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 47
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461
APPENDIX
CHAP. X]
[Samuel Bellingham's Second Power of Attorney to Richard Wharton 17
To all whome these presents shall concerne Sam !! Bellingham Esq sendeth greeting : Whereas the Lord the Sovereigne disposer of all our times hath lately tooke to himselfe my Honord & Deare ffather Riehard Bellingham - of Boston -in the Mattachusets Bay in New-England Esq! Late Hono!d Governo! there; And Whereas I the sd Sam!] Bellingham - am the onely Sonn - Issue & onely & undoubted heire unto the sª Richard Bellingham -, whereby according to the Lawes of the sd place the whole Estate both personall & reall of the saide Richard Bellingham - (Excepting onely one thirds of the lands to bee enjoied by my honord Mother m's Penelope Bellingham - my sª Honord ffathers Widdow during her naturall life) is fal'n unto & is become the certain & undoubted right of mee the sª Sam !! Bellingham - being the onely heire to my sª honord ffather as afores! & Whereas some have unjustly and illegally endeavoured to have disinherited &- defrauded mee the sª Sam !! Bellingham - & my heires of our due right & title in the s! Estate of the sª Richard Bellingham my sª Honord ffather ; and whereas I the sª Samuel Bellingham am at present at that distance as I cannot soe speedily bee pres- ent there as my occasions there may require; And Whereas my Respected & faithfull ffreind m! Richª Wharton - of Boston - Merchant my true & Lawfull Attourny hath in my Name & by my authority made Legall claime to my sd ffathers Estate on my behalfe; as also hath put in many just & Legall Exceptions agt the unjust illegall & irrationall. praetexts whereby some endeavo! to defraud mee the sª Sam11. Bellingham - of my right & title in the premisses as afores! Reserving withall Liberty either for my selfe or my Lawfull Attourny to adde what at any time the Justice of the cause may further require .-
Now Know Yee that I the sd Sam11 Bellingham - doe hercin - & hereby these presents autorize constitute & appoint the sd Richd Wharton - my true & Lawfull Attourny in my Name & for my vse to demand require receive all the personall & reall Estate that was lately belonging to the saide Richard Bellingham - my sª Honord ffather within the foresd Jurisdiction - of the Goverment of the Massathusetts Bay (excepting onely my sd Honord Mothers thirds of the lands which Shee is to enjoy during her life as afores!) As also to demand receive & make Legall Seizure of the reversion - of all & every part of the saide thirds (which is to
17 Suff. Early Court Files, No. 1330.
462
HISTORY OF CHELSEA
[CHAP. X
bee in my sª honor! Mothers possession during her naturall life as afores!) on the behalfe & for the use of mee the saide Sam !! Bellingham - my heires & assignes - And whatever Rents profits priviledges Emoluments, debts dues whatever ariseing or becom- ing due out of the s! premisses or all or any part thereof that hee my saide Attourny on my behalfe & for my vse receive & sceure the same as afores! and in case of denyall or refusall of the premisses or all or any part thereof by any persons whatso- ever under any pretences whatever to Sue implead peticon comence any Suite Action or Actions Attach arrest imprison - & upon the delivery receite & full performance of the premisses or any part thereof as aboue required accordingly to acquit release dis- charge for such pt of the premisses as is soe delivered p! per- formed unto or reed by him my said Attourny on my behalfe as afores! And to doe & performe any other lawfull act or acts what- soever for the due obtaining of the premisses on my belialfe as afores! as if I the sª Sam !! Bellingham were personally present -- Thus allowing approving confirming whatever my sª Attourny shall in the pursuance & due Execucon of the premisses lawfully doe or cause to bce done; Revoaking & Nulling all former Letters of Attourny concerning the foresd premisses or any part thereof ; as also reserving to mee the sª Sam!' Bellingham - full power & authority of makeing or causeing to bee made any other Letter of Attourny or any further addition - or alteration - as my occa- sions at anytime may require concerning the premisses or any part thereof. In Testimony hereof I the sª Sam !! Bellingham set to my hand & Seale this eight day of the Second Month - called Aprill in the yeare of our Lord One thousand Six hundred Seventy & three & of his Majesties Reign the Twenty fifth - -
Sam"]: Bellingham -
Signed Sealed & Delivered in presence of
John Medhurst
Ephraim Bendall.
Ephraim Bendall - aged about . 25 . yeares made Oath that hee certainly knowes this Letter of Attourny to bee m! Samll. Bellinghams hand Writing & that hee saw him Signe Seale & Deliver the same for the vse therein men- tioned as his act & Deed to which this Dept Subseribed his hand as a Witness . -
Taken upon . Oath this . 19th 4th 74 Before mee Simon Bradstreet Assist.
That what is Written on the other side & this is a true Coppie of the Originall Letter of Attourny with the Oath
-
463
APPENDIX
CHAP. X]
taken thereupon & Left in the Generall Court file of Octo- ber : 1674 . being therewith compared Attests. Edward Rawson - Secret. This is a true Coppie of that on file with the Records of the County Court of Suffolke as Attests. Isª Addington Clerc].
464
HISTORY OF CHELSEA
[CHAP. XI
CHAPTER XI
RICHARD WHARTON SUES FOR HIS SERVICES
R ICHARD WHARTON having rendered essential ser- vices to Samuel Bellingham wanted his pay, and after long waiting sent him the following account and letter.
RICHARD WHARTON'S ACCOUNT. (1)
Dr Samll Bellingham - Esqr 1673 ffor building and fenceing upon his Estate £412 " -"- for money pd p mr Legay in London with advance at 25 p Cent (2) £125 "-
1675 ffor 34£ p mr Marks acco spent in sol- liciting ye Kings order 25 p C for Ex- chenge
Augt 5 ffor 50£ p mr Styles
43 " 1" 3 62 " 10 "
17 " 10 " -
27 " -" -
for 10t paid mr Higginson and 10t more pay- able on mr Bellinghams request
20"- " -
ffor so much pd in part of a Judgemt obtaind by mr Willoughbyes Execution ye whole being 100£ Starling and Costs of Courts 4
50"-"-
954 " 7 " 6
Cr. by money reed of mr Stoddard p order of the Generil Court (2) . £100“- -
By Cash from Gingell and Bray Wilkins (5) . :56"-"
1 Chamberlain MSS., i. 49.
[Presumably this was the £100 paid Wharton by order of the General Court. Supra, pp. 442, 443.]
[Sec chap. xxiii. for the suit by which this rent was recovered.]
[This suit throws light on the life and character of Dr. Samuel Bell- ingham. The papers are given infra, pp. 472-478.]
5 [March 9, 1659/60, Governor Bellingham sold to Bray Wilkins and John Gingle a farm, laid out for him by order of the General Court in 1639, containing about 800 or 850 acres. A part of the purchase money was secured by a mortgage, the last payment thereon being made in 1676. C. W. Upham, Salem Witchcraft, i. 143-145.]
-
for Sundry smal debts of his fathers pd . for Charges in law in recovering & defending ffor 9 years rent of the ferry (3) at 3t p ann his Estate from ye time of his fathers death till this time being Nine years & a quarter
£196 7" 6
CHAP. XI]
WHARTON SUES FOR HIS SERVICES
by 8 years rent from Lt Smith
£400“- -
.
by 5 years rent from Wm Eustase the last payable in march next .
100 " -
50 "-"
by rent for Marsh at maldyn
8" -"
by rent for a pasture at Boston
10 "-"
by money from mr Nath Olliver
14 "18 "
rents due to ballance
£215"9"6
£954"7"6
Wharton's Letter to Samuel Bellingham
Sr yw will here discerne yt from ye last year J concerned myself in your affairs I have allwayes been in disburst for you at least 200 £ for which I have not charged intrest but shall refer the sume of my 4 years continnall and Vexations Sollicitation to your owne ingenious consideration or the Judgmt of friends here that have had ye sence of my service and suffering in your behalfc
Yw may pleas also to take notice that this being onely an ab- stract time and order is not so exactly attended as in ye particulars uch would make to large a volum to send @ post as things have referance. so are they reduced into a few Articles wch if not Clear to your vnderstanding if need be shall be explained by contracts Court records and other plain demonstrations and Evidence - Please also to consider yt mr Marks & the Sollictr never had any reward for the good service he did you, his widow is poore and both needs and Expects it from me pray therefor give your order in that respect.
Copie The Originall was subscribed an Sent in a letter Dated ffebry 30 : 1681 [1682] Rd Wharton
A true Copie of that on file = Attestr Joseph Webb Cler
Petition of Richard Wharton 7
To the Honrble the Governo! & Assistants in the County Court. The humble Petition of Richard Wharton Attorny to Sam !! Bellingham Esq! and in his right Adm! upon the Lands late of Richard Bellingham EsqE Decd.
" This refers to the item in his account given above for money due Marks, the solicitor who procured the King's (Charles II.) order to the General Court for setting aside Governor Bellingham's will. This fact, remarkable like almost everything else respecting this case, has escaped notice. The records of the General Court give no hint of this royal inter-
7 Chamberlain MSS., i. 51.
VOL. I .- 30
465
by 5 years rent due from Jer : Belcher
466
HISTORY OF CHELSEA
[CHAP. XI
Sheweth./
That yo' Petition! for recovery of the sd Lands haveing for the Space of four yeares and upwards been obliged under many dis- advantages, difficultyes & discouragements, continually to contend in defence and prosecution of many uncomfortable Law Suites, and was thereby, and for buildings, repaires, paym! of Debts and for m' Samuel Bellinghams Supply and accomodation necessitated to expend Sundry considerable Sumes, And yor Petition" haveing often layd before m" Bellingham the Condition of liis Estate here, and the need of his presence or power to some friend here to adjust Accompts, and to settle & improve his Estate, But he being remiss herein yo! Petitioncr the last Sumner upon m" Bellingham's iterated invitatcon ordered his son (to the end aforcsd) to travell purposely from London to Bremen in Germany from whence m" Bellingham had retired himselfe and yo! Petition! being both by his Son and others informed the great difficulty if not impossi- bility by reason of m! Bellingham's remote retirement of coming to a conference or Adjusting Accompts with him, and yo! Pet!'s occasions calling him shortly out of the Country, holds it not only his duty to m' Bellingham but also to his owne family first to endcavour the settlement of Accompts and affaires in this concern, To which your Pet! is the more earnestly excited whils't God still spares you that have many of you been Judges, and others that liave been witnesses in the transactions & matters aforcsaid. -
Therefore and because no other person improved by mr Bel- lingham is present and yo! Petrs Accompts of his disbursments travell and transactions long and some perticulars intricate, many Articles being not otherwise to be proved then by the Effects and such other Demonstrations as would be too tedious for the Honorble Court to attend. Yo! Pet humbly prayes the Court in m" Bel- linghams behalfe would be pleased to appoint some judicious psons, that have had oppertunity to observe yo! Petition's transac- tions & trouble in this concern, or at least one to joyn with such other indifferent pson as yo! Pet! may nominate, and the Court approve to examine , audit and consider the Accotts of yor Petrs disbursmts time and trouble and to impower them if they see cause to imploy some honest & skilfull Carpenters or other meet persons to survey and value the buildings & repaires made by yo! Petition! and upon the whole matter to make and Return to this
ference, except in Wharton's petition (supra, p. 448), which has attracted no attention. We learn it only from Wharton's account and letter, con- firmed by Paul Dudley, infra, p. 533. [See the King's letter, supra, p. 444.]
.
--
437
WHARTON SUES FOR HIS SERVICES
CHAP. XI]
Hono!d Court such judgemt computation and Report as to them in Conscience may seem just and reasonable, and yo! Pct" shall ever pray
This Petition received into Court 30th March 1682. And in answer thereto m' Samuel Sewall, m' Sampson Sheafe & m! John Hubbard are appointed an Auditt to examine and consider the Petitionrs Accompts relateing unto m' Samuel Bellinghams buisness within mentioned, and impowered to Act in all respects thercin as is above prayed And upon due consideration of sd Accompts to make report to this Court of their Judgemt upon the whole matter.
Isª Addington CIre 8
Wee the Auditors mentioned in the Court Order on the other side, In pursuance of the buisness to us therein comitted doc Request Capte John Holbrooke Ltt Sam !! White, m! Stephen ffrench and Ensigne James Pecker or any two or three of them, to view and survay all such houseing Edifices and buildings as have been erected by the Order and appointment of m' Richard Wharton at Winnisimett and to give information thereof to us of the Estimate and value of the same.
Boston 19º May 1682.
Jnº Hubbard Sampson Sheafe Samuel Sewall.
Wee whose names are hereunto subscribed being desired by the Auditors of the Accott between m! Richard Wharton and m! Samuel Bellingham to apprize the severall buildings and Edifices Erected by m! Wharton at Winnisimet do according to our best understanding Judge the sd buildings ffences and repaires to cost four hundred pounds for the workmanship and materials besides charges in raysing and other necessary Expences wch according to our Judgement is worth Ten pounds./ May. 25. 1682.
John Holbrooke James Pecker Stephen French 9
8 [At this point in the document the following attestations appear: " This is a true Copie of it's Original on file with the Records of the County Court for Suffolke As attests Isa: Addington Clrc. A true Copie of that on file = Attest Joseph Webb Cler." See infra, p. 479, a suit brought by Richard Wharton in behalf of S. Bellingham at the April term of Court, 1682. Joseph Webb was chosen clerk of the County Court in 1690.]
" [The final attestation to this document reads: "The above are true Copies of the Originals annexed to the Copie of the Petition on file Attest Isa Addington Clre. A true Copie of that on file = attestr Joseph Webb Cler." Endorsed : "Bellingham ver Eustace 7 paprs April . 1697." Thus this was an attested copy made for use in the suit given infra, pp. 482-488. Among the papers of that suit, Chamberlain MSS., i. 53, was a copy of
468
HISTORY OF CHELSEA
[CHAP. XI
Notwithstanding the foregoing report, Wharton was obliged to sue Samuel Bellingham, which he did a year later, and attached the Eustace farm. The judgment of the County Court follows : 10
At a County Court for Suffolke held at Boston 31º Iuly Annº 1683. -
Richard Wharton Attourny or Agent to Samuel Bellingham EsqE Plt conta the goods or Estate of s! Samuel Bellingham Deft in an action of the ease for witholding from the plt the suine of Seven hundred and Six pounds two Shillings or thereabout in money due to the plt for mony remitted to and expended for & in sª Bellinghams behalfe and buisness, and for Service done for him as may appeare p an Accompt audited by order of, & received & put on Record by the County Court of Suffolke, and by an addi- tional accompt ready to bee presented with due damages : The attachment and Evidences in the case produced being read & com- mitted to the Jury, which are on file, the Jury brought in their Verdiet, they found for the plt Seven hundred & Six pounds three Shillings Seven pence halfe penny in money and costs of Court. allowed twenty ffive Shillings and eight penee.
This case was tryed at the last County Court,11 but Judgemt not entred according to law untill this Court The Deft being out of this Jurisdiction.
Execution issued. 15° Sept! - 1683- 12
the above appraisement, signed by Holbrook, Pecker, and French, with the following testimony appended: -
" James Pecker maketh Oath to the Apprisemt above, to wch his Name is Subscribed and that Captn Holbrook and mr ffrench at the same time Sub- scribed their names thereto in the Deponents Sight & presence all the Apprisers fully and freely consenting thereto, and make their apprismts as for money Sworne in Court 260 April 1683.
A true Copie of that on file attests. Jsa Addington Cler./. = Attestr Joseph Webb Cler "]
10 MSS. Rec. of Suff. County Court, 1680-1692, p. 135. [The judges at this term of the court were Simon Bradstreet, William Stoughton, Humphry Davie, Samuel Nowell, John Hull, and Daniel Fisher. See also Early Court Files Suff. Co., No. 4639.]
11 [Adam Winthrop and Richard Wharton were jurymen at the April term of the Court. John Woodmansey took Wharton's place for this action. ]
12 [A copy attested by Joseph Webb, apparently for use in the same suit as the preceding, is in Chamberlain MSS., i. 53.]
-
469
WHARTON SUES FOR HIS SERVICES
CHAP. XI]
Writ of Execution 13
To the Marshall of Suffolk or his Deputy
You are required in his Maties Name to levy by Execution upon the Estate and in want thereof the person of Samuel Bellingham Esqr in money the sume of seven hundred and seven pounds nine shillings three pence halfe penny, with two shillings more for this Execution and deliver the same unto Richard Wharton Attourny or Agent of sd m" Bellingham, which is in Satisfaction of a Judge- ment granted him for so much upon a Tryal at the County Court Sitting in Boston 24º of April 1683 but not Entred according to Law untill the Court in July ulto the Defendt being out of the Jurisdiction, - hereof you may not faile, makeing yo" Return according to Law. Dated in Boston ye ffifteenth Septemb! 1683.
Curiam Jsa Addington Clrc.
Return Jndorsed./
October 19. 1683.
J extended this Execution on a farme of Samuel Bellingham Esq! at Winnisimet with an Acre & halfe of Land more or less which was apprized by m! John Blake, m! Moses Paine & James Pem- berton to the value of foure hundred & ffifty pounds New-England money & no more
Returne Waite Marshil
The Apprizmt annexe
Wee whose names are subscribed being by Returne Waite Marshall of the County of Suffolke called to Apprize a ffarme at Winysimett belonging to Sam !! Bellingham Esq! together with an Acre & an halfe of Land more or less where the clay pitts are inclosed be- tween said farme and Ltt Smith's Corne ffields, which said ffarme is now in the possession of William Eustace, and is commonly called by the name of the little ffarme, do judge the sd farme with all buildings ffencings meadows upland priviledges and appurtenances thereto belonging, with the aforesaid inclosed pcell of land, to be worth ffoure hundred & ffifty pounds New England money & no more. John Blake
Winnisimet October 19 : 1683
Moses Paine James () Pemberton his marke
M: John Blake m! Moses Paine & James Pemberton personally appearing 20th October 1683
made Oath that all sinister respects being layd aside they have made a just Apprizemt of the Estate within mentioned at foure
13 Chamberlain MSS., i. 55.
470
IHISTORY OF CHELSEA
[CHAP. XI
hundred & ffifty pounds in money according to their best Judge- ment & Conscience
Sworn before Jsª Addington Comiss 14 Boston
And thus Richard Wharton got the Shurtleff farm for ser- vices rendered to Dr. Samuel Bellingham. Though he was not a lawyer, presumably his compensation was not more than ade- quate for his trouble and expenses, which, as we have seen, must have been considerable. Nevertheless Samuel Belling- ham's second and newly married wife coming to Boston a dozen years later to look after his estates, soundly rated Samuel Sewall for his share in the transaction by which her husband lost one of his farms at Winnisimmet. Sewall thought that he had been " wheadled and hector'd into that business." 15
The reasons for Sewall's compunctions are not obvious. Suits against absent defendants might be tried at the first term, but judgment not entered before the ensuing term, as in this case. The verdiet was July 31, 1683; 16 judgment the next term; execution September 15, and extended on the farm October 19th. Doubtless Wharton gave " security to be responsal to the Defendant, if he shall reverse the Judgement within one year, or such further time as the Court shall limit." 17 To have, hunted up Bellingham in Germany for
14 [ Endorsed: " The foregoing Execution, Return indorsed and Ap- prisemt. are true Copies of their Originals = Attestr Joseph Webb Cler "; and on the back, "Execution Return &c. No. 7." (See supra, note 9.) In Suff. Early Court Files, No. 4639, is a later copy of the same document.] 15 December 22, 1696, " Note, this morn Madam Elisa Bellingham came to our house and upbraided me with setting my hand to pass Mr. Whar- ton's acco to the Court, where he obtain'd Judgmt for Eustace's farm. I was wheadled and hector'd into that business, and have all along been uneasy in the remembrance of it: and now there is one come who will not spare to lay load." Diary, i. 442. [ See infra, pp. 482-488.]
March 15, 1685/6, Wharton sold this farm, then known as the Eustace farm and of late as the Shurtleff farm, to Edward Thomas of Boston " as Agent for said Robert Thompson to and for the use of " said Major Robert Thompson of London, for £300 New England currency. It remained in his family a hundred years, and was then claimed by the town of Chelsea under the Bellingham will. An account of this suit will be given in full. [The wife of Richard Wharton did not sign the deed to Thompson and after Wharton's death brought suit for dower. Infra, p. 481. The town of Chelsea brought suit to regain the farm in in 1757; infra, chap. xvii.]
16 [The verdict was at the April term of Court 1683; the judgment at the July term. Note the testimony of James Pecker, supra, note 9.]
17 Colonial Laws, Revision of 1672, Title, Attachments, 1.
74
.
471
CHAP. XI] WHARTON SUES FOR HIS SERVICES
giving him personal notice of the suit would have been im- practicable. Nor could he publish the order of notice now required, for no newspapers were printed in America until twenty years later, nor was the London Gazette, if available, a fit vehicle for that purpose. Besides, Wharton had sent to Bellingham his account in February, 1681/2.18
Nevertheless, either from some irregularity, or because Wharton's claim was deemed exorbitant, the result gave dis- satisfaction to the defendant, and extorted from honest Samuel Sewall a cry of anguish thirteen years later when taxed with his share in the proceedings.19
Indeed, no intelligent person, and especially no lawyer, can read the proceedings of the Massachusetts Courts in those days, or of the General Court when sitting in its judicial capacity, without noticing the irregular, absurd, and often unjust methods of undertaking to do justice between parties.
On the other hand the laws for the administration of jus- tice, as seen in the revision of 1672, are as precise, clear, and as well drawn as those of England, or making allowance for the growth of jurisprudence, as those of New England at the present day. The contrast, however, between the system and its working is striking.
Nor is the reason obscure. The system, copied from that devised by skilful English lawyers and judges, was worked in Massachusetts by laymen, often clergymen. No trained lawyers had been in the Colony since Lechford found reason for leaving it; nor was there any practising lawyer in the General Court until near the close of the first third of the next century, when John Read was returned as member, per- haps because he had been a popular preacher.
18 [The last item in that account was "rents due to ballance - £215. 9. 6." In April, 1673, the rents at Winnisimmet aggregated £120 a year. (Supra, p. 427.) Dr. Samuel Bellingham would scarcely expect, therefore, to receive further remittances until nearly three years had passed, for according to the account, over £50 was still due Mr. Wil- loughby. As Wharton sued in April, 1683, for £706, and the balance due on account in February, 1681/2, was £215, he must, apparently, have valued his services at between five and six hundred pounds.]
10 [See infra, pp. 482-494, the suit by which Mrs. Elizabeth Bellingham, wife of Dr. Samuel Bellingham, regained this farm; also the suit brought by the heir of Robert Thompson, after her death, by which he recovered the farm.]
1
472
HISTORY OF CHELSEA
[CHAP. XI
APPENDIX 1 [HAMMOND VS. BELLINGHAM 1 Writ of Attachment 2 To the Marshall Gencrall, or his Deputy
You are in hisMajties Name to Attach the Goods & Chattells, or other Estate of M! Samuel Bellingham, in the Custody and pos- session of M! Richard Wharton, his Attorny, or where else you can find it, to the value of Two hundred pounds, for his Appear- ance at the County Court to be held at Cambridge the seventh instant, then & there to Answer ye Complaint of Capt Laurence Hammond & of Mrs Margaret Hammond his wife, the Relict Widow & Executrix to ye Estate of ffrancis Willoughby Esqr Late of CharlesTowne, deceased - In an Action of Debt due to the Estate of ye said ffrancis Willoughby by bond, bearing date the thirtieth day June one thousand six hundred & Sixty (for fifty one pounds ten shillings sterling mony of England.) 3 wth due damages, & hereof you are to give notice to the said M! Richard Wharton, & make returne of the whole under your hand, as the Law provides Dated October 2ª 1679. By the Court James Cary Clerk. Charlstowne
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