John Gardiner, Barrister Sprague's Journal of Maine History Vol. IX April, May, June, 1921 No. 2 Page 49-59 There are two houses still standing in Maine which are inti- mately associated with the subject of this sketch. On the eastern bank of the Kennebec, a little way above, and opposite the little village of Richmond, stands a large, rambling, wooden structure, known as the Old Pownalborough Court House. It was built about the year 1753 by Major Samuel Goodwin, the agent of the Plymouth Company, as his official residence, and as a Court House for Lincoln County, at that time comprising the larger portion of central and eastern Maine. The old house is of great historic interest and is still occupied by the descendants of the original proprietor. Here the lawyers of that early period argued their cases and transacted their customary legal business. The voices of John Adams, James Otis, James Sullivan and David Sewall were often heard within its walls. Here the early Justices came on horseback to preside when on the Circuit. The building also served the purposes of an inn and was their temporary domi- cile. And here also, the able, eloquent and scholarly lawyer, John Gardiner, often appeared, clad in the wig and gown of an English barrister. Some three miles distant in the little hamlet now known as Dresden Mills, he resided in the two story farm house erected by his father, Dr. Silvester Gardiner, sometime prior to 1760, and still standing is in an excellent state of preservation. Although the family of Gardiner is one of the most prominent in our New England history, numbering among it members many who have been celebrated in our annals, yet history is strangely silent concerning John Gardiner. One of the most prominent men in Boston and Maine during the years immediately subsequent to the Revolution, and probably the most talked of man in the news papers of that day, only the most fragmentary glimpses of his life and career can be gleamed from our numerous historical and biographical records. He was the oldest son of Dr. Silvester Gardiner and was born in Boston, December 4, 1731. The career of Dr. Gardiner is too well known to need more than a passing mention. He was one of the most distinguished men of his time and was very wealthy for those days. He became the largest single owner in what was known as the Kennebeck Purchase, a corporation formed in 1753. He first established settlements in Pownalborough, and later in what was at that time know as Gardinerstown. He brought to this work of development an uncommon zeal and energy and was very successful. The city of Gardiner was named in his honor, and his descendants still reside in the beautiful old English manor house just outside the city on the banks of the Kennebec. John received his early education in Boston, and in 1745, at the age of 14, he was placed in the office of Benjamin Pratt, afterwards Chief Justice of New York, to study law. He remained there three years, and in 1748 was sent to London to pursue his legal studies. Broader and more liberal ideas prevailed in England than were common in Puritan Boston and he found a wider field for his talents. The profession of law was looked upon with less aversion than was the custom in a community where church offi- cals were also the legal officers. He studied at the Inner Temple, and was under the instruction of Sir. Charles Pratt, who after wards became Lord Chancellor Camden. In 1761, at the age of 30, he was admitted a barrister by the Honorable Benchers of the Inner Temple and the Courts of Westminster Hall. He practised before Lord Mansfield, and soon won his distinguished favor. He acquired a brilliant reputation and it appeared at one time that he was destined for very high legal honors. He also prac- tised law on the Welsh Circuit, and while there married Margaret Harries of Haverford West, a woman of most excellent family. Here is oldest son, John Silvester John, was born in 1765. Of his private life in England but little is known. He frequented Drury Lane Theatre when David Garrick and Mrs. Cibber were famous there, and is related that Jacob Bailey, the early pio- neer missionary to Maine, when in London for ordination, was his companion to the theatre. But while in London he became intimate with the poet Churchill, and the reformer John Wilkes, and when the latter was arrested on the general Secretary of State's warrant, he was junior counsel for his defense. He also argued with success in the defense of Beardmore and Meredity, who, for writings in support of Wilkes, had been imprisoned on a general warrant. His pronounced Whig principles as opposed to the prevailing Tory sentiment in Eng- land at that time, greatly surprised Lord Mansfield, and blasted all hopes of his political success. In reference to his efforts in these trials, there now remains in the possession of Mrs. William R. Cabot of Boston, his great-great granddaughter, a valuable and beautiful piece of plate, bearing this inscription: " 'Pro libertate semper stenuus.' To John Gardiner, Esq., this waiter is pre- sented by Arthur Beardmore, as a small token of gratitude, for pleading his cause and that of his clerk, David Meredith, against the Earl of Halifax, then Secretary of State, for false imprison ment, under his warrant, commonly called a Secretary of State's warrant, that canker of English liberty --- 1766." It is of more than passing interest to consider a little more in detail Mr. Gardiner's connection with this celebrated case, for it illustrates forcibly that in most of his ideas he was far in advance of his age and generation. Wilkes, although a rake and a prodi- gal, unfaithful to his wife, whose fortune he wasted, lacking in generous devotion to any political ideal, nevertheless by sheer pluck and impudence led in the fight to establish in the law of all English speaking countries five great principles of political freedom: the immunity of political criticisms from prosecution; the publicity of legislative debates; the abolition of outlawry which condemned a man in his absence' the protection of property of houses from unreasonable search and seizure; and the right of the duly elected representative to a constituency to sit in the legislature, unless disqualified by law. No matter what personal objections his colleagues may have had to his opinions and writings, so great were his achievements that his name became a household word in America. In the eyes of our forefathers, he was one of the most conspicuous combatants against the doctrine so obnox- ious to them: that men might be maltreated, imprisoned, exiled and disfranchised for the supposedly evil tendencies of their politcal opinions. Lord Camden said of the warrant: "If such a power is truly invested in a Secretary of State, and he can dell- gate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive to the liberty of the subject." The law of the case with which Mr. Gardiner was connected, namely, that search must be by warrant describing the property to be seized, is embodied in the Consti- tution of the United States. At a time when party feeling ran high it can readily be seen that his espousal of such a cause would seem nothing less than heretical to the prevailing Tory influences. It was probably a political move to tender him the Chief Justiceship of the province of New York in 1766, which he promptly declined. Two years later, however, in 1768, he accepted an appointment as Attorney General of St. Kitts, one of the West India islands. It is probable that this was a position which he would have hardly chosen for himself save for necessity, for it was virtually a political banishment. Here he became so active as a Whig that it was found expedient for him to leave the island, and after remaining in Jamaica for a time, he went to Martinque, where he successively held office under the British and French governments. The following letter to his father, dated St. Kitts, January 8th, 1783, well illustrates his political principles: "I am a staunch Revolutionary Whig, you know, and abhor all king craft and priest craft. Such have been my principles since I could judge for myself, and such, I trust, will be the principles I will carry with me to the grave. I have borne a place here under his most Christian Majesty which I have discharged the duties of with the utmost fidelity and integrity, and without the least view to gain, and in such a manner as I would have served his Brittanick Maj- esty, and I been entrusted. And it is with gratitude I mention it, I have received every protection and every mark of friendship from His Excellency, Count Dillion and the French officers here, insomuch so that time shall not obgliterate my regards to them." In the early summer of 1783, at the instance and through the efforts of James Sullivan, he returned to Boston, and in a letter to his father, dated Boston, July 14th, 1783, he writes: "Gov- ernor Hancock, Samuel Harris, and Dr. Cooper have all received me with the greatest cordiality, and General Washington, in con sequence of letters from the French Ministry, overwhelmed me with civility during the four days I stayed with him." He immediately resumed the practice of his profession, and in- duced his brethren to resume the legal costume, which had been laid aside. The custom, however, was not of long continuance, and it was said to have been given up from a countryman hearing one of the judges, in his gown, using most profane language cowards a man from whom he was purchasing wood, and expressing his astonishment to his friends as to how the Boston parsons would swear. That he visited Maine during the year of his return to Boston is evidenced by a letter written by Major Goodwin of Pownal- borough to Jacob Bailey in Nova Scotia, under date of September 9, 1783, in which he says: "John Gardiner is with his brother William, looking after his father's interests." Rev. Samuel Parker of Trinity Church wrote to Bailey, December 22nd, of the same year, saying: "Your old friend, Dr. Gardiner, has a son returned from the West Indies, who in order to ingratiate himself with the ruling party, does little else than curse and damn his father as and old fool...However, it won't do. He will not get his father's estate by this conduct. In October, 1783, he petitioned the General Court, "Although the Father hath eaten sour Grapes, yet your Petitioner's Teeth have not been set on edge, -- his political opinions have been, and are in total, the very reverse of his said Father's," and prayed not to be "visited for the political sins and offences of his said Father." But that he was held in high esteem in Boston is evidenced by the fact that he and his family were recognized as citizens of Massachusetts by a special act of the Commonwealth passed February 13th, 1784, reading: "An act declaring and confirming the citizenship of John Gardiner, his wife, and of Anne, John Silvester John, and William Gardiner, their children. Whereas, the said John Gardiner was born in Boston, the me- tropolis of this Commonwealth, and while a minor was, by his father, sent to Great Britain for his education, where for a suc- cession of years he remained a distinguished friend to, and through a vicissitude of fortune, hath continued an avowed and inflexible assertor of the rights and liberties of his native country, and a bold opposer of the enemies thereof; and having lately returned to reside in the said metropolis, and soon expecting his said wife and children, he and they ought to be declared free citizens of this said Commonwealth." On July 4th, 1785, he was selected as the town orator and dedi- acted his oration "To the First Citizen of the World, The Most Illustrious George Washington, Esq., late Commander-in-Chief of the forces of the free United States of America, with the most affectionate respect. By his most obliged fellow citizen, The Author." It contains the following allusion to Bunker Hill: "Again the battle bleeds; nor do fair freedom's sons give way till their whole stock of ammunition's quite expended. Regardless of his precious life, disdaining shameful flight, the illustrious Warren falls, his country's hero, and his country's pride! What though within these hallowed walls his moulding relicks lie, without a sculptured stone to mark the spot, yet shall his fame be known, his memory live, to latest ages!" It is not strange that there should have been violent and often times bitter controversies between John Gardiner and his father. Dr. Gardiner was an avowed Loyalist, spending the years of the Revolution in England because of his political beliefs. He was also a zealous and consistent believer in the forms and doctrines of the Church of England. John, on the contrary, was as we have seen, a Whig in political belief, and at the same time was a Unitarian as to religious belief. He took an active part in the alteration of the liturgy of King's Chapel, of which his father had been for many years warden and an active member, and was largely instrumental in its becoming the first Unitarian Congre- gational Church in the United State. He would attend services at Trinity Church, where his son, adhering to the ancient faith, was assistant minister, for he said he must hear Jack preach, and would make responses from his altered book while the people were repeating from the Book of Common Prayer. It was in consequence of the disagreements that Dr. Gardiner devised the bulk of his property to his second son, William, be- quitting "To John Gardiner, Esq., Barrister at Law, late of the island of St. Christopher, now resident at Boston, New England (as 'tis said) I give only the sum of one guinea." He relented however, and in a codicil made the same year, 1786, gave him one thousand pounds, and devised to him his house and lot on Marlborough Street and one half of his Pownalborough farm. While it may be observed that these estates were without limitations, while the estates devised to William were entailed, yet it is clearly evident that Dr. Gardiner intended that the bulk of his property should pass to William, and in event of his dying without issue, to his grandson, Robert Hallowell. In 1786, his wife having died, John Gardiner removed to Pownal- borough with his three children. It might seem strange that a man possessed of his brilliant talents and accustomed to move in the best society, should have moved to what must have been at that time nearly an unbroken wilderness. But we must remember that he was nearly sixty years of age, and here was a valuable property which he had just inherited; he might have seen the opportunity to represent the town in the General Court, which position he later occupied; furthermore he was near the bulk of his father's estate, and at one time it seemed very uncertain that it would descend as his father had planned. But these are mere suppositions, and no reliable information can be ascertained as to his real motives. He took an active part in the affairs of the town and in 1788 was the moderator of the town meeting. Among his gifts to the town as a lot of land for church purposes, pro- vided the minister kept a school for instruction in English. He often appeared as counsel in cases tried in nearby Pinwale- borough Court House, where he invariably attracted attention from his copious learning, his polished manners, and his attractive elocution. He was easily the most learned and cultivated lawyer in Maine; and no one at the bar of Massachusetts excelled him as a general scholar, or in the variety of his information. Possibly the most important case in which he appeared as counsel was that of the Frenchman, Louis Porroveau, from Penoboscot, 1791, for murder. The judges were Increase Sumner, Robert Treat Paine and Nathan Cushing. Mr. Gardiner and William Lithgow, Jr., were the counsel for the defense, and secured an acquittal. It is claimed, however, that strong prejudices favoring the French influenced the verdict. The case was of sufficient importance, so it is said, that the French Consul came down from Boston for the trial. In 1787 he was elected as a representative to the Massachusetts General Court from Pownalborough. During his five years in the Legislature he achieved his greatest eminence because of his decided stand concerning many important questions of the day. His ripe scholarship, rare wit, and ability as a strong and vigorous writer, caused him to be one of the best know men in New England. In debate he was fearless, and exceedingly sarcastic and vituperative toward his opponents. The writer is indebted to an unpub- lished manuscript of the late Charles Allen, Esq., for a valuable summary of the measures he advocated while a member of the General Court. He please his friends and irritated his enemies by advocating: 1. A removal of the restrictions on theatres. This was in direct opposition to the current public opinion. Among his opponents on this question were Governor John Hancock, Samuel Adams and Harrison Gray Otis. His famous speech on this subject was de- livered on date January 22nd, 1792, and while the measure failed of passage at that time it was finally passed in 1794. 2. He was strenuous in his advocacy of laws to prevent the entailment of estates and for abolishing such as might then be in existence. He aided effectually in abolishing the law by which the oldest son inherited a double portion of his parents estate; and another to abolish the clumsy process of common recovery, so that a tenant in tail could be deed dock the entailment. 3. He opposed the formation of certain associations by lawyers, whereby they made a sort of close corporation of law and con- spired to injure the people in their rights. By these organizations called him the "Bar Call," none but those especially favored were admitted to pratise. 4. He attacked lawyer-made law generally and wished for its reform. winning for himself the title of the "Law Reformer." 5. He advocated the abolition of special pleading, so as to sim- plify the practise in the courts. He was zealously opposed in this by the celebrated Parsons and other lawyers, and the measure by the celebrated Parsons and other lawyers, and the measure failed of passage. Forty years after, however, this measure was adopted to general acceptance in both Massachusetts and Maine. 6. He opposed the custom of permitting men who held office under the United States government to be officials under the state government also. David Sewall was a federal judge, and while such was chosen a member of the General Court. Mr. Gardiner held that the federal government, was in its relation to the state government, a foreign government. He was sustained in his contention by by the legislature and public opinion. 7. He repeatedly favored and labored for the separation of Maine from Massachusetts. 8. He early proposed establishing a college in Maine, and Bow- doin College was chartered in 1794, a year after his death. 9. He advocated the granting of land to soldiers of the Revo- lutionary War. 10. He favored putting a gallery into the House of Representatives for the convenience of the public, which might thereby be enabled to observe their proceedings. 11. He repeatedly derided the common application of the prin- ciple expressed in the Latin saying: "De Mortuis nil nisi bonum," declaring that if it were obeyed both the pen of the historian and the voice of the orator would be stopped. 12. He introduced and advocated a bill creating a lottery to build what is now known as the upper bridge over the Eastern River in Dresden. For his opinions the papers of that period at time reported him approvingly, and at other times criticised, ridiculed and abused him. Correspondents wrote about him over fantastic and fictitious signatures, at time calling him eloquent and learned and at other times referring to him as a fool. But from the character of the measures he advocated and opposed, it may be gathered that he was from his earliest years, in the uncomfortable but none the less commendable position of being far in advance of his genera- tion. While, as was natural, he failed in passing most of his measures, yet it musts be conceded that he was a man of genius and marked ability. In October, 1793, he started for Boston from Pownalborough on the packet Londoner, which carried a heavy deck load of lumber. A severe storm came up and the vessel went down off Cape Ann, October 15th, 1793, and all on board were lost. Later his chest of clothing floated ashore with confirmed his fate. He had dreamed if being drowned on the trip; but he laughed at such superstitions. Homer would have told him that "dreams proceed from Jove." Mr. Gardiner was one of six lawyers in Maine raised to the degree of barrister, the others being William Cushing, David Sewall, Theophilus Bradberry, David Wyer, and William Wet- more. The rule for a barrister in England was that this degree should not be received unless the candidate had resided three years in one of the Inner Courts, if a graduate of Oxford or Cambridge, and five years provided he was not a graduate of either of these colleges. Although Mr. Gardiner was not a college gradate, he received his Master's Degree from the University of Glas- gow in 1755, and from Harvard University in 1791. In 1791 he appears to have been a member of the Ancient and Honorable Artillery of Boston. His nephew, Hon. Robert H. Gardiner, in his autobiography, says of him: "He had an astonishing memory, was an admirable belles-lettres scholar, and particularly distin- guished for his wit and eloquence. He was a very fine classical scholar, and could repeat entire books from his favorite Greek authors." The same writer records his recollections of "his short, stout person; his hair tied up in a silk bag, and his quick, loud, commanding voice. His son, Rev. Dr. John Silvester John Gardiner, was a marvel- ous scholar in the classics, and was prominent as the rector of Trinity Church for twenty-five years. Phillips Brooks refers to him as the most eloquent and influential clergyman in Boston during those years. His speech on the theatre constitutes probably the most mas- terly defense of theatrical representations ever made in America. This speech was never delivered, as he was told that it would be wholly above the comprehension of his audience, and that he acceded to the advice, printing it instead of delivering it in the House of Representatives. It fairly bristles with Latin and Greek quota- tions, the notes are more copious than the text itself, and it makes an octavo volume of some one hundred sixty pages. He finds Biblical authority for his contention, stating that "whoever is read in the history of the Drama, must know that the ancient whole sentences and quoting several passages from the Greek writers of comedy. He supports his argument by the Song of Moses, the Psalms of David, the Songs of Solomon and the Reve- lations of St. John the Divine. He goes at great length into the early development of the Greek and Roman theatres and presents an elaborate sketch of the early Greek stage. He then comes down to more modern time making an exhaustive argument as to dramatic representations in Italy, France, Spain, Holland, Germany and England. He brings out many specific advantages to be derived as to improvement in speech and pronunciation, ease and grace in public speaking, and thinks the theatre would have a very beneficent effect on young clergymen. Referring to Whitefield, he says: " Whitefield, Sir, if I have been rightly informed, was originally a stage player; he carried the oratory and the action of the Theatre into the Pulpit, and from the tones of his voice, assisted by gestures and action, (although his eye was against him) he captivated and carried away the multitude!" The writer recently ascertained the fact that there is in the possession of Harvard University, a Bible presented by John Gardiner. It is a Latin Bible, perfect in the fine type of 1514. The following inscription in the handwriting of Mr. Gardiner is found pasted inside the Bible: " This Bible was delivered to John Gardiner upon his return from Great Britain in October, 1755. by his father, Dr. Silvester Gardiner, who informed him that in his last illness the preceding year, Dr. Charles Brockwell, who was then the King's Chaplain at the Chapel in Boston, delivered this to him, saying 'Doctor, you have been very kind at all times to me and my family, and have attended us, and administered medicine to us from time to time, without charging or taking anything from me, therefore: I have nothing to recompense you with, but to present it to your son, John, when he returns from Glasgow. I value it very much. It was given to my father by King Charles the First, who presented it to him with his own hand, after having taken it down form a shelf in his library when my father was there with the royal martyr.'" Relative to the unknown reasons which actuated Mr. Gardiner in removing from Boston to Pownalborough, the writer has re- cently discovered a letter written by Mrs. Robert Hallowell Gar- diner from Oaklands, in 1863, to Mrs. Margaret Elton, in which she says: "Distinguished as a scholar, his associates were of the aristocratic class, into which he also married, and accomplished Welsh lady of family. He returned to his own country at the close of the Revolution, when wise men were striving to allay excitement and promote tranquillity. His position was peculiar, and it was probably in disgust of manners to which he would not conform that he retired to the estate his children had inherited from his father." In this letter Mrs. Gardiner seems to convey the impressing that although an enthusiastic advocate of democratic principles, yet Mr. Gardiner by birth, education and environment was essen- tially an aristocrat. Upon coming to Boston he found a new democracy, where all men were free and equal regardless of birth or education. While he firmly believed in the principles of this democracy, yet he found it impossible to conform with dignity to their manners and customs. This explanation may throw a little light upon his reasons for removing to Pownalborough. NOTE- The writer wishes to express his indebtedness to the unpublished autobiography of Hon. Robert Hallowell Gardiner, 1st, of Oaklands: to an unpublished manuscript written by the late Charles Allen, Esq., of Wiscasset: to Foote's "Annals of King's Chapel: "Updyke's "History of the Narranganset Church:" and to the Journals of the Massachusetts Legislature from all of which he has freely drawn for information contained in this brief sketch. Sanford, Me, Feb. 24, 1921 (c) 1998 Courtesy of the Androscoggin Historical Society ************************************************* * * * * NOTICE: Printing the files within by non-commercial individuals and libraries is encouraged, as long as all notices and submitter information is included. Any other use, including copying files to other sites requires permission from the submitters PRIOR to uploading to any other sites. 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