the settlers, great
dissipation and dissoluteness of manners, which is amply
testified tu by the early records ; and was made one of the
causes assigned by Sir Ferdinando CJorges for the appoint-
ment of a Governor General of all North Virginia, or New
England, as the territory was then called. In a jTaper from
the King, under date of Nov. 3, 1634, endorsed by Gorges,
it is declared, " Since the undertaking of the plantations,
complaints of various abuses have been received, to remedy
whicli, advice has l)een taken witli the Council of State, and
directions given for a Governor to be sent over, to take
charge of public affairs," &c.' Although this, I think, has
primary reference to the Plymouth and Massachusetts com-
panies, whose agitations in politics and religion were partic-
ularly offensive to the royal and episcopal government, yet
it may well embrace all those separate companies which
were then occupying tlic coast of IMaine, whether with or
without title. In another paper, under date of Nov., 1G34,
endorsed by Gorges, entitled " Considerations necessary to
be resolved upon in settling the Governor for N. E.," it is
stated that a number of discontented persons are got into
the best parts of tlie country, and arc having their su])port-
ers there ; it is asked whetlier it would not be policy to lay
a restraint upon this until license could be obtained that
those who go over should be bound to conform to the rites
and ceremonies of the church.' This restraint was imposed
by the king.

Early in 1035, Gorges was expecting to receive the ap-
pointment of Governor General of New England, and made
arrangements for an early departure ; he was not ajijjointed
until 1037 ; a movement was also made to revoke the char-
ter of the Massachusetts Company. But political agitations

'Early Doc. relating to Maine. 8ainsbury's Col. Papors



GORGES, GOVERNOR OP NEW ENGLAND. 11

commencing at this time, both in Scotland and England,
withdrew attention from colonial affairs, and the governor,
instead of coming to America, followed the king to Scotland.
The charter was consequently not disturbed. In a letter to
the Secretary of State, Sir Francis Windebank, March, 1(336,
Gorges writes, " I beseech you to do me the favor to let
their lordships know that for as much as I perceive it is his
majcstic's gracious pleasure to assign me Gov. in N. E." he
desired them to give order for repealing the " Patents of
those already planted in the Bay of Massachusetts, that
there be no just cause left of contention l^y reason thereof,
when I arrive in those parts."

Ferdinando Gorges, grandson and heir of Sir Ferdinando,
in a petition to the king, 1G75, says, " The king, by reason
of complaints against the settlers in Mass., &c., resolved to
take to himself the gov't of N. E,, and to have one general
gov. there. That thereupon, he nominated Sir Ferdinando
Gorges to be Governor. All which appears by the king's
declarations and commissions, (July, 1637). That shortly
after, the troubles which arose in Scotland and in England
prevented pet'rs grandf. from going to his gov'nt, but he
attended the king into Scotland." (Early Doc. 22.)

The declaration referred to is called the " King's Man-
ifesto," and is dated July 23, 1637. (Sainsbury's Col.
Papers, 1,256.) " Tlie king declares his resolution to pro-
vide for the future good of those adventuring in any such
undertakings by appointing Sir Fer. Gorges Governor, and
commands that none be permitted to go into those parts
without Gorges' knowledge or license, and directions where
to settle." (lb.)

Massachusetts, with a perseverance and ingenuity never
exceeded, batllod all tiie elTorts of her numerous and pow-
erful enemies at home to annul her act of incorporation.
She pursued steadily and successfully her settled purpose of



12 MAINE GRANTED TO GORGES. HIS FIRST COURT.

maintaining lier independence througli a period of 140 years,
until the Unal triunipli of the Rcvolntion.

On the surrender of their grand charter by the Plymouth
Company in June, 1635, the country was divided among
the several members. Gorges received the portion lying
between the Piscataqua and the Kennebec Rivers, which he
named New Somersetshire, from the county in England
where his estates were situated. He immediately sent over
his nephew, Capt. Wm. Gorges, to take formal possession of
his Province, and to establish his authority there. The
deputy held his first court at Saco, March 21, 1636. This
is the first legal tribunal, constituted by authority, wliich
existed in Maine. The members of the court are styled
commissioners ; they were seven in number, iind resided in
different parts of the Province : Purchase came from Bruns-
wick, Cammock and Jossclyn from Scarboro', Bonithon
and Lewis from Saco, and Godfrey from York : these are
historical names, and all but Lewis and Cammock lived
many years, to partake of the agitations and trials which
awaited the foundation of this now flourishing common-
wealth.

Previous to the arrival of Wm. Gorges, some kind of gov-
ernment must have existed in the different settlements
which had been established at Kittery, York, the mouth of
Saco River, at Spurwink, and Casco. It is probable that
they were held together by voluntary associations, as at
Exeter and other places where the proprietors had provided
no legal government. A few scattered fragments on the
records of York County, indicate such to l)e the fact. By
these it appears that courts were held, in which civil causes
were tried and verdicts rendered by a Jury. One of these
fragments of the date, Feb. 7, 1



Online LibraryWilliam WillisA history of the law, the courts, and the lawyers of Maine, from its first colonization to the early part of the present century → online text (page 1 of 57)