USA > Massachusetts > Worcester County > Winchendon > History of the town of Winchendon (Worcester County, Mass.) from the grant of Ipswich Canada, in 1735, to the present time > Part 26
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SECTION 2 .- THE MINISTER'S CASE.
The most expensive case, and the one that enlisted the most feeling, in the whole history of the town, was that in reference to the damages due to Rev. Mr. Brown, in consideration of his withdrawing from the exercise of his ministry in this place. This was laid before Referees, whose names are given in the Chapter on the Town as a Parish. An account of that trial would be read with intense interest even at this late day. The Referees were all laymen, chosen for their competency to deal with such cases. The lawyers, one of them the elder Levi Lin- coln, of Worcester, soon after made Attorney General of the United States, and the other, the Hon. Mr. Bigelow, of Groton, of equal em- inence at the bar, conducted the cause with consummate ability. The parties were really the whole community, divided into two hostile sec- tions, the majority of the church sympathizing with their minister, while the majority of the town were opposed to him. These thronged the church, filling the seats on the lower floor and the galleries, while peo- ple from other towns came in to crowd every vacant space. The town
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strove on the one hand, to reduce as muchas possible, the damages claimed by their minister, even at the sacrifice of his reputation ; while he, on the other hand, maintained his right to an unsullied name, and to a fair compensation for the breaking up of his settlement. The coun- sel contended as those who are stimulated by the aroused passions of their clients, while the Referees deliberated as those who were conscious of the feeling that it would scarcely be possibleto do right without incur- ring the hatred of one or the other party in suit. The tradition is that the eminent lawyers maintained their high reputation on this occasion by the legal knowledge and eloquence which they displayed. The de- cision was in favor of Mr. Brown, and the expense to the town, inclu- ding damages,-nearly $1000-and costs, must have been from $1200 to $1500. This was a large sum for that day. Besides, the loss of time, if time had any value to the crowds who filled the meeting-house, day after day, was still greater.
SECTION 3 .- THE SLAVE CASE.
It is a curious fact that the question whether chattel slavery ever ex- isted in the Commonwealth of Massachusetts, was settled, in part, by a case in which this town was involved as a party at law. The subject is referred to in an article which appeared in the Historical Magazine, (N. Y.) in 1866, written apparently in a spirit hostile to the fair fame of the State. A reply to this article appeared in the Boston Daily Ad- vertiser. A concise statement of this case belongs to this period of our narrative.
On the 22d of August, 1804, the town voted " that the Selectmen should see and take care of the matter concerning the negro, that the town of Ipswich has notified this town to take and support." No name is given, but it is supposed that the same person is referred to in the fol- lowing action, taken on the 4th of the next March, (1805.) " Chose Thos. Graton and Thos. Greenwood, agents to look into the matter of Eden London, (named in the Records of the Court, Edom,) a poor ne- gro man, and find out where he ought to be supported." On the 6th of May following, it was farther voted, " that the agents, with the assist- ance of the Selectmen, notify the town of Weston, or the town of Hat- field, or any other town, as soon as they can gain knowledge, which town said London was left a citizen, according to law." Later still, on the
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18th of August, 1806, the agents were directed to " carry on the suit against Hatfield, concerning Eden London, according to the best coun- sel they can get, to a final issue." At the same time a grant of $50 was made to carry on the lawsuit.
The contest was now between Hatfield and Winchendon. It had first been brought before a justice of the peace in Worcester county. It was appealed to the Court of Common Pleas, of Worcester county, where the decision was in favor of Hatfield, affirming the decision of the jus- tice. The case was tried, at the December term, 1806. It was next appealed to the Supreme Judicial Court, March term, 1808. The rec- ord of the Court of Common Pleas, as certified by the presiding justice. was as follows :
" WORCESTER, SS. Court of Common Pleas, December, 1806.
The town of Winchendon, in the county of Worcester, complainants against the town of Hatfield, in the county of Hampshire, before this court by appeal from the adjudication of the Hon. Dwight Foster, Esq., one of the justices of the peace for said county, setting forth in their complaint, that Edom London, a negro man, now resident in said town of Winchendon, is poor and become chargeable to said town, and that the said town of Hatfield is the place of his lawful settlement, and praying that it may be so adjudged.
The facts in the case, from the evidence before the court, are, that said Edom, in the year 1757, was the proper estate of one Samuel Bond, and then by him sold to William Williams of Weston; that some time in the year 1760, and after the decease of the said Williams, said Edom was set off as the estate of said Williams to the wife of Oliver Partridge of Hatfield, who was the daughter of said deceased, as part of her portion in said deceased's estate, and then went to live with said Partridge, in said town of Hatfield, and continued his servant until the 2d day of October, A. D. 1767, at which time ho was sold by said Partridge to John Ingersoll, Esq., of Westfield, in said county of Hampshire, and continued with him about three years ; was then sold by said Ingersoll to John M'Cluster of Longmeadow, lived with him a few weeks ; was then sold by said John M'Cluster to Joshua Holcomb, of Simsbury in Connecticut. and lived with him about four years ; then was sold by said Holcomb to William Bond, of Lincoln, and lived with him a short time ; was then sold by said Bond to Thomas Cowdin, of Fitchburg, and lived with him three or four years ; was then sold by said Cowdin to Jonathan Stimson, of Winchendon ; and the day following he absconded and enlisted in the eight months' service in Cambridge, and before the expiration of the said eight months' service, and
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in the year 1775, was sold by said Stimson to Thomas Sawyer of Winchendon with whom he lived some time ; then he was sold by said Sawyer to Daniel Goodridge, of the same Winchendon, in the month of July, 1776, with whom he lived about five weeks ; then he enlisted into the three years' service, and the said Goodridge received the whole of his bounty, and part of his wages."
Such was the case before the Court of Common Pleas, which affirmed the judgment of justice Foster, and adjudged that London's settlement was not in Hatfield. It may be said here, in passing, that according to tradition, Eden London had his freedom from Mr. Goodridge, on con- dition that he, London, should take the place of his master, in the three years' service.
The case was brought up before the Supreme Court, at Worcester, in September, 1807, when Upham appeared in behalf of the plaintiffs, that is, the town of Winchendon. The case was continued, and at the March term, 1808, Bigelow argued the case for this town. After hear- ing arguments, the Court, Chief Justice Parsons, presiding, decided as follows :
" It is stated that the pauper was once the slave of Oliver Partridge, living several years with him at Hatfield, where his master was settled. The pau- per then acquired a derivative settlement in Hatfield. Afterwards his mas- ter Partridge sold him to J. Ingersoll, Esq., an inhabitant of, and settled in Westfield. There he lived several years with his new master, and then he lost bis settlement in Hatfield, by gaining a new derivative settlement in Westfield. As it is not stated that the pauper, at any time afterwards, again lived in Hat- field, either as a slave or freeman, it is unnecessary to pursue the case further. Having lost his settlement in Hatfield, and not having regained a new settle- ment there, the defendants are not liable for his maintenance, and the judg- ment must be affirmed with costs."
This decision relieved Hatfield from the support of Eden London, and threw the costs of the suit upon Winchendon ; but must Winchendon continue to support him? It was claimed by the town's counsel, Mr. Bigelow, among other things, that a slave could obtain a settlement by length of residence, and not merely derivatively from his master. It was farther claimed, that by two decisions of the Supreme Judicial Court, it had been decided that slavery could not exist in this Commonwealth. In the first action referred to, involving the right of the master, which came before the Supreme Judicial Court, after the establishment of the
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Constitution, the judges declared, that, by virtue of the first article of the declaration of rights, slavery in this State was no more. Afterwards in an action by the inhabitants of Littleton, brought to maintain the expenses of supporting a negro, tried in Middlesex, October term, 1796, the Chief Justice, in directing the jury, stated as the unanimous opinion of the court, that a negro born in the State before the present constitution, was born free, although born of a female slave. If this decision should stand, then London was legally a free man, when he lived in Hatfield, and had a settlement in his own right, which he had never forfeited, since he had been removed without any regard to his own wishes. But Judge Par- sons and his Associates dismissed this matter with the curt remark : " It is however very certain that the general practice and common usage had been opposed to this opinion." The decision settled this point : that " before the Revolution the settlement of a slave always followed that of his master." Eden's residence was here therefore, because his last three masters lived in this town. Again the decision affirmed that slaves when " manumitted, could acquire a settlement in their own right, and if they had resided a year in the town where they were manumitted, they could not then be warned out."
Whichever of these decisions of the Court was right; the more hu- mane one of the Court in 1796, or the possibly more legal one of the Court in 1808 ; the town was obliged to support Eden London in his old age, and as he did service in the war of independence, it is to be hoped that the maintenance was cheerfully rendered. It has come down to us that he was a " pretty smart man." He was probably an old man by this time, as it is fifty-one years from the time he began to figure, or rather to be figured, in these sales, to the final decision.
He was buried in the old graveyard in the Centre, in the northeast corner.
SECTION 4 .- LATER CASES.
In 1821, August 27, the town chose Ephraim Murdock, Esq., to car- ry on the lawsuit against the town of LUNENBURG. He became con- vinced that the right of the case was with Lunenburg, and therefore kept the case out of Court. He settled on the best terms possible with the agent of that town on condition that all the papers, in the case- evidence, &c .- should be delivered to him. This was done, but not
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long after, as he told the story, he received notice from the " whelp" that he had collected the evidence anew, thus securing his town's claim for the future, in case the memory of men should fail.
The facts of the case, in brief, were these. A woman, who shall be nameless, living when the town was organized, not far from the east school-house, bore illegitimate children. Some were white, and some were not so white. She removed to Lunenburg, but her legal domicile was in Winchendon. Some of her white, and some of her colored chil- dren, about fifty years afterwards, became chargeable to the town. The authorities of Lunenburg traced them to Winchendon, since the place of their birth is privileged with the support of such indigent offspring, and this town made an allowance to Lunenburg to pay the expense of keeping them.
Perhaps ignorance of the law in such cases made and provided, led the town to contest the case. When Esq. Murdock found what the law required, he made the best terms practicable with the rather sharp agent on the other side.
For the credit of the family it should be stated, that one of the col- ored grandsons of the woman aforesaid, was among the first volunteers from this town, in the late war of freedom.
The REED case was the next of sufficient importance to be noticed. A teamster by the name of Henry Reed, used to drive a long team of horses through the town, from Brattleborough to Boston. In 1843 he brought a complaint against the town for a defective bridge near the Robbins mill, on the old Fitzwilliam turnpike. The matter was sub- mitted to reference, and was heard in the winter of 1844, in the old hall of Mr. Milton S. Morse's tavern. Reed's counsel was Hon. Na- thaniel Wood, of Fitchburg ; Hon. Emory Washburn, since judge, gov- ernor and professor in the Harvard Law School, appeared for the town. His argument is still remembered by the writer, as characterized by candor and force, without any resort to finesse and cunning.
The case was this. The bridge needed repairs, and the workmen were about to begin, when a teamster came along who desired to pass. The bridge was strengthened by throwing on loose planks, when the team went over in safety. Reed came from below toward night, and stopped at the tavern till morning. Hearing of the bridge and wishing to avoid the other road, which was then in a bad state, he applied to Mark Whit- comb, Esq., Selectman, and requested permission to pass over the bridge.
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In pure kindness of heart, the Esq. rode up early in the morning, and told the workmen to let the plank remain until Reed had passed. The latter came along, and in crossing the bridge, either by accident or de- sign, ran his off wheels outside of the end of the top planks. The wheels cut through the lower planks, and the load was turned over into the stream. He claimed that the order from the Selectman made the town responsible for the whole width of the bridge, and his lawyer succeeded in leading the Referee to that conclusion. The whole expense was about eight hundred dollars.
The SANDERS case, so called, came up in 1849, and on the 12th of November, Harvey Wyman was chosen agent of the town. He em- ployed the Hon. Benjamin F. Thomas as counsel ; Hon. N. Wood ap- peared for the plaintiff, which was the town of Fitchburg. The case was singular, in some of its aspects, and will therefore be given at some length, and principally in the words of Cushing's Report. Lemuel San- ders and family became paupers while living in Fitchburg. The ques- tion was this : Did they have a legal settlement in Winchendon ?
It was claimed by the plaintiffs that the paupers had gained a resi- dence in Winchendon in the twelfth mode pointed out in the Revised Statutes ch. 45, § 1, by a residence of ten years, and the assessment and payment of taxes five years during that period in the town of Win- chendon ; and it was admitted that Sanders was assessed and paid a poll tax in Winchendon, as of the 1st of May, 1832, and in each suc- ceeding year until 1840.
Sanders was called as a witness by the plaintiff, to prove his ten years' residence in this town. Everything turned on his intention. About the last of June, 1831, he came to Winchendon, and went to work for John D. Dunbar. He lived here until October 26, 1842, when he re- moved to Fitchburg. His family were not brought hither until the 6th of November, 1832. They lived in Oakham up to that time, and he occasionally visited them at his home. As there were not ten years between November 6, 1832, and October 26, 1842, how could he ac- quire a residence in Winchendon? By intention. He finally, after re- peated questionings, ventured to testify that he had formed the inten- tion, in the course of the summer, 1832, to make Winchendon his home. In the words of the " Reports :"
" It was his intention-in June, 1831-to remove to Winchendon, though
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he did not know that anything was said to Dunbar about his removal, and nothing was said about the remaining or removal of his family ; that he had some conversation with Dunbar-in March or April, 1832-about removing to Winchendon, and told him that they wanted him (the witness) back to the Barre factory ; that he told Dunbar if he was going to work there (in Win- chendon) any longer, he wanted to be getting his family up ; that Dunbar thought he had better stay, and that if he had a mind to stay, and would stay and do as well as he had done, he should have the first chance there was for a tenement, of which there were then none to be had, but they were going to build some ; that he thereupon determined to stay in Winchendon, and did stay ; that at the time of this conversation, he had been and was boarding and continued to board at the factory boarding-house in Winchendon, where he had his washing and most of his mending done, some of the bad mending be- ing done at Oakham, where his family continued to reside ; that his wife and children came to Winchendon to reside on the 6th of November, 1832; that the reason why they did not come to Winchendon sooner was because there was no tenement there ready for the witness to remove into ; that after his con- versation with Dunbar, he never expected to go back and live in Oakham, but that if Dunbar did not keep him, he should go somewhere else, though he had no thoughts of leaving ; that he was assessed in Winchendon, and paid a tax there in 1832, that during this time he did not think anything about where his home was, though, in answer to any proper question, he should probably have spoken of Oakham as his home ; that he was then at work in Winchen- don, liable to be turned away at any time, and having no lease of a house at Oakham, he was liable to be turned out by his landlord at any time ; that the Assessors of Winchendon did not, to his knowledge, come to see him, except once in 1840 or 1841 ; that during the whole time while he worked in Win- cbendon, before his family came there, he worked by the day, and did not make or ask Dunbar to make any contract, &c."
The judge, HOPKINSON, was of opinion that the evidence was not suf- ficient to authorize the jury to find a verdict for the plaintiffs, a verdict was therefore rendered in favor of Winchendon and the plaintiffs alleged exceptions. The case came before the Supreme Court, October term,. 1849, when judge FLETCHER gave the decision. Having stated the case, the judge proceeded as follows :
" After the evidence for the plaintiffs was put in, the judge ruled that it would not warrant the jury in finding a verdict for the plaintiffs. Whereupon a verdict was given for the defendants. To this ruling the plaintiffs except. If therefore there was evidence which would have warranted the jury in find-
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ing a verdict for the plaintiffs, the ruling of the court below was erroneous, and a new trial must be granted. There was evidence to show that Sanders was at work in Winchendon, from June, 1831, to October, 1842, and that he had left his former home not intending to return to it again. There was also er- idence tending to show that he went to Winchendon, with the intention of fix- ing his residence and having his settlement there, and to remove his family there as soon as practicable. The intention, which formed a most essential element in the case, was a matter to be inquired of and settled exclusively by the jury. What was the intention of the pauper was a most material fact, and not a question of law, and could only be settled by the jury, and not by the court. The case, therefore, being one which was peculiarly and eminently for the jury, the ruling of the judge was erroneous, and the verdict must be set aside and a new trial granted."
Accordingly a new trial was had, and by that time Sanders, by some means, had become satisfied that he could testify that he had formed a definite intention, sometime in the summer or early autumn of 1832, to make Winchendon his home. This settled the matter, and the jury gave the verdict for the plaintiffs. It was however, and still is the opin- ion of the agent of the town, that if the case had been given to the first jury, the verdict would have been in favor of Winchendon. At that time the pauper did not seem to know much about his intention. At the latter trial, he testified to a real intention to remove hither, and that testimony governed the jury. The expense was not far from 8350.00. This case certainly illustrates the truth of the motto at the head of the chapter-" the glorious uncertainty of the law."
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CHAPTER XIX .- TEMPERANCE AND MORALS.
" What war so cruel, or what siege so sore, As that which strong temptation doth apply Against the fort of reason evermore, To bring the soul into captivity ?"
. FAIRY QUEEN. " Nature, good cateress, Means her provision only to the good, That live according to her sober laws, And holy dictates of pure Temperance." COMCS.
SECTION 1 .- CONVIVIAL HABITS.
Winchendon has always enjoyed a fair reputation, in comparison with other towns, in regard to Temperance and Good Morals. At times, intemperance has been quite too prevalent ; and other forms of vicious appetite have ruined their votaries and victims. But as a general thing, the tone of moral sentiment has been high, and the people, in suc- cessive generations, have been industrious, frugal, law-abiding and vir- tuous. Their character, in this respect, should find a place in their History. Accordingly, in this short chapter, the design will be to set forth what the town, in its corporate capacity, as well as what societies and individuals have done to promote temperance and good morals.
Nothing of special significance bearing on this subject, is found in our early annals. The fact, however, that the town was a parish, and by annual grants, sustained the preaching of the gospel, and public worship, as well as the catechising of the children in the great truths of the Christian religion, must be taken as evidence that the people were sensible of the necessity of a high state of morals. For truc re- ligion is the root of temperance, purity and all other virtues and graces of character. The minister was almost always styled, in town-language, the " teacher of piety, religion 'and morality ;" and his influence was uniformly in favor of the highest style of good morals. The greater
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includes the less, and the preaching which inculcates supreme love to God, and unselfish love to man, promotes the highest and purest virtue.
It must be admitted however, that the people, for nearly eighty years after the first permanent settlement, were addicted to the free use of intoxicating drinks, and that not a few of them suffered in health, prop- erty and character, in consequence. The elderly people remember many who were injured by their drinking habits ; and too many who became such slaves to appetite as to shorten their days and tarnish their memories. The Records of the Church show that some within its sacred fold, from which everything unclean should be excluded, were guilty of intemperance, and others of violating the seventh commandment. As the standard cf character is always higher in the Church than in the pub- lic generally, the state of morals may be inferred from the above fact. In regard to intemperance, how could it be avoided when liquors were provided for all occasions? They were drank at home, at work, while hunting and fishing, at trainings, at bees, at huskings, at weddings and at funerals. The glass and the pipe came in at all ministerial gather- ings. A meeting-house could not be raised or dedicated ; a minister could not be settled, without the inevitable rum, brandy and sugar, for the Council, the Choir and the Committee, not to mention visitors from abroad, and the public generally. A barrel, and sometimes more, would be consumed on a single occasion of this kind.
But it must not be forgotten that cases of habitual intemperance were the exceptions, in former times, in the community as a whole, while in the church they were very rare. Moreover, strenuous means were used to reclaim the erring ; sometimes by discipline, and sometimes by pri- vate exertions. These were often, though not always successful. A story is told of one of the early settlers, whose name need not be given, which exhibits the good intentions of the minister, though he was foiled on the occasion to which it refers. A citizen of good standing, though addicted to the excessive use of spirituous liquors, was visited by the minister, Rev. Mr. Brown, at the suggestion of several neighbors, who hoped that their erring neighbor might be reclaimed. The man him- self, anticipating such a call, was prepared. Mr. Brown was seen near- ing the house, one bitter cold day in winter, whereupon Mr. - met him at the door, saying : " How do you do ? walk in by the fire ; you must be very cold ; you must take something warm to drink ;" and
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