Volume 18 Number 4 Article 3

Maine History

Maine History

Volume 18 Number 4 Article 3

4-1-1979

Chief Justice John Appleton

Chief Justice John Appleton

David M. Gold

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Gold, David M.. "Chief Justice John Appleton." Maine History 18, 4 (1979): 193-216. https://digitalcommons.library.umaine.edu/mainehistoryjournal/vol18/iss4/3

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Chief Justice John Appleton

DAVID M. GOLD

C H IE F JU S T IC E JO H N A PP L E T O N

At a b an q u e t celebrating th e seventy-fifth anniversary o f the M aine H istorical Society, one o f th e speakers, G eorge F. T albot, expressed his desire som eday to see biographies o f two o f M aine’s m ost em in en t public figures, W illiam Pitt F essenden an d J o h n A p p le to n .1 T h e fam e o f F essenden, Civil W ar se n ato r a n d secretary o f the treasu ry u n d e r Lincoln, has been revived in recen t years because o f his key role in R econstruction politics. A ppleton, how ever, rem ains relatively unknow n; the only substantial essay on him is now m ore th a n seventy years o ld .2 A n a rd e n t legal re fo rm e r, A ppleton served with distinction for thirty-one years on th e S u p rem e Judicial C o u rt o f M aine, published m a n y a rtic le s in le a d in g law jo u r n a ls a tta c k in g anachronistic an d u n ju st rules o f evidence, a n d g ained renow n fo r his successful struggle to m ake the accused in a crim inal case co m p eten t to testify in his own behalf. T his article is in te n d e d as a first step tow ards fulfilling T a lb o t’s h o p e th a t historians fully accord A p p leto n the cred it d u e this rem a rk a b le m an.

Personal and Professional Life

T h e n am e A p p leto n comes fro m the A nglo-Saxon w ords aepl a n d tun, m eaning apple g ard en . Because it a p p e a re d as a place nam e shortly a fte r 1066 an d because th e early given nam es o f the family in E ngland w ere N o rm an , o n e a u th o r surm ised th a t “the first o f the A p p leto n s was a N o rm a n k night accom panying W illiam th e C o n q u e ro r to w hom was given an estate called A ep l-tu n , as a rew ard fo r his m ilitary service.”3 Sam uel A p p leto n , p ro g e n ito r o f the A m erican b ran ch o f th e family, em ig ra ted to M assachusetts in 1636, becom ing a p ro m in e n t citizen in the town o f Ipsw ich an d taking p a rt

in th e deposition o f G o v ern o r E d m u n d A ndros at the tim e o f the G lorious R evolution o f 1688. In the m id -eig h teen th cen tu ry S am uel’s d escen d a n t Isaac A p p leto n h elp ed settle New Ipswich, New H am p sh ire. Isaac’s y o u n g er b ro th e r Francis, J o h n A p p le to n ’s g ra n d fa th e r, followed him th e re a ro u n d 1770 an d settled dow n to the quiet life o f a m odest farm er, in te rru p te d only by b rie f m ilitary service d u rin g the R evolutionary W a r.4

A lth o u g h it ap p e ars that he was am ong the m ost heavily assessed taxpayers o f New Ipswich in 1774,5 Francis A ppleton was not a w ealthy m an. O n the contrary, according to an acquaintance o f his son Jesse, the respected theologian an d ed u cato r, “Mr. Francis A ppleton was a fa rm e r in the o rd in ary circum stances o f that class o f o u r com m unity. So co n tracted in d e ed w ere his m eans, th a t [Jesse] was designed to a m echanic’s tra d e .”6 Jesse w ent on to becom e p resid e n t o f Bow doin College an d the family farm devolved u p o n his b ro th e r Jo h n .

T h e eld er J o h n A p p leto n rem ains even m ore o f an enigm a th an his fath er. H e was n o t distinguished en o u g h to m erit m ore th an th e m erest m ention in the published histories o f New Ipswich. H e lived from 1763 to 1849 an d m a rried Elizabeth Peabody o f W ilton, New H am p sh ire, on M arch 10, 1803. Elizabeth, the d a u g h te r o f a blacksm ith who could trace his A m erican roots back to 1635, d ied in 1809 at the age o f thirty-tw o.7 T h e couple p ro d u c e d two children, J o h n an d Elvira.

T h e y o u n g er J o h n A ppleton e n te re d the w orld on July 7, 1804. T h e course o f his early years rem ains a m a tte r o f speculation fo r th e re is very little evidence as to how he sp e n t his boyhood days. In a b rie f autobiographical le tte r w ritten in 1858 A p p leto n covered the p erio d fro m his b irth to his teaching ca re e r in one sentence.8 T h e published accounts o f his life follow this p reced en t. We do know, how ever, th a t A ppleton received his early ed u catio n at the New Ipswich A cadem y.9

T h e New Ipsw ich A cadem y, re n a m e d A p p le to n A cadem y in 1853 in h o n o r of its b en efacto r Sam uel A ppleton o f Boston, was organized in 1787 by a g ro u p o f thirty-tw o m en fro m New Ipswich an d n eig h b o rin g towns. T h e fo u n d ers, including Isaac and Francis A ppleton, w ere p e rh a p s dissatisfied with the lim ited education then p ro v id ed in the tow n’s schools.10 T h e second academ y to be in c o rp o ra te d in New H am p sh ire an d only the th ird in the co u n try to be coeducational, the New Ipswich A cadem y was c h a rte re d in 1789

for the p u rp o se o f p ro m o tin g piety an d virtue, an d fo r the edu catio n o f youth in the English, Latin and G reek languages, in W riting, A rithm etic, Music and th e A rt o f Speaking, practical G eom etry, Logic, G eograp hy , a n d such o th e r o f the liberal arts an d sciences o r languages, as o p p o rtu n ity may h e re a fte r p erm it, o r as the trustees h e re in a fte r p ro v id ed shall direct.

W ith a p o p u latio n exceeding 1,200 New Ipswich was large en o u g h to su p p o rt the academ y an d it e n d u re d until recen t times.

In J o h n A p p le to n ’s day the New Ipswich A cadem y had about eighty-five students, m ore th an a th ird o f w hom w ere girls and m ore than a th ird o f whom p u rsu e d classical studies. Y oung A ppleton m ust have been am ong the latter, fo r w hen he was accepted at Bowdoin College in Brunsw ick, M aine, at the te n d e r age o f fo u rte e n the adm ission req u irem e n ts included fam iliarity with G reek an d L atin .11 At Bow doin the classics w ere again stressed, along with m athem atics and religion, an d the lasting im pression they m ade is a p p a re n t from the fre q u e n t G reek an d Latin references in the w ritten opinions o f J u d g e A ppleton.

At least some o f th e ju d g e ’s love o f classical learning m ust have been im bibed from his uncle Jesse who was not only the p re sid e n t o f Bow doin College but one o f its b etter instructors. In general, how ever, the teaching o f classics at th a t tim e was not very good. A lpheus Spring Packard, who

g ra d u a te d from B ow doin in 1816 an d ta u g h t th e re fo r sixty-five years, recalled: “Classical teaching in my day was alto g eth er inefficient. T h e first p ro fe sso r was m ore skill­ ful in ex p lo rin g th e wild lands o f th e college o n the

Piscataquis, an d in in tro d u cin g choice fruits in this and n eig h b o rin g towns, th an in in spiring students with love fo r G reek .”12

A p p leto n e n te re d Bow doin in 1818. T h e “jo u rn e y o f several days to Brunsw ick fro m New Ipsw ich in an old-fashioned, tw o-w heeled chaise with his uncle was an event to be rem e m b ered , fo r he o ften re fe rre d to it in his allusions to his boyhood days.” 13 T h e college itself was less rem arkable. Located in a small, unattractive town and consisting o f ju s t two buildings, its room s w ere small and spare, its course w ork rigidly prescribed, an d its req u ired h o u rs o f study long. N evertheless, the students m an ag ed to find diversion. D ru n k en n ess an d p ran k s were p e rh a p s no less com m on th a n now; o ffen d ers w ere p u n ish e d with fines o r suspensions an d re q u ired to live fo r a tim e with clergym en selected by the faculty.

T h e re were also am usem ents o f a m ore en lig h ten in g n a tu re in the fo rm o f literary an d d eb atin g clubs. A m ong these was the P eucinian Society, fo rm e d “in o r d e r to cherish the love o f lite ra tu re . . . cultivate am o n g the m em bers a spirit o f affection fo r the p a re n t institution .. . an d p ro m o te an d p reserv e a feeling o f fellow ship.”14 T h e club’s constitution called fo r fortnightly m eetings to discuss m oral an d intellectual them es an d develop forensic abilities. D uring his years o f m em b ersh ip A p p leto n was su p p o sed to have p re se n te d “forensics” on the following questions: Did the first settler o f New E ngland use justifiable m eans o f obtaining possession o f the country? Does clim ate influence genius? In a C hristian R epublic o u g h t the laws to oblige every m an to co n trib u te to the su p p o rt o f the C hristian religion? T h e re is no way o f know ing how A ppleton re sp o n d e d to these challenges. In

fact, th e society’s reco rd s reveal th a t it was not u n co m m o n fo r m em bers, A p p leto n included, to neglect th e ir assigned tasks alto g eth er, desp ite the fines p ro v id ed fo r such om issions in the o rg an iz atio n ’s bylaws.

A p p leto n g ra d u a te d fro m Bow doin in 1822, the th ird youngest in a class o f tw enty-four m en. As with m any e d u c a te d y o u n g m e n o f th a t p e r io d , his in itia l em ploym ent a fte r g ra d u a tio n was teaching, first at the D u m m e r A cadem y in Byfield, M assachusetts, an d la te r at O liver W ellington’s school in the Boston su b u rb o f W atertow n. T h e D u m m e r A cadem y, fo u n d e d in 1763 by L ieu ten an t G o v ern o r W illiam D u m m e r as the first boys’ b o ard in g school in the country, is still in existence. W ellington’s academ y, on the o th e r h a n d , h ad a b rie f life, twenty years o r less. F o u n d e d a ro u n d 1822 by W atertow n p aren ts who th o u g h t the district schools in ad eq u ate, the academ y seems n ev er to have gotten firm ly established, an d the building was later occupied by a succession o f ch u rch g ro u p s an d m aso n s.15

A p p leto n had a sh o rt b u t successful teaching career. O ne o f his stu d en ts was the fu tu re U n ited States S u p rem e C o u rt Ju stic e B e n jam in C u rtis w hose b r o th e r r e ­ m e m b ered A p p leto n as a flower am ong the th o rn s who cam e an d w ent as m asters at the W atertow n school. “I th in k my b ro th e r g ained m ore fro m Mr. A p p le to n ,” w rote G eorge T ic k n o r C urtis, “th a n he did fro m all the previous m asters w hom he h ad atten d e d . H e was a good teacher, an d a p erson o f su p e rio r m in d .” 16

A fter a year o f teaching A ppleton tu rn e d to the study o f law. As was custom ary in those days, he received his legal ed u catio n not in a law school b u t in the offices o f established attorneys. H e h ad fo r m entors G eorge F. Farley o f New Ipsw ich an d a relative, N ath an D ane A p p leto n o f A lfred , M aine, both o f w hom becam e p ro m in e n t lawyers in th e ir own rig h t.17 In 1826, having

attain ed the age o f m ajority, J o h n A p p leto n was ad m itte d to the b ar in A m herst, New H am pshire. L ater th a t sam e year he began to practice law in D ixm ont, M aine, n am ed fo r Dr. Elijah Dix, th e tow n’s fo u n d e r an d g ra n d fa th e r o f the advocate fo r the m entally ill, D orothea Lynde D ix.18 F o r reasons unknow n A ppleton m oved again a fte r th re e m onths, this tim e to Sebec, M aine, his first real hom e afte r New Ipswich.

Sebec was a mill tow n o f som e prom ise at that tim e, b u t its 1820 p o p u latio n o f 431 exceeded the c u rre n t n u m b e r o f inhabitants by m ore than 100. A ppleton was the tow n’s second law yer.19 Little is know n of the six years he spent th e re except that it was d u rin g this tim e that, inspired by Je re m y B e n th a m ’s Rationale of Judicial Evidence, he began

to write his widely respected articles on evidence.

In 1832 A ppleton resettled once again, this tim e for good. He m oved to th e fast-grow ing mill town and lum ber p o rt o f B angor, w here a skillful and hard-w orking young lawyer could exercise his craft to m uch g reater advantage th a n in small co u n try outposts like D ixm ont and Sebec. W hen B an g o r was in c o rp o ra te d as a town in 1791 it had p e rh a p s 500 inhabitants, but by the tim e it becam e a city in 1834 the p o p ulation had swelled to 8,000 an d excitem ent was high. B angor was on its way to becom ing one o f the g reat lu m b e r ports o f the w orld and speculation in the s u rro u n d in g tim b erlan d was rife .20 (A lthough a d v e n tu r­ ism in business was n ot in his n atu re , A ppleton may have succum bed to the speculation fever for, according to a n ew sp ap er article published shortly after his d eath , he ow ned 130,000 acres o f Maine tim b erlan d .)21 In that atm o sp h ere, m ore people were bringing lawsuits than could a ffo rd to pay an d the firm o f Allen an d A ppleton, th o u g h enjoying a large clientele, reap ed only a m odest revenue. “In those days,” Ju d g e A ppleton rem e m b ered upon his retirem en t from the bench, “the main business o f the law consisted o f vain efforts to collect uncollectable

debts, an d with a b o u t as m uch prom ising results as those attain ed by a v enerable p rosecuting officer o f this county, who p ro c u re d from th e g ra n d ju ry an indictm ent against a tow n for n o t re p a irin g irre p arab le ro a d s.”22

In B a n g o r A p p leto n settled dow n to the life o f a family m an an d p ro m in e n t attorney. H e m a rried his p a r tn e r s sister S arah, d a u g h te r o f M assachusetts C ongressm an Sam uel Allen, in 1834 a n d built a house on the c o rn e r o f Fifth an d C e d a r streets. His first son, J o h n Francis, was b o rn th e following year. His law practice yielded only a m o d e ra te incom e, but, as A p p leto n once re m a rk e d , “in resp ect o f ex p erien ce an d m ultiform legal know ledge, it was largely re m u n e ra tiv e .”23

T h e p a rtn e rs h ip o f Allen an d A ppleton cam e to an en d with Elisha A llen’s election to C ongress in 1840.24 By th at tim e A p p le to n ’s re p u ta tio n was firmly established a n d a d istinguished citizen o f B angor reco m m en d ed him as a "g en tlem an o f g reat legal attain m en ts an d discrim inating m in d ” an d a w orthy can d id ate fo r the position o f re p o rte r o f decisions fo r the S u p rem e Ju d icial C o u rt o f M aine.25 A p p leto n was duly ap p o in ted , b ut a fte r one y ear he re tu rn e d to private practice on a full-tim e basis. H e fo rm e d p a rtn e rsh ip s first with J o h n B oynton Hill an d la te r with his cousin Moses A ppleton. T h e second association lasted u n til his a p p o in tm e n t to the S u p rem e C o u rt in 1852.26

T h a t sam e year, 1852, saw the judicial reo rg an izatio n o f the state in accordance with a bill d raw n by A ppleton. F or the previous th irte e n years the ju d icial system had consisted o f th re e district courts o f original ju risd ic tio n an d th e S u p rem e C o u rt, plus a n u m b e r o f special courts o f lim ited ju risd ictio n . A p p o in te d by the legislature to h ea d a com m ission to review the co u rt system, A ppleton re c o m m e n d e d the abolition o f the district courts a n d the tra n s fe r o f th e ir pow ers to an en larg ed S u p rem e C o u rt.

T h e plan was ad o p ted and th e re a fte r the S u p rem e C o u rt justices held trial term s in various parts o f the state, a n d at least one law term annually in each o f the th ree districts into which the state had been divided to decide u p o n im p o rta n t questions o f law.

T h e re fo rm was not w ithout its critics. O ne, w riting a few years a fte r th e new system was in a u g u ra te d , com plained that the S uprem e C o u rt now occupied itself with trivial causes instead o f m atters o f high principle, an d th a t w ith o u t s u ffic ie n t le is u re f o r re s e a rc h a n d d e lib e ra tio n th e c o u rt's in te lle ctu a l c h a ra c te r a n d authority would suffer. L ooking back afte r his retirem en t, how ever, A ppleton expressed satisfaction with his work. T h e elim ination o f u n d u e o p p o rtu n ities fo r appeal and p ro tra cte d litigation, he said, resulted in a g reat saving of “delay, expense and vexation . . . so th at I think it may be truly said th a t th e re is no State in New E ngland w here a ju d g m e n t may be obtained so speedily and with so little expense as in this good State o f o u rs.” By th at tim e, how ever, su p e rio r courts h ad been established in several counties, for the grow th o f the state a fte r the Civil W ar had placed too heavy a b u rd e n on the S u p rem e C o u rt fo r it to continue as the sole co u rt o f first instance.27

A ppleton, serving on the bench with distinction fo r thirty-one years, was living p ro o f that his co u rt system d id not necessarily bar legal scholarship o f the highest o rd e r. A lthough a W hig, he received his ap p o in tm e n t to the bench in 1852 from a D em ocratic g o v ern o r whose election he had o p p o se d .28 T en years later he succeeded J o h n T en n y as chief justice. D uring his te n u re on the bench A ppleton su p p le m en ted his judicial duties by p re p a rin g his articles on evidence fo r publication in book form , and by codifying, in d ex in g , an d a n n o ta tin g the M aine C onstitution which had been am en d ed tw enty-one times over the years, a task assigned him by the legislature.29 He retired in 1883 at the age o f seventy-nine, leaving “not a

stitch o f w ork” fo r his successor, J o h n P eters.30

A fter a lifetim e in the legal profession A p p leto n willingly p u t aside law to p u rsu e read in g in o th e r fields an d to enjoy th e co m p an io n sh ip o f family an d frie n d s.31 (A nd probably also to play cards, fo r according to Peters he excelled at eu c h re an d w hist.)32 A ppleton lived o u t his final years in c o n ten tm en t, possessing a sound m ind an d vigorous health u n til th e end. T h e tributes he received fro m frien d s a n d associates u p o n his re tire m e n t an d d ea th stressed his in d u strio u sn ess an d intelligence, his even te m p e r an d kindness, especially tow ard y o u n g er m em bers o f th e b a r.33 A p p leto n also possessed a delightfully dry sense o f h u m o r. A m ong the anecdotes related by C harles H am lin, fo r exam ple, was the one in which a m e rc h a n t exclaim ed to the ju d g e , “T his b a n k ru p t law is ro b b in g o u r firm o f th o u san d s o f d o llars.” “O h, no! n eig h b o r J o n e s ,” rep lied the ju d g e , “it is the insolvency o f your d e b to rs.”34 O n a n o th e r occasion, w hen A p p leto n ’s voracious literary ap p e tite h ad led him to attem p t an indigestible a u to ­ biog rap h y , he w rote to an acquaintance:

I h a d fo rg o tte n ab o u t W illiam son an d his in term in ab le life. I plead guilty - th e plea is th e p ro p e r one - to re a d in g th e first volum e o f his useless life - b u t the C o u rt M artials w ere too m uch - I gave u p in d esp air. I nev er h e a rd o f anybody else who re a d as m uch as I d id o f th a t prosy book - unless it was the co rrecto r o f proo fs - p ro o fre a d e r I sh o u ld r a th e r say - w ho tak in g th at as all o th e r jo b s as a m ere m a tte r o f duty, n ev er fa lte re d o r n ev er should have faltered a n d w ho th e re fo re may be presumed to have re a d it. As he read it only to co rrect e rro rs he was u n d e r very little obligation to in terest h im self ab o u t th e te x t a n d th e re fo re m ay be p a r d o n e d .35

A p p le to n ’s family in his last years consisted o f his second wife, th e fo rm e r A nne Greeley, two sons an d a g ran d so n . B etw een 1844 an d 1874 he h ad lost his fa th e r an d sister, an in fan t d a u g h te r a n d two sons, an d his first wife. His first-born achieved distinction as a soldier an d lawyer. D u rin g the Civil W ar J o h n Francis A p p leto n served gallantly u n d e r G en eral N ath an iel P. Banks at th e siege

o f P ort H u d so n an d , over objections o f fellow officers who felt it was b en e ath the dignity o f a g en tlem an , he co m m an d ed a colored regim ent. In 1865 he was b reveted b rig ad ie r general. A Bow doin g rad u ate, J o h n Francis A ppleton passed the b ar in 1866 an d th re e years later received Senate confirm ation as a fed eral ju d g e fo r the E astern District o f T exas. He had to refuse th e a p ­ p o in tm e n t d u e to p o o r health an d died in 1870 fro m an illness first co n tracted in the swamps o f Louisiana d u rin g the W ar.36

F o r the last two decades o f his life J u d g e A p p leto n lavished his a b u n d a n t p aren tal affection u p o n his two surviving sons, F rederick, a p ro m in e n t attorney, an d H en ry , a p ro sp e ro u s lu m b e r m e rc h an t. T h e final p a ra g ra p h o f his will, add ressed to the sons, testifies eloquently to the c h a ra cte r o f the father:

In m aking the fo reg o in g provisions, I have en d ea v o red to do equal a n d exact justice to each a n d to re g a rd th e ir best interests. I e x h o rt my sons to aid, assist, an d watch over each o th e r an d ever to cultivate loving an d fra te rn a l feelings each fo r the o th er. I leave th em loving wishes fo r th e ir p rosp erity an d happ in ess, which tem p eran ce, in d u stry an d econom y will always e n s u re .37

J u d g e A ppleton died peacefully at hom e on F ebruary 7, 1891.

Legal Thought

An ideal rep resen tativ e o f n in e tee n th -c en tu ry liberal­ ism, J o h n A ppleton exhibited one p re d o m in a n t trait in all his writings: rationalism . W h e th er espousing the virtues o f a free en terp rise system o r challenging an ossified legal doctrine, he a rg u ed his case in a clear, logical style, considering th e intellectual edifice erected by his o p p o n en ts in the best possible light and nevertheless dem olishing it brick by brick.

A p p le to n ’s intellectual m entors w ere all p reac h ers o f reason. His uncle Jesse appealed to reason tim e an d again

in his lectu res.38 In religious m atters A ppleton follow ed the teachings o f F red eric H en ry H edge, C harles C. E verett an d Jo se p h H. Allen, all leading U n itarian m inisters who served fo r a total o f m ore than thirty years in B a n g o r.39 H edge a u th o re d a book en titled Reason in Religion in which he w rote: “In every clear conflict betw een reason a n d au th o rity , th e genius o f C hristianity inclines to the rational side. T h e cause o f reason is ever the cause o f fa ith .”40 E verett attem p ted to harm o n ize faith an d reaso n in his article “T h e Faith o f Science an d the Science o f F aith .”41 In his w ritings on political econom y an d evidence A p p leto n claim ed n o originality, proclaim ing him self m erely a disciple o f those apostles o f reason A dam Sm ith an d Je re m y B entham .

As a follow er o f Smith an d B entham , A p p leto n n a tu ra lly o p p o s e d g o v e rn m e n ta l in te rf e re n c e w ith in d iv id u a l fre e d o m in m a tte rs o f econom ics a n d conscience, alth o u g h fanaticism in such things was entirely alien to his te m p e ra m e n t. “R estrictions are always co n sid ered prima facie in e x p ed ie n t,” he w rote in an early article fo r the Yankee. “Any in frin g em e n t on liberty o f action is d a n g e ro u s .”42 O pposing usury laws as p ro d u cts o f preju d ice ra th e r th an reason, A p p leto n a rg u e d fro m both principle an d utility. “It may be assum ed as an u n q u estio n ab le tr u th ,” he w rote, “th a t each individual is best co m p ete n t to m anage his own concerns.”43 W hen u su ry laws, in te n d e d to p ro tect the poor, set the ra te o f in te re st below th a t w hich w ould obtain in the absence o f legislation, the p o o r m an was th ro w n u p o n the m ercies o f th e loan shark, who w ould charge m ore th a n the m ark et rate to com pensate fo r the risk involved.

In developing his arg u m en ts on usury A p p leto n to u c h ed u p o n them es th a t w ould em erg e nearly h a lf a cen tu ry later in a lengthy op in io n he w rote as chief justice co n cern in g th e relationship betw een business an d g o v ern m en t. T h e heady expansion o f business an d

in d u stry in the post-Civil W ar years h a d been ac­ com panied by the w ide-spread belief th at g o vernm ental in terv en tio n in the econom y was both morally w rong an d practically inadvisable. A ppleton had an o p p o rtu n ity to discuss the subject in a ra th e r u n u su al case. In 1871 the M aine H ouse o f R epresentatives asked the S uprem e C o u rt fo r an opinion as to w h eth er the legislature could constitutionally au th o rize towns to aid private m a n u ­ factu rin g en terp rises, e ith e r by gifts o f m oney o r loans o f bonds; an d fu rth e r, w h eth er towns m ight go into business for them selves.44 W hen the co u rt answ ered both questions with a reso u n d in g No, the legislature gave such authorization anyway an d the co u rt declared it u n co n stitu tio n al.45 Interestingly, A p p leto n ’s consistent a p ­ plication of laissez faire principles in this case w orked against the im m ediate interests o f the com pany involved. T h e co u rt rejected the do n atio n o f public aid to private en terp rise.

A ppleton re g a rd e d the efficient use o f capital an d the p ro p e r allocation o f p rofit and loss as the practical benefits o b ta in e d fro m an econom y free o f g o v e rn m e n ta l intervention. “C apital naturally gravitates to the best investm ent,” he w rote. “I f a p articu lar place o r a special kind o f m an u factu re prom ises large retu rn s, the capitalist will be little likely to hesitate in selecting the place an d in d eterm in in g upo n the m a n u fa c tu re .”46

T h e practical, in A p p leto n ’s view, soon blended with the m oral. Capital, he said, is the fru it o f saving an d w hen it is n ot p rotected accum ulation stops. “W hen the g o v ern m en t is despotic, w hen private rig h t is d isreg ard ed , w hen th e re is no security fo r an d no protection o f p ro p erty , m en will cease to accum ulate, fo r they will not save to be ro b b e d .”47 T h e political consequence o f too m uch intervention in the econom y would be despotism .

T h e less the State in te rfe re s with ind ustry, the less it directs and selects the channels of e n te rp rise , the better. T h e re is no safer rule th a n to

leave to individuals th e m a n ag em e n t o f th e ir own affairs. Every ind ividual knows best w h ere to d irect his labor, every capitalist w here to invest his capital. It it w ere n o t so, as a g en eral rule, g u ard ia n s should be ap p o in te d , a n d w ho w ou ld g u a rd the g u a rd ia n s? 48

In the area o f religious belief, too, A ppleton believed in individual fre ed o m . In a n o th e r early article fo r the Yankee he asserted th a t “G o v ern m en t has no rig h t to in te rfe re with th e religions o f its citizens - it is entirely a q u es­ tion betw een them an d th e ir G o d .”49 At a tim e w hen U nitarians an d U niversalists w ere o ften rejected as co m p eten t witnesses in court, A p p leto n advocated the rig h t even o f atheists to testify u n d e r oath. A gain exam ining the logic o f the situation A ppleton asked if it w ere n o t o d d th a t a p erso n who falsely swore to a b elief in G od m ig h t be d e e m e d a trustw orthy witness, w hereas an atheist w ho tru th fu lly disclosed his opinions on religion w ould be excluded. T h irty years later, in his treatise on evidence, A p p leto n reaffirm ed his belief in b o th the sagacity an d the m orality o f allowing atheists to testify in court.

A p p leto n pu b lish ed The Rules of Evidence in I8 6 0 .50 It was a collection o f articles w ritten over the years, m ost o f w hich had originally a p p e a re d in the American Jurist in the 1830s an d 1840s. In it A ppleton expressed his faith in h u m a n reason by tru stin g ju rie s o f o rd in ary m en to weigh p ro p e rly the credibility o f all kinds o f evidence the w isdom o f the ages h ad o rd a in e d they m ust not hear. W hen reaso n told him th at trad itio n was m istaken he did not hesitate to fling his B entham ic arg u m e n ts in the face o f a co n v en tio n -b o u n d legal profession. In his p reface to the book A p p leto n stated the gen eral principles which h e felt should govern the adm issibility o f evidence:

All persons, w ith ou t ex cep tio n , w ho, having any o f the o rg an s o f sense, can perceive, a n d perceiv in g can m ake know n th e ir p ercep tio n s to o th e rs, shou ld be received and ex am ined as witnesses.

O bjections may be m ade to the credit, b u t n ev er to the com petency o f witnesses.

W hile the best evidence should always be req u ired , th e best existing an d obtain ab le evidence sh o u ld not be excluded, because it is no t “the best evidence o f which the case in its n a tu re is susceptible.’

T h e best m ode o f ex tractin g testim ony, orally, in public, a n d b efo re the trib u n al which is to decide u p o n the facts in dispute, should be a d o p te d on all occasions, a n d before all courts, w hen practicable. T h e only exception to the universality o f this rule is one arising from special delay, vexation and ex pense in its observance; as, in case o f sickness, o r the absence o f w itnesses.51

T h e com m on law concept o f incom petency p ro h ib ited m any classes o f persons from testifying because th e ir testim ony was re g a rd e d as u n trustw orthy. T h e ju ry was not free to assess the credibility o f such persons, fo r they were entirely excluded from the trial process. In separate chapters o f his book A ppleton attacked the various exclusions, applying the principles expressed in the preface to the p artic u lar exclusion u n d e r discussion. As A ppleton noted, by the tim e the treatise a p p e a re d several o f the suggested reform s h ad been enacted in d iffe re n t states. A pecuniary in terest in the outcom e o f the litigation had generally ceased to be a g ro u n d for exclusion. R estrictions on the testim ony o f parties to civil suits had been red u ced o r rem oved. O n the o th e r h a n d , in­ com petency on religious g ro u n d s was still the rule and attorney-client com m unications rem ain ed privileged.

It w ould take m ore space th an is presently available to discuss A p p leto n ’s arg u m en ts against all the m any ex­ clusionary rules. In two areas, how ever, his w ork m erits special attention. T h ese are the racial exclusion an d the prohibition o f testim ony o f crim inal defendants.

A n a rd e n t R epublican, A ppleton cham pioned the rights o f blacks in his judicial opinions an d in his p erso n al co rrespondence. Following the Bred Scott case in 1857 the M aine Senate asked the state su p rem e co u rt for its opinion on w h eth er “free colored persons, o f A frican d escen t,” having satisfied the residence req u irem en t, w ere entitled

to vote u n d e r the M aine C o n stitu tio n .52 A p pleton's lengthy response, w rote C harles H am lin, d e m o n stra te d “a m asterly grasp o f the law, history an d research o f a u th o ritie s.”53 T h e M aine C onstitution c o n fe rre d the rig h t o f su ffrag e o n m ale citizens o f the U n ited States, so A p p le to n ’s p rim ary task was to decide w h e th e r free blacks w ere U n ited States citizens. H e p ro d u c e d a w ealth o f d o cu m en tatio n in answ ering affirm atively, b u t because C h ief Justice T an e y h ad held otherw ise in Dred Scott A p p leto n felt com pelled to exam ine the bases u p o n which T a n e y ’s o p in io n rested .

In the first place A p p leto n p o in ted o u t th at th e ru lin g th a t no blacks, free o r slave, could be citizens was not b in d in g on o th e r courts because it h a d n ot received the su p p o rt o f a m ajority o f the S u p rem e C ourt. B ut beyond th a t, A p p le to n c o n tin u e d , “w h a te v e r m ay be th e au th o ritativ e force o f a decision o f the S u p rem e C o u rt o f the U n ited States, th e re can be no d o u b t th a t its statem ents, as to th e past history o f th e co u n try , are b in d in g n e ith e r on th e historian n o r the ju ris t.”54 T a n e y ’s o p in io n rested in p a rt u p o n his view th a t public o p in io n h ad b een favorably disposed tow ard slavery at th e tim e o f th e n a tio n ’s fo u n d in g . A ppleton in tro d u c e d im pressive evidence to show th a t the general sentim ent o f the co u n try at th a t tim e h ad been o p p o sed to slavery. But, in e ith e r event, th e p o in t was irrelevant, fo r “th e necessary d e g ra d a tio n o f th e slave affo rd s no reason fo r the den ial o f citizenship to th e free m a n .”55

A p p le to n f u r th e r show ed th a t even by T a n e y ’s reaso n in g free N egroes w ere citizens. H aving d e m ­ o n stra te d th a t blacks w ere citizens in various states w hen the U n ited States C o n stitution was a d o p te d , he said:

I f these things be so, a n d th a t they are so c a n n o t be d e n ie d o r even d o u b te d , a n d if they h a d b een know n to th e le a rn e d C h ie f Ju stice, his conclusions w ould have b een d iffe re n t, fo r he says, "every p e rso n an d every class a n d d escrip tio n o f p ersons, who were at the time o f the adoption

o f the constitution recognized as citizens o f the several states, became also citizens o f this new political body” H is published opinion, th e re fo re , rests u p o n a rem ark ab le an d most u n fo rtu n a te m isap p reh en sio n o f facts, a n d his real opin ion u p o n the actual facts m ust be co nsidered as in en tire an d cordial con cu rren ce with th at o f his learn ed dissenting associates,56

In conclusion A ppleton briefly showed th a t M aine h ad c o n ferred citizenship on native-born blacks; th a t these blacks w ere th e re fo re citizens o f the U nited States; and that, consequently, according to the state constitution they were entitled to vote.

A p p leto n ’s sensitivity to the injustice e n d u re d by subjugated peoples p ro m p te d him to ad d an a p p e n d ix to the collection o f articles re p rin te d in The Rules of Evidence. A ppleton was generally opposed to the m any exclu­ sions o f evidence fo u n d in the com m on law. “B u t,” he w rote in th e ap p e n d ix , “th e re will be fo u n d one class o f exclusions, so en o rm o u s in its ex ten t an d so disastrous in its results, th at it absolutely requires notice and co n sid eratio n ”: the exclusions o f blacks an d In d ia n s.57 As was his w ont he p ro ceed ed to establish th at the exclu­ sions were n ot m erely unjust, b u t illogical. In sum m ary he w rote: “T h e a rg u m e n t ru n s thus: - T h e n egro an d the In d ian are unw orthy o f credit - all know this - yet fo r fear all will believe them , we will n ot p erm it them to be h ea rd . H ence, whole nations and races are b ra n d e d in advance, as liars, by statute, and are not even h e a rd .”58

In 1864 C harles S u m n er re p o rte d favorably to the U nited States Senate on a bill to p erm it N egro testim ony in fed eral courts. T o his re p o rt he a p p e n d e d a long le tte r on the subject by J o h n A ppleton, the “distinguished au th o rity on the exclusion o f colored testim ony.”59 T h e bill becam e law, providing “th at in courts o f the U nited States th e re shall be no exclusions o f any witness on account o f color.”60

T h e w ork fo r which A p p leto n gained his ch ief fam e was his cam paign against the exclusion o f the testim ony o f crim inal d efen d an ts. T h e move tow ard com petency o f the accused to testify in his own cause aro u sed considerable controversy. A p p leto n was at the ce n te r o f the d eb ate th a t took place in the n ational law jo u rn a ls o f the day.

T h e a rg u m e n ts p u t fo rth by A p p leto n an d his su p p o rte rs seem unansw erable today, b u t fear o f the unknow n, plus som e reaso n ed objections, gave rise to stiff resistance. T raditionally, the testim ony o f crim inal d efen d a n ts h a d been excluded as likely to be p e rju re d . O p p o n en ts o f re fo rm also c o n ten d ed th at u n d e r the pressu res o f cross-exam ination the testim ony o f the accused, even if he w ere innocent, could easily becom e confused an d incrim inating. S hould a d e fe n d a n t having the rig h t to speak try to avoid this problem by rem aining silent, the suspicions o f the ju ry w ould be aroused. Finally, change was resisted o u t o f d eferen ce to the h o n o re d rule o f stare decisis (ad h eren ce to p rece d en t).61

A ppleton was alert to the possibility o f p e rju ry by crim inal d efen d a n ts, b u t h e felt th a t the ju ry w ould be particularly sensitive to this problem an d th at falsehood w ould not be so easily believed.

Is the witness false in all his statem ents? Each p articu la r falsehood e n d an g e rs; th e m o re n u m e ro u s th e falsehoods the g re a te r the chance o f detectio n a n d dispro of. T h e answ er partly tru e an d partly false? Each tru th is in etern al w arfare with th e accom panying lie. T r u th an d falsehood have no g re a te r fellowship th a n has new wine with old bottles. T h e tru th u tte re d by the witness im perils th e lie.62

A ppleton did in d e e d reg ard silence as suspicious an d confusion on the p a rt o f a tru th fu l witness unlikely. But these w ere m atters fo r the ju ry to decide in each sepa­ rate case.63 T h e possibility o f e rro r, p rese n t u n d e r any circum stances, w rote A ppleton, was no justification fo r

excluding testim ony. “Falsehood may be cred ited , the tru th may be disbelieved. B ut as this cannot be foreknow n, it affo rd s no reason for exclusion.”64

T h e h e a rt o f A p p le to n ’s arg u m e n t was th a t every accused, being p resu m e d innocent, should be p e rm itte d to testify to his innocence, especially since only he m ig h t be in possession of exculpatory facts. “O f all exclusions,” said A ppleton, “th a t o f a m an p resu m e d innocent w ould seem to be the m ost m o n stro u s.”65

A p p le to n ’s long cam paign fo r the accused succeeded first in M aine an d th e n th ro u g h o u t the country. M aine ad o p ted a statute in 1859 allowing d efen d a n ts accused o f certain m in o r crim es to testify in th e ir own behalf, an d in 1864 it ex ten d ed the rig h t to all d e fe n d a n ts.66 In the next two years both houses o f the M assachusetts legislature solicited A p p leto n ’s opinion on the subject67 an d before long M assachusetts an d o th e r n o rth e a ste rn states enacted sim ilar laws. Most o f the country followed suit in the 1870s an d 1880s.68

A ppleton u n d o u b ted ly deserves a m ajor p o rtio n o f the credit fo r the im plem entation o f the refo rm allowing the accused to testify, a n d he m ust have been grateful to have lived to witness its general acceptance. Succeeding authorities have recognized the key p a rt he played in achieving this and o th e r progressive changes in the law o f evidence. R eferrin g to the crim inal d e fe n d a n t’s rig h t to testify, H a rv a rd ’s Jam es Bradley T h a y e r acknow ledged A p p le to n ’s role in m aking “this rem arkable in ro ad u p o n the com m on law.”69 W igm ore, in his m o n u m en tal treatise on evidence, frequently cited A ppleton as one o f the co u n try ’s leading n in etee n th -c en tu ry advocates o f re fo rm in this b ran ch o f th e law.70

A lthough u n fam iliar to a w ider public, A p p leto n ’s re p u ta tio n rem ains secure am ong m o d e rn M aine jurists. R ecently, th e s ta te ’s late C h ie f Ju stic e R o b e rt B.

W illiam son w rote: “In o u r state we owe m uch to the lead ersh ip o f C h ief Ju stice A p p leto n in brin g in g into the law m any refo rm s in the law o f evidence.” H e q u o ted with ap p ro v al one o f his predecessors in office who, while praising m any o f M aine’s legal lights at the cen ten n ial celebration o f h e r b en ch an d bar, h a d said: “O f all this notable g ro u p C h ief Justice A p p leto n doubtless m ade the g reatest im press u p o n the ju risp ru d e n c e o f this State He was a legal re fo rm e r in th e best sense.”71

— N O T E S —

1 “Proceedings. M arch 11, 1897,” Collections o f the Maine Historical Society, 2 n d ser., 8 (1897): 448.

z C harles H am lin, “J o h n A p p le to n ,” in William D rap er Lewis, ed., Great American Lawyers: the Lives and Influence o f Judges and Lawyers Who Have Acquired Permanent National Reputation, and Have Developed the Jurisprudence o f the United States. A History o f the Legal Profession in America (P hiladelphia: J o h n C. W inston C om pany, 1907-09), 5: 39-80 (h e re a fte r cited as H am lin, “J o h n A p p le to n ”). See also C harles H am lin, “T h e S u p rem e C o u rt o f M aine,” pt. 2, The Green Bag, 8 (N ovem ber 1895): 504-23 (h e re a fte r cited as H am lin, “S u p rem e C o u rt o f M aine”). F or A pp leton see p articularly pp. 510-16.

3 “T h e A pp leto n F am ily,” New England Family History 3 (January, A pril 1910): 448.

4 O n th e genealogy a n d history o f the A pp leto n family see H am lin, “A p p le to n ,” pp . 42-43; F rances W. G regory, Nathan Appleton: Merchant and Entrepreneur, 1779-1861 (Charlottesville, V irginia: U niversity o f V irginia Press, 1975), p p . 1-10; Louise Hall T h a rp , The Appletons of Beacon H ill (Boston: Little, B row n an d C om pany, 1973), p p . 14-28.

5 [A ugustus A. G ould a n d F red eric K idder], The History o f New Ipswich, from Its First Grant in MDCCXXV1 to the Present Time: With Genealogical Notices o f the Principal Families, and Also the Proceedings o f the Centennial Celebration, September 11, 1850 (Boston: G ould 8c Lincoln, 1852), pp. 70-71 (h e re a fte r cited as [G ould an d K idder], History o f New Ipswich).

fi Jesse A p p leto n , The Works o f Rev. Jesse Appleton . . . With a Memoir o f His Life and Character, 2 vols. (A ndover, M assachusetts: G ould &

N ew m an, 1837), 1: 9.

7 O n th e Peabody family see C. M. E ndicott, A Genealogy of the Peabody Family, As Compiled by the Late C. M. Endicott, o f Salem. Rev. and Cor. by William S. Peabody, of Boston. With a Partial Record of the Rhode Island Branch by B. Frank Pabodie, o f Providence (Boston: David C lapp Sc Son, 1867); C. M. E ndicott, “T h e Peabody Fam ily,’ New England Historical and Genealogical Register 2 (A pril 1848): 153-61, 2 (O ctober 1848): 361-72, 3 (O ctober 1849): 359-73.

* A p pleton to [u niden tified], A pril 2, 1858, A p p leton Papers, Bow doin College L ibrary (h e re a fte r cited as th e A ppleton Papers).

9 “Pupils o f O ld A p p le to n ,” Boston Herald, F eb ru ary 26, 1890. A ccording to H am lin, A p p leto n was ed u ca ted in “the com m on schools an d academ y o f his native tow n.” See H am lin, “S u p rem e C o u rt o f M aine,’ p. 512.

10 O n the academ y a n d ed ucation in New Ipswich see [G ould and K idder], History of New Ipswich, ch. 12. H a rrie t W ebster M arr, The Old New England Academies Founded Before 1826 (New York: C om et Press Books, 1959) also contains som e discussion o f the academ y in New Ipswich.

11 Louis C. H atch, The History of Bowdoin College (P ortlan d , M aine: L oring, S ho rt 8c H arm o n , 1927), p. 23. O th e r sources fo r the in fo rm atio n p re se n te d h ere include N eh em iah C leaveland an d A lp heus S pring P ackard, History of Bowdoin College, with Biographical Sketches of Its Graduates from 1806-1879, Inclusive (Boston: Jam es Ripley O sgood Sc C om pany, 1882), (h e re a fte r cited as C leaveland an d P ackard, Bowdoin College), an d General Catalog of Bowdoin College and the Medical School of Maine, 1794-1912 (Brunsw ick, M aine; B ow doin

College, 1912).

12 C leaveland an d P ackard, Bowdoin College, p. 88. 13 H am lin, “J o h n A p p le to n ,” p. 43.

14 R ecords o f the P eucinian Society In stitu ted at Bow doin College N ovem ber 22nd, 1805, vol. 3, 1819-1831, (u n p u b lish ed mss.), Bow doin College Library.

15 M aude D eLeigh H odges, “T h e Story o f O u r W a te rfo rd ,” (u n p u b lish ed ms., 1956), W atertow n F ree Public Library, p. 165; B enjam in R. C urtis, ed., A Memoir o f Benjamin Robbins Curtis, LL.D. With Some of His Professional and Miscellaneous Writings, 2 vols. (Boston: Little, B row n an d C om pany, 1879), 1: 12-13 (h e re a fte r cited as C urtis, A Memoir).

16 C urtis, A Memoir, 1: 13.

17 N ath an D ane A p p leto n is listed as th e atto rn ey g en eral o f M aine on th e title pages of volum es 43-45 o f th e Maine Reports (1857-58). O n Farley see C harles H. Bell, The Bench and. Bar of New Hampshire, Including Biographical Notices o f Deceased Judges of the Highest Court, and Lawyers of the Province and State and a List o f Names of Those Now Living (B oston: H o u g h to n , M ifflin a n d C o m p an y , 1894), pp. 351-52 (h e re a fte r cited as Bell, Bench and Bar).

18 H elen E. M arshall, Dorothea Dix: Forgotten Samaritan (C hapel Hill, N o rth C arolina: U niversity o f N o rth C arolina, 1937), p. 3.

19 S h erry W. B u rd in , “A n Early H istory o f Sebec, M aine" (Sebec C onservatio n C om m ission leaflet, 1975). T h e re is a p h o to g ra p h o f the A nnis b u ild in g in which A p p leto n h ad his Sebec law office in “J o h n A p p leto n , L L .D .,” Sprague’s Journal o f M aine History 6 (N ov em b er-D ecem ber 1918/January 1919): 101.

20 G eorge F. G od frey, A Sketch o f Bangor, with Illustrations from Photographs by the Author (Boston: Jam es R. O sgood an d C o m p an y, 1882), 11 ff.; Stew art H. H o lbrook, Holy Old Mackinaw: A National History of the American Lumberjack (New York: M acM illan C o m pany ,

1938), pp. 14-28.

21 “J u d g e A p p le to n ’s W ealth," u n id e n tified n ew sp ap er clip p in g in th e A p p leto n P apers.

22 “C ro w n ed with H o n o rs,” u n id en tified new sp ap er clipp in g in the A p p leto n P ap ers (h e re a fte r cited as “C ro w n ed with H o n o rs ”).

23 Q u o ted in H am lin, “J o h n A p p leto n ," p. 57.

24 O n Elisha A llen see History o f Penobscot County, Maine, with Illustrations and Biographical Sketches (Cleveland: Williams, C hase Sc Co.,

1882), p. 211 (h e re a fte r cited as History o f Penobscot County).

25 Allen G ilm an to Elias D udley, F eb ru ary 6, 1841, in “ H o n o rab le Elias D udley a n d Som e o f His Political C o rre s p o n d e n c e ,” Sprague’s Journal o f Maine History 4 (July 1916): 13.

26 O n Hill see Bell, Bench and Bar, pp. 438-39. O n Moses A p p leto n see History o f Penobscot County, p. 222.

27 T h e reo rg an izatio n o f the c o u rt system is discussed in Louis C linton H atch, ed., Maine: A History (New Y ork: T h e A m erican H istorical Society, 1919; r e p rin t ed., S om ersw o rth , New H am p sh ire: New H a m p sh ire P ublishing C om pany, 1974), pp. 740-41.

28 “C ro w n ed with H ono rs"; H am lin, “J o h n A p p leto n ," p. 61. 29 H am lin, “J o h n A p p leto n ," p. 76.

30 “P roceedings o f the Penobscot B ar in Relation to the D eath of the H o n o rab le J o h n A p p le to n ,” 83 Me. 587, 605 (1891), (h e re a fte r cited as “ P roceedin gs”).

31 A V enerable J u d g e ,” New York Times, A pril 17, 1885, p. 3. R ep rin ted from the Lewiston Journal.

32 “P roceeding s,” 83 Me. at 607.

33 “C ro w ned with H o n o rs ”; “P roceeding s,” 83 Me. 587 34 H am lin, “J o h n A p p le to n ,” p. 68.

35 A p p leto n to [unid entified ], A pril 2, 1858, A p p leto n P apers. 36 C leaveland a n d P ackard, Bowdoin College, p. 743-44; Biographical Encyclopaedia o f Maine of the Nineteenth Century (Boston: M etropolitan

Publishing a n d E ng raving Co., 1885), pp. 372-74.

37 Will o f J o h n A pp leton, Penobscot C ounty P robate R ecords, vol. 94, pp. 33-38.

38 Jesse A pp leto n, Lectures, Delivered at Bowdoin College, and Occasional Sermons (Brunswick, M aine: Jo sep h G riffin, 1822).

39 H am lin, “J o h n A p p le to n ,” p. 78. See the en tries fo r H edge, E verett an d Allen in the Dictionary of American Biography.

40 F rederic H en ry H ed g e, Reason in Religion (Boston: W alker, F uller and C om pany, 1865), p. 198.

41 C. C. E verett, “T h e Faith o f Science an d the Science o f F aith ,” Christian Examiner 85 (July 1868): 61-76.

42 X. Y. [John A ppleton], “ Rate o f In tere st an d U sury Laws,” Yankee and Boston Literary Gazette, F ebru ary 12, 1829, p. 49.

43 Ibid., p. 50.

44 O pinions o f the Justices, 58 Me. 590 (1871). 43 Allen v. Jay, 60 Me. 124 (1872).

4fi O p in ion s o f the Justices, 58 Me. at 592. 47 Idem at 597.

48 Idem at 598.

49 X. Y. [John A ppleton], “ Rules o f Evidence,” Yankee and Boston Literary Gazette, J u n e 1 1, 1829, p. 188.

60 J o h n A pp leton, The Rules of Evidence, Stated and Discussed (P hiladelphia: T. & J . W. Jo h n so n , 1860), (h e re a fte r cited as A p p leto n , Rules of Evidence).

51 Ibid., p. iii.

52 O p inions o f the Justices, 44 Me. 505 (1857). 53 H am lin, “S u p rem e C o u rt o f M aine,” p. 515.

54 O p in io n s o f th e Ju stices, 44 Me. a t 561. 55 Idem at 563.

™ldem at 573.

57 A p p leto n , Rules o f Evidence, p. 271. 58 Ibid., p. 272.

&9 U.S., C ongress, S enate, S. R ept. 25, 3 8th C ong., 1st sess, 1864, p. 11. (U.S. C on gressio nal Serial Set, Vol. 1178).

60 H am lin, “J o h n A p p le to n ,” p. 55 n. 7.

61 F or arg u m e n ts against th e A p p leto n re fo rm see, fo r ex am p le, J. F. B., “T estim on y o f P arties in C rim inal P ro secutio n s,” American Law Register, n.s., 6 (May 1867): 358-93.

62 A p p leto n to J o h n Q . A dam s, F eb ru ary 24, 1866, re p rin te d in “T estim on y o f D efen d an ts in C rim inal P ro secu tio n s,” American Law Register, n.s., 5 (O ctober 1866): 705-15 at 710.

63 T h e law today generally forbids ju rie s to draw u n fav o rab le in feren ces fro m the d e f e n d a n t’s exercise o f his rig h t to rem ain silent. In th e w ords o f the g re a t legal scholar J o h n H en ry W igm ore, this p ro h ib itio n "gives at least as m uch ben efit as in com m on sense can be a ffo rd e d to the accused w ho takes the u n n a tu ra l an d suspicious co u rse o f d eclin in g to testify fo r him self. J o h n H en ry W igm ore, A Treatise on the Anglo-American System o f Evidence in Trials at Common Law, 3 rd ed., 10 vols. (Boston: Little, B row n, 1940), 2: 704 (h e re a fte r cited as W igm ore, Treatise).

64 A p p leto n to D. E. W are, F eb ru ary 22, 1865, re p rin te d in “T estim o ny o f P arties in C rim in al P ro secu tio n s,” American Law Register, n.s., 4 (A ugust 1865): 577-81 at 580-81.

65 A p p leto n to A dam s, F eb ru ary 24, 1866, re p rin te d in “T estim o n y o f D efen d an ts in C rim in al P ro secu tio n s,” American Law Register, n.s., 5 (O ctob er 1866): 707.

66 A p p leto n , Rules o f Evidence, p. iv; H am lin, “J o h n A p p le to n ,” p. 50. 67 See letters to A dam s a n d W are cited in notes 59 a n d 61 above. 68 See R. V. W. D u Bois, “T h e A ccused as W itness,” Criminal Law Magazine 5 (May 1883): 323-58.

69 J a m e s B radley T h a y e r, “A C h a p te r o f Legal H istory in M assa­ c h u se tts,” H arvard Law Review 9 (A pril 1895): 12.

70 F o r exam ple, r e g a rd in g the various expositions on th e exclusion o f w itnesses fo r in terest in the litigation W igm ore w rote: “P erh ap s the m ost com p reh en siv e a n d concise, an d the m ost profitable fo r peru sal, n ext to Mr. B e n th a m ’s, a re those o f C h ie f Ju stice A p p leto n o f M aine (a disciple o f B e n th a m ’s) in his treatise (1860) on Evidence, chaps. I, IV,

an d Mr. Justice E d w ard Livingston . . . W igm ore, Treatise 2: 687 n. 1. 71 R obert B. W illiam son, “T h e D efen d an t T akes the S ta n d ,” in M orris D. Forkosch, ed., Essays in Legal History in Honor o f Felix Frankfurter (Indianapolis: Bobbs-M errill, 1966), p. 94.

David M. Gold graduated from the State University of New York at Binghamton with a Bachelor of Arts in history in 1972. H e is now a graduate student in history at Ohio State University where he received a J.D. degree in 1976.

Thomas C. Hubka is an associate professor of architecture at the University of Oregon at Eugene. He received his Bachelor of Architecture at Carnegie-Mellon University and his Master of Architecture at the University of Oregon. He shares a connected farin with his brother s family in Bridgton, Maine.