USA > Massachusetts > Plymouth County > History of Plymouth, Norfolk and Barnstable counties, Massachusetts, Vol. II > Part 11
USA > Massachusetts > Barnstable County > History of Plymouth, Norfolk and Barnstable counties, Massachusetts, Vol. II > Part 11
USA > Massachusetts > Norfolk County > History of Plymouth, Norfolk and Barnstable counties, Massachusetts, Vol. II > Part 11
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The above quotation is from Judge Sewall's diary and it was an occurrence during the term of Rev. Increase Mather as president. That being the case it is easy to infer that the president received a great deal of pleasure from the occurrence, since he it was who offered prayer, before and after, and had the special commission to perform of com- pelling the unhappy Sergeant to sit alone in the hall so long as he wished him there and such exercise as the presidential mind might invent. Still worse might have been the plight of the Harvard student if the administration of the punishment had been delegated to Rev. Increase Mather's son, Rev. Cotton Mather, who derived such unholy pleasure from persecuting witches, as witness the fact of his conduct at the execution of his brother clergyman, Rev. George Burroughs, who was graduated from Harvard College in 1670. "He served as pastor at Falmouth (Portland), Maine, and Salem, Massachusetts. He was accused of having bewitched Mary Wolcott and was condemned on the evidence of condemned witches who affirmed that he had attended witch meetings with them. He moved many to tears by his last words at his execution, but Cotton Mather, who was sitting on horseback in the crowd, reminded the people that Satan often assumes the appearance of an angel of light." This quotation is from the "Century Dictionary and Encyclopedia."
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Having a prayer before and after punishment of a boy in Harvard College and always at an execution, a public whipping and other methods of punishment, was much like the custom observed by colored. people in the South. It may be the prayers were offered in the same spirit described by Irwin Russell in his poem "Christmas Night in the Quar- ters":
You bless us, please, sah, eben ef we 's doin' wrong tonight; Kase den we 'll need de blessin' more 'n ef we 's doin' right.
Many of the early punishments in the stocks, the pillory or on the wooden horse were meted out on Thursdays, because Thursday night was the time for the "Thursday lecture" in the meeting-house. Every- one had to attend religious services that night as well as Sunday, and the punishment of offenders contributed substantially to the entertain- ment and satisfaction which the colonists derived from journeying to the social centres. Watching the neighbors suffering in the stocks was considered the best part of the gathering. It was a sort of "Amateur night," entertainment, the acts being largely inspirational.
Offenders Lost Title of Mr. or an Ear or Two-Committees of min- isters and principal laymen were appointed as early as 1634 to prepare a code of laws for the Massachusetts Colony. This became a custom every year for twelve or fourteen years. In 1648 the whole were col- lected, ratified by the court and printed. In 1643 four of the New England colonies had united, at the suggestion of the Plymouth Colony, for mutual protection. The articles of union and confederation were signed at Boston May 19, 1643. Thus the colonies of Plymouth, Mas- sachusetts, Connecticut and New Haven became "The United Colonies of New England." By the articles of the confederation, each colony was to appoint two commissioners, who were to assemble by rotation in the respective colonies, and were empowered to enact ordinances of general concern. In case of invasion each colony was bound to furnish a stipulated proportion of men and money. This union rendered the colonies formidable to their enemies, and secured the peace and rights of the country.
Previous to having a code of laws in 1648, some of the sentences were severe. Among other punishments the title of Mr. was sometimes taken away, as the early settlers were careful to give no titles where they were not due. The records show that Josias Plaistowe, for stealing four baskets of corn from the Indians, was ordered to return them eight baskets, to be fined five pounds, and hereafter to be called by the name of Josias, and not Mr., as formerly he used to be. The title of Mr. conferred considerable distinction in those days and was not to be
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might not quite measure up to the standard of being called Mr. It was a considerable punishment to have it taken away, after the distinction had once been enjoyed.
Included in the early records we find that "Captain Stone, for abusing Mr. Ludlow, and calling him justass, is fined one hundred pounds, and prohibited from coming within the patent, without the governor's leave, upon pain of death."
Hutchinson's "History of Massachusetts" tells how "Thomas Petit, for suspicion of slander, idleness and stubbornness, was sentenced to be severely whipped and to be kept in hold, and that Robert Shorthose, for swearing by the blood of God, was sentenced to have his tongue put into a cleft stick, and to stand so for the space of half an hour."
The first record of a trial for witchcraft in Massachusetts came in 1648, the same year the first laws were ratified by the court and printed, ready for enforcement. Margaret Jones of Charlestown was indicted for a witch, found guilty and executed, in accordance with the laws of England against this crime. Witchcraft was not something which originated in the colonies. It was a superstition brought from the old country, where it made a hundred times more mischief than in Mas- sachusetts. Margaret Jones was charged with "having such a malignant touch, that if she laid her hands upon man, woman or child, in anger, they were seized presently with deafness, vomiting or other sickness, or some violent pains."
There were no special laws for the punishment of Quakers in 1656, when the persecution of Quakers began, but there was a law against heretics in general, and the court passed sentences of banishment upon them all. Later severe laws were enacted against Quakers. Four per- sons were executed under a law passed in October, 1658, providing a death penalty for all Quakers who should return after banishment. This law passed by a majority of one vote only.
Previously there had been a law enacted that any Quaker, after the first conviction, if a man, was to lose one ear; and for the second, the other. A woman was each time to be severely whipped. The third time, whether man or woman, the offender was to have his or her tongue bored through with a red-hot iron. Relief for the Quakers came from the British government in the form of an order from the king, Septem- ber 9, 1661, requiring that a stop should be put to all capital or corporal punishments of his subjects called Quakers, and that such as were obnoxious should be sent to England.
The present constitution of government of the Commonwealth of Massachusetts went into operation in 1780. It was formed by a con- vention of delegates appointed by the people for that purpose. John
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Hancock was elected the first governor and held the office by annual election till 1785.
It is interesting to look back to the convention of 1780 which gave us the Constitution of Massachusetts, and notice how general was the make-up of the delegation, comprising representatives of numerous callings and industries in those days following the Revolutionary War. There were two hundred and ninety-three members and fifty-six were college graduates. There were one hundred and ten farmers, twenty- four clergymen, nine teachers, eight judges, nineteen lawyers, nineteen physicians, thirteen Revolutionary officers and soldiers, one statesman, two gentlemen, eight hotel keepers, five shipmates, two sea captains, five surveyors, five blacksmiths, one yeoman, five jurists, two carpenters, ten public officials, seventeen town officials, two manufacturers, twenty- one merchants, two mariners, one naval officer, one chief justice, one architect, one civil engineer, one President of the United States, two vice-Presidents, eleven presidential electors, seven governors, four lieutenant-governors, one hundred and twenty-five representatives, forty senators, twenty members of the governor's council, five congressmen.
Provisions of County Courts-The first act passed by the General Court relating to county affairs in Massachusetts provided that in each of the three counties, provided for by an act of 1685, courts should be held as defined. The language of the vote was "that there be in the colony three counties, and that in each county there shall be kept an- nually two county courts, which courts shall be kept by the magistrates living in the several counties, or by any other magistrates that can attend the same, or by such as the General Court shall appoint from time to time, and to make a court there shall be present not less than three magistrates or associates, and in no case shall judgment be given without there be two consenting, or the major part, if more than four judges ; and in the absence of the governor or deputy governor, the oldest magistrate shall be president of the court; which court shall have, and hereby have, power to order the choice of juries of Grand Inquest and trials in their several counties, and to constitute clerks and other need- ful officers; the county treasurer to be appointed and allowed by said court annually."
That was one provision. Another was "that each county court shall have, and hereby have, power to hear, try, and determine, according to law, all matters, actions, causes, and complaints, whether civil or criminal, in any case not extending to life, limb, or banishment, or matter of divorce; that all deeds, bargains, mortgages for houses, rents, lands not already recorded in the public records, or that shall not be recorded before the first county court of each county, shall or may be recorded
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in the county where they lie by the county recorder; which shall from and after the first county court that sits in said county be accounted legal and sufficient record for the same, it having been acknowledged or duly proved before the recording ; that such county court shall have, and hereby have, power to settle and dispose according to law the estate of any person that dies intestate within the county, and to grant letters of administration and make the probate of wills."
There was another provision : "that county courts have power to make effectual orders about county prisons, highways, and bridges, and when there is occasion, order rates to be made in the several towns and places of the county for defraying county charges, the rates of each town to rate the inhabitants or persons under their constablerick according to the proportion ordered by the county court, and the constable to gather such rates, and be accountable for the same to the county treasurer ; that the town clerk in each town annually return the names of such persons to the county court as by the several towns are chosen to serve as constable, jurymen surveyors of highways; that they may take their oaths and be established in their respective places, and the selectmen to be returned to the court of election on penalty of twenty shillings fine for each neglect; that the clerk of the court shall be the recorder of the county, who shall record deeds and evidences for. lands lying within the county, who shall be under oath for the faithful discharge of his place; said clerk in open court may administer oaths to witnesses, and in the name or order of court, to grant summons, attachments, warrants, and to sign and give out executions for any judgment obtained in any of the county courts, which shall not be till twelve hours after judgment unless in any particular case the law hath otherwise provided, not then if the court, on any special cause, shall respite the same; that there be a county marshal, who shall always attend said courts, who are empowered to serve all warrants, attachments or summons that are directed to them, and to levy executions, who may require aid in the execution of their office, which shall be yielded on the same penalty, that is, for any to refuse to assist a constable."
A further provision was "that in all criminal cases or misdemeanors, besides their fines or punishments, persons convicted shall pay cost and needful charges of prosecution."
First Legally Trained Judge Heard "Boston Massacre" Case-In colonial days, it was rarely that even the judges had had the advantages of a legal education. Judge Benjamin Lynde, who was chief justice from 1728 to 1746, took his seat on the bench of the Superior Court in 1712, and was the first judge of that court who had been regularly trained to the legal profession. He was succeeded by his son of the
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same name and this Chief Justice Benjamin Lynde presided at the trial regarded lightly. In a list of one hundred freemen, four or five might be distinguished by Mr. Goodman and goodwife were the common appellations and even men of great respect and substantial citizens of Captain Preston in 1770 for the riot in State Street, Boston.
In the "Memorial History of Boston," published in 1881, John T. Morse, Jr., at that time editor of the "International Review," tells a story which gives a mental picture of legal affairs of the provincial days in Massachusetts.
For a long time the governors were ex officio judges presiding in the Court of Assistants, the assistants being officers of the corporation chosen annually by the freemen at the meeting of the General Court in Easter Term. It might some- times happen that there was not an educated lawyer among them; though some of the governors were not ill-qualified for the judicial function. John Winthrop, for example, had been educated for the bar in England; so also had Governor Bellingham, who, however, it may be supposed, was more willing to enforce the observance of the laws by others than to abide by them at all times himself. A droll story is told of his courtship, a foil to the popular tale concerning Myles Standish and John Alden. A friend of his, who lodged at his house, was engaged to be married, and the wedding day was at hand; when the governor, upon a sudden finding himself enamored of the lady, "treated with her, and obtained her for himself." The affair was speedily brought to a conclusion "by the governor's marrying himself, without first publishing the banns, as required by law." A Puritan grand jury, however, could not be expected to be a respecter of persons, and the governor was accordingly presented for his unlawful action. The secretary summoned him "to answer the prosecution"; but in his singular combination of characters-governor, chief justice and culprit-he dodged justice with admirable skill. He declined to leave his place on the bench in order to take a position in the dock, and thus, "escaped both trial and punishment."
The outsiders, however, who meddled most with the law's administration were clergymen; nor was their interference always creditable to their sense of justice. Thus an action, apparently in the nature of slander, brought by a minister against a layman, was about to come on for trial, when the Rev. Mr. Barnard, sitting at dinner with the judges, stated to them, that, when the cause should be tried, he would like to make a few remarks. Accordingly, as soon as the plaintiff's counsel had opened the case, the reverend gentleman began interrogating the plaintiff. Not until he had concluded were the more regular proceedings continued. But, at the close of the argument for the defendent, which was larded-rather ungrate- fully, as it appears-with "many fleers upon the ministry and our churches," the chief justice gave the clergyman another chance; and he thereupon "paid his respects to the court and delivered his speech," and begged the magistrates to dismiss the action, which they forthwith did, glad to get rid of so dirty an affair."
This was only a specimen of the prevailing condition of practice. Thus we hear of an instance where one juror, who was standing out against the eleven others, was called out by the attorney-general and obligingly directed as to what he should do. But when the refractory wretch refused to yield his opinion under such civil entreatment, he was starved into compliance, while his fellows received meat and drink; it being properly enough remarked that it was better that one man should be destroyed than eleven. Verdicts were sometimes rendered to the
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effect that there were strong grounds of suspicion, though falling short of proof; whereupon the court would sentence the defendant for such crime as it appeared probable that he had committed, though it had not been alleged in the indictment, nor perhaps even found by the jury .... appropriate to such crude and rough-hewn notions were also the manners of the judges, which were represented as execrably bad. They bullied and browbeat the counsel after the old-time English fashion, and promoted their own views rather than impartial justice.
One of the earliest to give character to the bar was John Read, and the breaking up of the prejudice against lawyers was largely owing to his character. James Otis spoke of him as "the greatest common lawyer the country ever saw."
The Compact, signed in the cabin of the "Mayflower" in the harbor of Provincetown, was sufficient for the government of the colonists until 1636 when the Court of Associates set forth a declaration of rights. The laws of England were supposed to be applicable to the colony, although few if any of the Pilgrims, had an adequate idea of those laws.
The declaration of rights by the Court of Associates, November 15, 1636, was practically a declaration of independence, although it is doubtful if the associates themselves appreciated that they were re- nouncing the authority of English laws and denying to the British Parliament the right to legislate for the colony. This declaration was:
"We, the associates of New Plymouth, coming hither as freeborn subjects of the state of England, and endowed with all and singular the privileges belonging to such, being assembled, do ordain that no act, imposition, law or ordinance, be made or imposed on us, at the present or to come, but shall be made or imposed by consent of the body of associates, or their representatives, legally assembled,-which is ac- cording to the liberties of the state of England."
It was enacted that "on the first Tuesday in June annually, an election shall be held for choice of governor and assistants, to rule and govern the plantation." The election was to be by freemen "orthodox in the fundamentals of religion, and having twenty pounds in property." No person was "to live, or inhabit, within the government of New Plymouth, without the leave and liking" of the governor and his assis- tants." Belknap says this provision "was to prevent the contagion of dissimilar habits and heretical principles from without; and it was fully understood that differing from the religious tenets generally received was as great a disqualification as any political opinions what- ever." Offences punishable by death at that time were treason, murder, diabolical converse, arson and rape. The only towns settled at this time were Plymouth, Duxbury and Scituate.
First English Settlement at Sandwich-Thomas Prence was governor of the Plymouth Colony in 1637 when the first English settlement on
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Cape Cod was established at Sandwich by Edmund Freeman and others, many of whom were from Lynn. Captain Myles Standish and John Alden were directed by the court to "go to Sandwich with all con- venient speed, and set forth the bounds of the lands granted there" and to see that the qualifications for housekeeping were complied with. Joseph Winsor and Anthony Besse, were among the original settlers at Sandwich and were endeavoring to clear up individual patches of ground but they were severely presented to the court "for disorderly keeping house alone."
It was unlawful to propose marriage unless the Goodman had suf- ficient worldly goods and was otherwise, in the opinion of those in authority, qualified. There was an enactment: "Whereas divers per- sons unfit for marriage, both in regard to their years and also their weak estate,-some practicing the inveigling of men's daughters, and maids under guardianship, contrary to their parents' and guardians' liking, and of maid servants, without liberty of their masters; therefore it is decreed that if any man make motion of marriage to any man's daughter or maid without first obtaining leave of her parents, guardian or master, he shall be punished by fine not exceeding five pounds, or by corporal punishment, or both, at the discretion of the court." A few years after this law was enacted a young man was before the court and laid under bonds "not to attempt to gain the affections" of Elizabeth, daughter of Governor Prence.
Stocks and whipping posts were provided in those times in connection with the church and there are records where a man "for working on Sunday" was severely whipped at the post. Another for "Sabbath breaking" was fined thirty shillings and an hour in the stocks.
There are records of fines for "drinking overmuch," for "drinking tobacco on the highway," presumably smoking; "for selling beer at two pence per quart, which was worth but one penny"; "for selling a pair of boots and spurs for fifteen shillings which cost but ten shillings."
Yarmouth was settled shortly after Sandwich, in the summer of 1639, and in October of that year "a pair of stocks and a pound" were ordered by the court for the new town. Under the same date the minister of Yarmouth was tried for some offence, as it is recorded that it was reported that Rev. Mr. Matthews had nothing to say for himself and that some "did hold up his hand and cried 'Fie, fie, for shame'."
Notwithstanding the early settlers wore their beards long, Governor Leverett (1673) being the first New England governor whose portrait we have without a beard, the wearing of long hair was early prohibited. An association of distinguished men in 1649 decreed: “Forasmuch as the wearing long hair, after the manner of the Russians and barbarous
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Indians, has begun to invade New England, contrary to the rule of God's word, and the commendable custom of all the godly, until within this few years, we, the magistrates, who have subscribed this paper (for the showing of our own innocency in this behalf), do declare and manifest our dislike and detestation against the wearing of such long hair, as against a thing uncivil and unmanly, whereby men do deform themselves, and offend sober and modest men, and do corrupt good manners."
The women did not escape the busybody tactics of the early law makers any more than at the present time and penalties were fixed for "excess of apparel, strange new fashions, naked breasts and arms, and pinioned, superfluous ribbons on hair or apparel."
However far one resided from the place of public worship, everyone went to "meeting." Young men and women seldom rode, even though the distance was eight or ten miles. Transportation was almost wholly on horseback, the owner on a saddle and his wife on a pillion. Half way blocks were established and, upon reaching one of them, the man and wife dismounted, hitching the horse, to be taken by someone who had set out on foot, who might ride the balance of the distance.
The sexton turned an hour glass when the minister began his sermon and the preaching was expected to end just as the sand ran out. To stop before that time was an offence on the part of the minister and not to finish with the sand was just cause of complaint. Corn and beans were used in voting, the corn representing the ayes and the beans the nays.
No Mavericks in Early Eastham-According to "Our Dumb Ani- mals," in an article published late in 1927, some quaint and curious customs relating to animals and birds existed in Eastham and other Caps Cod towns :
The crow and blackbird situation became so serious an issue that each house- keeper was compelled to kill three crows or twelve blackbirds owing to the dam- age done by them to the corn. In addition to this obligation placed upon the housekeepers, the town voted that every unmarried man must kill three crows and six blackbirds while he remained single and not until the order was obeyed could he be married. How far this requirement succeeded in remedying the crow situation history telleth not.
All horses in the town were branded with the letter E to distinguish them from animals owned outside the township. Few vehicles were yet in use and walking was not considered a hardship or disgrace. The common method of travel was by horses fitted out with saddles and pillions. A man and a woman rode often together on the same horse, and sometimes a little boy rode before the man, and an infant in the lap of the woman. Horses were made to pace that they might carry their riders more gently.
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