From the Law Reporter published at Boston. Notes on the Early Jurisprudence of Maine. Concluded from page 283. Our last number completed the catalogue of attorneys who had taken up their residence in Maine prior to, and during, the revolution. At its close, another wanderer from Cape Cod, Daniel Davis, the late solicitor-general of Massachusetts, taking his substance upon his horse, and with the world all before him, came to Portland. He was born in Barnstable. Mr. Otis very pleasantly tells us in his recent Barnstable letter," that he assumed some little pretensions over his schoolmaster, in consequence of having been chief volunteer fifer to the Barnstable minute men :" it is not recorded that he prided himself upon this accomplishment after he came here. He studied his profession with Shearjashub Bourne, who is remembered for his talents and eccentricities by the scattered remnant of octogenarians who partook of his instructions. Of these Chief Justice Mellen is one and the late Judge Thacher another. When Mr. Davis was in the zenith of his fame, Mr. Bourne used to say, with great satisfaction, "I took special pains with Daniel." He reached this remote spot in 1782, at which period Mr. Frothingham was the only practising attorney in the county, and he was adding to the humble fruits which his profession yielded, such perquisites as could be derived from keeping a village school. whole, to take into consideration "the present state of the law and its professors in the commonwealth." In his remarks on the subject he animadverted with great severity upon what he termed the abuses of the law and the practice of lawyers. He objected to associations of members of the bar, bar rules, modes of taxing cost, and other practices which he alleged were illegal and unwanantable usurpations. He was opposed to special pleading and thought the law ought to be simplified. In the heat of debate he cast many aspersions upon the profession, which had a tendency to stimulate and strengthen the unfounded prejudices which were highly excited out of doors. He procured bills to be introduced embodying his peculiar notions, but not having many supporters they were rejected by large majorities. The one to abolish special pleading was earnestly debated, and was opposed with great power and effect by the late Chief Justice Parsons, at that time but forty years old. The ability with which he resisted the wild attacks upon the existing system of jurisprudence, drew from Mr. Gardiner, their author, the following eulogi. um: "This erroneous opinion of the gentlemen of the profession here, was taken from a mere dictum of the late Mr. Gridley, who, though a mighty pompous man, was a man of considerable learning and abilities-in learning and ge nius, however, almost infinitely inferior to that great giant of learning and genius, the law member from Newburyport."* These illiberal prejudices against the profession gradually disappeared before the advancing light, which the moral and At the time Mr. Davis arrived here there were but five intellectul cultivation of the members of the bar was continulawyers in Maine, embracing the whole country from the ally shedding upon the community. Perhaps no age of the Piscataqua river to New Brunswick. These were the late world has presented a class of men more distinguished for abilJudge Thacher, of Biddeford, John Frothingham, of Fal-ity, for soundness of intellect and purity of morals, than the lemouth, Timothy Langdon, of Wiscasset, William Lithgow, gal profession in the age of which we are speaking. We have of Georgetown, and Roland Cushing, of Pownalboro.' The only to mention the names of the Cushings, Dana, the Lowlatter was the youngest brother of Judge William Cushing ells, the Sullivans, the Sewalls, Dane, Parsons, Gore, Ames, and of Charles Cushing, who was the first sheriff of the Thacher, Sumner, Bradbury, Paine, Dexter, Bigelow, Minot, county of Lincoln, and afterwards clerk of the supreme court, Strong, Otis, Prescott, Tillinghast, Sedgwick, to illustrate "for a time," as Mr. Davis observed, “whereof the memory our remark. It would seem impossible, that a profession of man runneth not to the contrary." In 1828, Mr. Davis which embraced such illustrious men could for a moment be remarked of himself, that he was the only survivor of the subject to the odium of an enlightened people. We might, Maine bar, who lived in that country at the time he went therefore, expect, as was the case, that the bar would grow into it, and again he says-we use his own language-" As in popular favor as long as its members should maintain the a specimen of the change in my time, I recollect that when high intellectual and moral standard guarantied by the men I settled in Falmouth there was no settled minister of the whose names we have cited. The vast increase of its numgospel between that town and the British territories except bers, has of course brought in many unworthy members, in North Yarmouth, New Gloucester, Wiscasset, and, I be- from whom a profession is often too apt to be judged by sulieve, one in Townsend. There might have been one or perficial observers. But the progress of legal learning has two others, but if there were, I do not recollect them. I was been advancing and there never has been a time when jurigoing to say the sheep were without shepherds, but then dical science has been more faithfully studied and more ably there were no sheep but plenty of wolves all over the coun- and amply illustrated, both at the bar and on the bench, than try." the present. Mr. Davis continued in the practice of law in Portland with very distinguished success for more than twenty years. He owed his success to an easy, graceful elocution, and a wonderful aptness and facility in attacking the objections and evading the strong positions of his adversary. In 1796, he was appointed attorney of the United States for Maine district, was frequently chosen to represent the town in the house of representatives, and the county in the senate, at a time when it was some distinction to hold those offices.While discharging the duties of senator, in 1801, he was appointed to the office of solicitor-general, then for the first time established. This station he occupied until the office was abolished in 1832. He moved to Boston in 1803 where he died at an advanced age in 1835. The number of practitioners increased very slowly in Maine for several years after the revolution. A great depression remained at the close of the war, upon all branches of business, and a deeply seated prejudice had arisen against lawyers in Massachusetts and other parts of New England. This discouraged young men for a while from entering the profession. The excitement against gentlemen of the bar was countenanced and carried into the legislature in 1790, by a lawyer from Maine. John Gardiner, of Pownalboro', a barrister at law and a gentleman of some distinction, at the January session in that year, introduced a resolution, that the house would resolve itself into a committee of the Among the lawyers who came into Maine before the close of the last century, but who no longer occupy a place on the stage of action, we may record the names of Salmon Chase, William Symmes, Silas Lee, Isaac Parker, and Benjamin Orr. These all in their day, filled distinguished places in society and at the bar. Mr. Symmes, when quite young, was a member from Andover of the convention of Massachusetts which adopted the federal constitution. He was a good lawyer and scholar; he died in 1807. But perhaps the most extraordinary of those men was Benjamin Orr; he was brought up a house carpenter, and buildings in Portland now attest how well he discharged the duties of that occupation; but, at maturity, he was stimulated by a powerful motive to become a lawyer, and with him to will was to do. He rapidly qualified himself for College, from which he was graduated in 1789, and after the usual preparatory studies in the office of Judge Wilde, he entered upon the brilliant career which crowned his unabated and meritorious efforts. He * Mr. Gardiner had been educated in England, and prac tised law in the Island of St. Christopher. He came to Boston after the revolution and very soon moved to Pownalboro', in the neighborhood of which he had a large hereditary es tate. He was lost by the upsetting of a packet, in which he had taken a passage for Boston, in 1793 or '94. He left one daughter who married James Lithgow. was the brightest ornament of the bar of Maine at the period of his death in 1828. Silas Lee was a well read lawyer, and the numerous offices which he held at various periods are testimonials of his merit. He was graduated at Harvard College in 1784, studied his profession with Judge Thacher and established himself at Wiscasset. He was elected to congress in 1801; appointed district attorney for the United States in 1802, which office he held until 1815; he was appointed judge of probate in 1805, and chief justice of the common pleas in 1811. We cannot forbear gracing our article with a more particular mention of the late Chief Justice Parker, who was for so many years an ornament of the bar and the bench. He was graduated at Harvard College in 1786, and after qualifying himself for practice in the late Judge Tudor's office, in Boston, he opened an office in Castine about the year 1799. His popular manners and the readiness with which he could apply his resources on any emergency, soon brought him into successful practice and general reputation. At the age of twenty-eight, he was elected to congress from the eastern district, but contemplating moving to Portland, in another district, he declined a re-election. In 1799, he was appointed by Mr. Adams, marshal of Maine, which office he held until his removal by Mr. Jefferson in 1804. In 1799 he delivered an eulogy upon the death of Washington, which was adorned with all the graces of elegant composition and added to his high reputation. Among the numerous students who availed themselves of the advantages which his office furnished, to acquire a knowledge both of the theory and practice of the law, we remember the names of William B. Sewall of this state, James Savage, Esq., of Boston, and General Eustis, now of the army. In 1806, Mr. Parker was raised to the bench of the supreme court of Massachusetts, at the age of thirty-eight, and the next year he removed to Boston. In 1814 he succeeded to the office of chief justice on the death of the lamented Sewall, which took place at Wiscasset in that year. It is unnecessary to dwell upon the character and virtues of a man so well known in our community as Isaac Parker: his fame is recorded every where; "every day we turn the leaf to read it." We cannot omit, however, one remark of his, which showed much sagacity, and which we often remember: it was, that whenever he was at a loss in his practice in regard to the application of any point of law to the case on which he was consulted, to refer it always to the tribunal of common sense: for her decrees he seldom knew to fail of justice. Of the fifty-three lawyers who had established themselves in Maine previous to the close of the last century, ten are now living. One of these, Chief Justice Mellen, has returned to the bar; three are now upon the bench, viz: Judge Wilde, of Massachusetts, Ezekiel Whitman, and Nicholas Emery, in Maine. All the others continue in practice, although, as may be supposed, not with that vigor which at tended their earlier efforts. They were admitted to the bar in the latter years of the century.* Of the fifty-three to whom I have alluded, seventeen became judges, three of them chief justices of the supreme court of Massachusetts, one chief justice of Maine, and one chief justice of Vermont: ten were members of congress. The following table will show the number of members of the bar in Maine at different times, and the proportion they bore to the population of the state, Years. 1760 1784 1800 1837 Lawyers. 6 40 406 Population. 19,000 56,000 152,000 Proportion, 1 to 4,750 Inhab. " 9,331 66 ❝3,800 "1,165 473,000 The oldest lawyer now in practice in Maine is Prentiss Mellen, late chief justice of the supreme court, who, disqualified by the provision of the constitution from retaining his seat upon the bench, has returned with youthful ardor to the bar, and now at the ripe age of 76, is contending manfully upon the field of his former fame. Mr. Mellen was Their names are Peter O. Alden, Edward Little, Benjamin Veasey, Jeremiah Bailey, Job Nelson and Allen Gilman. VOL. III.-38 graduated at Harvard College in 1784 at the age of 20; pursued his studies in the office of Shearjashub Bourne, at Barnstable, and was admitted to the bar in Plymouth county in 1788. On this happy event, the judge humorously remarks, "according to the fashion of that day, on the great occasion, I treated the judges and all the lawyers with about half a pail of punch, which treating aforesaid, was commonly called the colt's tail." This feudal custom, like every thing else in this day of the march of mind, has been commuted into money to make provision for the intellect instead of the body. In 1792 he removed to Biddeford, in this state, at the recommendation of his steadfast friend, Judge Thacher. To show the humbleness of the beginnings in that period, we may add, that he opened his office in the front chamber of a tavern, in which were arranged three beds, half a table," and one chair, according to his own account of the scene. He slept in the same room, as frequently did travellers; and his clients, as there was but one chair in the room, had the privilege of sitting on one of the beds. From this humble commencement of life, Judge Mellen advanced rapidly. He was indefatigable and ardent in business, able and successful both as an advocate and a lawyer. From 1804 until his appointment as chief justice in 1820, he practised in the courts of every county in the state, and was engaged in all causes of magnitude. He often came in competition with Judge Wilde, who then resided at Hallowell, and had an extensive practice in Maine. The intellectual struggle between them, furnished ample opportu nity for instruction and pleasure to their brethren of the bar. Although Judge Mellen has devoted more than half a century of his life to the profession with signal ability, he has occasionally been diverted from it, like lawyers generally in our country, by the excitement of politics. He was a member of the council of Massachusetts, to the administra. tion of Gov. Brooks, and was subsequently elected to the senate of the United States. While in the discharge of the duties of the latter office, on the separation of Maine from Massachusetts, he received the appointment of chief justice of the supreme court of the new state. The first eleven volumes of the Maine reports, embracing the period of fourteen years in which he presided in that court, bear witness of the learning, industry, and judicial wisdom with which he discharged the duties of that high station. The customs of the bar have undergone within the last fifty years as thorough a revolution as the civil institutions of our country. The gradual wearing away of the distinc tions which formerly existed in society; the levelling hand of modern refinement and universal cultivation, has pruned off all the excentricities, and wit, and peculiar traits of character which used to make the frequent meetings of the bar so jovial, and so productive of anecdote and pleasure. The last relic of social intercourse, the dinner on occasion of the assembling of the supreme court, has given way within a few years, and the common bond of brotherhood which kept alive a strong feeling of interest and esprit du corps has now become a feeble and attenuated thread. The sentiment of union and fraternity has become weakened by its great dif fusion. When the judges, attended by their retinues of attorneys, travelled the circuit, extending through the scattered settlements of this state, they were driven by the tediousness of the journeyings, and the absence of other society and sources of amusement, to beguile the time not employed in the performance of their duties, in social meetings, The labor of a lawyer was easy at that period, compared with that of the present day there were few books of authority to be exam ined and cited; there were no volumes of reports scattered as now, like the leaves of the sybil upon his path, and the standard of legal acquirements was moderate. A good voice, a fluent utterance, and a discussion of general principles an swered every demand, instead of the heavy, ponderous ar guments of the present time, larded all over with authorities from all quarters of this and foreign lands, and often an end less variety of legal points and distinctions without differ ences. In looking back to the past, we imagine we see approaching at a moderate pace upon his raw boned horse, the tall form of the eccentric Judge Paine, or the dignified figure of Judge Cushing, plodding through Sace woods, or the more lonely paths of a more remote portion of the territory, accompanied by the benevolent Sewall, the witty Thacher, and the gay and humorous Davis, beguiling the dreariness of their ride, which they pursued on horseback, by the buoyancy of spirits with which the younger members of the party were overflowing. On going still farther back, to the times of the Livermores, the Farnams, the Lowells, and the Adamses, we refresh ourselves with reminiscences of the wit and merriment of those festive occasions, in which after the work of the court was over, the wig, the robe, and all dignity laid aside- they indulged themselves in the unreserved play of their minds. With one of these sceres, preserved by Judge Sewall, we will close our article. "It was the custom for members of the court and bar at the close of the session to hold special courts at the tavern, which were made the occasion of festivity and wit. At one of those seasons when the superior court was held at Biddeford, Hill, Sparhawk, Jordan and Moulton being on the bench, the court sat at the public house of one Ladd, there being no court-house in that town. The late Judge Lowell of Newburyport, arrived on Monday evening to attend the court, and called upon landlord Ladd to accommodate him during the session. Ladd told him that his house was full and he could not accommodate him. Mr. Lowell was obliged to seek lodgings elsewhere, but supposing Mr. Ladd would take care of his horse, if he could not receive him, left him tied at the post in front of the house. It so happened, that the horse was overlooked, and remained where Mr. Lowell left him, all night. On Friday evening, a special court was held at Ladd's, for the hearing and determining of small causes of omission and commission that had occurred during the week. Daniel Farnam, Esq., was appointed judge. Among other causes, landlord Ladd was called upon to answer his neglect in not taking care of Mr. Lowell's horse, and for suffering him to stand all night at the door of his tavern. The fact was not denied, but in excuse he said that he had told Mr. Lowell he could not give him entertainment, as his house was full before he applied, and that he did not recollect that when Mr. Lowell went away, any thing was said about his horse. Upon this evidence the judge ordered the landlord to pay a single bowl of good punch for his neglect in not taking proper care of the horse, and that Mr. Lowell should pay twice as much for suffering the poor animal to remain all night at the door.The sentence was carried into immediato execution for the benefit of the company convened." Portland, Me. W. Taxables and Voters in Philadelphia. The following table shows the number of taxable inhabitants as returned by the several assessors for the present year, making a total of 51,115. From the experience and observation of gentlemen acquainted with the subject, we have been assured that one-tenth of those thus returned are not liable to the payment of a personal tax. Taking this for granted, and making the deduction, we shall then have out of the 51,115 taxables returned, 46,004 persons liable to the payment of a personal tax. Then taking their mode of calculation, based, as it is said to be, upon the observation of many years, that not more than seventy-five persons vote out of every hundred, we have but 34,503, individuals who would vote at an election the present year. We are inclined to think that these data are not far from being correct, as from tabular statements made in relation to the proportion of taxables and voters in the interior counties of the State, we find it allowed that about $7 per cent. of the taxable population generally vote. The proportion, however, varies in different sections of the State, and from calculations made in regard to the proportions in the several districts composing the City and County of Philadelphia, we find they also differ, though the average proportion is as we have before stated. In those districts composed of a stable and native popula tion, the proportion of those that vote is greater than in those made up of a population of an unsettled and foreign character. From these data and the calculations made thereon, we should have about 34,5.3 votes in the City and County the present year, and we find that 34,438 votes were polled at the recent election, being 65 less than ought to have voted, according to the calculations made in conformity to the standard adopted. Statement of the number of taxable inhabitants in the several Wards and Townships of the City and County of Philadelphia, as ascertained from the books of Assessment, returned into the office of the County Commissioners, for the year 1840. |