© Thomas R. Murphy, September 8, 2009
Having passed its 375th anniversary, the wealth of the Town of Ipswich’s legal history should not go unmentioned in these pages. In fact, Ipswich boasts a long line of legal luminaries – lawyers and judges – going back to the dawn of the Town’s existence. Not only is this the “Birthplace of American Independence” but the home to many notable statesmen, and the caliber of the bench and bar of a people is in part a measure of the quality of the culture. Without the rule of law surely we would be at a loss, 1 and Ipswich has provided some of the most prominent members of the bar who have helped shape our society for the better.
But some ten years before Ipswich came to be – and just three years after they stepped off the boat – the people of Plymouth recognized the importance of the legal process, and jury trials in particular, by enacting an ordinance on “17 day of December, anno 1623, … that all criminal facts, and also all matters of trespass and debts between man and man should be tried by the verdict of twelve honest men to be impaneled by authority in forme of a jury upon their oaths.”2
The purpose of this article, however, is simply to recognize a few of the great ones in the legal community who came from the Town of Ipswich during its formative years. But first, however, we should start with the formalities and the original conveyance.
As early as August 5, 1634 “A Court holden att Newe Towne [Cambridge] ordered that Agawam shall be called Ipswich,” and on the 16th of that month the corporate history of the Town began. Later, on March 13, 1638 Masconnomet Sagamore of Agawam sold the land “lying and being in the Bay of Agawam, alias Ipswich, being so called by the English, as well as such land, being to me in these parts, Mr. Dummer’s farm excepted only” to John Winthrop, Jr. for £20.3
Not long after that, on June 2, 1641, the General Court established what we now call the Ipswich District Court as one of four original Courts in the Commonwealth, the others sitting in Salem, Boston, and Cambridge.
In the beginning there was the Rev. Nathaniel Ward, a minister who had been a barrister of Lincoln’s Inn, England, in 1615. He entered the ministry in 1618 but was suspended in 1633 for “puritanism” by Archbishop Laud. He first wrote The Simple Cobbler of Agawam and later The Body of Liberties, the latter containing over one-hundred laws. It is reputed to be the “first American law book” and was accepted by the people in 1641 supplanting the existing Code, perhaps because the “word of God” and not English common law was to be the measure of justice.4
During the revolutionary era, two sons of Ipswich – Manasseh Cutler and Nathan Dane – made notable contributions to the growth of the country, one by brokering the deal and the other by ensuring humanitarian legislation in what came to be known as the “Ipswich Miracle.”
Cutler was what we would call a man of letters. He started out his adult life as a minister and later became not only a lawyer but a physician, a botanist, an astronomer, and an educator. (This, by the way is the same minister who lead those in his congregation on the south side of town to secede from Ipswich and form the town of Hamilton, which he named after the secretary of the treasury.) Cutler became involved in the Ohio Company of Associates, but needed Congressional approval in order to acquire what came to be known as the Northwest Territory.
During the summer of 1787 in addition to drafting the Constitution, the Continental Congress was also considering legislation for the region, which is where Dane made history. A lawyer by training, he had also been a minister. He was born on an Ipswich farm in the early eighteenth century and grew to be an avid reader. He attended Harvard College in 1774 and began “reading law” – as was the custom before the advent of law schools – with Judge William Wetmore in Salem. He served in the General Court, was appointed to the Court of Common Pleas (though he never actually sat) and went on to serve in Congress.5 In July Dane made his most noteworthy contribution when, at the eleventh hour of the deliberations over the language of the Northwest Ordinance of 1787, he inserted Article Six which prohibited “slavery or involuntary servitude” in the new territory.6 In part because then Indiana Territory Governor, Virginian and future president William Henry Harrison fought against the amendment, however, the final version included a “fugitive slave” provision.7
While it goes without saying that the Massachusetts Constitution of 1780 was the template when crafting the federal constitution, it is a little known fact that two years earlier a critical work had emerged from Ipswich which served as the foundation for the end result, which was largely written by John Adams.8
Early in 1778 the General Court had proposed a Constitution to the people in the various cities and towns. They rejected it overwhelmingly, by a vote of five to one. In April of that year, a group of twenty-seven statesmen, later known as the “Essex Junto” – headed by the future Chief Justice of the Supreme Judicial Court, Theophilus Parsons of Byfield, and including General Michael Farley, Jonathan Cogswell and Daniel Noyes of Ipswich – met here in Town. They drafted a pamphlet which came to be know as the “Essex Result”9 outlining the reasons for their objections to the proposed Constitution.10
Early in the next century Otis Phillips Lord was born in 1812, and studied at what was then known as Dummer Academy, later at Amherst College and Harvard Law School. He began his practice here in Ipswich, later removed to Salem, and went on to serve in the Massachusetts House of Representatives where he became Speaker. He also served in our state Senate and was a member of the Constitutional Convention of 1853, where another Ipswich native made his most famous oration on the independence of the judiciary. After hesitating for some time, Lord accepted an appointment to sit on the Superior Court at its inception in 1859. He was said to bring with him the “same incisive and aggressive qualities which had made his success at the bar.” He “loved to see a vigorous and fair contest, but he abhorred anything like trickery or chicanery in the trial of a case.” There he served for some fifteen years when Governor Gaston appointed him to sit on the Supreme Judicial Court.
There he was known as a “rapid thinker, and quickly formed impressions” which at first blush does not sound complimentary for a judge, or indeed for any person. But he “had such control over his mind that he could grasp and appreciate any fair argument which tended to refute his views, and the candor to abandon at once his position when convinced that he was in error;” surely a complement to anyone, especially to a judge. He retired after almost ten years when his health began to fail and died in 1882.
Of Lord they said “the tone of his mind was forensic rather than judicial,” he was a “good writer but better speaker … and will be most appreciated … as a lawyer, arguing an important cause … with a power and eloquence rarely excelled, or, as a judge, charging the jury … with a clearness of diction, terseness of expression, and comprehensiveness of statement unsurpassed.” Perhaps his warmest accolade describes his “most prominent features [as the] warmth and sincerity of his friendship, his rugged honesty, and a courage that never palter[ed] with his convictions.”11
Surely the finest and most remarkable advocate from our Town’s history, however, was the antebellum lawyer Rufus Choate. Born on Choate Island in 1799 he entered Dartmouth Collage at age sixteen, attended Dane Law School and read with William Wirt of Virginia. Practicing in Danvers and later Salem, Choate came to be known as the “wizard of the law” trying many notable cases in the Commonwealth. In 1841 the state legislature chose him to fill a seat in the United States Senate vacated by Daniel Webster when he joined President Harrison’s Cabinet. Choate served as our state’s Attorney General, declined an appointment to a seat on the Supreme Court preferring the practice of law, and died relatively young in 1859.
Said to be “ranked as the great American advocate … he was an able lawyer, a shining statesman, an all-accomplished man of letters.”12 Well versed in Latin and Greek he was the original lawyer’s lawyer in that he was obsessed not just with words in general, but with using the right word. A voracious reader, he would start his work day perusing his favorite passages from the classics and often read the dictionary.13 He “had a command of language, and his brain teemed with a wealth of diction”14 Like any good lawyer he was by nature a good person, and urged his students to speak as though “every word is full freighted with suggestion and association, with beauty and power.”15
More than literate and skilled, Choate was a compassionate advocate when it came to his opponents. Professionally, he was a strong proponent of the importance of an independent judiciary, and it was in that regard that he made his most famous oration. The argument was to the Massachusetts Constitutional Convention of 1853.16 Some years earlier the great Chief Justice Lemeul Shaw had decided a case holding that judges had the sole right in criminal cases to decide the law, and that juries were obligated to follow a judge’s instruction.17 The resulting public outrage, along with the growing response to a line of cases decided in the 1840s on the issue of fugitive slaves – including one upholding the Fugitive Slave Act of 1850, brought about the Constitutional Convention and with it a movement to have judges elected for a term rather than appointed for life.18
Choate spoke at length about the importance of an independent judiciary and life tenure of appointed judges, urging Massachusetts to maintain the system put in place by John Adams.19 He outlined the importance of balance in our system of government and stressed that only lifetime appointment would give us the “trusted, learned and impartial” judges we deserve. That balance, however, was not between the three branches of government but between politics on the one hand – with polls, the press, and free speech – and the law and courts on the other; “between power and restraint, between will and discipline.”20
Surely other prominent lawyers and judges from Ipswich’s past belong on this list; Samuel Sewell, John Appleton, John Whipple, Asa Andrews to name a few. What’s more Adams and Webster surely tried cases here, Abraham Lincoln and Oliver Wendell Holmes spoke here, and the list goes on. Perhaps when we celebrate the quadrennial in 2034 we can be sure to complete the list. As the “Birthplace of American Independence,” however, it should be no surprise that so many notable lawyers and judges come from Ipswich.
1. “All men at all times and in all places do stand in need of Justice, and of Law, which is the rule of Justice, and of the interpreters and Ministers of the Law, which give life and motion unto Justice.” Preface Dedicatory to Sir John Davies’s Reports (1615).
2. Samuel L. Knapp, Biographical Sketches of Eminent Lawyers, Statesmen, and Men of Letters (Boston, 1821) 10.
3. Benjamin F. Arrington, Ed., Municipal History of Essex County in Massachusetts (Boston, 1922) Vol. I, 66.
4. Charles Warren, A History of the American Bar (Boston, 1911) 64.
5. Marc Mahan, The Life of Nathan Dane (www.primaryresearch.org/PRTHB /Dane/biography.htm) (last visited August 23, 2009).
6. Article Six provides “There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or services as aforesaid.”
7. David O. Stewart, The Summer of 1787: The Men Who Invented the Constitution (New York: Simon & Schuster, 2007) 144; Daniel Walker Howe, What Hath God Wrought (New York: Oxford Univ. Press, 2007) 137.
8. Ronald M. Peters, Jr., The Massachusetts Constitution of 1780: A Social Compact (Boston, 1974) 13-14.
9. The full title of the work was The Result of the Convention of Delegates holden at Ipswich, in the County of Essex, who were deputed to take into Consideration the Constitution and Form of Government proposed by the Convention of the Sate of Massachusetts Bay.
10. Theophilus Parsons, Memoir of Theophilus Parsons, Chief Justice of the Supreme Judicial Court of Massachusetts (Boston, 1859) 46-49.
11. Supreme Judicial Court Memorial Sitting, 137 Mass. 591 (1884).
12. Green Bag 273, 274 (1889).
13. Jean V. Mathews, Rufus Choate, The Law and Civic Virtues (Philadelphia: Temple University Press, 1980) 45.
15. Joseph Neilson, Memoirs of Rufus Choate (Boston, 1884) 97.
16. Addresses and Orations of Rufus Choate (Boston, 1878); reprinted at 13 Harv. L. Rev. 1 (1899).
17. Commonwealth v. Porter, 51 Mass. (10 Metc.) 263 (1845).
18. Leonard W. Levy, The Law of the Commonwealth and Chief Justice Shaw (New York, Oxford University Press: 1957) 100, 290.
19. For example, the suggestion that the good of society depends “so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. The judges … should be always men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men. To these ends, they should hold estates for life in their offices; or, in other words, their commissions should be during good behavior…” John Adams, Thoughts on Government (April, 1776).
20. Jean V. Mathews, Rufus Choate, The Law and Civic Virtues (Philadelphia: Temple University Press) 1980, 189.
Records of the Governor & Company of the Massachusetts Bay in New England
- Volume 1: Records of the General Court, 1628 to 1641
- Volume 2: Records of the General Court, 1642 to 1649
- Volume 3: Records of the House of Deputies, 1644 to 1657
- Volume 4, Part 1: Records of the General Court: 1650 to 1660
- Volume 4, Part 2: Records of the General Court: 1661 to 1674
- Volume 5: Records of the General Court, 1674 to 1686