USA > Massachusetts > Plymouth County > Scituate > The early planters of Scituate; a history of the town of Scituate, Massachusetts, from its establishment to the end of the revolutionary war > Part 10
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A third prominent citizen to be proceeded against, because of "unworthy carriages" and open disrespect to the Court and its orders, was Isaac Buck, blacksmith, clerk of the military company of Scituate, a brave officer in Phillips war, and for many years town clerk. It was before the war and while acting as clerk of the training band that he came under the disfavor of the Governor and Assistants. The incident is best told in the language of the accusation :-
"At the Generall Court held at Plymouth the 4th of October 1655.
Before William Bradford, Gov., John Browne and Thomas Prence John Alden
Timothy Hatherley
Asistants, etc
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Whereas there is a complaint brought to us of the un- worthy carriages of some persons in the traine band of Scituate in the choise of theire sargeants, which doth seem to us to be in contempt of the government in that they voted for divers unmeet persons for such a place, and alsoe in voting for the ensigne to bee a sargent that was formerly assigned to the place by us; now these are therefore to require you that in one time you come together and make choise of such as are fit for the place of sarjants and those men formerly chos- en to attend the daies of training and bearing armes as before; and if you give us occation by a like complaint, we shall take further order as we shall see meet.
"And Whereas we are informed that Isaac Bucke, the now Clarke of the said band, in youer last daie of training, when he called the compaine together, did un- worthily misdemean himselfe, we require him that hee make a publicke acknowledgement thereof att the head of the compaine, the next training day, or otherwise wee hereby require him to make his personall appear- ance att the Generall Court to bee held for this government the first Tuesday in March, next, to an- sware for his said misdemeanor.
William Bradford Timothy Hatherly John Browne. . John Alden
Buck resented the interference by the court in the affairs of the "train band" with which he was justly popular. He refused to shoe the horses which were to be employed to carry one of the commissioners to New Haven on the country's business. A fine of twenty shillings was imposed upon him, but was later remitted.
The "Bench" was kept busy in the performance of a vari- ety of duties. It visited its punishment alike upon male and female; upon old and young. It punished Lydia Raw- lins of Scituate, the wife of Nathaniel "for lying, slandering
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and defaming her brother-in-law Thomas Rawlins of Boston." Mary, the wife of Walter Briggs of Scituate, "having bine presented for telling a lye, the Court, having examined particulars about it, have cleared the said Mary Briggs, but desired Mr. Hatherley for the Court to admon- ish her to bee wary of giving occation of offense to others, by unnecessary talkeing or the occationing of others to complaine or raise such aspersions."
It has been apparent that this tribunal was little inclined to severity of punishment in dealing with defendants brought before it. The women above-named might have been set in the stocks; Buck, Hatch and Stockbridge, if the full penalty of the law had been imposed, would have been ban- ished, and Williams and Ellmes had they lived in Massachu- setts Bay under Endicott would likewise have been condemned to exile. It was due in part to the wisdom and humanity of these Pilgrim magistrates that the craze against witchcraft which so obsessed Salem and Boston, found little or no foothold in the Old Colony. This is nowhere better evidenced than in the action of the Court in the matter of Elizabeth, the wife of William Holmes, of whom it had been currently reported in town that she had become bewitched and walked abroad in the semblance of a bear. Dinah, the eighteen year old daughter of Richard Sylvester and a sister of Lydia Rawlins, had given currency to this yarn. She was summoned before the Court for examination on March 5, 1660, when it appears that "Dinah Silvester, being examined, saith the beare she saw was about a stones throw from the highway when she saw it; and being exam- ined and asked what manor of tayle the beare had, she said shee could not tell, for his head was towards her." There- upon the "Clarke" of the court was ordered to make a rec- ord of the evidence "for the clearing of a report about William Holmes his wife being accused to bee a witch."
Two other cases will suffice to illustrate the way in which substantial justice was done, whether the court was sitting as a criminal or civil tribunal. One Isaac Gurney, a neer-
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do-well who was likely to become a public charge, being in Scituate, was complained of by the townsmen of Scituate for pilfering and disorderly living. He was "sentenced by the Court to be whipt, which accordingly was inflicted and thereupon an order of the Court was directed."
"To the Townsmen of Scituate
These may certify that Isaac Gurney, who was com- plained against by some of yours for pilfering and other disorderly living, hath for the same received such pun- ishment as we judge he was capable of bearing; and not finding that he doth soe properly belonge to any other place as to youer towne, wee can doe noe less than send him back unto you with order that hee be provided for according to his condition, and that such as you shall place him with, doe so order and govern him, so that so far as he is able hee may bee made to worke for his living; and that whereas some extraor- dinary charge hath arisen by his imprisonment that it bee by you repayed."
"And accordingly the said Gurney was by warrant re- turned from constable back to constable backe to Scituate." Thus was justice satisfied and the designing "townsmen" hoist on their own petard.
But one case of homicide in Scituate occurred in the early years-that of Robert Doughty and Nathaniel Raw- lings for the murder of three Indians. They were never tried, being successful in breaking jail and effecting their escape.
The record contains the complete story in itself :
"You Robert Doughty and Nathaniel Rawlings both of the Town of Scituate in the Colony of New Pli- mouth are hier Indicted ffor that you not having the fear of God before your eyes on the seventeenth day of April last past (1686) being Saturday near night at the house of Joseph Silvester in Scituate aforesaid; Did meet and then & there Did Consider and agree: And certain Indians vizt Mathias, Job & Will being
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then & there in the peace of our Lord the King you Did quarrell with, and them or some of them and es- pecially the said Job in cruel and malicious manner Did beat and abuse and continued there in the sd quarrell with the said Indians, untill it was Darke and then & there near the sd house in violent maner (the said Will and Job having hold of a gun) you or one of you the sd Job did push soe as both the sd Will & Job were thereby thrown over a fence & soe the sd Will was murthered: All which you have feloniously wickedly wilfully and maliciously Done contrary to the Laws of God our soveraigne Lord the King and this Colony and contrary to the peace of your soverainge Lord the King his Crown and Dignity.
This above written Bill was also found by sd Grand Jury & Returned endorsed thereon (Billa Vera). Plymouth, June 1686 At ye Court of Assists
Hinckley Govr.
Also at said Court the persons before in the other leaf mentioned vizt: Robert Doughty and Nathaniell Raw- lings having been committed to Goal at plimouth for the offences & crimes before mentioned and Breaking out of said Goal before sd Court and haveing made their escape were Indicted as next followeth:
You Henry Neal, Robert Doughty and Nathaniel Rawlings are here Indicted for that you not having the fear of God before your eyes, after your commitment to his majesties Goal at New Plimouth for Divers wicked & felonious actions Did on the eleventh day of May 1686 in the evening ffeloniously break out of sd Goal and there made your escape and Did flee from Justice with Intent to evade a legall tryall; all which you have wickedly and feloniously Done against the peace of our soveraigne Lord the King his Crown and Dignity and contrary to the law in such cases made and provided.
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This above written Bill being also found by the Grand Jury who returned their verdict endorsed there- on Billa Vera.
The sd persons having escaped as aforesaid hinder- ed or prevented any further prosceution at that Court." While the Court was thus dealing with murderers, mis- creants and criminal offenders, it was also busy on the civil side.
Here marriages were performed and few, a very few, divorces granted. Wills were proved, estates of deceased persons settled, and disputes between the living tried by jury or before the Court. Besides the Court of Assistants a Selectman's Court empowered to try issues involving five pounds or under, was established in 1658.
It must be remembered that none of the men occupying these judicial positions were educated in the law or prac- tised that profession. In the Puritan Colony of Massachu- setts Bay lawyers were frowned upon. They were ineligible to sit as deputies in the General Court to enact the laws, and little heed was given to such of them as found places in the magistracy, in the interpretation of them. For this purpose the assistance of the clergy was invoked. In Plymouth Colony however, the members of the legal profession were better treated. While they were not discriminated against neither were they made the objects of favor or high place. There were three lawyers in Scituate from the early days of Plymouth Colony to the Union in 1692. They were Edward Foster, a first comer, and John Hoar and John Saffin, neighbors at little Musquashcut Pond. The latter evidently did not find the practice of law profitable. His legal abilities were recognized however when he removed to Boston and later took up his abode in Bristol.
Hoar ៛, although a man of breeding, intelligence and
¡ He was a son of Charles Hoar, who was for a time in the reigns of the earlier Stuarts, Sheriff of the city of Gloucester, England. His mother, Joanna, came to Massachusetts, a widow, with five sturdy sons in 1640. Three years later John settled in Scituate. Another brother Hezekiah was here for a time, Daniel
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education was never called upon while he lived in Scituate to take an active part in public affairs, nor do the records disclose that he practiced his profession in the Courts.
Indeed, his sole appearance there was as a litigant over disputed titles with some of his fellow proprietors in the Conihasset partnership. He removed to Concord in 1660.
By far the greatest number of the cases tried before the early Pilgrim tribunal were actions concerning land titles and debt. Every man was his own lawyer,-for the Massa- chusetts Bay practice of engaging the services of "Patrons" to defend or aid parties in their suits, did not obtain to a great extent in the Plymouth Colony. This served to en- gender litigation and stir up strife. Nor was such engage- ment expensive. Here is a copy of the costs in the action of William Hatch of Marshfield against John Hoar "for sowing, reaping and carrying away wheat off the land that the said Hatch hired of Robert Hammond."
"The charge of the Court as it respects William Hatch about the above suite, comes to
was of Concord, Richard of Yarmouth and Leonard succeeded Rev. Charles Chauncey as President of Harvard College. Charles Francis Adams, in the "Three Episodes of Massachusetts History" says of this sterling woman: "About 1640, after the death of her husband, Joanna Hoar came to Massachusetts with her five child- ren and died in Braintree in December in 1661; where she sleeps in the old burying ground in a common grave with her son, the third President of Harvard College, and Bridget, wife of that son, and daughter of John Lisle by his wife, Known in English History as the Lady Alice Lisle; whose tragic fate made familiar through the page of Macauley, furnishes one of the historic incidents deemed worthy to be immortalized by the artist's hand on the walls of the entrance to the chambers of Parliament. The threads of human destiny are apt to interlace in a way calculated to excite surprise; and it is interesting in the old burying ground of a New England town thus suddenly to come upon an inscription which tells him who stops to decipher it that the daughter of her whom Jeffreys caused to be put to death for succoring the fugitives of Sedgmuir. there lies buried." That President Leonard Hoar had a high opinion of the abilities of his brother John's children is evi- denced by this extract from his will. "x x : x" My medical writings to my wife's custody till some of my kindred addicted to those studies, shall desire them, and especially John Hoar's or any of my brothers' or sisters' sons or grandsons."
.
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Videlecet, for the witnesses, the Clarke, the s. d.
jury, and the Marshall, the sume of 17:06
To the Clarke for making an execution 02:06
To the Clarke for a suppena .00:06
To Edward Tarte, a witnesse .01:00
Slander, and "defamation of character" were favorite and frequent actions. These were presented with great zeal and much interest, not only by the litigants, but also among the witnesses. It was not an unusual occurrence after the ver- dict in one of these cases that an onlooker, a neighbor or friend of one of the parties would accuse a witness of perjury in the case; whereupon a new suit would be instituted. The damages recovered were usually not large,-a few shillings. The Marshal and constables were often plaintiffs in such actions. In the discharge of their official duties they dis- trained cattle, household furniture and all kinds of personal property and belongings. In one case a pewter basin was taken by a constable to satisfy an execution for seven shill- ings. Some friend of the owner of the basin proclaimed that the constable stole it-and was himself promptly sued. George Barlow. the colony Marshal who collected fines and penalties imposed by the Court by way of distress, frequent- ly was criticised for the heartless manner in which he served the Court's processes. In 1660 he was ordered to collect a fine of twenty-four pounds from one Goodman Gaunt. John Jenkins alleged that failing to receive payment of this amount the Marshal seized seven cows and heifers, two steers and seven and one-half bushels of peas in satisfaction; that while he had this property of Gaunt's in his possession under execution, one of the cows died, whereupon Barlow repaired again to Gaunt's home and seized another cow. For this statement, which was probably exaggerated, Jen- kins was brought to court. The jury returned a verdict for the marshal and thereupon Jenkins was ordered to pay five pounds and costs, to the maligned Barlow or make such an acknowlegement in open court as should be satisfactory to him. He chose the latter.
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James Doughty of Marshfield, a spinner, "complained against Peter Collymore (of Scituate), in an action of slander and defamation, to the damage of one hundred pounds, for reporting that Thomas Ingham tould him that the wife of said James Doughty did advise, or put the said Thomas Ingham in a way, how he might steale yearne, and make his cloth hold weight, and a pretty matter to spare." This slander cost Collamore five pounds, which he paid.
Even Mr. Chauncey caught the spirit. He sued William Barstow for slander and recovered "an hundred pound damage and the cost of the suite." Mr. Chauncey remitted the damages, satisfied with the moral effect of the verdict; he took only the costs taxed at eighteen shillings and six- pence. Deacon Joseph Tilden who had been slandered by William Randall was of a like forgiving mind. He brought two suits against Randall both of which he subsequently withdrew upon the making of this acknowledgement :-
"Whereas Mr. Joseph Tilden hath two actions de- pending against William Randall, for slandering and defaming of him now, that all men may see and know that it not William Randall's estate that he lookes at, but only to his credit, name and reputation, therefore the said Joseph Tilden is willing to lett fall his actions and rest satisfyed, if the said Randall should justify his witnesses, who witness that Randall should say that the said Tilden is a cheather, a divilish rogue; as cheat- ing divill as ever went to hell and one that had cheated him of many a pound; and that he made noth- ing of takeing a false oath, and was noe more cleare of the false oath hee tooke than the divill was. In all which, I, the said William Randall, did sinfully and wickedfully speake, haveing no ground soe to say; and do declare the said Tilden, before all the world to be free from the guilt of the slanderous charges before mensioned; and this publickly to declare and acknow- ledge in the open Court, and at a publicke meeting at Scituate; and also give this acknowledgement of clear-
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ing under my hand and satisfy the said Tilden what just and due charges he hath been att in preparation of his actions.
The last day of October Anno Dom. 1666
The marke of X
William Randall
In 1685, the colony was divided into the three counties of Plymouth, Bristol and Barnstable and County Courts "Kept by the magistrates (Assistants) living in the several counties or by and other magistrate that can attend the same or by such as the General Court shall appoint from time to time" were established. These had the same juris- diction as had formerly been exercised by the General Court, in the probate of estates of deceased persons, and in civil and criminal proceedings, except in matters of divorce and "in cases extending to life or banishment." After the down- fall of Andros and upon the annexation, in place of the courts as they had previously existed there was a Court held by a Justice of the Peace appointed by the Governor, in which civil actions involving forty shillings were tried; an Inferior Court of Common Pleas composed of four of the Justices of the Peace; a Court of Quarter Sessions of the Peace which tried criminal cases, and a Superior Court of Judicature composed of a Chief Justice and four other justices, which acted both as an appellate court, and one of original jurisdiction in all cases civil and criminal. This Court held one session yearly on the third Tuesday of Feb- ruary at Plymouth. These justices also "kept a court of assize and general goal delivery for the respective counties." The sittings of the common pleas, and the quarter sessions were likewise held at Plymouth, "on the third Tuesdayes in March, June, September and December." The Govern- or or a specially appointed chancellor sat with members of the council as "a high court of chancery." There was also a "judge for the probate of wills and granting of adminis- trations" over whose decrees the Governor and Council had
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appellate jurisdiction. Scituate was represented upon the benches of both the Inferior and Superior courts from this time on until the close of the Revolution. John Cushing the son of the first comer, and his son, John; as well as Elijah, Nathan and William, of the same family, were learned and able members of the one or the other; Thomas Clap, a grandson of the Thomas who settled here in 1640 was another. John Turner, a descendant of Humphrey was appointed in 1780, Joseph Otis in 1703, and Barnabas Lothrop, a justice of the Inferior Court for Barnstable County, was a descendant of the worthy churchman who in 1640 left Scituate to set up his congregation at Barnstable. John Otis was born here. He was the grandfather of James Otis the patriot. Ezra Bourne also a member of the Barns- table Court was the brother of Rev. Shearjashub Bourne of Scituate, who married for his third wife Deborah, the daughter of Samuel Barker and preached and lived here for twenty years. John Saffin was a justice of the Super- ior Court from Bristol, now in Rhode Island, but then the shire town of Bristol County.
CHAPTER IX
TOWN GOVERNMENT AND FREEMEN
"All praise to others, early come or late- For love and labor on our Ship of State;
But this must stand beyond all praise and zeal, The Pilgrim Fathers laid the ribs and keel;
On their strong lines we base our nation's health --- The man, the home, the town, the Commonwealth." t
T 'HE establishment of the town in 1636 meant little in the way of the management of its own affairs by the free- men. They were all managed by and from the seat of the Gen- eral Court at Plymouth. No strictly town officer save that of constable was chosen until 1666. This office was an im- portant one. The power and authority of the Court in dealing with the inhabitants of the colony were personified in it. None were elected to it but men of the highest stand- ing in their respective communities and of proved integrity. The duties of the constable are best shown by the oath taken by him in qualifying for the duties of the office. "The Oath of a Constable :
"You shall sweare to be truly loyal x x x x you shall faithfully serve in the office of Constable in the ward of Scituate for this present yeare according to that measure of wisdome understanding and dis- cretion God hath given you. In which time you shall diligently see that his Majesties the peace commanded be not broken, but shall carrie the person or persons offending before the Governor of this Corporation or some one of his Assistants, and there attend the hear-
¡ John Boyle O'Reilly's poem written for and read at the dedi- cation of the Pilgrim Monument, Plymouth.
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ing of the Case and such order as shall be given you. You shall apprehend all suspitious persons and bring them before the said Governor or some one of his Assistants as aforesaid. You shall duly and truly serve such warrants and give such summons as shall be directed unto you from the Governor and Assis- tants before mentioned, and shall labour to advance the peace and happiness of this Corporation and oppose anything that shall seeme to annoy the same by all due means and courses."
Anthony Annable was chosen to this office in 1633, 1634 and 1637 and Humprhey Turner, James Cudworth, George Kennerick, Samuel Fuller, Josiah Checkett, John Stock- bridge, Robert Stetson, William Reade, Thomas Clap, Ephraim Kempton, John Hollett, Edward Jenkins, George Sutton, George Russell, John Williams, Jr., Peter Collamer, John Whitcomb, William Parker, Joseph Coleman, William Randall, Thomas Robinson, William Hatch, Thomas Pynchon, John Turner Sr., Abraham Sutton, Joseph Wor- mell, Henry Ewell, Humphrey Johnson and Isaac Buck from thence during the next twenty-five years. It was one of the first duties of Annable in his office of constable to demand from his neighbors Nathaniel Tilden, Samuel Hinckley, George Kennerick, Samuel Fuller and John Lewis a penalty of half a shilling each imposed upon them by the Court for "keepeing" various "swine unringed."t. The constables collect the rates, or taxes that were from
¡ In order to protect the meadows (the only source of grass in the early days) a law was passed in 1633, "that no man keepe more swine than he can ordinarily keepe about his owne place, and that they be doubly wrung or at least sufficiently wrung that they root not up & destroy the meadows &c x X x x Also if in case any shall finde himselfe aggrieved & required the yoaking of any unruly swine, by reason of damage he is like to sustain, then to forefeit for every such default, per weeke, besides the damage, five shillings. Also that all piggs at or before ten weeks old shall be wrung. And upon sufficient notice to the next jus- tice of the peace (assistant) he to grant warrant to the constable to straine any of these fines. x x x But if any lose their rings or yoakes, the first notice to be without fine." Plymouth Colony Records Vol XI Page 15.
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time to time assessed for various purposes. In 1646 the proportion of the publicke charges (i. e. the expenses of the Governor and Assistants) to be borne by Scituate was £4.10s. This sum should have been collected by Ephraim Kempton and John Hollett the constables of that year. For some reason they were remiss about it and at the next Court :
"It was ordered that the now constables of Scituate be by warrant required to appeare at the next Generall Court, to give their account concerning ye officers wages."
Prior to 1630 there had been no highways regularly laid out and established in Scituate. Such ways as existed in the colony had been built under an order of the Court that "at such convenient time as shall seeme meet to the Govern- or and Counsell (Assistants), upon warning given, all men meet together for mending of the highwaies, with such tooles and instruments as shall be appointed." In Decem- ber 1638 it was
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