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 43
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4. ffor yt The Appellant hath alwayes declared his readyness to yeild obedience to the Court in prosecution, provided they would thereunto impower him, & direct him to a Law for his warrant, yt so in Serving the Country his charge might be borne by the Country, our owne Law & the Law of Nations & Reason telling us yt no man shall be Compelled to Serve the publick upon his owne Charge : & for yt the Appellant hath also offered the ptyes to joyne Issue with them if they would Enter an action, which if they be injured, is the onely means ye Laws allow for their releife: after which, in case the Appellts offence should be found Scandalum Magnatum, besides wt damage they might recover, the Appellt might have had the Sentence he now appeals from, or other fitt punishmt inflicted.
5. ffor yt ye Appellt, being not Convicted of the Breach of any Law, is Sentenced to a very Greivous and reproachfull punishmt, tending to his Great damage, disparagemt, & for ought he Knows, to the ruine of his reputation & livelyhood : Therefr he humbly Craves the Consideration of these fundamentall Laws made agt arbitrary proceedings & punishmts in Magna Charta; That a freeman shall not be amerced for a Small fault, but after the manner thereof, & for a Great fault, after the Greatness thereof : And no amerciamt shall be assessed upon any man but by the oath of honest, lawfull men of the Vicinage. Chap. 14. And
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Ch. 29. No man shall be taken, or Imprisoned or be disseised of his free-hold or libertyes or free Customes, or outlawed, or Exiled, or any other way destroyed but by the lawfull Judgemt of his peers, or by the Law of the Land. From the authority & Reason of which laws is derived yt first & most just & defensive Law in of Law - Booke, to which Every English-man hath in his Capacity equal right, & by which their lives, libertyes, peace, & priviledges, are onely Secured, & Contrary to which the Appellt humbly Conceives himselfe to be proceeded agt & punished.
Wherefr he humbly Committs his Case & Reasons of Appeale, to the Just & Judicious Consideration of the Honrd Court & Jury for Releife. Praying for such divine direction to & blessing upon your determinations & administrations, as may make them Con- dueible to the Hon" of God and this Court, and agreable to Justice, & to the peace, priviledge, & prosperity of the people.
Riehd Wharton These Reasons were reed : August : 27th 1673 Isaac Addington Cler]
The answer was drawn in behalf of the court; and this, so far as I have noticed, was the first time that the court appeared as a party in a eriminal complaint. 32
Answers to m! Richard Wharton his prolix impertinent & false Narrative of his Severall eases, & pretended Reasons for his Appeale in the present ease.33
Whereas in his preface hee eraves liberty for further pleas in mat- ters of law & proofes in matter of ffaet Answer the law allowes noe further pleas or proofe then what were made use of in the ease before the Court appealed from, & this the Appealant well under- stands, yet willing to pervert the most known Law to serve his own designe: and as to matter of ffaet ; Answer heres noe matter of ffaet upon tryall, therefore not triable by a Jury (they being proper judges of matter of ffaet) the injunetion of the Court laide on the Appealant which hee ealls a Sentance being not for matter of ffaet, but for want thereof. His first page which might well fill three pages of Ordinary writing (which is absolutely contrary to law title Appeals. seet : 2. which saith the party appealing shall breifely in writing (without refleeting on Court or parties) give
22 [Technically the question involved was whether the County Court could enjoin Richard Wharton to prosecute the trustees on the charge that they had violated the Governor's will. It was thus an appeal from an order of court. Yet this order of court would have compelled Wharton to institute a criminal prosecution.]
33 A. D. S. Chamberlain MSS., i. 23.
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417
GOVERNOR BELLINGHAM'S WILL
CHAP. VIII]
in the grounds or reasons of his appeale) is an abusive most un- worthy & partiale relation of precedent eases, which are not und! the cognizance of this Court; wherein hee addes to his former practice in reviling & reproaching m! Allin, as not content with that, but now takes upon him to reproach. 1. the Grandjury in saying they presented him contrary to law, not withstanding him- selfe knowes, the crime they presented him for hee put himselfe upon tryall of by a Jury & was by them founde guilty. 2ly. The Court in his insinuating theire denying of him a legall hearing of . his pleas & proofe & theire necessitating & forceing of him to the breach of law in reproaching in! Oxenbridge m! Allen & m! Stod- dard, by making such a charge publiquely against them & that the Court did restreine his proofes & testimonies from the Jury & that in perticuler the Gov". comanded the Clarke to enter part of his words disjoined from the foregoing to render him guilty of con- tempt : which the appealant can not but know to bee untrue; hee makes also a false recitall of the words spoken by himselfe in Court & there entred : by all & of every of which misdemeanors (if it bee possible for a person under bonds of good behavior by words in writing und! his hand to breake his bonds. then cer- tainly the Appealant must hereof need's bee guilty, which J leaue to the judicious consideracon of this honrd Court. As to his first pretended Reason though it's not at all to this case , the words spoken publikely agst m! Oxenbridge m! Allen & m! Stoddard doe & will appeare to bee approbrious slanderous & actionable & that according to the same law of England & reason himselfe recites , for that they were perticularly expressly & certainly chargeing persons known, in plaine terms with falsehood & unfaithfullness in theire trust; which if true, would bee to the great dishonor & noe small prejudice of theire persons & punishable both by the laws of god & man which words were not spoken in a course of justice as hee pretends, but on purpose to vilify & reproach theirc persons, thereby to alleviate his own crime; the Appealant herein allowing himselfe the overlardge liberty of a lawyer & delinquent, thinking to excuse it, with his abusive pretence of obedience to Authority or faire pleading : To . his 2ª. whereas hee sth hee made noe charge agst mª Oxenbridge & mª Allen as ministers . Answer or law provides as well against reproaching the persons as Offices of ministers; the Appeal! having reproached such : Jn his third pretended reason hee takes that Liberty to himselfe, which hee hath pleaded for & which this honrd Court will not allow. viz! as formerly to abuse & reproach the Courts, soe now this very Court also, in easting his unworthy & undeserved aspertions upon them, saying that this Court hath already judged or implicitely VOL. I .- 27
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granted that the falsifying of a trust & violating of a will is noc crime wch is indeed such a high crime, as all men that haue but the shew of religion or civility, & much more this hond Court doc abominate : Jn the Managemt of this Argument the Appealant hath proved himselfe a meane Sophiister, & that his skill in syllo- gizing is but small in taking In-Artificiall arguments to proue his assertions, who will not stand by him, but to his face deny what hee asserts concerning theire testimony, & all the seeming strength of his argument is grounded upon this, that the last Court of Assistants would not bec drawn out of theire Ordinary course of justice & judicature (to meddle with matters not und! theire cog- nizance) by the impertinent applications of the Appealant in his petition to them; neither doe they by theire not countenansing of him in answering his petition, grant that to bee not criminall, which is indeed soe apparent a crime. As to his 4th Jts too well for the appealants credit known that all his actions speeches & behavior in the transaction of this buisness haue apparently Rendred him not onely disobedient but contumaciously obstinate & argue a soure imbittered and perverse spirrit against the Author- ity here Established. And whereas hee stb of law the law of Nations & reason tells us that noe man shalbee compelled to serve the publique on his own charge J Answer that the injunction of the Court doth not compell the appealant to serve the publique at his own charge but in favor giues him a liberty to serve himselfe in defending his own case; which is criminall by of law; & if hee hath nothing to say for himselfe the Judges might haue proceeded to Sentance against him according to that law & by theire injunc- tion they show they were willing to hear before they judge. To his 5th & last pretended Reason Wherein hee insinuates that hee is Sentanced to a great & grevious punishmt tending for ought hec knows to the ruine of his reputacon & livelihood. J Answer the Appealant is not yet Sentanced for this crime; that is yet to come in time & place proper for it, unless the Appealant then use better pleas & arguments to waue it then as yet hee hath done : Jt's true hee is und" an injunction of Court to prosecute his charge & the Court saw cause to continue him in bonds to the good be- havio! till hee did proseeute that eharge, which is in it selfe not onely scandalous & actionable as to the persons charged, but also according to of law criminall & therefore just reason to oblidge him to good behavior untill it was brought to the tryall & if to bee of good behavior tends to the Appealants great damage & ruine ti's pitty but that hee should finde out a better way for his liueli- hood : But J hauc (by the Appealants prolixity) been drawn to spend too much time in a discourse too remote from of buisness
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GOVERNOR BELLINGHAM'S WILL
CHAP. VIII]
for which J crane excuse : for the Issue lies in a very narrow compass. vizt whither all the circumstances & aggrevations in the case considered the Court had power and Authority to lay such an injunction upon the Appealant & then hee appealing from that injunction it being in a criminall casc hee ought to give in bond to prosecute & also to bce of good behavior till hee hath soe done ; which not being matter of ffact, but of law & concerning the power hono! & Authority of the Court J humbly conceive it by or law not triable by a Jury which J leaue to the hono!d Court to consider of & Subscribe.
Postscript. Jn behalfe & by Order of the County Court of Suffolke - Isaac Addington Cler
Whereas it's objected that this is a president a case un-
heard of & noe record can bce founde of
the like in any of o! Courts J Answer that scarce any one County Court passes in a yeare but there are severall such cases brought to it : for it's well known that if any person make a complaint against another to a single Majestrate hce heares his complaint & also bindes him over to prosecute that complaint. Now in this case the Court was more favorable to the Appealant & did not binde him to prosecute his charge but onely by vertue of theirc Authority enjoine him to doe it without any penalty : and if one single Magestrate hath power to require bond then doubtless a County Court hath power barcly to require a prosecution.
I: A.C.
The result of this case before the Court of Assistants does not appear.34
34 [The records of the Court of Assistants for this period are missing. In Suff. Early Court Files is a fragment (No. 28,638) endorsed "Jurjes verdict," which reads, -" In the Case of Mr Richard Wharton Appealant the Jury ffinds Revertion of the fformer Sentence." This may be the verdict in the case. Whether Wharton's appeal was tried before a jury or not, it is certain from the recently discovered records of the County Court that Richard Wharton did not prosecute this so-called charge in the lower court. The order was issued by the County Court in March. The appeal therefrom did not reach the Court of Assistants until Sep- tember. It had then become ineffective, as three appeals lay in cases in- volving the interpretation or validity of the will. (Infra, chap. ix. and appendix.) Missing papers may be discovered in the future that will eluci- date this case, as the Early Court Files are still incompletely indexed, and are not open to examination.]
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.
CHAPTER IX
CONTEST FOR THE BELLINGHAM ESTATES BEGINS
A S we have seen, Governor Bellingham died December 7, 1672. IIis will, dated November 28, was probated December 19, and January 24, 1672/3, Wharton made his deposition impugning its validity. Neither party claiming his estate, Richard Wharton for Samuel Bellingham the heir- at-law, or James Allen, the most active of the executors and trustees under the will, waited for the daisies to grow upon the old governor's grave before beginning the contest. Each deemed it important to take possession of the lands by putting tenants on the several parcels to hold under the respec- tive claimants. The governor owned lands besides those at Winnisimmet, not disposed of by his will. Among otlier estates was a pasture on Boston neck, into which according to the testimony of Peter Lorphlyn 1 and James Pennyman 2 they, with Richard Wharton and John Blake, went peacefully December 31, 1672, and without opposition ; and when there Wharton gave possession thereof to Blake in the name and for the use of Samuel Bellingham, and asked Pennyman to nail up the gate, which he did, as he said. The evidence of this tak- ing possession was written and sworn to June 3, 1673, in the Court before which the case, soon to be mentioned, was tried.3
On the day of taking possession of the Boston pasture " Richard Wharton, Attourny to Doctor Samuell Bellingham, the onely sonne & heire to Richard Bellingham," on the one part, and John Blake of Boston, shopkeeper, on the other, made an indenture of lease of the same land, described as " all that peece & parcell of pasture ground late belonging to the
1 Peter Lorphlyn, or Lorphelin, was, Savage says, Gen. Dict., iii. 119, " A Frenchman, put in the pillory 1679, for clipping money, and probably went away as soon as he could." He had been in Boston six years at least.
2 See O. A. Roberts, Hist. of the Anc. and Hon. Artillery Company, i. 224.
Chamberlain MSS., i. 29. [Infra, p. 430.]
1
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CONTEST FOR BELLINGHAM ESTATES
CHAP. IX]
saide Richard Bellingham Esq" lying in the South west ffeilds or lotts belonging to the Towne of Boston, neere the highway leading to Roxborough & is fronted by the land of James Pennyman & the house & land wherein Angola 4 the Negro dwells & by a narrow passadge along by the dwelling of sd Angola leading to the sd pasture, which containes by Estima- tion two acres & a halfe." The lease was for a year, and the rent fifty shillings, with abatement for repairing the fences about the grounds.5
The title of the trustees in the Boston estates does not ap- pear, since only those at Winnisimmet were devised to them by the Governor's will.6 Nevertheless three months later " sometime in Aprill," 1673, Anthony Stoddard, one of the trustees, not knowing, so far as appears, of the entry for Dr. Bellingham, or of the lease to Blake, went into the same pas- ture with Captain Edward Hutchinson, and gave him pos- session thereof " for one whole yeare." The witnesses to this entry declare that Stoddard said he acted " with the consent of the other Executors." 7 As will appear in the record of the appeal, a point was made of their absence. Captain Hutch- inson being tenant, as he supposed, turned "a bay horse " into the pasture, which John Blake no sooner discovered than he clapped him into the pound. Captain Hutchinson
4 Of this " Angola the Negro " Governor Bellingham said, - " he was the onely instrument that under God saved my life, comeing to mee with his boate when I was sunke in the River betwene Boston & Winisimet, severall years since, & layd hold of mee & got me into the boate; he came in and saved my life, which kindnese of him I remember; and besides my giveing him fifty foot square of my land, to him and his, I shall see hee shall not want whilst I live." (Boston Rec. Com. Rep., v. 23, note.) [Also Suff. Deeds, L. 8, f. 298. April 20, 1654, Angolla, a negro servant of Captain Robert Keayne, was married to Elizabeth, a negro servant of Edward Hutchinson. (Boston Rec. Com. Rep., ix. 48.) Captain Keayne left by will 40s. to Angola (Ibid., x. 25). In 1675 the estate of Angola Negro was settled by the Suffolk County Court on Elizabeth, his widow, for life, with reversion to his children. (Court Records, 1671-1682, 315).] 5 Chamberlain MSS., i. 15; infra, p. 429.
6 [At the April term of the County Court in 1673 the trustees pre- sented an inventory of Governor Bellingham's whole estate. It was accepted by the court, although with the exception of the life interest of Mrs. Bellingham in the mansion house the disposal of the lands in the peninsula of Boston, and of the personal estate of the Governor was in no wise provided for by the will. See infra, p. 427.]
" Chamberlain MSS., i. 27. [Infra, p. 430.]
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replevied the horse, giving bonds with Stoddard as his surety and put the horse back into the pasture again, out of which Blake once more led him back to the pound, and Hutchin- son once more resorted to his writ of replevin. The battle over the Bellingham estate, thus joined, began at the July term of the County Court 8 at Boston, in 1673, and raged inter- mittently until August 28, 1787, one hundred and fourteen years.
In this first encounter in the County Court it is evident, though the proceedings are not found,? that the trustees were cast and took an appeal to the upper court; but the reasons of appeal and answers thereto I give entire, though I have intermingled them so that they may be seen in immediate sequence. The ease was made to turn on the priority of pos- session, the law being that the party in possession held until another proved a better title.
" Edward Hutchinson his Reasons of Appeale from ye County Courts Judgemt in July last in a caise of Replevin betwixt Edward Hutchinson & John Blake "; 10 and " John Blake his answer to Capt Hutchinson's Reasons of Appeale.11
8 [The two replevins, which Judge Chamberlain notes above, were to different courts, the first to the County Court which met in July, the second to the Commissioners Court in June. The latter was a local tribunal for the town of Boston, established in 1651 to lessen the pressure of business in the County Court. The judges were elected annually by the freemen of Boston, and were confirmed by the Court of Assistants. Captain Thomas Clarke, Richard Parker, Humphrey Davy, Lieutenant Richard Cooke, Anthony Stoddard, Captain Edward Hutchinson, and Lieutenant Thomas Clarke had been chosen by Boston in October, 1672. In civil actions the court had jurisdiction in suits where the value of ten pounds or less was involved. It could, therefore, consider only the right of possession not the title to the land in question. At the Commissioners Court in June judgment was pronounced for Captain Hutchinson, and John Blake appealed to the Court of Assistants. At the County Court in July, the verdict and judgment were for John Blake, and Captain Hutchinson appealed to the Court of Assistants. See infra, pp. 429-437, the proceedings in both courts, and the reasons of appeal from the Com- missioners Court.]
[The records of the County Court, 1671 to 1680, have recently been discovered. A copy of the judgment is also filed in Suff. Early Court Files, No. 1225. Infra, p. 436.]
10 Chamberlain MSS., i. 31. [This is a copy. The original, in Suff. Early Court Files, No. 1225, Paper 10, bears the following autograph endorsements: "These Reasons were received August 27th 1673 p Isaac
11 Chamberlain MSS., i. 33.
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423
CHAP. IX] CONTEST FOR BELLINGHAM ESTATES
[Hutchinson.] ffirst I apprehend ye Jury mistooke in yr ver- dict, for a spetial verdict by law is if ye law be in such a point we finde for ye pl. if ye law be otherwise we finde for ye deft. but in this verdict be ye law what it will they finde for ye deft.
[Blake, Answer.] First The Appellt upon the Supposition of the Jurye's mistake manifests his owne for their Verdict was no Speciall but a certayne Verdict. If the Case actionable then they found for the Defendt, if not actionable, it needed nor Should not have Come to them, & the Same Judgemt then must needs have been given for the Defendt but they being modest were willing to leave the Determination, whether actionable or not, to the Court, which howsoever would still have been ye Same
[Hutchinson.] 2ly ye Jury as I appthend in this mistooke also, for Ed: Hutchinson is but A constrained pl, for mr Blake first impounded my horse, & I forced to Replevin him, so he is ye original pl. & I ye pp deft. & according to law was forced to giue in ten pounds bond to answer his damage, wch is found none by ye Jury, & how they could finde then for him & giue no damage I do not vnderstand, & therefore I humbly conceiue they gaue noe verdict in ye caise, or at best a mis- taken verdict.
[Blake, Answer.] 2ª The Appellt in charging the Jury with a wrong verdict, also chargeth the Judges with a weake Judgemt: for by wt he saith, neither the one nor the other could discerne or Know the plaintiffe from the Defendt But had he been in his horses stead, yt shift of being a Constrained plaintiffe might have been a more covert Cloake undr which, if the Defendt had not Knowne upon wt occasion he came to Court, the Appellt might have shufled the Defendt into his place by Such Legerdemaine Interehanging cases, places & pleas, his 2d pt of his first Reason would not have been altogether So unreasonable.
[Hutchinson.] 2ly The Jury owned in open Court mr Wharton had no right to lease out ye land yt was ye late Gour Belinghams, vnder prtens of his letter of Atturney from Doct Belingham, &
Addington Cler "; also "Capta. Hutchinsons Reasons of Appeale . wch wer not deliurd into ye Court by mr Addington - tho when ye action was Called he affirmd publickly & made it a Contest & he tenderd his oath yt he had so donn: that I was fored to make vse of mr Whartons Copie vndertaking to Give him another. Refusing such was his Confidenc to look for yem yet afterwrds ye next day brought them to me & acknowldgd he had mislayd them: as Attests E. R. S." Isaac Addington was Clerk of the County Court; Edward Rawson was Secretary of the Court of Assistants.]
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y'fore m' Blaike could not haue more right then m' Wharton could give him, weh was none at all, by ye Jurys Judgemt. & therefore so vniustly impounded my horse, & my replevin iust.
[Blake, Answer. ] 2ª If the Jury owned (which the Defendt Doubts) That Wharton had no right to lett out the Land undr pretence of his letter of Attourney: The Judges declared yt the Appellts Landlords had no power upon pretence of ye Gov'n's will to lett out the Land, & the onc being certaine & the other but Supposed, The Defendts Title agt the Appellt must needs be Good law & Reason declaring yt possession is a Good Title till a better be proved.
[Hutchinson. ] 3ly for ye land in controucrsy Gour Belingham dyed possest of it, his Executors & Trustees haucing pued ye will, & giuen an Inucntory into ye Court vpon oath of ye estaite, where of this land is part, & therefore of necesity it must needs nextly fall into there possetion, & desposall to lett out.
[Hutchinsion.] 4ly Doct Belingham himselfe (much lesse an Atturney, & farr lessc any prtended Atturneyship as to yt pteeuler, or any by or vnder him) can not haue any thing of that Estaite till there be an orderly demand of ye Executors & a legall recouery, wch was neuer donne, & therefore my right good.
[Blake, Answer.] 3. & 4. To these two Reasons, one may be a Sufficient answer; That, had ye Gov'n' made the Appellts Land- lords Ex's Trustees, & Feoffees Generally to Dispose of all his Estate, either according to his, or their owne wills, the truth of wt he alledges would have been Subscribed to, but having limited their Trust, ffcoffemt, Ex"ship to his Estate at Winnisimett wholly omitting this in Controversy, it naturally & Legally descends to ye Heyr. Therefr these two Reasons of the Appellants import no more then any one of their fore-runners.
[Hutchinson. ] 5ly if it should be Judged legall wch I conceaue ean not be, yt any vpon prtens may come & take possetion of an others land & lease it out, & yt lease be good while eiected by law, then no man is suer of what he hath, but may be molested in his iust right wth out any culler of law (as I am in this caise) Ess- pctially considering mr Wharton gaue yt his Illegall possction to mr Blake in ye winter, when no man had ocation to looke after such paster land, neither did he it [gain?] by any corse of law, nor ye Executors who was possest of it not being informed of it by him or any in his behalfe.
[Hutchinson. ] 6ly My goods being impounded I was forced to replevin, & so to proseed by way of Siuill Action, yet vnder cor- rection, I humbly conceaue it also Criminall, & therefore craue ye Courts serious consideration.
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