USA > Massachusetts > Suffolk County > Chelsea > Documentary history of Chelsea : including the Boston precincts of Winnisimmet, Rumney Marsh, and Pullen Point, 1624-1824, vol 1 > Part 42
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havior ten pound's himselfe & five pound's apeiee two Sureties: Vpon his request the Court aeeepted of his own bond . .. that hee would bee of good behaviour till the next Court of this County & would then appeare." (pp. 114, 115.) He was discharged from his bonds at the term of Court beginning May 29, 1673. p. 139.]
22 Original in Mass. Hist. Soe. Mise. Papers, 1628-1691, i. 67.
23 [Penelope Pelham, daughter of Herbert Pelham, and nieee of Mrs. Penelope Bellingham, married in 1657 Major Josiah Winslow of Marsh- field, Governor of Plymouth Colony from June, 1673, until his death in 1680. N. E. Hist. and Gen. Reg., xxxiii. 291. See infra, p. 407; supra, p. 398.]
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[CHAP. VIII
was proved and ye Deed Signd and Seald at ye Deputy Govern's they lett her Sitt as one unconcerned never pposing any thing to her or asking her one question of her Consent or willingness This m's Bellingham Declared to ye Depont in Mrs Eliz : Pelhams ? hearing who ye Depont beleivs Can Testify more fully heerin ffurther ye Depont sayth yt by Diseours wth m's Bellingham he und'stood yt ye Day before m's Pelham watched with ye Govern" They Discerned ye Govern" to be Discomposed in his mind and Disord'd in his memory : And ye Depont alsoe sayth That to the best of his Knowledge he never Deelared Hinted or Intimated any thing to ye Governr yt might pswade or Induce him to Deale unkindly with or Disinheritt his Son But Clearly ye Contrary giveing unto him sueh a Character & report of his Son as Seemd abundantly to Satisfy him and yt ye Govern" in this Deponts hear- ing manifested an affectionate & fatherly Kindness to him and Desire to haue him Come to New Engld.
taken vpon oath 10th 1th 72. before vs
Simon Bradstreet Assist Daniel Denison
The next day eame the
· Reply 25 of the Executors.26
A Narration of the Oeeasion of what the Executors unto the Last Will of Richard Bellingham Esq" haue done in referrenee to m''s Bellingham -
Major Winslow desiring the oppertunity to speake with us and also the Sight of the Will, Wee readily consented, and the next day after the ffunerall went to mrs Bellinghams house & there in the presence of mrs Bellingham, Majo! Winslow & Capt Corwin the Coppie of the Will was read; the first thing spoken to by Majo! Winslow was something about the Will that hee read but presently saith this is not my buisness for my Aunt is not willing to doe any thing to the blemish of her husbands name or to that purpose, but not a word was spoken of anything wanting in the elose of it as not declaring it to bee his last Will; but forth- with fell into diseourse about the change of the ffarme [the Shurtleff farm] given in the Will to mys Bellingham, wherin
24 [Elizabeth Pelham, youngest sister of Mrs Bellingham. N. E. Hist. and Gen. Reg., xxxiii. 290.]
25 [Presumably this and the foregoing paper were prepared independ- ently, - the one in support, and the other in contradiction of the charge made by Wharton, February 3, 1672/3. Supra, note 21.]
20 Chamberlain MSS., i. 19. [Copy attested by Isaac Addington, clerk of the Suff. Co. Court.]
.
407
CHAP. VIII]
GOVERNOR BELLINGHAM'S WILL
they made known theire disatisfaction alleadgeing it to bee but twenty pounds a yeare and also that the ffarme [the Cary farm] one Townsend rented at fforty pounds a yeare there was testi- mony to prove that the late Govo! promised before marriage to Leaue to his Wife and as a further proofe thereof it was usually ealled mrs Bellinghams ffarme & therefore deelared theire desire wee would consider of it & to exchange the ffarine of twenty for that of fforty and that would Satisfy; they also saide that otherwise the Widdow would fall short of her thirds, Whereupon wee consented; The next thing spoken to by them was the household goods, unto weh wee answered that what was fit & necessary for her use Shee should enjoy during her life, where- with they deelared they were contented & manifested they would rest in what wee had promised - but reply was made by us that eoneerning the exchange of the ffarme wee were not willing they should take our words, but desired Major Winslow to draw the conclusion of that in writing & wee would Signe & Seale it & for the goods they might take of words that wee would performe it and wtb this as to the Substanee of o! conference wee parted & never saw major Winslow since.27
Boston March 11th. 1672.
James Allen -
Penelope Bellingham. Anthony Stoddard John Oxenbridge re- membreth the maine
but not yt the eomon appellation of the ffarme was mentioned but perfeetly remembreth to his best observation about the goods there was noe mention nor motion of leaving all ye goods
Wee hope by what is aboue it will appeare that wee are far from combining to falsify our trust it being in speeiall in the Will desired that wee would take care of the Widdow, and also by what wee haue done there is noe injury done as yet to any eoneerned in the Will, when any are it wilbee then time for them to eomplaine to us or of us & wee doubt not to give them Satisfaction, and also as far from violating the Will in what wee haue done if that which is given mrs Bellingham in the Will reach not to her thirds, what haue wee done in consenting to that without a Sute, which if Sued for wee could not haue avoyded : Wee might enlardge but shall not further trouble the Honord Court, except further to con- firme what is saide by some testimonies & to desire that what wee haue done in reference to mrs Bellingham may, if the Court
27 [The paper signed by the trustees is given; supra, p. 398.]
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[CHAP. VIII
thinke mecte bec confirmed, that soe wee may bee free from the unjust Molestations of such as would bee Medlers with that that doth not concerne them.
In Wharton's depositions given above he related circum- stances tending to charge Rev. James Allen with having added to Governor Bellingham's will after its execution a clause nullifying all former wills, and Rev. John Oxenbridge and Mr. Stoddard, the other trustees, with a willingness to take advantage of this alteration. They in their reply, without expressly denying the circumstances, said that no such objec- tions were made to the will when Mrs. Bellingham and her nephew, Major Winslow, discussed its provisions in her behalf, shortly after the governor's death.28 They also intimated that Richard Wharton had better attend to his own business and not meddle with what did not concern him.
The whole proceeding was most extraordinary and, except for the evidence of it in these documents, incredible. The next stage is best told in the following paper, drawn by the clerk, Isaae Addington, in which he gives the aetion of the Court, and the viva voce sentence and recognizanee of Wharton, and his sureties.
The Second Hearing 29 At a County Court held at Boston by Adjourmt
March . 13tb. 1673.
M! Richard Wharton, being called to prosecute his charge Ex- hibited this Court, against m' John Oxenbridge, m' James Allen & m! Anthony Stoddard (for falsifying theire trust to & violating the late Governo!'s Will) according to the Court's declaring, (theire now Expectation thereof) at theire former Session, when they Sentanced him to the good behaviour : m! Wharton refused to prosecute, without the Court would authorize him in behalfe of
28 [This defence by the trustees, prepared in answer to the charge made by Wharton February 3, 1672/3, that they had violated the Gov- ernor's will by their agreement with Mrs. Bellingham, would not prop- erly take notice of the earlier charge that Rev. James Allen had added a clause to the will. It was natural, however, for the trustees to refer to the matter as they did to preclude the inference of duress. Infra, note 30.]
29 Chamberlain MSS., i. 21. [Attested copy by Isaac Addington. clerk of the Suff. Co. Court, of the record in Suff. Co. Court Rec., 1671-1680, cited above, 117.]
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CHAP. VIII]
GOVERNOR BELLINGHAM'S WILL
the Country & gave this as one reason thereof hee was loath to put in his Evidences, because hee must bee at the charge of taking them out againe: Vpon which the Court enjoined him as fol- loweth : m. Richard Wharton the Court having formerly tried you, with onely expressing themselves as expecting yo! prosecution of yo! Charge exhibited this Court against in! John Oxenbridge mª James Allen & in" Anthony Stoddard & you still persisting in yo! declining of it: the Court doe therefore require yo! prosecution of the saide Charge at Aprill Court next & declare that yo! bonds for the good behaviour stand good till that time. mn" Wharton appealed to the next Court of Assistants & gaue bond to prosecute accordingly. Richard Wharton you as principle in five hundred pounds & James Whetcomb & Arthur Mason as Sureties in two hundred & fifty pounds apeice, acknowledge yor Selucs respec- tively bound to the Treasuro" of the County of Suffolke & his Successo!'s on condicon that you Richard Wharton shall prosecute yo! appeale from the injunction of this Court at the next Court of Assistants to Effect. & in the meane time that you shalbee of good behaviour.
All which the persons aboue named did oblidge themselues to in Court. March . 13º . 1673. Attests I. A. C.
This also was a singular proceeding. The faets seem to be these: Richard Wharton, claiming to be the attorney of Samuel Bellingham, fancied (for I cannot think there was any foundation) that James Allen had tampered witlı Governor Bellingham's will. These suspicions, with the facts which seemed to give color to them, afterwards embodied in the deposition which we have read, he made public, whereupon he was indicted for slander or libel, and convieted. This trial was a mistake; and so the court, I think, saw on reflection ; for there was nothing indietable in the paper. He made no charges, but simply related eertain faets about Allen's with- drawal of a copy of the will after he had given it to Wharton to send to Samuel Bellingham. At all events the court did not sentenee him after the verdict of the jury, but illegally and absurdly enjoined him to prosecute his charge (as. though he had made one) against Allen and his associates at the adjourned court, and put him under bonds to that effect, as well as to be of good behavior.30
30 [See supra, proceedings in the County Court February 3, 1672/3; infra, Wharton's Reasons of Appea' ; the Court of Assistants. These
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[CHAP. VIII
The object of this proceeding is not altogether clear from the papers, but is open to surmise. If Wharton had charged the trustees with altering the will, which would be forgery, that would be an indietable offence for which, on conviction, he might be punished. But Wharton, not to be caught in that trap, said in effect, " authorize me to make this prosceution in behalf of the government, and then I am ready," for then he would be protected as are all officers who, in the discharge of their official duties, make libellous charges. This not answer- ing the purpose of the court, he was commanded to proseeute in his private eapaeity. From this order he appealed to the Court of Assistants. In those days the appellant gave in writing the reasons of his appeal. These I have not found.31 To them the other party filed an answer, from which may be inferred Wharton's reasons, though obviously garbled by Addington.
[Reasons of Appeal of Richard Wharton
Richard Wharton his Reasons of appeale from the Sentence of the County Court held by adjournmt. March 13. humbly craving liberty for defence and replication to such answer as may hereunto be given, & time to make Such further pleas in matters of Law, and proofe in matter of fact, as the Case may require -
For as much as the Appellant, as a freind and Attourney to Dr Samuel Bellingham appeared to enter exceptions agt the pre- tended will of the late Gov'n' Richd Bellingham Esq! deceased, & upon hearing and Sight of the Said will at the time of probate
documents were not scen by Judge Chamberlain. The trials at the January and the March terms of the County Court differed. At the first Wharton was convicted of slandering Allen by insinuating that he added a clause to the Governor's will. At the second, Wharton refused to prove his so- called charge, made during his defence in the first trial, that the trustees had violated the will by their agreement with Mrs. Bellingham. Obviously Wharton had no interest in protecting the will from violation; what he desired was its nullification. Governor Leverett had been present when the trustees signed the agreement with Mrs. Bellingham, and had given it his countenance. ]
31 [Richard Wharton's Reasons of Appeal have been found in Suff. Early Court Files (No. 1353) in the Office of the Clerk of the Supreme Judicial Court for Suff. Co. They are placed in the text in brackets. They are in the handwriting of Richard Wharton, with an endorsement by Isaac Addington. ]
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CHAP. VIII]
GOVERNOR BELLINGHAM'S WILL
did to the Honrd Gov'n' that now is the Worshipfull mr Ting & m" Stoughton, in the presence of mr Oxenbridge mr Allen & m" Stoddard, manifest a Strong suspicion yt Some addition had been made to the will after it was Sealed, and then offered some reasons of his Said suspicion, and afterwards upon occasion of dis- course with Some reputed freinds concerning the said will, the Appellant declared his sd Suspicion, which being reported, the Grand-Jury Contrary to the Appellant's Expectation, and as he humbly conceives contrary to the Course of Law & proceedings in like information, in stead of the pty suspected or charged for making such addition presented the Appellant for speaking the afores! words as slanderous and reproachfull, & Contrary to Law title Heresye, Sect. 7 : And the Appellant being called to answer the said presentmt, desiring time yt he might bring in testimonyes, & yt he might have a Copye of the presentmt whereby he might be able Securely to answer for himselfe : & in the Countryes be- halfe proove wt he had declared, was denyed both & brought to his tryall, & therein had unExpected opposition and discounte- nance, So yt he was provoked, & necessitated, being denyed the benefit of further proofe; to make the best & most earnest em- provemt of those he then had which he declared he thought sufficient grounds for his Suspicion & beleife in which he was con- firmed by some foul Cariages Concerning the will, which words foul Cariages , were by the Honrd Gov'n', though neither pson or fact were named or expressed, taken hold of and improved as a charge agt some psons, and there upon the Appellt was required by his hon! to name the ptyes guilty of foul Cariages, but the appellt unwilling to bring further reproach upon the psons con- cerned, craved excuse, declaring it were better for the psons con- cerned to be concealed then named : But his hon" strongly insisted upon it, & upon the Appellts unwillingness told him, - except he would name the psons his Case was with the jury, though his Testimonyes were then detayned in his hon's hands. And the appellt pceiving yt noe plea or proofe was further to be given in Except his Hon's Demands as above were answered, & the Jury being like to pass upon his accusation without his defence, he was most unwillingly forced to declare yt mr Oxenbridge, mr Allen, m" Stodder were the psons Intended in his Speech : And the Gov'n' requiring an Explication of the foul Cariages, the Appellt in obedience thereto Complayned, & declared yt they had falsifyed their trust to, & Violated the Gov'n's will if a will : which Declar- ation the Gov'n' Commanded the Clerke to Enter, & Immediately required the Appellt to proceed to the proofe of the charge, as he was pleased to Call it. But the Appellt being not fully lieard, nor
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[CHAP. VIII
any of his Evidences given in to the Jury upon the Presentmt, Craved Excuse & liberty to proceed upon his defence; Answering, yt when the first was ended, he should attend w the Court should legally require therein : upon which ye Appellants pleas were admitted, but his proofes & Testimonyes were restrayned for yt time. Afterwards, ye Appellant by the Gov'n' being required to prosecute the charge as it was called he replyed, yt if the Court would form his words into a charge and direct him upon wt law he might prosecute he should be obedient, or if the ptyes were aggreived, and looked upon themselves Slandered, if they pleased to Enter their action, he would joyne Issue with them, and leave the tryall to the Same Court & Jury; but the ptyes Evaded any such tryall. Againe the Gov'n' pressed and required the Appel- lants prosecution, upon which he replyed as bef! he was either in the Countrye's behalfe if they would impower him & direct to a law, willing to prosecute, or to joyne Issue with the ptyes upon their action, for then in case he proved agt them, he Knew where to recover his charges. But to prosecute in any illegall way he would not: Which last words (But to prosecute in any illegall way he would not) being spoken with some earnestness, but conjunct with the aforegoing, were by the Gov'n's Command entred alone, and being taken disjunct, and that Necessary Connexion they had with the former being cutt of, They then made Such an irreverent Sound, as to be Construed a Contempt of Court, & were the onely Cause, the Appellant Knows, to Committ him to Prison without liberty of Appeal, Bayle or mayne-prise for 24 hours, whereas the Appellt intended all due hon! to the Court & humbly hoped yt his answer being taken conjunct would not import any matter of offence. That upon the Appellant's release out of prison he was Sentenced to be bound to his Good Behavir till the 13 of March following, & then to appear. And in the said Sentence the Court did declare that then they Expected yt he should prosecute the charge agt the Gov'n's Execut!s &c. and upon reading the said Sentence The Worship" Mr Stoughton declared yt the Appellant was not thereby bound, but he might choose whether he would prosecute or no, onely it was the Courts Expectation yt he should : Vpon which ye Appellt unadvisedly Submitted to the Sentence, concluding yt he had been bound to the Honrd Court of Assistants in March & there should have had oportunity of a full hearing ; The County Court being not then adjourned and their adjournmt till after the Court of Assistants not Easily to be foreseen, being an adjournmt for ought the Appellt can undrstand without presidt, & how Legall soever it may be, yet the presidt may be of bad Con- sequence, & frustrate psons of yt Speedy releife by appeals which
413
GOVERNOR BELLINGHAM'S WILL
CHAP. VIII]
.
the Law in the Constitution of this Court intended, by making cases terminable but once a year. But the Appellant presently after he had declared his Submission to the Sentence, recollecting himselfe befr the adjournmt of the Court tendercd his appeal, which was refused, upon which he withdrew, and againe a 2ª time upon advice went up to tender his appeal, but the Door being Shutt the Appellant desired the officer yt attended, to acqt the Court, yt he humbly craved leave to Come in, but the Marshall or officer upon his returne from the Court proclaimed the Courts adjournmt, and then the Appellt had admission but was denyed his appeale. That at the adjournint of ye Court upon the 13 of March, which was after the Court of Assistants was ended, the Appellt appeared, & being required to prosecute the Charge, as it was Called, agt the Gov'n's Exrs with due hon" & Submission to the Court The Appellt declared, yt if the fact complayned of were not Criminall, neither was he in Complayning of or declaring it, but if it were Crim- inall, & the Court would impower him in & upon the Countryes be- halfe, & charge, & direct to a law upon which he might prosecute, he was therein willing to serve the Country, or if the ptyes pleased to Commence an action agt him he was willing to Joyne Issue, but upon his owne charge & without a warrant of the Law, he could not answer the Courts Expectations, upon which the Court, with- out any tryall or hearing by a jury (who the Appellt Conceives the proper judges of matter of fact) Sentenced him to prosecute the said Charge, so called, at Aprill Court next after & that till then the Bonds of Good Behavir, should stand Good, from wch Sentence the Appellt tendered his appeal but could not obtayne the Entry thereof without bonds of 1000" both to be of Good behavir & to prosecute the appeal. And now the Appellt having in ordr to the reasons of his appeal, faithfully & with as much brevity as the matter will allow, given a Narrative of the Case upon which he hath been proceeded agt, & punished which if need be may be more largely & particularly declared & proved, humbly Craves the Honrd Court [&] Jury Seriously & patiently to Consider the Same, with the Reasons following -
Reason.
Marr. of : ye law. 2ª pt
1: The Appellant in his plea onely inti- mated some foul Cariages, yt strength-
fol : 50 : ened his Suspicion, which words were dark & uncertayne; neither pson nor fact being mentioned, and the law of Engld & Reason tells us , yt words are not slanderous or actionable except they be 1. pticulr. 2. Ex- press or imply an affirmation. 3. sufficient Certainty both in the
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HISTORY OF CHELSEA
[CHAP. VIII
thing & pson charged, 4. Plaine. 5ly The thing must be directly & in plaine termes and not by inference or argumt applyed to the pson charged. 6. The things charged must be Such as if true, are agt some Law, & the pty thereby to be punished. 7. The partyes must have 'some Speciall prejudice. 8. The words spoken must be out of a Course of Justice. But how farr the Apellants Words fell short as to all these is humbly left to Judgemt; as to the affirmation or Declaration yt in" Oxenbridge, mr Allen, & m" Stoddard had falsifyed their trust to & Violated the Gov'n's will, if a will; these words were spoken in obedience to the Gov"nrs Instant Demand, & for the Reasons abovesaid the Apellant Con- ceives him selfe not Culpable. However the words spoken taken in the most extensive Sense, (amounting not to Scandalum Magna- tum) cannot be Slanderous or criminall, for they charge the ptyes with no Speciall nor pticul' crime nor any fact agt any law by which they are punishable, and the words were spoken in a Course of Justice & upon the instant Command or demand of the Judge, & in the Appellants Plea. And the Learned Judges of England tell us, yt if a minister Preaching recite a history, or a Lawyer Marrow : of ye pleading, doe innocently & pertinently Speake law 2d : pt. words whereby a man is charged with a crime & it prove false, this is not actionable, & Conse- fol : 47: quently not punishable, & if so grcat a liberty be allowed to ministers & Lawyers, The Minister having taken his, it seemes not Reasonable yt one Standing both in the place of a lawyer & a delinquent (to the last whereof the Law allows largest liberty in pleading) Should be abridged or punished for his obedience to authority or fair pleading, but Scemes Contrary to a Statute 52 Henry . 3. 11.
2. The Appellt made no Complaynt nor charge agt mr Oxen- bridge & m" Allen as Ministers, nor agt m' Stoddard as a Com- missioner, nor as in any of his Several publick Capacityes, but agt them, as they call them Selves, the Gov'n's Excs. But in Case the Appellants words should amount to Scandalum Magnatum, which is onely against Some Duke, Earl, Baron; Chancel", or
Marrow. of ye law 2ª other cheife officer of the Realme, yet the pt fol : 50 : Cooke Law provides no remedy for them, till they 5 : 125 : Old booke bring, & recover by action, agt the pty of Entryes : 593 Slandering and defaming them, & after they have recovered by their action, & not before the Law Saith, the pty shall be otherwise punished, nor doth any Indictmt lye against any man for defaming the Greatest peer or Prelate in England, except it be in the nature of a Libell; But the matter, manner, occasion, & place being as af"said, no
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?
415
GOVERNOR BELLINGHAM'S WILL
CHAP. VIII]
New. booke. of ) Cook : Such thing can be charged upon Entryes fol : 22 | 4 : 16 : Marrow of ye law. 2d pt the Appellant : And the Judges of England have determined for say- 14 Chapr - fol : 68-5 ing to a Justice of peace, (you have not dealt honestly about a .will) there lyes no action & Consequently no punishmt, And it is to be Supposed that a Justice of peace in England , would have at least equall respect & dignity with these Executrs.
3. If to falsifye or Violate a will be no crime, then it cannot be Criminall to make Complaynt or report thereof. If it is a crime then it is agt King or Countrey & the Charge of Discovery or prosecution ought to be upon yt acco & due inquisition & Exami- nation to be made Concerning the fact, & the pson informing or Complayning to be incouraged and assisted by authority & meet psons appoynted for prosecution. But the Appellant must needs conclude this no Crime against King or Country, for yt he hath had no Countenance nor assistance from authority, and although a petition hath been presented to this Honrd Court & other appli- cations made to Authority, yet no Examination could be obtayned whereby to make Such a full discovery, as in the King's or Country's case is requisite -
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