APRIL MEETING, 1896.
A Stated Meeting of the Society was held in the Hall of the American Academy of Arts and Sciences, on Wednesday, 15 April, 1896, at three o’clock in the afternoon, President Gould in the chair.
After the Minutes of the previous Meeting had been read, the following Committees were appointed in anticipation of the Annual Meeting: —
To nominate candidates for the several offices, — Messrs. James B. Thayer, John Chester Inches, and G. Arthur Hilton.
To examine the Treasurer’s Accounts, — Messrs. Samuel Johnson and David R. Whitney.
The Hon. George S. Hale communicated a copy of the Petition165 of Martin Brimmer and five French Protestants praying to be admitted to citizenship in the Province, as follows: —
To His Excellency Jonathan Belcher Esqr Governor & Commander in chief in and over his Majesty’s Province of Massachusetts bay, to the Honorable the Council and the house of Representatives in General Court assembled
The Petition of the Persons hereto subscribed Sheweth that the Petitioners for the most part were forced to leave their native Country of France on account of the Protestant Religion in which they had been bred up and professed and for which some of the Petitioners have been greatly persecuted and distressed.
And farther the Petitioners most humbly remonstrate to your Excellency and to this great and General Assembly that the most part of them have for almost the space of forty years or upwards (during which time they have chieffly resided in this Country) behaved themselves instly to their neighbours, and in their respective callings with unshaken fidelity towards the Gouvernement here and the Crown of Great Britain, and have been allways subiected as well as to pay rates and taxes, as also to bear offices of Constable &c which several of them have sustained and executed with great faithfulness, in their respective dutys; so that They hope by the favour of this great and General Court (which is well known at all times to act with great equity and to relieve where They can the distressed) that as They have been always subiect to do dutys, so They may be intituled to all the privileges of a Denisen, or natural born Subiect of his Majestys so far as is consistent with the power and instice of this great and General Court. jt being what hath been generaly practiced by most Nations of Europe in favour of the French Protestant Refugees but more particularly by the Crown of Great Britain, and the dependent Colonys, as the Petitioners can prove by many instances. Therefore upon the whole the Petitioners do humbly pray an order of this great and General Court to confer upon them the rights and privileges of Denisens, or free born Subiects of the King of Great Britain, or be otherwise relieved, notwithstanding any law usage or custom to the contrary, or that They may be farther heard by the Council in the premises; They say relieved as this Great and General Court shall judge meet; And as in duty bound your Petitioners shall ever pray &c.
Andrew Le Mercier
Andrew Sigourney Ser:
the same fauour is humble Desired By a protestant German Came from Hanover Martin Brimmer
This petition was read in the Council, 25 February, 1730, when it was —
Ordered that the Prayer of the Petition be so far granted as that the Petitionrs together with all other foreign Protestants Inhabitants of this Province Shall within this Province hold & enjoy all the Privileges & Immunities of His Majestys natural born Subjects And that they have Leave to bring in a Bill accordingly.166
In this the House concurred the next day, and the result was the passage of Chapter 9 of the Acts of 1730–31.167
Mr. George Lyman Kittredge gave an account of the rescue in Barnstable of a barrel of old papers which one of the residents was about to destroy, among which, upon examination, were found several letters containing interesting information concerning the state of affairs in Boston during the Siege. Some of these letters Professor Kittredge promised to communicate to the Society at a future meeting.
Mr. Abner C. Goodell, Jr., presented a copy of the Supplement to the Early Acts and Resolves of Massachusetts from 1780 to 1806, to which reference was made at the February Meeting of the Society. This volume, prepared by our associate Mr. Bacon, contains three hundred and fifty-eight Resolves, Orders, Proclamations, Messages, and other legislative papers, not included by the Secretary of the Commonwealth in the first two volumes of the authorized edition of the Laws issued under his supervision by authority of Chapter 104 of the Resolves of 1889.
Mr. Henry E. Woods reported the organization of the following named Historical Societies in Massachusetts: —
THE HARVARD MEMORIAL SOCIETY.
On 7 May, 1895, a Society was formed among the undergraduates of Harvard College, the purpose of which was stated to be “to foster among students interest in the historical associations of Harvard, and to perpetuate the traditions of her past.”
The following extracts from a circular issued by the Society will explain the intentions of the founders: —
A primary object of the Society will be to secure courses of lectures by distinguished men on subjects connected with the history of Harvard, and on famous Presidents and Graduates. Lectures will be arranged on Harvard during Colonial Days, the Revolution, the Early Half of the Century, and the Civil War. Another object of the Society will be to mark rooms or sites of rooms in college buildings once held by famous Graduates, by means of tablets of bronze or stone, transmittenda, or otherwise. Other sites of historic interest connected with the University will be properly marked if possible. Arrangements will be made for the collection of pictures, books, and manuscripts connected with the past of the University and the proper disposal of the same, so that they may be easily accessible. The endeavor of the Society will be to inspire a deeper feeling of interest and reverence for the associations and traditions of Harvard, to make the students more sensible of their obligations to those who have made Harvard what she is, and to make them acquainted with the part the University and her Graduates have played in the history of the country.
It is the purpose of the Society to admit to active membership only Officers of the University and Members of the Senior Class. A limited number of men distinguished for their devotion to the interests of the University will be elected as Honorary Members. Loyalty to Harvard past and present is the first requisite for membership, and it is hoped that membership in the organization will be deemed an honor and a privilege.
The proper marking of the rooms and historic sites will require a considerable amount of money, which must be collected by subscription. The Curator will be glad to receive any pictures, books, or articles of interest in any way connected with the history of the University; and the Treasurer will be pleased to receive any subscription which may be made towards supporting the work of the Society.
BROOKLINE HISTORICAL PUBLICATION SOCIETY.
A Society with the above name was formed in May, 1895. Apparently it has no other organization than a Standing Publication Committee and a Treasurer, and no other printed or written statement of its objects than is contained in the following prospectus, which was issued at that time: —
The Brookline Historical Publication Society is organized to collect and print in a uniform series such manuscripts and materials not readily accessible as shall seem worthy of permanent preservation.
There shall be a Publication Committee of three to decide upon all matters suggested by the aims of the Society.
The object of the membership is to provide funds to carry on the work of the Society, and each subscriber of the annual fee of one dollar ($1.00) will receive free all publications of the Society.
Miss Ellen Chase,
Daniel S. Sanford,
Charles K. Bolton, Treasurer,
Standing Publication Committee.
N. B. — Subscriptions may be sent at once to the Treasurer at the Public Library.
The Society has been quite active during its brief existence, and has published — I. A letter from Rebecca Boylston; II. The Sharp family papers; III. Brookline in the Revolution; IV. Papers of the White family; V. Roxbury Church records relating to Brookline. Other work is in preparation.
A full account of what this Society is doing, and of kindred work which is being accomplished in the Brookline schools, was published in the New England Magazine, and subsequently reprinted in a separate pamphlet168 by Charles Knowles Bolton, the present Treasurer of the Society.169
THE OLD BRIDGEWATER HISTORICAL SOCIETY.
An Historical Society with this title was organized at Bridgewater, and incorporated 18 July, 1895. Its purpose is “the collection, preservation, and publication of material which shall contribute to the history of the Colonial Township of Bridgewater.”
MENDON HISTORICAL SOCIETY.
An Association known by this name was organized 18 February, 1896. The objects of the Society as set forth in the Constitution are, “to cultivate and encourage among its members a love for historical research, the accumulation and preservation of all matters of a historical nature relating to the town of Mendon since her first settlement in the year 1659, together with those relating to her daughter towns which have from time to time established their own government, and also the collection and preservation of antique relics of every description in any way connected with the past of either of these towns.”
Membership is open to any person who shall be regularly elected, and who shall sign the Constitution. Four meetings are provided for each year.
SOUTH BOSTON HISTORICAL SOCIETY.
An Organization with the above name was effected 24 March, 1896. The objects of the Society are to see to it that historical locations in that District are properly cared for, and in the course of time marked with suitable tablets; and also to promote goodfellowship and the furtherance of a social feeling among the residents of the District.
Mr. Andrew McFarland Davis read the following account of a suit begun at the York term of the Court of Common Pleas, in 1734, in which the Superior Court of Judicature twice refused to obey the Order of the King in Council.
FROST v. LEIGHTON.170
York ss. 1734.
In 1803 the Supreme Court of the United States was called upon in Marbury v. Madison171 to discuss the question whether that Court could exercise authority conferred upon it by Act of Congress, but not warranted by the Constitution. The decision reached by the Court was that a law repugnant to the Constitution was void. The importance of this claim on the part of the Court, that under its power to interpret the Constitution the deliberate action of Congress in passing a law, and of the Executive in approving the same, could be annulled and made of no effect, compelled an elaborate justification of the position taken by the Court. Long years of acquiescence in the conclusion then reached have obscured the fact that the question, when it arose, was a novel one. Precedents of interpretation were then mainly derived from English Courts. In England Parliament was paramount, and the power of the Courts was limited to the interpretation and enforcement of the laws. Experience under written Constitutions was practically limited to this country, and to the few years which had passed since the Revolution. The able, exhaustive, and convincing opinion of Chief Justice Marshall in this case depends almost exclusively upon the reasonable nature of its own statements and the convincing power of their logical presentation.172
For many years students of Constitutional law have indulged in speculations as to the possible effects on the minds of the jurists of the day of the appellate powers lodged in the Privy Council. In the early charters granted to royal favorites and merchant adventurers, the theory prevailed that the affairs of the distant settlements were to be administered by a home company, and the restraining clause that no laws should be passed which should be repugnant to the laws of England was deemed adequate protection for the maintenance of the supervisory power of the government. After it was found that under these clauses the Colonists disputed the rights of aggrieved parties to appeal to the Crown from the decisions of the local courts, more explicit reservations on this point were made in Provincial Charters.173 There was no provision in the Charter of Connecticut for appeals to the Privy Council. Nevertheless, when the point was raised in Winthrop v. Lechmere that a law passed by the Assembly of Connecticut was void because it was contrary to the laws of England and not warranted by the Charter of the Colony, the appeal, although not allowed by the Connecticut Courts, was entertained by the Privy Council, and the Act in question was declared to be null and void.174 In this case it will be observed that it was the Privy Council exercising appellate powers, which decided that the Act was void because opposed to a clause in that Charter. In what follows in this paper I propose to give the history of a case in our own courts in which the Superior Court of Judicature of the Massachusetts Bay twice refused to carry out a Royal Order, issued by his Majesty in Privy Council, giving as a reason for such refusals that the Charter of the Province did not confer upon them powers which would enable them to obey the order. We are left to an inference, based upon the brief of the attorney for the plaintiff, to determine why the Court concluded that they did not have power to carry out the Royal Order. The case was one which did not of right carry with it an appeal to the Privy Council, and the Province Court denied the motion for an allowance of the appeal. Nevertheless, the Council entertained the appeal; and afterward, in the hearing before the Superior Court of Judicature, upon the presentation of the Royal Order, the attorney for the plaintiff made the point that the Privy Council had no right to hear the case on appeal. The Court evidently adopted this view of the question, and regarded the Royal Order, not as a determination of the case on appeal, but as an order in a proceeding which had its origin in the Privy Council. The order of the Privy Council was to the effect that the Court should compel the plaintiff to refund certain moneys to the defendant, and that he should be permitted to plead anew in the proceedings.If the appeal had been regular in form, tins order might perhaps have been acceptable to the Court. If the case was not properly before the Privy Council, then the Court could say, as they did, There is no provision in our laws for any such proceeding as this order calls for.175
In Marbury v. Madison the Supreme Court, exercising their power to interpret the Constitution, decided that under that instrument no authority was conferred upon the Supreme Court in the exercise of original jurisdiction to issue a mandamus. The Act through which Congress attempted to confer upon the Court that power was void, because Congress could not add to the powers of the Court.
In Frost v. Leighton the Superior Court of Judicature, interpreting the Charter and the laws through which they derived their powers, decided that they found no authority by any law of the Province or usage of the Court to enforce the order issued by the King in Privy Council. It did not need that they should add that their powers could not be enlarged through a Royal Order.
Under the Charter of the Province of the Massachusetts Bay all trees of the diameter of twenty-four inches and upwards, at the height of twelve inches from the ground, growing on any tract of land within the Province which had not on the seventh of October, 1691, been granted to any private person, were reserved to the Crown for the better providing and furnishing masts for the Royal Navy.
On the nineteenth of June, 1730, a license was granted by the King to Ralph Gulston176 of the City of London, merchant, his agents and workmen, to search the woods in the Province of Maine and Colonies of New England, where the property in any woods or trees and the right of cutting them were reserved to the Crown, and there to cut down as many good and sound trees as might answer the number and dimensions expressed in a certain contract, which the said Gulston had entered into for furnishing the Royal Navy with masts. For the purpose of carrying out this contract, Gulston appointed Samuel Waldo of Boston his agent; and Waldo in turn employed one William Leighton, a resident of Kittery, to superintend the actual cutting and loading of the masts. In the performance of this work, Leighton with a gang of men went into some woods in Berwick in the winter of 1733–34, taking with him his logging-teams. He erected a wigwam, and when finally camped and ready for the season’s work, began cutting trees. He felled a number of pine-trees and hauled them away; and in order to facilitate this process he also cut down a great number of small trees of various kinds, which were used for beds for the large trees. The land upon which these woods stood when Leighton entered upon his work formed a part of a farm in Berwick containing about five hundred and twenty acres, known as the Caroline Farm, and belonging at that time to one John Frost of Berwick. It was alleged that at the time when the Charter of William and Mary was granted, the title to these lands was in the Crown.
John Frost, the owner of the land, becoming cognizant of the acts of Leighton, brought suit against him on the fourth of March, 1733–34, in the Inferior Court of Common Pleas, laying his damages at two hundred pounds. The plea was trespass, and the writ was returnable at the April term of the Court to be held at York. Frost alleged that Leighton had with force and arms entered upon his farm and cut down seven pine-trees, each of three feet in diameter, and each of the value of ten pounds, and that of these he had hauled away six. The cutting was also alleged of one other pine-tree, of four beech-trees, one maple-tree, four hemlock-trees, twenty beech-trees or poles, three spruce-trees or poles, five maple-trees or poles, and two black birch-trees or poles. The total value of all the trees and poles thus cut was stated to be £120. Frost asserted that they were his property, and that they were cut without his permission.
The April term of the Court of Common Pleas for York County in 1734 was held on the first Tuesday of that month. Leighton put in an appearance, through William Shirley his attorney, and for plea admitted and defended the force and injury, but pleaded not guilty to the coming with force and arms; and of that he put himself on his country. As to the cutting down of the trees as alleged, he admitted that he, as a workman of Gulston, by direction of Waldo his agent, acting under the license granted to Gulston, had entered into a part of the woods in the Province of Maine, which had not been granted to any private person before the seventh day of October, 1691, and had cut down the pine-trees, and also the other trees and poles, in order to the felling and carrying away of the said seven pine-trees, the cutting down of the other trees being absolutely necessary for that purpose. He recited the rights of the Crown reserved in the Charter to trees upon unoccupied lands, proffered the license granted to Gulston June 19, 1730, and alleged that the seven pine-trees which had been cut down had been first viewed and allowed by David Dunbar, Esq., Surveyor-General of his Majesty’s woods on the Continent of America. For these reasons he pleaded that Frost ought not to have any action against him, and he prayed for judgment on this point.
On these papers the case came on for trial. The defendant contended that the failure of the plaintiff to reply or demur to his plea was an admission of the facts stated in them; but the Court thought otherwise, and called upon the defendant to make some other plea. This the defendant refused to do, and the Court thereupon awarded judgment against him. In a petition subsequently made by Leighton to the Privy Council, this proceeding is described in the following language: —
“Whereupon it was considered by the Court, instantly and immediately (without any proofs of the Plaintiff’s property, or any proof of the supposed damages, or value of the same, or referring it to a Jury to enquire of the Plaintiff’s pretended damages) that the Plaintiff should recover of the Petitioner a particular sum of one hundred and twenty one pounds damages, and costs of Court taxed at forty shillings.”
Shirley, on the fourth of May, 1734, filed his reasons of appeal, which were that the judgment was wrong and erroneous; that the action ought to have been barred upon the plea in bar; and that the trees mentioned in the writ were not the property of the plaintiff, but belonged to the Crown, and that the defendant had lawful authority to cut them down and haul them away. The case was heard by the Superior Court of Judicature, June 19, 1734, and the opinion of the Court was delivered as follows: —
“The Court is of opinion that the Defendants plea containing sundry matters of fact triable by Jury, should have concluded to the Country or the defendant have pleaded the General Issue & given the special matter in evidence. It’s therefore Considered by the Court that the former Judgment of the Inferior Court be & hereby is affirmed & that the Appellee recover against the Appellant costs of suit.”
Execution was thereupon issued, and the amount of the judgment was collected from Leighton. It is obvious from this that Shirley’s pleadings were considered by the Court defective. It is not unlikely that he was anxious to avoid submitting his case to a jury; but whether the decision of the Court upon this point of practice was erroneous, or Shirley was at fault, he lost his case. He at once moved for an appeal to the Privy Council; but this the Court refused, saying that in their opinion an appeal would not lie in this case. The reasons of the Court for this opinion are not stated in the order of the Court denying the appeal; but it is evident that they were grounded upon the clause in the Charter which allowed appeals to the Privy Council as of right where the matter in difference exceeded the value of three hundred pounds sterling. In this case, the judgment was for only one hundred and twenty-one pounds and costs.
Gulston, the contractor, then appealed to the Duke of Newcastle, who, on the third of October, 1734, wrote to Governor Belcher enclosing the complaint. Belcher laid the matter before the General Court, and on the ninth of December wrote the Duke of Newcastle, enclosing a printed account of the steps taken for the preservation of his Majesty’s woods.177 Referring to the case under consideration, Belcher added in his letter, —
“As I have been always ready to do everything in my power to protect the Kings right in the woods and to prevent from waste and Spoil so I shall still by giving assistance and encouragement to the contractors workmen in the legal execution of their busineſs and by doing what in me lyes to put a stop to any unjust and vexatious prosecutions against them. But your Grace is very sensible that its not in the power of a Govr to stop the course of the law and should a war happen I shall when I think there is any foundation give the Contractors workmen what protection I can against the French and Indians.”
Leighton then petitioned the Privy Council for a hearing before them on appeal. The date of this petition is not known, but it is not probable that the petition was long deferred. The prayer of the petitioner was not granted until 9 July, 1735. Leighton then filed his petition for a reversal of the judgments in the Province Courts, and for the restoration to him of the money which had been collected on execution, and for other relief in the premises. On the thirtieth of July, 1735, the appeal was referred to the Right Honorable the Lords of the Committee of Council for hearing Appeals from the Plantations; and on the second of April, 1736, they reported, saying that they had heard all parties concerned by counsel learned in the law, and that they humbly agreed to recommend to his Majesty (by the consent of all parties) that both judgments should be reversed; that the money collected of Leighton should be restored; that the appellant should withdraw his plea, plead not guilty, and upon the general issue be at liberty to give any special matter in evidence. They further recommended that upon such new trial the evidence should be reduced to writing and recorded with the verdict, and that an appeal to the Privy Council from such verdict should be allowed to either party. This report was submitted 29 April, 1736, and the King, with the advice of the Privy Council, approved of the same, and ordered that it be duly and punctually observed and complied with. The Governor or Commander-in-Chief of His Majesty’s Province of the Massachusetts Bay, and all others whom it might concern, were ordered to take notice and govern themselves accordingly.
The Royal Order having been obtained, the scene of action was transferred to the other side of the Atlantic. Leighton also made a change in his attorney, and William Bollan was employed to present the Royal Order and secure from the Court the orders necessary to make it effectual. At the September term of the Superior Court. of Judicature, Court of Assize and General Gaol delivery, held at Bristol, William Bollan appeared in behalf of Leighton, and on the eighteenth of the month presented the Royal Order, and moved that the Court should issue execution against John Frost for the sum of £125 18 s. paid by William Leighton to him on the execution issued by the Superior Court in 1734 in the suit of Frost v. Leighton, so that the said Frost might be compelled to restore this sum to the said Leighton according to his Majesty’s order, and also that the said order might be observed and complied with in all respects, duly. The Royal Order was publicly read in Court, and the clerk was directed to enter it in the records of the Court; but further consideration of it was deferred to the June sitting of the Court at York, in 1737. Bollan’s motion, originally made at Bristol, 18 September, 1736, was renewed at York the twenty-second of June, 1737, and the decision of the Court thereon was expressed in the following language: —
“Upon reading the above motion the subject matter whereof requiring the most mature consideration the Court will advise thereon until their next sitting.”
In the docket of the Superior Court of Judicature there is an entry under date of 20 June, 1737, which was subsequently crossed out, which would seem to indicate that the Court had at one time concluded to hear arguments as to whether the Royal Order could be carried out. The language of the crossed-out entry is as follows: —
“The Court took the Royal Order into consideration & are of opinion that if the sd Willm Leighton expect any order from this Court thereupon he ought to take out a sum̄ons from the Clerks office of this Court & returnable as other procefs is to notify the sd John Frost to shew [cause] if any he has why the said Order of His Majesty should not be complied with on the part [of the said] John Frost; Upon the return of wch sum̄ons & hearing [the parties concerned] this Court will then be able to make such further order in the prem[ises as] to Law & as to Justice appertains.”
On the next page the decision of the Court deferring action was entered in the margin under date of 22 June, 1737. The next that is to be heard of the case is at the sitting of the Superior Court held at York on the third Wednesday of June, being the twenty-first day of said month, Anno Domini 1738, when the Court rendered the following decision: —
“The Court having advised upon the said motion till this term do now in answer thereto say that in case the Action mentioned in the said Royal order come upon trial again before this Court in the manner directed to this [Court] shall endeavor to do what to Justice appertains, but as to giving an Order for an execution against John Frost as prayed for, The Court having considered the Royal Charter together with the Laws of this Province and the Constant Usage & Practice of this Court are of opinion that they have no Authority to give order for such an execution.”
Leighton had filed the Royal Order in the Superior Court, and moved for an execution, so that the same might be duly enforced, in September, 1736. It had taken nearly two years to secure a decision from the Court; and when after all this delay the decision was promulgated, the attitude of the judges was found to be so defiant as to put an end to all hopes of securing the restoration of the money through the agency of the Court. Leighton therefore now turned to the Governor of the Province. A petition was addressed directly to that official by William Bollan, attorney for William Leighton, in which a detailed statement of the various proceedings in Court and Privy Council in the case of Frost v. Leighton were fully set forth. The petitioner averred that he resorted to the Governor of the Province to cause the order of his Majesty to be observed and complied with, and to that end he caused to be delivered by his attorney to his Excellency the original order of his Majesty in Privy Council.
The Royal Order was addressed in particular to the Governor of the Province, and in a general way to all whom it might concern. The Governor was the direct appointee of the Crown, and, irrespective of the fact that he was specially mentioned in the order, might be relied upon to carry out the wishes of the Crown so far as they were practicable. He could certainly be counted upon in a matter in which so much interest was taken at Court as the question of the supply of the royal navy with masts. There was method, therefore, in Bollan’s addressing his petition to the Governor alone, and not to the Governor and Council. Belcher was not, however, to be caught in this net. However much he might wish to sustain the rights of the Crown, he knew that the cutting of trees for masts for the royal navy was a burning question with the residents in Maine, and that any overt act on his part would make him unpopular. He therefore laid this petition before the Council on the fourteenth of September, 1738, and they thereupon considered the matter, and said that inasmuch as Leighton had sought a remedy in the Courts and had made no application to his Excellency till after the proceedings in the Superior Court, the Board were of opinion that it was not proper for his Excellency to do anything in the affair. This solution of the perplexities of the situation being entirely in accordance with Belcher’s wishes, he himself indorsed upon the petition his approval of the action of the Board in the following words: —
“The foregoing advice of His Majesty’s Council being agreeable to my own Sentiments I am prevented doing any service in this affair.
Septemr 18: 1738.
Thwarted in his attempts to enforce the Royal Order through the refusal of the Courts of the Province to carry them out, and through the refusal of the Governor to intervene, Leighton’s position seemed hopeless. However powerful the influences which had sustained his side of the case, which had led the Privy Council to entertain an appeal which did not come within the definition of those allowable under the Charter, and which had produced an order of the Privy Council imposing upon the Superior Court of the Province duties beyond their powers under the Charter, he seemed to have exhausted his resources without accomplishing his design, and to be to all intents and purposes absolutely helpless. The stake was, however, too great to be abandoned without another effort. Neither the King, the Privy Council, nor the contractor could afford to let the impression prevail that they would yield their rights under the Charter to cut masts for the navy in the Maine woods, without putting forth every effort which lay in their power to protect them. Feeble as the chances seemed of accomplishing anything through the Privy Council after the Province Courts had deliberately refused to carry out the Royal Order, nevertheless, the next step was to petition that body for relief, and that the former order might be enforced.
This petition was presented 21 December, 1738. It recites the former proceedings, which concluded with the Royal Order, and then rehearses the attempts made by Leighton to secure its enforcement; avers that the order of the Court declaring that the subject required the most mature consideration, and referring this consideration to their next sitting, delayed the petition “another whole year;” recites the final decision of the Court, and then adds that the Superior Court, having thus taken near two years to consider whether they would obey his Majesty’s said order or not, and having at length declared they could not pay obedience to it, the petitioner had no other resort in that country but to apply to his Majesty’s Governor there (who was particularly charged to take notice of such order and govern himself accordingly); alleges that in the hopes that the Governor might make use of the authority with which he was invested, the petitioner presented a petition to him praying him to enforce the order, this petition being accompanied with the original Royal Order in the case; and states that notwithstanding this direct appeal to the Governor, he saw fit to refer the matter to his Council, a body not composed of appointees of the Crown, but of members elected from time to time by the Assembly. The action of the Council is then recited, and the statement is made that the Governor, on the eighteenth of September, approved this action with his own hand. The petitioner then goes on to say that in this very extraordinary manner, his Majesty’s said judicial order, made with the advice of the Privy Council, after the solemn hearing of the parties upon the appeal, had been deliberately and contemptuously defeated in the Massachusetts Bay, and all obedience thereto refused by the said Superior Court, by the Council, and by his Majesty’s own Governor of that Province, who had been particularly charged to take notice thereof, whereby the Petitioner was very greatly injured and aggrieved, and that in a case where he (at his own expense) was laboring to support his Majesty’s right to the woods reserved for the use of his royal navy; and not only so, but his Majesty’s Royal Authority had been wholly set aside, and more especially by the express declaration of the said Governor in writing that it was agreeable to his own sentiments that his Majesty’s said order should not be assisted or carried into execution; which the Petitioner humbly represents as a matter of the highest consequence to his Majesty’s just and undoubted authority in America, and the like instance whereof he conceived had not been heard of.
The petition was referred to a Committee of the Council, and counsel were heard as well in behalf of the petitioner as of the Governor, Council, and Superior Court of Judicature of the Massachusetts Bay. On the twenty-third of February, 1738–39, this Committee reported that the Royal Order had not been carried into execution either in the whole or in part, and on the twenty-second of March, 1738–39,178 it was ordered by his Majesty in Council that —
“the said former order, made by His Majesty at this Board on the twenty-ninth of April, 1736, upon the petitioners appeal against John Frost, be forthwith, and without delay, carried into execution, and that the said John Frost do immediately restore to the petitioner the money paid to him for damages & costs, and in case he shall refuse to comply therewith, that the Superior Court in the said Province do take the necessary steps to compel him thereto.”
The Courts were instructed to record this order as well as the former order; and the Governor was required to support his Majesty’s authority, and to cause every particular in the order to be, without delay, duly and punctually complied with. Fortified with this second order, Bollan, in behalf of his client, on the fifth of June, proceeded to make a demand on Frost as a preliminary for further proceedings. For this purpose he procured one Theodore Atkinson of Portsmouth to deliver, in behalf of William Leighton, the order of his Majesty in Council of date of 22 March, 1738–39, to John Frost, and at the same time Atkinson also delivered a power of attorney executed by Leighton, authorizing Atkinson to demand and receive the one hundred and twenty-one pounds damages, and four pounds eighteen shillings costs of suit which had been collected from Leighton. Frost delivered these papers to his attorney, one Noah Emery, who then and there read them word for word to Frost. Atkinson then demanded payment, and offered to give proper receipts, discharges, or acquittances. To this demand Frost replied, —
“I will not repay the said sums nor any part thereof but will stand the chance of an execution from the Superior Court.”
Afterwards, on the same day, Leighton personally made the same demand of Frost, with the same result. Frost then returned the Royal Order and power of attorney to Atkinson. Having thus established a basis for further action, Bollan presented a petition to the Governor, in which he recited the facts of the case which had taken place up to date. He announced his intention of appearing before the Superior Court at York at their sitting in June, in order that he might move for an execution, and also of appearing before the Inferior Court at their sitting at York in July in order to move for permission to change his plea. He presented the second Royal Order for the Governor’s inspection, and prayed him to support his Majesty’s authority. This petition was referred to the Council, and on the fifteenth of June they voted to recommend the Courts to proceed without delay and do that which to law and justice appertains. The Royal Order was returned to Bollan on the sixteenth of June. On the twenty-first of June, at a sitting of the Superior Court held at York, Bollan submitted this document to the Court. The Clerk of the Court, with sublime disregard for the part which the Court had taken in the contest, indorsed upon the back of the Royal Order, —
“His Matys second order in Councill on the Petic͠on of Wm Leighton complaining of the high contempt & disobedience shewn by Govr Belcher to his Matys former order in Councill. This ordr being produced by Mr Bollan was read in Court June 21st 1739.
Attt. S. Tyley Clerk.”
At the same time Bollan presented a Memorial and Petition based upon the Royal Order praying for an execution against Frost in order that he might be compelled to restore Leighton his money according to the Royal Order. Frost, through Noah Emery, his attorney,179 filed a written answer to this petition. He humbly prayed that nothing in his reasons and in his objections there mentioned might be taken as any contempt of his Majesty’s royal authority or as wilful disobedience of any of his Royal Orders, which he was then and always had been ready to obey in all things lawful and right as far as he understood them. For reasons why the Court ought not to grant execution, he alleged that under the Charter, power was given to pass laws and constitute courts. From the decisions of such courts appeals might be had to the Privy Council where the value of the matter in dispute exceeded three hundred pounds. In pursuance of this authority to create courts the Superior Court was duly constituted, and the act establishing it received the royal sanction. No power was conferred in this Act which would enable the Superior Court to issue an execution upon the judgment of another court; therefore the Court could not issue that execution. Further, it was provided that appeals from judgments in this Province to the Privy Council should lie where the matter in difference exceeded three hundred pounds. The defendant conceived that the meaning of this was that no appeal would lie unless the matter in difference should exceed three hundred pounds.180 If an appeal from a judgment in this Province should be obtained contrary to the Charter and to the usage in the Province, and if the parties to the suit should enter into an agreement to re verse the judgment and restore the money, still such agreement would not be binding on this Court, and the aggrieved party should pursue him who is faulty.
From the last point made by Emery it would seem that some claim was made by Bollan that the representative of Leighton had entered into some agreement before the Privy Council for the restoration of the money. This may explain the meaning of the words “upon the consent of all parties” which appear in the first Royal Order. We are, however, left to conjecture as to this, since Bollan’s “memorial & petition” is not among the papers now on the files.
On the afternoon of the twenty-sixth of June the Court took the papers of the case into consideration, and rendered the following decision: —
“A Memorial and Petition having been presented to this Court on Thursday last by William Bollan Gent., in behalf of William Leighton, Gentn setting forth at large an order of His Majesty in Council of the 22d of March last, and thereupon praying for an execution against John Frost in order to compel him to restore to the sd William Leighton the sum of one hundred and twenty five pounds eighteen shillings according to His Majesties said Order.
“The Court now taking into their serious consideration the said Memorial & Petition together with the answer of Noah Emery Attorney at Law in behalf of the sd Jno Frost are of opinion, that they have no authority by any Law of this province, or usage of this Court to order such an execution; and the provision made in the Royal Charter respecting appeals to his Majesty in Council dos not as they apprehend, warrant any such execution, but points to a method of another nature in all appeals to be made conformable to the sd Charter. This was, in effect the Judgmt of this Court when they sat in this County the last year, upon a motion made by the sd William Bollan in behalf of the sd William Leighton to the same purpose, upon an order of his Majesty in Council dated the 29th of April 1736; and the Justices of this Court now present, see no reason to depart from that opinion. As to the said John Frosts bringing on a review, or an action de novo, that so the said William Leighton may withdraw his former plea and plead the General Issue &c. By the Constitution of the Courts of Justice in this province, the action must begin first at the Inferiour Court, and so come to this Court by Appeal, and the Justices of this Court, when such Appeal comes regularly before them will unquestionably endeavour that Justice be done between the sd Leighton and Frost. And as to putting the Royal orders before mentioned upon the records of this Court, it appears by the Clerks minutes, that the Justices of this Court, receiving the first order, gave express direction for recording the same, and were surprised to find it was omitted, and they have now commanded that both the Royal Orders be forthwith recorded, and we shall take effectual care that the same be accordingly done.
“In the name & by the order of Court
“Samuel Tyley, Cler.”
With the sentence in the decision of the Court which reads, “The Justices of this Court now present, see no reason to depart from that opinion,” the dramatic interest in this case ceases. Two orders of the King in Council proved no more convincing to the Court than one. The alternative was presented of acquiescence on the part of the Council or of attempting to punish the judges. The case has never attracted the attention of our historians; we may therefore conclude that the Privy Council decided not to proceed against the judges. Perhaps they were satisfied with the reasoning of the Court. It seems to me obvious that the conclusion of the Court as to Shirley’s plea was either accepted by the Privy Council as good law, or they were willing to abide by the opinions of the Courts of the Province upon questions of practice like this. The decision was recited in the first Royal Order without comment, and the attempt was made to procure for Leighton some way in which he could avoid it by pleading so that he might offer his facts in evidence. While it is true that the dramatic character of the story ceases with the unflinching attitude of the Court when the second order was presented, there are one or two more facts in the case to be gained from the archives without which the story would be incomplete.
The decision of the Court was rendered on the twenty-sixth of June. The Inferior Court was to meet in York in July. A portion of the Royal Order was directed to that Court. Bollan therefore wished to get possession of the original order so that he might submit it to the Inferior Court. His motion to that effect was granted upon his promise that he would return the order to the Superior Court for record. The entry in the docket goes on to state that he received the said order the twenty-sixth of June, 1739, that he might exhibit the same before the Inferior Court for the County of York at the next sitting, when motion was to be made by the said Leighton to change his plea according to his Majesty’s Order aforesaid. This must have been a perfunctory performance on his part; for with the case transferred to the higher Court and the judgment there fully satisfied, there would not seem to be any way in which the Court could have granted such a motion. The order was, however, produced at the July term of the Inferior Court, and read and ordered by the Court to be recorded. Thus, practically, ended the case. Yet, once more, it raised its head. On the nineteenth of October, 1743, at Boston, the Justices of the Superior Court, having received a letter from Governor Shirley, complaining that the orders of the King in Council had never been carried into execution, gave order to the Clerk to prepare a draft of a summons or other process to notify the said John Frost, the party concerned, to show cause why the order of the King in Council, so far as it concerned him, had not been complied with, etc., and to lay the said draught before the Justices of the said Court, that so they might do what was proper thereupon. There is nothing to show that any further steps were taken. Even if there were, they would not be of interest to us. It will be noticed that the proposed process was to deal only with the question of Frost’s obedience to the Royal Order.
A discussion followed the reading of Mr. Davis’s paper, in which Mr. Abner C. Goodell, Jr., Mr. William W. Goodwin, and others participated.
Mr. Samuel Johnson called attention to a Decision of the Supreme Judicial Court of the Commonwealth affecting the Old South Society in Boston,181 which was omitted from the printed series of Massachusetts Reports.
On the back of the original paper, in the handwriting of Mr. Justice Ames, is this memorandum: —
As this case is one merely of fact, there may be no occasion to publish the opinion in the printed volume.
Commonwealth of Massachusetts.
SUPREME JUDICIAL COURT.
No. 858. Old South Society v. Crocker,
No. 859. Crocker v. Old South Society.
Suffolk. 29 March, 1876, 8 May, 1876.
Present: Colt, Ames, Morton, Endicott, Devens, JJ.
Absent or not sitting: Gray, C. J., Lord, J.
Ames, J. Under the decision already given in this case, the only question remaining for consideration is whether the proposed sale is reasonably required for the accommodation of the Society as a whole, and whether it can be carried into effect “without subjecting the minority to an unreasonable sacrifice of interest or convenience, or in any way working any injustice to them.” 119 Mass. 1. This question is brought before us upon an appeal from the decree of a single justice, with a full report of all the evidence taken at the hearing.
It appears from the Report that in April, 1869, at a meeting of the pew proprietors, a vote was passed in contemplation of the purchase of a piece of land upon which a new house for public worship should at some time be erected. Under this and other subsequent votes a lot of land was purchased, and a Chapel and a Dwelling-house for the Minister were erected upon it. Since the great fire of November, 1872, the Society has wholly ceased to use the old Meeting-house as a place of public worship, and shortly after that date, by special authority conferred upon the corporation by Statute 1872, chap. 368, the building was leased to the United States for a post-office. And in April, 1873, it was voted that the new Chapel and Meeting-house should be “the regular place of meeting for the public worship of God.”
It is insisted on behalf of the Corporation that however convenient and well adapted to its contemplated use the lot of land may have been at the time of the original gift, it has now become unsuitable and inconvenient. From the manner in which, under the authority given by Statute of 1845, chap. , all of the land except the Meeting-house and the land under it has since been occupied, it has become substantially impossible to erect upon it a Dwelling-house for the Minister; and the Chapel for the Sunday School is alleged to be inconveniently small and difficult of access. The place where the building stands has become one of the noisiest, busiest, and most crowded parts of the city.
The changes which result from the growth of a city, and the extension of warehouses, shops, hotels, and other places of business, or of public amusement, into localities once occupied by the dwelling-houses of families, are recognized as reasons which are sufficient to justify a religious society in the sale of its corporate property for the purpose of removing their place of worship to some better situation. In re New South Meeting House in Boston, 13 Allen, 497. Such a removal for such a cause is not a perversion of the trust upon which the property was held. In Sohier v. Trinity Church, 109 Mass. 1, a case in which real estate had been conveyed to a religious corporation “in trust to be used as a place of public worship,” it was held that the Legislature might authorize the sale of the property in order to raise funds to build a new church upon another site which the corporation deemed more convenient and agreeable.
We do not find in the evidence reported any reason to doubt that the votes on the subject of the new lot of land and the new buildings were legally and honestly obtained. We find no proof of any fraud, or surprise, or want of notice. Their manifest purport is that the new place of worship was to be substituted for the old one, and that the old one was to be finally and entirely abandoned as their place of worship. We cannot suppose that they intended to maintain two distinct churches for two distinct and separate congregations. Nothing of that kind is required by the terms of the original gift.
Upon the question of the necessity or propriety of transferring their place of worship to the newly purchased land, and selling the old church edifice in order to pay the expense incurred in building the new one, the vote of the majority of the pewholders or members of the Society, although not decisive, is nevertheless a consideration entitled to great weight. It is an expression of the deliberate judgment of the trustees, who must be supposed to be well acquainted with the condition and necessities of the Society, whose integrity is unquestioned, and who are acting in promotion of what they suppose to be the true interest and wellbeing of the entire body.
We see no reason in the report of the evidence for reversing the decision of the Judge who has reserved the case for our determination. It is in our judgment clearly proved that the old building had ceased to be a convenient and eligible place of worship for this society (as the recognized beneficiary under the trust created by Madam Norton);182 that the attendance upon the services in that building had greatly fallen off; that their numbers had declined, and that the prosperity and usefulness of the Society had been materially impaired in consequence of the disadvantages incident to the local situation of their church edifice. (It is not needful to inquire whether the old building is capable of useful appropriation to some other description of religious use, or for some other assembly for purposes of public worship.) We are satisfied that the proposed change was reasonably required for the accommodation of the Society as a whole, that it does no injustice to the minority and does not subject them to any unreasonable sacrifice of interest or convenience.
It is objected that the Petitioners ought not to gain any advantage in this litigation, by having built the new church at so heavy an expense, and thereby creating the necessity for raising a large amount of money from the trust property. It is true that they cannot thereby gain any advantage in court, but the view which we have taken of the matter does not depend upon any such consideration. We have endeavored to consider the question exactly as we should if the new lot of land had not been bought and the new church had not been built, and as if the proposition before us were merely whether the old building should be sold in order to build another with the proceeds, in another part of the city. It is also objected that the purpose of the sale is to build up a fund from the income of which the current expenses of the Society are to be paid. But we do not so consider it. It is, as already described, a sale of a church not adapted to the wants and circumstances of the Society, in order to build another better suited to their needs.
Whatever regrets therefore may be felt at the probable removal of a building surrounded by so many patriotic and historical associations, we are obliged to consider the case, solely with reference to the rights and interests of the immediate parties to this litigation. The rules which govern our decision must be exactly the same as if no special or peculiar sentiment of a merely patriotic character were associated with the building. In that aspect of the case, we see no reason for refusing the prayer of the petition.
Decree for plaintiff in No. 858. Bill dismissed in No. 859.
Mr. Appleton P. C. Griffin read the following paper dealing with the domestic and official relations which existed between Benjamin Franklin and John Foxcroft: —
The query, “Who was the Mother of Franklin’s Son?” has for a long time occupied unavailingly the investigations of the biographers of Franklin; but it is only recently that another problem in Franklin’s family history has presented itself for the researches of the curious. The letter, a copy of which I now communicate to the Society, is very brief, but presents significant material upon the career of Franklin, with a sidelight on our Postal history.
As introductory to the reading of the letter, perhaps I cannot do better than to refer to the following marriage notice: —
“Last Thursday Evening, Mr. Richard Bache, of this City, Merchant, was married to Miss Sally Franklin, the only Daughter of the celebrated Doctor Franklin, a young lady of distinguished Merit. The next Day all the Shipping in the Harbour displayed their Colours on the happy Occasion.”183
It will be observed that Miss Sally Franklin is called “the only daughter of the celebrated Doctor Franklin.” Our letter introduces a new claimant to the honor of holding the title of “daughter of the celebrated Doctor Franklin.”
PhiladA. feby. 2D. 1772
I have the happiness to acquaint you that your Daughter was safely brot. to Bed the 20th. ulto. and presented me wth a sweet little Girl, they are both in good spirits and are likely to do very well.
I was seized with a Giddiness in my head the Day before yesterday wch. alarms me a good Deal as I had 20 oz of Blood taken from me and took Physick wch. does not seem in the least to have relieved me.
I am hardly able to write this Mrs F joins me in best affections to yrself and Compts to Mrs Stevenson & Mr & Mrs Huson.184
I am Dr Sir
Mrs. Franklin Mrs Bache little Ben, ye Family at Burlington are all well I had a Letter from ye. Govr. yesterday.
To Benjamin Franklin Esqr
at Mrs Stevensons in Craven Street
J: Free: Foxcroft
To this may be added the fact, that in Bigelow’s “Franklin” (V. 202) there is a letter from Franklin to Foxcroft which has a closing clause the import of which has hitherto escaped notice, and which confirms the fact of the relationship that is conclusively stated in the letter before us. Franklin there says: “I find by yours to Mr. Todd that you expected soon another little one. God send my daughter a good time, and you a good boy.”
In Sabine’s Biographical Sketches of Loyalists of the American Revolution (I. 434) there is printed a letter from Foxcroft to Tuthill Hubbart,185 Postmaster at Boston, in which he says Mrs. Foxcroft and “my little girls are well.” This shows that Franklin’s prayer — “God send my daughter a good time, and you a good boy” — was not fulfilled as to the sex of the offspring. John Foxcroft, the writer of this epistle, was Deputy Postmaster-General, or, as sometimes called, “Joint Postmaster-General” with Franklin, from 1761 till the opening of the Revolution. The printed materials for his biography are scant; his name does not appear in the Cyclopædia of American Biography, and there is no printed history of his family. The following items, all from the Gentleman’s Magazine, are the only data concerning him which I have thus far collected: —
1761. Mr. Foxcroft of Williamsburgh, appointed joint Postmaster General of America with Benjamin Franklin LLD.
1770, August 2. [Married] John Foxcroft, Esq; deputy Postmaster general of North-America — to Miss Osgood, King’s-Street, St. James’s.
1790, Mar. 5. [Died] At New-York, John Foxcroft, esq. agent for the British packets there. The late Dr. Franklin and he were appointed joint postmasters-general of that province; which office, during the time of the American War, was abolished.
In regard to the lady who was Franklin’s daughter and Foxcroft’s wife, we have no information beyond what is afforded by this letter and the marriage notice, except that I am told by a correspondent that she was married as Miss Mary Osgood. It is possible that she is referred to in a tract by Hugh Williamson, called “What is sauce for the goose is also sauce for the gander,” published at Philadelphia in 1764. In this virulent work, directed against Franklin, there is an epitaph which the writer constructed for his opponent.186
Paul Leicester Ford, who brought this epitaph to notice in his skit, “Who was the Mother of Franklin’s Son?” finds in “The Foster Mother of his last Offspring Who did his dirty Work” contributory evidence to the solution of his query. The “two Angelic Females, whom Barbara also served” he does not undertake to identify. We are perhaps not going too far astray in hazarding the conjecture that this duet of “angelic females” was composed of Sally Franklin, afterwards Mrs. Bache, and Mary Osgood, who became Mrs. John Foxcroft.
An interesting feature of the letter under consideration is the form of the frank, which reads, “J. Free Foxcroft.” It will be remembered that the patriots used to find cheer and encouragement in the franking form used by Franklin, “B. Free Franklin,” in which they read an injunction from the great philosopher to “Be free.” It would appear, however, from Foxcroft’s use of the same form, that it was a device to prevent franking by unauthorized persons. The fact that so little has got into print about a man like Foxcroft, who performed important public service in the pre-Revolutionary days, shows that there is much to be done to set forth clearly our annals.
It may not be amiss to give here a picture of the Franklin ménage in 1755, drawn from an apparently impartial source. In the Diary of Daniel Fisher187 we find the following. After relating the circumstances attending his entering into Franklin’s employment as a clerk, Fisher says: —
“Mr. Soumien188 had often informed me of great uneasiness and dissatisfaction in Mr. Franklin’s family in a manner no way pleasing to me and which in truth I was unwilling to credit, but as Mrs. Franklin and I, of late, began to be Friendly and sociable, I discerned too great grounds for Mr. Soumien’s Reflections, arising solely from turbulence and jealousy and pride of her disposition. She suspecting Mr. Franklin for having too great au esteem for his son in prejudice of herself and daughter, a young woman of about 12 or 13 years of age, for whom it was visible Mr. Franklin had no less esteem than for his son. Young Mr. Franklin, 1 have often seen pass to and from his father’s apartment upon Business (for he does not eat, drink or sleep in the house) without least compliment between Mr. [sic:? Mrs.] Franklin and him or any sort of notice taken of each other, till one Day as I was sitting with her in the passage when the young Gentleman came by she exclaimed to me (he not hearing): Mr. Fisher, there goes the greatest Villain upon Earth.’ This greatly confounded and perplexed me, but did not hinder her from pursuing her Invectious in the foulest terms I ever heard from a Gentlewoman. What to say or do I could not tell, till luckily a neighbor of her acquaintance coming in I made my escape.”
Messrs. Andrew Cunningham Wheelwright, of Cohasset, and Albert Matthews and Charles Armstrong Snow, both of Boston, were elected Resident Members.