FEBRUARY MEETING, 1895.
A Stated Meeting of the Society was held in the Hall of the American Academy of Arts and Sciences, on Wednesday, 20 February, 1895, at three o’clock in the afternoon, the President in the chair.
After the Minutes of the last Meeting had been read and approved, the Corresponding Secretary read the following letter: —
50 West Forty-seventh Street, New York, Tuesday, 4 February, 1895.
My dear Mr. Davis, — Your very kind letter, together with the official announcement of my election as an Honorary Member of The Colonial Society of Massachusetts, and an advance copy of the Annual Report and By-laws of the Society, were duly received, and nothing but the desperate illness of one of the members of my family has prevented my acknowledging them more promptly.
I do most highly appreciate the honor done me by your Society in thus placing me on the list of its Honorary Members in such distinguished company, and I accept it with the warmest thanks. The objects of the Society as set forth in its Constitution are most interesting, and I shall take great pleasure as opportunity offers in attending its meetings.
Will you please to convey to your associates who have done me this signal honor my grateful appreciation of their kindness.
Yours very truly,
Joseph H. Choate.
Andrew McFarland Davis, Esq.,
The Rev. Dr. Joseph H. Allen spoke at length upon the religious situation in the American Colonies before the Revolution. As this subject was treated without notes, except for occasional quotations from documents, only the following brief outline can be given here: —
Governor Hutchinson, in summing up the situation in 1774, says (III. 455) that “the people had been persuaded that their religion as well as their liberties was in danger,” and adds that “this was what would cause them to go all lengths and to surmount the greatest difficulties.” This language implies not only that religious passions embittered the political conflict, but that two rival parties were then contending for supremacy. A State Church of some kind was assumed to be an essential part of the body politic; but here there were two claimants contending for public support and official authority, — the Congregational body, established as part of the political system at the first founding of the Massachusetts Colony; and the Episcopal, which for nearly ninety years had existed here side by side with it.
Strictly speaking, this rivalry existed only in New England: since in the more southerly Colonies, where Episcopacy had been established from the beginning, — notably in Virginia, — it was in full harmony with the patriotic spirit of the day; while here — in Boston especially — it was identified with a small official party, mostly Loyalists. According to Hutchinson, the patriotic leaders were all (or nearly all) Congregationalists, with their clergy, who in general aimed openly at independence; while the smaller religious bodies — Baptists, Methodists, Presbyterians, Quakers — might be reckoned neutral. In numbers, the Congregationalists counted not far from six hundred churches, while the Episcopalians did not probably much exceed two hundred churches in. all, of which we may reckon about fifty in New England. The extreme jealousy and dread felt towards so small a body remain to be accounted for by circumstances in the earlier colonial history. The speaker’s remarks were mostly a rapid review of these circumstances, which will here be briefly traced in chronological outline.
Episcopacy was established in Virginia with the founding of the Colony in 1607; and in 1632 the English law of penalties against dissent was adopted. Virginia, however, was regarded by many of its own clergy as a sort of penal colony, from which they were chiefly anxious to escape; and the Church there had in its early days neither dignity nor authority.
In the Massachusetts Colony, Congregational church membership was made essential to the political franchise in 1631, but this position was constantly threatened from the first. In 1634, an attempt of Archbishop Laud to crush the religious independence of the Colony was foiled. In 1644, a deputation was sent to the English Parliament to protest against a similar attempt of the Presbyterian party to compel a state religion under the forms of the “Solemn League and Covenant.” In 1648, the Congregational Order was defined by the “Cambridge Platform,” and became the ecclesiastical constitution of Massachusetts, maintained at public cost till 1833, — suffering some modification meanwhile. The government of the Restoration, in 1662, required the abolition of laws against Episcopalians and Quakers, also of the limiting of political rights by church membership. In England, at the same period, the laws of conformity as against Dissent, with the Test and Corporation Acts, were made so cruel that more than eight thousand Non-conformists are said to have perished in the prisons of Charles I., increasing the anger and terror felt against the Anglican Establishment here. The attempt of Sir Matthew Hale to investigate these atrocities, in 1668, was overruled by the influence of the High Church party. Suspicion was further roused by an attempt made in Virginia, in 1672, for the establishment of an American bishopric; and though, in the scheme adopted (which was not carried out), New England was expressly exempted from its jurisdiction till it should be otherwise ordained, yet the apprehension continually increased that conformity with the Church of England, to be enforced by law, was an object never lost sight of in the government policy, as a means of strengthening the political tie that bound the Colonies to the mother country. It was regarded as a part of the same scheme when, in 1684 (the last year of Charles), the Colonial Charter was declared void by the Court of Chancery; when, in 1686, the first Episcopal church was founded in Boston under official support, and was called “the Royal Chapel”; and when, a few months later, Sir Edmund Andros took forcible possession of the Old South Meeting-house for the celebration of the Episcopal service. The apprehension was at its height when, in April, 1688, Increase Mather, the most distinguished representative of Congregationalism, escaped under cover of the night32 to England, and there, in a three years’ stay, making friends of the government of William III., was able “to rescue for Massachusetts the larger part of her civil liberties, and to put her churches and her schools beyond the danger of forcible conversion to Episcopal uses by the agents of the English government.”33
But in 1692, against the opposition of Catholic and Quaker, Episcopacy was made an establishment in Maryland; and from the mission of Rev. Thomas Bray, who went to inspect its churches in 1700, there issued a religious foundation, which had a most important bearing in the later history, —the Society for the Propagation of the Gospel in Foreign Parts, chartered in 1701. This was apparently meant for the simple work of evangelizing a country wide, new, poor, and largely destitute of civilizing agencies; but it soon proved to be, or was charged with being, a propaganda of Episcopacy, with a view to its getting a footing as a political establishment. It was charged with employing more of its missionaries in New England alone than in all the Colonies south of New York put together; and these, instead of being sent to remote or destitute localities, found homes in the best settled and best taught region of the western continent, — Boston, Cambridge, Newbury, Ipswich, Salem, Braintree, Portsmouth, and Marblehead being the most important “missionary” stations. In 1722, the President of Yale College and six of its officers joined the Episcopal ranks, and several of them afterwards became active Episcopalian propagandists. In 1725, Massachusetts was asserted to be within the episcopal charge of the Bishop of London. The name “Dissenters” began to be applied, opprobriously, to members of the older colonial churches other than Episcopal. King’s Chapel had its “Governor’s Pew,” where the King’s representative sat in a sort of official state among other officers and favorites of royalty. Reaction from the “Great Awakening” of 1735 led in one direction to a sudden expansion of religious liberalism, and in the other to a craving for the decencies and order of ecclesiastical formalism. The hostility and alarm thus stirred in the established Congregational body broke out, in 1747, in what is known as the “Hobart Controversy” in Connecticut, beginning with the protest against the guilt of schism incurred in the Episcopal seceders from New England orthodoxy, made in an ordination sermon at Stamford by Rev. Noah Hobart. Dr. Cutler, of Christ Church, Boston, the former President of Yale, was reported to have said that there is “ordinarily no salvation out of the communion of the Episcopal Church”; and we may take it as a retort personal when Mr. Hobart says, in his “Serious Address,” that “probably there are many immortal souls now in hell, who, had you contentedly remained in our communion, might have spent an happy eternity in heaven”!34
It was in this year, 1747, that Jonathan Mayhew, the boldest and most radical preacher of his day, was settled over the West Church in Boston. To omit what might here be told of his noble ancestry, — his descent from Thomas Mayhew, who settled at fifty in Martha’s Vineyard, and lived there close upon forty years as governor, teacher, civilizer, and missionary of the native tribes;35 or of his strikingly independent and eloquent career as preacher, — we come to the latter days of his ministry, and the outbreak of the “Mayhew Controversy,” in 1763. This controversy brought to the front the sharpest prejudices on both sides. One of the missionaries of the “Society for the Propagation of the Gospel” had just died at Braintree, and a newspaper comment following his death had charged, virtually, that he was sent there under false representations, and that his being commissioned at all was in perversion of a missionary trust-fund. This called to the defence of the Society the Rev. East Apthorp, of Cambridge, son of a Boston merchant (Charles Apthorp), a gentleman and a scholar, English bred, himself a missionary in Cambridge, and first Rector of Christ Church. Jonathan Mayhew was loudly and at once summoned by the general voice to reply; and for the two years following there ensued a battle of thick pamphlets, three of them — far the heaviest and loudest guns of the battle — being by Mayhew himself. Each party, no doubt, thought itself to have the better in the war of words; and each — to turn again to the testimony of Governor Hutchinson — found itself all the more obstinate and acrimonious in the political dispute that followed ten years later, when, in this part of the country at least, the line of division in that dispute followed so closely the line of difference between the two rival churches.
A long discussion followed, in which several of the members participated.
Professor William W. Goodwin, referring to the use by Dr. Allen of the word “Dissenter” as indicating dissent from the opinions of the Episcopalian Church, called attention to the Mary Saltonstall Scholarship at Harvard, which provides that it shall be preferably given to a “Dissenter,” there evidently meaning a member of the Congregational Church.
Mr. William G. Weld stated that the recent communication to the Society of a paper on the Land Bank of 1740 had recalled to his mind that he had in his possession, among his family papers, two documents connected with this subject. He had caused copies of these to be made, and he now submitted them to the Society.
The first of these documents is a Land Bank Mortgage,36 executed 9 September, 1740, by Joseph Weld, gentleman, and Martha Weld, his wife. The consideration is said to be “One Hundred Pounds in Bills of Credit, called Manufactory Bills,” and is acknowledged to have been received from Robert Auchmuty of Roxbury, Esq., Samuel Adams, and William Stoddard of Boston, Esqrs., (then follow six other names,) “Directors of the Manufactory Company (so called), by the said Joseph Weld for his share as a Partner in said Company.” The mortgaged premises are situated in Roxbury.
The condition of the mortgage is as follows: —
“PROVIDED nevertheless that if the said Joseph and Martha Weld their Heirs, Executors or Administrators shall at the Expiration of every Year from this Date annually, during the space of Twenty Years, pay to the said Robert Auchmuty, Samuel Adams, William Stoddard, Peter Chardon, Samuel Watts, George Leonard, Robert Hale, John Choate and Thomas Cheever, Five in the Hundred of the Principal Sum now received, and Three per cent. Interest for the Principal enjoyed, in Manufactory Bills as aforesaid, or in Merchantable Hemp, Flax, Cordage, Bar-Iron, Cast-Iron, Linens, Copper, Tann’d Leather, Flaxseed, Bees-Wax, Bayberry-Wax, Sail-Cloth, Canvas, Nails, Tallow, Lumber, viz: Shingles, Staves, Hoops, white Pine Boards, white Oak Plank, white Oak Boards, and Ship Timber; Barrel-Beef, Barrel Pork, Oil, Whale Bone, or Cord Wood, of the Manufactures or Produce of the Province aforesaid, or Logwood at such Prices as the Directors shall judge they pass for in Lawful Money at Six Shillings and eight Pence per ounce, with one per cent, advance thereon, at the respective Times of payment, then this Deed to be void: But if any one Payment above Conditioned for shall be behind in the Whole, or in Part, or unperformed, by the space of one month after the Time above set for it, then to remain in full Force and Virtue.”
In addition to the acknowledgment of the receipt of the consideration of the mortgage, which is embodied therein according to the customary phraseology of such instruments, there is attached to the mortgage a special receipt signed by Joseph Weld, “for the sum of One Hundred Pounds, being the full consideration mentioned in the foregoing instrument.”
In submitting the copy of the second document Mr. Weld stated that, although the original was executed upon a printed form, he had never met with any other copy of this supplementary agreement modifying the terms of payment of the mortgage. The principal points in this instrument appear to be: First, an agreement on the part of the Mortgagor that he will pay one half at least of his annual payments in manufactures; Second, a consent on the part of Weld that the Directors may, at their discretion, let out such bills — meaning probably the bills loaned under the mortgage — as they may have at any time on hand, such loans to be repaid in manufactures only; and Third, a consent to the Directors holding such bills in their treasury during the last two years of the mortgage.
The following is a copy of this document: —
THIS INDENTURE made the Nineteenth day of March Anno Domini One Thousand Seven Hundred and Forty and in the fourteenth year of the Reign of our Sovereign Lord GEORGE the Second, by the Grace of God of Great Britain, France and Ireland, King, Defender of the Faith, &c. By and Between Joseph Weld of Roxbury in the County of Suffolk in the Province of the Massachusetts Bay in New-England, Gentleman on the one Part, and Robert Auchmuty, of Roxbury, Esq; Samuel Adams and William Stoddard, of Boston, Esqrs; Peter Chardon of Boston, Merchant, Samuel Watts, of Chelsea, Esq; all in the County of Suffolk, George Leonard, of Norton in the County of Bristol, Esq; Robert Hale of Beverly, Esq; John Choate of Ipswich, Esq; and Thomas Cheever of Lynn, Gentleman, all in the County of Essex, Directors of the Manufactory Company in Boston in the County of Suffolk aforesaid, of the other Part, WITNESSETH, That Whereas by certain Indentures between them made, bearing Date the Ninth of September, 1740, the said Joseph Weld hath undertaken for One hundred Pounds of the said Manufactory Companies Bills, according to the tenour of those Indentures, but upon more mature Consideration, for the Increase and Promoting of the Manufactures therein mentioned, and better securing the value of the said Manufactory Bills, which to us seem the most proper Means to Relieve the Misfortune and Poverty of this Country, the said Joseph Weld for himself, his Heirs, Executors and Administrators doth hereby further Covenant and Agree with the Directors aforesaid, and each of them severally, their and each of their Heirs, Executors and Administrators, that he the said Joseph Weld, his Heirs, Executors and Administrators, will annually Pay one half at least of each of the Annual Payments in those Indentures mentioned, of Five in the Hundred of the Principal Sum by him Received, with Three per cent. Interest for the Principal enjoyed in the manufactures in the said Indentures mentioned.
Also that it shall be lawful for the Directors of the said Company at their Discretion from Time to Time to Let out such Bills as shall be in their Treasury, on good Security, to be Repaid both Principal and Interest in the aforesaid Manufactures only.
And lastly, that it shall be lawful for the Directors of said Company, at their Discretion, to continue in the Treasury and not let out any of the Bills that shall happen to be in the Treasury, at any Time in the Two last of those Twenty Years mentioned in said Indentures, but to keep them there till the Expiration of the said last Two Years.
IN WITNESS of all which, the Parties aforenamed hereunto interchangeably put their Hands and Seals at Boston aforesaid, the Day and Year first above written.
Signed, Sealed, and Delivered
In Presence of
Joseph Weld. [Seal.]
The Society is under obligation to Mr. Weld for submitting these copies of instruments, which illustrate the important subject which I undertook to explain at the January meeting. The peculiar character of the payments called for by the terms of the mortgage which has just been laid before us is well worthy of your attention, and it is a very significant fact that even before the date of the first payment of interest the Directors should find it necessary to have this supplemental instrument executed, whereby they sought to prevent payments under the mortgages being made in their own bills. It is obvious from this that they found difficulty in keeping their bills afloat; and it shows, I think, that the so-called Land Bank could not long have been maintained even if the government had not undertaken to suppress it.
I quite agree with Mr. Weld as to the value and rarity of the second of these instruments. I have examined many volumes in the Archives at the State House and of the Suffolk Files at the Court House in search of information concerning the Land Bank, and this document in the possession of Mr. Weld, a copy of which is now before the Society, is the only one of the kind I have seen.
At the January meeting I stated that men of property who had been unfortunate enough to become partners in the Land-Bank were, after the intervention of Parliament, harassed by holders of the bills. Each and every partner became liable for the redemption of such bills as might be presented to him for the purpose, and those who had available means were selected as victims. It was not essential as a preliminary for the demand upon such partner that any effort should have been made to collect the value of the face of the bills from the Company. There are numerous suits on the Suffolk Files against individual partners, and, amongst others, the ancestor of our associate, Captain Joseph Weld, who executed the mortgage of which we have a copy now before us, figures as a defendant. The following note37 was addressed to him: —
Sr, — Hereby I give you notice as you are a partner of the late Manufactory Company that I am possessor of Fifty eight Manufactory Bills (so called) of the denomination of seventeen shillings and sixpence each and sixteen more of said Bills of Twenty shillings each and as your partners do not redeem ’em of me I hereby demand payment of you on the same in lawfull money with lawfull Interest from 9th Septemr 1740 immediately.
Your compliance will oblige
Sr Yr humble Servant
of Boston in ye County of Suffo Merchant.
To Capt. Joseph Weld
at Roxbury in the County of Suffolk.
This demand was served upon Weld by the sheriff, and return of service was duly made. At the April Term of the Inferiour Court of Common Pleas,38 Griggs sued Weld and recovered judgment.39 From this judgment Weld appealed to the next term of the Superiour Court of Judicature for Suffolk County, and entered with sureties into recognizance to prosecute the appeal.
The record does not state explicitly whether this appeal was prosecuted to final judgment, but this was probably the case, for in 1744 the bills on which the suit was founded were handed over to the Commissioners to be burned. The receipt of the Commissioners is in the following language: —
Boston, April 10th, 1744.
Received of Benjamin Pemberton, Esqr Clerk of the Superiour Court of Judicature &c the sum of Sixty five pounds fifteen shillings Manufactory Bills lodged in said Court by Mr. Jacob Griggs at his suit against Mr Joseph Weld & for which said Griggs recovered judgment & is since satisfied.
The judgment referred to in the receipt was probably an affirmation of the judgment of the lower court; but if such judgment was entered, the entry was not preserved.
The surrender of the notes to the Commissioners brings before us the explanation of their scarcity. Personally, I have never seen one of them, and do not know if any are in existence. It would be very remarkable, however, if all of them were destroyed.
Mr. John Noble read the following paper: —
NOTES ON THE TRIAL AND PUNISHMENT OF CRIMES IN THE COURT OF ASSISTANTS IN THE TIME OF THE COLONY, AND IN THE SUPERIOUR COURT OF JUDICATURE IN THE FIRST YEARS OF THE PROVINCE.
To these Courts successively, the predecessors of the Supreme Judicial Court, belonged the exclusive jurisdiction over all the graver crimes.
The Court of Assistants seems to have been as old as the Colony itself, and to have exercised full judicial functions from the very outset.
The statements that have been made that the Court was established in 1639, that “the power of establishing Courts of justice was assumed by the colonists, without any grant of authority in their Charter,” and that the Assistants “derived their judicial authority from legislative enactment,” seem to be inaccurate, and to have been made on insufficient authority. They may have arisen from confusion of dates, from confounding different courts, and from hasty inferences.
At the outset, about all the functions of government, executive, legislative, and judicial, appear to have been exercised by the Magistrates, sitting as a Court of Assistants. This appears from the records, beginning with that of the first Court of Assistants, held 23 August, 1630, and from that time on. The action of the General Court was in the early days insignificant. The first record of its sitting is under the date of 19 October, 1630, and down to May, 1634, it met only four times thereafter, according to the records, while more than thirty Courts of Assistants were held.
Down to 1660, there is no separate or specific law to be found creating or establishing the Court of Assistants, or defining its powers or the extent of its jurisdiction. During that period of thirty years it had exercised all the powers and extended its jurisdiction over every matter falling within the province of that Court specified in the Laws of 1660; and from the trial of Walter Palmer for homicide before a jury of twelve men, 9 November, 1630, it had continuously tried cases of “life, member, and banishment,” and a few of “divorce.” Its jurisdiction is indicated also by the laws establishing or defining the inferior courts. The act of 3 March, 1635–6, provides for “Foure courts kept eūy quarter,” at Ipswich, Salem, New Town, and Boston, to “trie all civill causes, whereof the debt or damage shall not exceede Xl, & all criminall causes not concerneing life, member, or banishmt,” with a right of “appeale to the nexte greate Quarter Court.” The act of 9 September, 1639, establishes “Speciall Courts,” in consequence of the increase of “the businesses of the ordinary Court of Assistants,” to be held quarterly by “such of the Magistrate as shall reside in or near to Boston, or any 5, 4, or 3 of them, the Governor or Deputie to bee one,” with powers substantially the same as the County Courts last mentioned. There were also the Strangers’ Court and other small Courts established at different times. Though the Magistrates sat in the County Courts and others, these are not to be confounded, as they have sometimes been, with the regular Courts of Assistants.
The acts relating to the Court of Assistants seem to be declaratory, recognizing its existence and the extent of its jurisdiction, and merely regulating its terms.
The act of 3 March, 1635–6, provides that “There shalbe foure greate Quarter Courts kept yearely att Boston, by the Goūnr, & the rest of the Magistrates,” fixing the terms.
By the act of 17 October, 1649, the number of terms was reduced from four to two; and this last act is embodied in the Laws of 1660, — which in the Chapter on Courts fixes the terms and states the powers of the Court of Assistants, as follows: —
“For the better administration of justice, & easing of the Country of unnecessary charges and travaile, — It is Ordered by this Court and the Authority thereof, That there be two Courts of Assistants yearely kept at Boston by the Governour, Deputie Governour, and the rest of the Magistrates, on the first Tuesday of the first month, and on the first Tuesday of the seventh Month, to heare and determine all and onely actions of appeale from inferiour Courts; all Causes of divorce, all Capital and Criminal causes, extending to life, member or banishment. And that justice be not deferred, nor the Country needlessly charged, It shall be lawful for the Governour, or in his absence the Deputie Governour (as they shall judge necessary), to call a Court of Assistants for the tryal of any Malefactour in Capital Causes.”
The exercise of these powers and this jurisdiction from the beginning of the Colony uninterruptedly appears from the records of the Court itself so far as extant, and from numerous papers found among the Early Suffolk Files now in process of arrangement. It is also repeatedly recognized in the records of the General Court.
That separation of the government into different branches, — executive, legislative, and judicial, — which resulted in the Court of Assistants becoming a purely judicial body, took place gradually.
The legislative function of that Court may be said to have been surrendered by agreement amongst the Magistrates and Freemen at the General Court in May, 1634; but the executive function continued to be exercised by it, with more or less frequency, for some years. In fact, it was as late as 1650 that the Magistrates sitting as a Council first began to have a separate record.
There was nothing for a long time that could properly be called a Criminal Code, except so far as that part of the “Body of Liberties,” so called, of 1641, which related to criminal matters, and which was founded upon the Word of God as evidenced in the Scriptures, could be so designated.
The Colonists brought with them, of course, that habit of legal practice in matters of form and detail which they had acquired as Englishmen, and in which some of them had been specially educated. There was also the limitation in the Charter that no laws should be made repugnant to the laws of England. This limitation was but little regarded, and seems to have been construed to mean simply that no such laws should be passed as would be hostile to the government of England, or subversive of those great fundamental principles of English law which were considered to be the birthright of every Englishman, — such, for instance, as the right to trial by jury. Beyond these limitations, so construed, and aside from those methods of procedure which they naturally adopted by force of English habit of mind, the Court of Assistants recognized no other source of law than such as they could find in the Holy Scriptures, as interpreted by themselves, — or as embodied in legislative enactments of the General Court, sometimes with the advice of the Elders of the churches.
From time to time, as it appears by the Colonial records, committees were appointed to make a draught of laws: 6 May, 1635, “of such lawes as they shall judge needfull for the well ordering of this plantacõn,” — 25 May, 1636, “of lawes agreeable to the word of God, wch may be the Fundamental of this Com̄onwealth,” — while “in the meane tyme the Magistrates and their associates shall ꝑceede in the Courts to heare & determine all causes according to the lawes nowe established, & when there is noe lawe, then as neere the lawe of God as they can,” — and so on at different times thereafter.
Meantime the Magistrates seemed inclined to the policy of letting laws “arise pro re nata upon occasions,” and “to raise up laws by practice and custom.”
Then came the Body of Liberties in 1641, and the Codes of 1649, 1660, and 1672. The punishments inflicted appear in the records of the cases tried by the Court. The penalty imposed upon adultery is rather curious in its history. At a trial in the Court of Assistants, 6 September, 1631, where the offender is sentenced to be “seuerely whipped,” “it is ꝑpounded withr adultery . . . shall not be punished wth death. Referred to the nexte Court to be considered of.”
At the second Court thereafter, 18 October, 1631, it is ordered that where committed “with another man’s wife, they both shalbe punished with death.”
Then at a General Court, 12 March, 1637–8, “The law against adultery made by the p̃ticuler Court in October, 1631, is confirmed;” and at a General Court, 7 October, 1640, “The first law against adultery, made by the Courte of Assistants @ 1631, is declared to bee abrogated; but the other, made the first m̊1637 or 1638, by the Generall Court, to stand in force.” The reason of this legislation is perhaps apparent enough without further explanation, — namely, to make the infliction of capital punishment for this offence rest for its validity upon an enactment of the General Court, rather than upon an enactment by the Court of Assistants. The history of this action as to the punishment for adultery is not only curious, but also most important and suggestive.
This with many other points will be more largely dealt with in the volume of the Records of the Court of Assistants, referred to below, in which the history of this Court, its functions and jurisdiction, will be considered. The list of capital crimes in the Body of Liberties is long, — heresy or idolatry, witchcraft, blasphemy, murder, poisoning, bestiality, sodomy, adultery, man-stealing, perjury against life, and treason, — and it is lengthened in the Code of 1672. Certain safeguards are provided as to the trials and execution of sentence. Banishment, dismembering, and branding were prescribed and inflicted for certain offences. The wearing of a letter or other badge of ignominy does not seem to be prescribed by law, but was a penalty not unfrequently imposed by the courts.
In the early days of the Province the penalties prescribed by the laws were not essentially changed; the list of capital crimes is increased somewhat, branding and dismembering continued, and the wearing of a letter prescribed for certain offences; as in the case of adultery, after being set on the gallows and whipped, the offenders “shall forever after wear a capital A, of two inches long and proportionable bigness, cut out in cloth of a contrary colour to their cloaths, and sewed upon their upper garments, on the outside of their arm, or on their back, in open view,” &c.; and similarly the use of the letter I, in case of incestuous marriages or practices. Some of these laws were disallowed, however, by the Privy Council.
Under the Province, the successor of the Court of Assistants was the Superiour Court of Judicature, established by the act of 25 November, 1692. This act was subsequently disallowed, for certain reasons, by the Privy Council, 22 August, 1695, — a disallowance not known in Boston till 12 July, 1696.
Various acts subsequently passed were in like manner disallowed, until the act of 26 June, 1699, established the Court anew.
The records of the Superiour Court of Judicature from 1692 to the establishment of the Supreme Judicial Court, its successor under the Constitution, are full and complete, and in perfect preservation among the records of the latter Court in Suffolk County. Of the records of the Court of Assistants only the second volume, from 1673 to 1692, is extant. It is to be found in the same place also in perfect preservation.
The earlier records, so far as any complete volume is concerned, have been missing beyond the memory of man.
From the first Court held, 23 August, 1630, down to October, 1641, they are to be found in the Massachusetts Colony Records, and from the last date down to 5 March, 1643–4, in the “Barlow Copy,” now owned by the Boston Public Library.40
Much material has already been collected from various sources, mainly from the Court Files of the several Counties of the Commonwealth, which, to a certain extent, will fill this intervening gap of thirty years; and I have now in preparation a volume which is intended to contain all the Records of this Court, so far as they have been recovered or can be reproduced.41
Following is a list of cases tried by the Court of Assistants, with the punishment imposed by sentence, arranged according to the latter: —
4 Sept., 1632. Richard Hopkins, “for selling peeces & powder & shott to the Indeans.” To be “seuerely whipt, & branded with a hott iron on one of his cheekes.” (M. C. R., page 99.)
“ꝑpounded if this offence should not be punished hereafter by death.” “Referred to the nexte Courte to be determined.” (Legislation, 17 May, 1637, in M. C. R., page 196.)
3 Oct., 1632. Nicholas Frost, — “for thefte,” &c., “drunkenes and fornicacõn,” — “fined,” “seuerely whipt, & branded in the hand with a hott iron, & after banished out of this pattent.” In case of return, “hee shalbe putt to death,” &c. (Page 100.)
Subsequently, 3 Nov., 1635, imprisoned till trial for breach, 1 March, 1635–6, forfeited his recognizance, 5 April, 1636, bound over “to appeare . . . upon sum̃ons.” (Pages 155, 164, 172.)
6 Oct., 1635. Roᵬite Scarlett, “a knowen theife,” “shalbe seuerely whipt & branded in the forehead with a T,” and his master enjoined to send him “out of this jurisdicõn.” (Page 163.) Subsequently, 28 Oct., 1636, on “hope of amendment, hee is admited to stay.” (Page 183.)
19 Sept., 1637. William Brumfeild, “for his stealeing, ploting to run from his mr, lying, drunkennes & idlenes,” “censured to make double restitution, to bee branded, & bee seuerely whiped.” (Page 203.)
1681. George Fairfax. “Burglary, stealing, running away from his Master,” “to be branded in the forehead wth the letter B & be seuerely whipt,” &c. (Rec. Ct. of A.)
12 Nov., 1683. Leonard Pomeroy. “Murder,” — “found guilty of manslaughter.” — “to be burnt in the hand & forfeit his Goods & chatted,” — “ye executioner executed the sentence in ye face of the Court.” (Ibid.)
Sept., 1685. Uriah Clements. Burglary, “to be branded with the letter B. on ye forehead & have his Right eare cutt of.” For a second burglary subsequently sentenced “to be branded wth letter B on his forehead & have his left eare cutt of.” (Ibid.)
WEARING PAPERS AND OTHER BADGES OF IGNOMINY.
3 Sept., 1633. Roᵬte Coles. “Fyned Xl, & enjoyned to stand wth a white sheete of paꝑ on his back, wherein a drunkard shalbe written in greate ƚres, & to stand therewth soe longe as the Court thinks meete, for abuseing himselfe shamefully wth drinke, intising Iohn Shotwell’s wife to incontinency, & other misdemeanr.” Had been previously fined in 1631 and 1632 for drunkenness.
4 March, 1633–4, “for drunkenes,” “shalbe disfranchised, weare about his necke, & soe to hange upon his outward garmt a D, made of redd cloath & sett upon white; to continue this for a yeare, & not to leave it of att any tyme when he comes among company, under the penalty of xls for the first offence & vl the second, & after to be punished by the Court as they thinke meete; also he is to weare the D outwards & is enjoyned to appeare at the nexte Geñall Court, & to contynue there till the Court be ended.”
14 May, 1634. “The sentence . . . is nowe reversed, vpon his submission and testimony being giuen of his good behavr.”
4 March, 1634–5. Ordered at a General Ct that he “shall not pay more of his Fyne of Xl, for drunkenes, &c., than hath bene already levyed in strong water.” (M. C. R., pages 107, 112, 118, 139.)
5 April, 1636. Wiƚƚm Perkins. “Drunkenes & other misdemeaner,” to “stand att the nexte Geñall Court one houre in publique vewe with a white sheete of paꝑ on his brest, haveing a greate D made vpon it,” &c. (Page 172.)
6 Sept., 1636. Edward Woodley, “for attempting a rape, swearing & breaking into a house,” “to be severely whiped 30 stripes, a yeares imprisonment, & kept to hard labor, wth course dyot, & to weare a collar of yron.” (Page 177.)
A part of sentence subsequently remitted. (Page 193.)
5 March, 1638–9. John Davies, “for grosse offences in attempting lewdness wth divers weomen,” “to bee severely whipped” “& to weare the letter V. vpon his breast, vpon his vppermost garment, untill the Court do discharge him.” (Page 248.)
3 Sept., 1639. “Vpon his good carriage, was discharged from wearing the V.” (Page 268.)
Richard Wilson “for stealing,” &c, “to bee put fourth to service for 3 or 4 yeares, except he can procure Xl; also hee is to have a T set vpon his vpmost garment.” (Page 268.)
3 Dec, 1639. “Elnor Peirce her husband was bound in 10£ for her good behavior, & to bring her to stand in the market place the next market day wth a paper for her light behavior.”
—— Quick. Same sentence for same offence. Margaret Hindersam the same. (Page 284.)
1 June, 1641. Davy Hickbourne, “for his grosse misdemeanor & foule miscarriage,” “to be severely whiped, to weare an iron coller till the Cort please & serve his master,” &c. (Page 318.)
7 Sept., 1641. Thomas Owen “for his adulteros practises” “to be sent to the gallos wth a roape about his neck, & to sit upon the lather an houre, the roapes end throwen over the gallos, so to return to prison.”
Sara Hales “for her miscarriage” a similar sentence, “& after to bee banished.” (Page 335.)
7 March, 1642–3. Sentence for attempted bestiality was “to bee carried to place of execution & there to stand with an halter about his necke & to bee severely whipped.” (Whitmore’s Transcript of the “Barlow Copy,” p. xxxi.)
7 June, 1642. Thomas Scot & wife, “fornication before marriage,” “to stand an hore vpon 16th present in the market place, with each of them a paper with great letters on their hatts.” (Ibid., p. xxxiii.)
1 Nov., 1654. Edwd Sanders. “Rape, tried in Ct. of Assistants in April; Jury and Magistrates not agreeing in the verdict, case went to Gen. Ct. which found him not guilty of death, but deserving a high and severe censure; sentenced to be whipt and henceforth to wear a rope about his neck hanging down two feet long, to continue during Court’s pleasure; if found over forty rods from his own house without the rope to be whipt for each offence.” (Gen. Ct., M. C. R.)
11 March, 1673. Ruth Reed, attempted imposition of illegitimate child on her husband. Sentenced, if found in Colony two months after date, to stand “in the market place on a stoole for one hower wth a paper on hir breast wth ye Inscription,” &c. (Rec. Ct. of A.)
1674. Anne, Negro. “Committed for having a bastard child & being under sore suspition of making it awaye,” &c. Indictment for murder. Verdict, “Guilty of having a Bastard Child & privately conveyed it away.” “Sentenct to stand on the Gallowes wth a Roape fastened about hir Necke to the Gallowes for one hower,” “to be tyed to & whipt at the Carts Tayle to the prison wth thirty stripes,” &c.
1675. Maurice Brett, indicted for adultery, found “not legally Guilty, but Guilty of very filthy carriage,” &c. Sentenced to stand on the Gallowes “wth a roape about his neck,” “whipt at the Carts Tayle,” &c., and “banished.” Mary Gibbs, the co-defendant, same sentence, except banishment.
13 Sept., 1675. Thomas Davis. Adultery. Verdict, “Not Guilty legally according to indictment, but found him Guilty of very Suspitious Acts leading to Adultery.” Similar sentence, except banishment. The co-defendant the same.
1676. Peter Cole and Sarah Bucknam. Same offence, result, and sentence.
1677. Darby Bryan “chose to be tried by the bench,” and corespondent, Abigail Johnson, same. Sentenced to stand on the gallows “wth a roape about neck” and to be whipped at the cart’s tail.
Ephraim Beamis, “witting and willing trepanning and pandering,” &c. Similar sentence.
1683. Joshua Pike and co-respondent Elizabeth Crockett, adultery. Same result and sentence.
1684. Philip Darland and Mary Knights. Same.
16 Oct., 1691. Martin Williams, “a stranger,” passing counterfeit money, “to stand three Several lecture days in Boston in the Pillory, one houre each time, after the lecture, wth a Paper signifying his crime,” &c.
DISMEMBERING OR MUTILATION.
14 June, 1631. Phillip Ratcliffe “shall be whipped, haue his eares cutt of, fyned 40l and banished out of ye lymitts of this jurisdicc͠on, for vttering mallitious & scandulous speeches against the goũmt & the Church of Salem,” &c. (M. C. R., page 88.)
13 May, 1640. James Luxford, “for his forgery, lying & other foule offences,” “to bee bound to the whiping poast, till the lecture from the first bell, & after the lecture to have his eares cut of; & so hee had liberty to depart out of or jurisdiction.” (M. C. R., p. 295.)
1675. Maurice Brett, “for his contemptuous carriage confronting the sentence, [for adultery to wear the rope, be whipped, and banished, see supra,] to stand in the pillory, . . . his eare nayled to ye pillory & after an hours standing there to be cut of,” and also fine and whipping.
1679. Peter Lorphelin, “Frenchman,” “being Accused for Rash Insulting Speeches in the time of the late Conflagration thereby Rendring himself Justly suspitious of having a hand therein,” was committed, and being examined “his chest & writtings” were ordered to be searched, and suspicious articles being there found, was sentenced “to stand upon the pillory two howers & then to haue both your eares cutt off by the executioner and to give bond,” &c., “wch sentence was executed Accordingly.”
1684. Joseph Gatchell, Blasphemy, “to stand in pillory, have his head and hand put in & have his toung drawne forth out of his mouth, & peirct throyh wth a hott iron.” “The Marshall General taking necessary help with him to see ye execution of ye sentence performed.”
1685. Uriah Clements (supra, under Branding), after that “to have his Right eare cutt of,” and for a second offence “his left eare,” &c.
4 Dec., 1638. Dorothy, the wife of John Talbie, “unnatural & vntimely death of her daughter,” “to bee hanged.” (M. C. R., p. 246.)
10 Dec, 1641. William Hatchet. “Beastuality,” “to bee hanged, & the Cowe to bee slayne & burnt or buried.” (M. C. R., p. 344.)
5 March, 1643–4. lames Brittaine and Mary Latham. Adultery, both “condemned to death.” (Barlow, p. xlii.)
1673. Beniamin Goad. Beastiality. Special Verdict: “If the prisoner’s confession agt himself vpon his first apprehention and before his trial together with one evidence be sufficient for legal conviction, then we find him guilty according to the Indictment; otherwise not guilty of the fact but of a most horrid attempt,” &c., “wch we leave to the determination of the Honored Court.” Magistrates found him “Capitally Guilty.” Sentenced to be hung, “wch was done accordingly.” (Rec. Ct. of A.)
1674. Tom Indian. Rape. Sentenced to be hung.
Robert Driver. Murder of his master. Sentence given verbatim, and in same form as now used.
Nicholas Faevor. Same matter.
1675. Peter Rodrjego (Dutchman), John Roads, Richard Fowler, Peter Grant, Randolph Judson. Piracy. Sentenced to be hung.
17 Sept. Samuel Guile. Rape, “be hangd till you be dead,” &c. “Wch was accordingly doun, Oct. 16, 1675.”
21 Sept. Several Indians indicted for “ye murder of those at Nashaway.” Six found not guilty. Several ordered “to be sent away,” and one, “Litle Jno Indian yt came as a messenger from being proved to be a murderer of the English in ye Warr was Condemñd to be hanged & was executed accordingly.”
1676. Stephen Goble, Danl Goble, Nathl Wilder, and Daniel Hoare. Murder of three Indian women and three Indian children. Sentenced to be hanged.
Basto, Negro. Slave, &c. Rape on his master’s daughter of three years. Sentenced to be hanged.
1681. Marja, Negro, servt of John Lambe. Arson. “Pleaded & acknowledged herself to be Guilty of ye Fact.” Sentence of death; to be burnt at place of execution. See infra.
Cheffaleer Jack, Negro, servant, &c. Arson. “To be hanged & then taken down & burnt to ashes in the fier with Marja Negro.”
William Cheny. Rape on his servant. Sentenced to be hanged.
“Secretary ordered to issue out warrants to the Marshal General for the execution of these three on the next lecture day presently after the lecture according to their sentences.”
1685. James Morgan. Murder. Sentenced to death.
1689. Hugh Stone. Murder of wife. Sentenced to death.
3 Jan., 1689–90. Thomas Hawkins. Piracy in Massachusetts Bay three leagues from Half Way Rock.
Thomas Pound, Thomas Johnston, Eleazer Brick. Piracy in Vineyard Sound.
John Sickterdam, William Dunn, Richard Griffin, Danl Lander, Wm Warren, Saml Watts, Wm Coward. Peleg Heath, Thomas Storey, Christopher Knight, — some of them for Piracy and Murder, — all sentenced to death.
1691. Elizabeth Emmerson. Murder of her illegitimate twins. Sentenced to death.
IN THE GENERAL COURT, 12 MARCH, 1637–8.
“Ordered that the 3 Adulterers, John Hathaway, Robrt Allen & Margareet Seale, shalbe severely whiped, & banished, never to returue agaiue, vpon paine of deathe.”
COURT OF ASSISTANTS.
SOME MISCELLANEOUS SENTENCES.
1676. Jno Flynt. Indicted for murder. Verdict of manslaughter. Fined 20£ to County, 20£ to the father.
Peter Bent. Murder. Verdict: “Killing by Chanc Medleing, by Casualty.” 10£ to County, 20£ to widow.
Saml Hunting. Murder. Verdict of Manslaughter. 20£ to widow, 5£ to County.
1680. John Dyer. Murder of an Indian. “Manslaughter.” “Sixe pounds to widow,” “i. e. 20s downe, in or as money — & 20s more for five years successively.”
1683. Elizabeth Payne. Murder of her illegitimate child. Found “greatly negligent,” &c., “to be whipt 30 stripes for her fornication.”
James Fuller, “being led by instigation of the divill did wickedly call upon or pray to the Divill for helpe, & hath at seueral times had familiarity wth him.” “Not guilty according to the Indictment,” but “considering of his wicked & pernicious willfull lying & continuance in it till now putting the country to so great a charge.” Sentenced to fine, 30 stripes, 5£ for charges, and in default of payment “left to Treasurer of ye Country to ship him of & dispose of him as he can, not exceeding foure yeares.”
William King. Blasphemy. Evidence of madness. 20 stripes given.
1678. Bethyah Getchell. Adultery. “Not guilty according to indictment, . . . but enjoyned to appeare before next County Court,” &c., “to answer for her notorious lying.”
1676. Walter Gendall. “Endeavoring to betray the inhabitants into the hands of the enemy in time of ye Indian War”; to “run the Gautelop through the Military Companies in Boston wth a roape about his necke, — forfeit all his lands, — and be banished, on penalty of perpetual imprisonment if he returne.”
John Watts. Same, and “trading powder to the Indians,” — “to run the Gautelop,” &c., “bond of 100£.”
1680. Thomas Davis and Jno Eggington. “Convicted of being two incorrigible theeves & Robbers,” “also for many reiterated Oaths & cursings of themselves & others”; “threatening if loose to burne the Towne,” &c. Sentenced to 20 stripes, and to be returned to prison; afterward breaking prison, and stealing again, “to restore treble damages,” &c., and in default, “to be sold & sent to any of the English Plantations — & return no more on payne of death.”
SPECIAL COURT, 1686–1687.
Peleg Heath, — “felonious stealing.,” &c., — “pleaded guilty & praying the benefitt of Clergie was called to the booke & readding was burned in the left hand with ye letter T.”
Richard Hulins, John Stickey, Thomas Waters, William Hawkins, Joseph Aramatu, similarly punished.
Charity Williams, “Stealing goods,” “pleaded guilty, praying the Benefitt of the Statute of Jacobi in favour of women committing small felonies,” was burned in left hand with letter T.
Mercy Windsor similarly punished.
John Neponet alias Nemasit. Murder. Sentence of death.
Thomas Waters, second offence, benefit of clergy not allowed. Sentence of death. Third offence had sentence as above.
SUPERIOUR COURT OF JUDICATURE.
1692. Vol. I. Records. There are several trials for Witchcraft recorded in full, and of extreme interest. In three of these there is a verdict of guilty, and the ominous conclusion: “The Court Ordered the Keeper of the Goale to take care of the Prisoner, Ac̃ording to Law.”
Sarah Wardwell. (Page 14.)
Elizabeth Johnson, junior. (Page 18.)
Mary Post. (Page 21.)
25 Apr., 1693. Elizabeth Emerson, convicted of Murder in 1691, and sentence of death ordered but not pronounced, “brought to the Barr” and sentence passed (Page 50.)
Grace, a Negro. Murder. Death. (Page 51.)
Jan., 1693–4. Jacob, an Indian man. Murder. Death. (Page 94.)
“Zachalcnaco, otherwise called Zechariah, an Indian man of Kycomocho in the County of Suffolk.” Murder. Death. (Page 100.)
1695. Joseph Hyde, an Indyan. Murder. Death. (Page 149.)
1696. Susanna Andrews. Murder. Death. (Vol. II. p. 49.) John and Esther Andrews, parents of above, “were found guilty of death and so pronounced, as accessory,” &c.
1698. Sarah Smith. Murder. Death. (Page 193.)
Sarah Threeneedles. Murder. Death. (Page 199.)
1693. Samuel White. Robbery. “To be branded in the Forehead the letter B,” treble damages, costs, &c. (Vol. I. p. 73.)
SOME MISCELLANEOUS SENTENCES.
1693. Nathaniel Blackledge and John Chester. Forgery of Certificate. Fined. “Thes Fines were ordered to be received by the Clerk to buy seale & book of Record for the Court.” (Page 52.)
1694. Hannah Newell. “Adultry by her owne confession,” &c. “Fifteen stripes Severally to be laid on upon her Naked back at the Comon Whipping post.”
Lambert Despar, the co-defendant, “twenty five lashes, . . . and that on the next Thursday Immediately after Lecture he stand upon the pillory for the space of one full hower with Adultry in Capitall lettrs written upon his brest.” (Page 129.)
1696. William Veazey. “A Bill of Indictment was preferred and found by the Grand Jury . . . for High Misdemeanour, in open Contempt of His Majties Royal person and Government here established,” &c.
The case came on for trial 27 April, 1697. He was presented “for that the Authority of this Province Assembled in the Great and Generall Court haveing Ordered & appointed . . . a Solemn day of Thanksgiving to Almighty God for his Great Mercy in the Discovery of the late Hellish plot and Conspiracy to Assasinate his Majties Royal person, and by the sd Act or Order did Strictly inhibit all Servile Labour upon that day: William Veazey . . . in open contempt . . . did plow amongst his Come”; and furthermore questioned the “Setting apart dayes of Thanksgiving and Humiliation”; and also the King’s title to the Crown. He “pleaded guilty.” “Ordered That he pay the Sum of Tenn Pounds Fine to the King; that he be set in the pillory in the Market place in Boston tomorrow abt noon, there to stand by the Space of One Howr,” &c. (Vol. II. p. 75.)
1698. Francis Dormer, “having an Information drawn up against him” for “false and Scandalous words and expressions touching and concerning his Excellency Richard Earle of Bellomont,” “pleaded guilty” “to this Indictment,” and was sentenced to “stand in some publick place in this Towne for an howrs space on a fryday at twelve o’clock with a paper on his breast Signifying his Crime,” &c. (Vol. II. p. 202.)
This dry list lacks, of course, all the attraction of the archaic quaintness and the dramatic interest of the full records of the cases, and is intended only as a mere skeleton.
Mr. Henry E. Woods communicated the intelligence that there was formed at North Brookfield, on 26 December, 1894 —
THE QUABOAG HISTORICAL SOCIETY.42
Its objects, as defined by its By-Laws, are “To unite the citizens of those towns which include the ancient Quaboag District in an effort to collect and preserve all the historical matter belonging to this same section, to stimulate a local pride in, and a love for, antiquarian research by the preservation of relics and the marking of memorable sites within the borders of these towns.”
Mr. John Elbridge Hudson, of Boston, was elected a Resident Member.