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 9
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That according to the x x x x due privilege of the subject aforesaid, no imposition, law or ordinance be made or imposed upon us by ourselves or others at present or to come, but shall be made or imposed by consent according to the free liberties of the State of Kingdom of England & no otherwise.
That whereas before expressed, we finde a solemne & binding combination as also letters patent derivatory
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from his Majestie of England our dread Sovereign, for the ordering of a body politick within the severall limits of this patent vizt from Cowhasset to the uto- most bounds of Puckanokick, westward, & all that tract of land southward to the southern ocean with all and singular lands rivers, havens, waters, creeks, ports, fishing, fowling, &c. By vertue whereof we ordaine institute and appoint the first Tuesday of March every yeare for the election of such officers as shall be thought meet for the guiding & government of this Corpora- tion." f
It was provided that upon the day appointed a Governor and seven Assistants should be chosen, "to rule & governe the said plantations within the said limits for one whole yeare & no more. And this election to be made only by the freemen according to the former custome. And that there be also Constables for each part, and other inferior officers to be also chosen." It was further enacted that there should also be elected a treasurer "whose place it shall be to receive in whatsoever sum or sums shall appertain to the Royalty of the place either coming in by way of fine amercement or otherwise."
A "Clarke of the Court" and Coroner were also to be chosen. The duties of all of the elective officers, from the Chief Executive downward, were prescribed and defined. The Governor was responsible for the due execution of all the laws and ordinances. He was to call together and ad- vise with the Assistants "upon such material occasions as time shall bring forth." In such a meeting he had a "double voice." If the Assistants deemed the matter too momentous for an ultimate decision by themselves and the Governor, the latter warned a meeting of the whole body of the freemen-the Great and General Court. The Gov- ernor also had the power to arrest and commit to jail,
¡ The original record in a note subsequently made has the fol- lowing :- "This is altered afterwards to the first Tuesday in June yearly by a General Court" This because of the boisterous March weather and the distance to the place where the election was held.
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provided that "with all convenient spede shall bring the cawse to hearing before either of the Assistants or Generall Court according to the nature of the offense." The As- sistants or Magistrates, as they afterwards came to be called were required to appear "at the Governor's summons" and give "his best advice both in a public Court and private Councill with the Governor for the good of the Colonyes within the limits of this Government." The individual assistant might examine and commit to jail under like cir- cumstances as the Governor in the latter's absence and he sat with him in the trial of all except trivial causes. These latter were tried usually before three or more Assistants. In this capacity, whether sitting with or without the Gov- ernor, the tribunal was known as "the Bench." Capital crimes of which there were five, i felonies, and offences against the government were tried before the whole body of freemen, Governor and Assistants sitting as the General Court. No danger then threatened of encroachment of one branch of the government upon the prerogatives of another. It was not until many years later that the Executive was restrained from interfering with the Legislative and the Judicial, the two latter from coming into collision with the first and all from clashing with each other. Judge Morris regards this as a great achievement.
"But," he says "it remained for our own America to develop the idea of the triple division of the powers of government and their true relation to each other, to the fullest extent. The government which Montes- quieu thought he found in England, he would have found more naturally developed even then in our col- onies, if he had been better acquainted with them. By reason of their peculiar circumstances the triple divi- sion had become the almost universal practice in the thirteen colonies; and what was practice in the colonies became fundamental law when the colonies became
¡ Treason or rebellion against the government, wilful murder, witchcraft, arson and the crime against nature."
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independent states. × X x It has now to a greater or less extent permeated the policy of all civil- ized nations; although nowhere has it been so thorough- ly established as a part of governmental policy as it has been with ourselves. x x x We are a wonderfully inventive people; but the greatest of American inven- tions is that of an independent judiciary, constituting an equal co-ordinate power in the State with the legisla- tive and executive branches of government. An independent judiciary is the best safeguard of popular liberty that has ever been devised, and the best contri- bution to jurisprduence that has been made in modern times." f
It was but for two years only that the whole body of freemen sat in the legislative branch of the government. On March fifth 1638 it was enacted that :
"Whereas complaint was made that the freemen were put to many inconveniences and great expenses by their continual attendence at the Courts. It is therefore enacted by the Court for the ease of the sev- erall Colonies and Townes within the Government, that every Towne shall make choice of two of their freemen and the town of Plymouth of four to be Com- mittees or Deputies to joyne with the Bench to enact and make all such. lawes and ordinances as shall be judged to be good and wholesome for the whole. Pro- vided that the lawes they doe enact shalbe propounded one Court to be considered upon until the next Court, and then to be confirmed if they shall be approved of (except the case require present confirmation). And if any act shall be confirmed by the Bench and Com- mittees which upon further deliberation shall prove prejudicial to the whole, that the ffreemen at the next election Court after meeting together may repeale the same and enact any other usefull for the whole. And that every Township shall beare their Committees
+ Morris-History of the Development of Law, page 313 et seq.
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charges and that such as are not ffreemen but have tak- en oath of Fidelitie and are masters of famylies and Inhabitants of the said Townes, as they are to beare their part in charges of their Committees, so to have a vote in the choyce of them. Provided they choose them only of the ffreemen of said Towne whereof they are; but if any such Committees shall be insufficient or troublesome, that then the Bench and the other Committees may dismiss them and the towne to choose other ffreemen in their place. +
That the body of deputies should be made up only of freemen is indicative of the jealousy with which the church was guarded. As has been shown in earlier pages, only he who was church-member, orthodox in religion and not vicious in his life, could be a freeman. While others who had taken the oath of fidelity were permitted to vote, they were restricted in their election to a choice between freemen. While the sole legislative body was composed of this class the church for which it made the laws, was safe from cor- ruption, attack, or disestablishment.
In addition to the officers before mentioned, the code adopted at this meeting provided for presentments by a grand jury or "Great Quest" as it was called. Such pre- sentments were to be made only upon oath, which might be administered by an Assistant. Trial thereof, as well as all causes between individuals wherein the thing in controver- sy did not exceed forty shillings, was by jury. Misde- meanors and small causes were tried before the Assistants, associates or magistrates as they were variously entitled, and many years later the more trivial disputes were heard and determined by selectmen of the towns.
The covenant of marriage was considered by the Pilgrims as a purely civil contract the consummation of which was to
Plymouth Colony Records Vol. XI (Laws) page 31.
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be before a magistrate, and not a function of the church to be solemnized by a man of the cloth. f
The Assistants were authorized to perform this cere- mony. Timothy Hatherly was "appointed and deputed by the Court to administer marriage at Scituate as occasion shall require." Thomas Prince, afterward Governor, with Margaret Collier; Nathaniel Morton, the "Clarke" with Lydia Cooper; and many others were from time to time united in marriage before "the Bench."
Service in all elective offices was compulsory, for the term of the first election at least, and fines for refusal were imposed. Nor was the law less severe in the matter of the actual casting of the ballot by those entitled. At first it was required that the freemen should attend the annual election at Plymouth in person. Later he might prepare his vote in the town meeting, seal and deliver it to the deputy from his town who was required "to observe by a list of their names whoe hath voted and whoe hath not." Failure to exercise the elective franchise in the one way or the other, was punished by the imposition of a fine at first of three, and when the privilege of proxy was granted of ten shillings.
¡ Bradford in his history gives the reason for this at page 122 "May 12, (1621) was ye first marriage in this place, which accord- ing to ye laudable custome of ye Low-Countries, in which they had lived, was thought most requisite to be performed by the magis- trate, as being a civill thing, upon which many questions about inheritances doe depend with other things most proper to their cognizans, and most consenant to ye scriptures Ruth. 4. and no where found in ye gospel to be layed on ye ministers as a part of their office. This decree or law about mariage was published by ye Stats of ye Low Countries Ano. 1590. That those of any relig- ion after lawful and open publication, coming before ye magis- trats, in ye Town or Stat House, were to be orderly by them mar- ried one to the other. Petets Hist. fol. 1029. and this practise hath continued amongst, not only them but hath been followed by all ye famous churches of Christ in these parts to this time. Ano. 1646."
Plymouth Colony Records, Vol. III, Page 152.
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Plymouth, Duxbury and Barnstable monopolized the office of Governor in the Plymouth Colony from the beginning, to the amalgamation with Massachusetts Bay in 1692. James Cudworth after his restoration to citizenship was made Deputy Governor at about the time of the creation of that office, but that was as near as any Scituate man ever came to the chief magistracy.
This should not be taken as a reflection either on the town or the abilities of the men who were its representative citizens. Bradford early advocated rotation in office, but his advice was not heeded. His successors, Prince, Wins- low, and Hinckley were as regularly re-elected as was he, himself. The men whom the town of Scituate sent to Plymouth as Assistants and Deputies were individuals of character and high standing in the colony. Anthony Anna- ble was the first person to hold the office of Assistant, and this before the erection of the town. Upon its incorpora- tion he was continued for two years. Timothy Hatherly, Edward Foster and James Cudworth followed him, Hath- erly and Cudworth for many years, Foster but for one. There were no sittings of the General Court at Plymouth during the reign of Andros. After his overthrow John Cushing, the first of that name in Scituate, served until the annexation. Among the deputies to the General Court during this time, were Annable, Foster, Cudworth, Hum- phrey Turner, Richard Sealis, John Williams, Thomas Chambers, Edmund Edenden, George Kennerick, Thomas Clap, Robert Stetson, James Torrey, Isaac Buck, Isaac Chittenden, John Cushing, John Damon, Jeremiah Hatch, John Bryant Senior, Samuel Clap, Joseph Sylvester and Benjamin Stetson. Upon the establishment of the union between the two colonies of Plymouth and Massachusetts Bay, there were sent from Scituate to the General Court held at Boston, up to the time of the adoption of the state constitution, John Cushing and Samuel Clap, Benjamin Stetson, John Cushing, Jr., son of the Assistant and Deputy, Elder Thomas King, John Barker, Joseph Otis, Thomas
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Turner, Stephen Clap, James Cushing, a brother of John Junior, Thomas Bryant, Amos Turner, John Cushing, third, Nicholas Litchfield, Thomas Clap, a great grandson of the early Assistant, Caleb Torrey, Ensign Otis, Joseph Cushing, Gideon Vinal, Nathan Cushing, William Turner, Israel Litchfield, Rev. Charles Turner and Daniel Damon. All of these stood well up among the public men of their times. The three generations of Cushings named above, at differ- ent periods also occupied honorable position upon the bench. William Turner was a major in the Revolutionary army and a delegate to the Cambridge convention to prepare a State constitution, and Gideon Vinal was a delegate to the Salem Congress in 1774.
The laws enacted by the legislative branch up to 1692 were both various and numerous. Although they followed in the form of their enactment the "good and wholesome laws of England," the subject matter was that which from time to time arose from and was suited to their necessities and surroundings. They were repeatedly both repealed and revised. Among the earliest laws the crimes in addition to those made capital, were adultery, drunkenness, thefts, sell- ing or lending boats, gear or guns to the Indians; profane swearing and cursing; removing or defacing land marks; burning fences; embezzlement; forgery of deeds; theft of public records and reproaching the Marshal. In 1645, the practice of wearing a domino or mask, the better to prevent recognition while bent upon immoral quests, had grown to such an extent that the General Court took a hand to pre- vent it. On June 4, 1645 this law f was passed :-
"Whereas some abuses have formerly broken out amongst us by disguiseing, weareing visors and strang (e) apparell, to lascivious ends & purposes, It is therefore enacted That if any person or persons shall hereafter use any such disguisements, visors, strange apparell or the like to such lascivious and evill ends and intents, and be thereof convict by due course of law,
¡ Plymouth Colony Records Vol XI (Laws) page 48.
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shall pay fifty shillings for the first offence or else be publickly whipt and for the second tyme five pounds or be publickly whipt and be bound to the behavior, if the Bench shall see cause."
Profanation of the Lord's Day by "doing any servill works" was also punished. Lying, playing at cards or dice, denying the scriptures and villifying the ministers, neglect- ing to "come to the publick worship of God," travelling on the Lord's day and horse racing "in any street or common road" were denounced and the offenders fined, whipped or placed in the stocks.
Sumptuary laws early occupied the attention of the government. The first legislation was the act of June 2, 1633 :-
"That none be sufferred to retale wine, strongwater or biere either within doores or without except in Inns or Victualing howses allowed, And that no beere be sold in any such place to exceed in price two pence the Winchester quart."
"That such as either drinke drunke in their persons or suffer any to drinke drunke in their howses be en- quired into amongst other misdemeanors and accord- ingly punished or fined or both by the descretion of the bench."
This regulation of the liquor traffic by confirming it to keepers or ordinaries or taverns sufficed for a number of years. In 1674 abuses having arisen, tavern keepers were prohibited from delivering liquor to the townspeople on the Lord's day and required to clear their houses of all people who were there "(on a drinking accoumpt)" except actual lodgers. Three years later, the traffic increasing rather than abating, this act was passed :-
"As an addition to former orders of the Court for prevention of the growing intolerable abuse of wine, strong liquors, etc., both amongst the Indians and English.
"It is enacted by the Court that Noe ordinary
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keepers or other person or persons shall sell draw or suffer to be drawne any wine or stronge liquors to any but strangers except in case of manifest sickness or nessesitie in that kind; on paine of ten shillings ffor- feite for every such default the one halfe to the country and the other halfe to the enformer.
"It is ordered by the Court and the authoritie thereof that none shall presume to deliver any wine stronge liquors or cyder to any person or persons whome they may suspect will abuse the same; or to any boyes or gerles or single persons tho pretanding to come in the name of any sicke person without a note under the hand of some sober person in whose Name they come; on paine of five shillings for every such transgression; the one half to the Country and the other halfe to the enformer."
So much importance was attached to the proper enforce- ment of this law that special agents were appointed to see to its observance in each town. John Bryant who had fre- quently done public service as a grand juryman and con- stable and Thomas Wade whose father was a tavern keeper on Brushy Hill in years before, were appointed for Scituate.
The keepers of these ordinaries or taverns were licensed by the General Court, during the pleasure of that body.
The provision for such a license appears first in 1646 when it was enacted :-
"That if any victualler or ordinary keeper do either drink drunck himself or suffer any person to be druncken in his house they shall pay a fine of five shillings a piece. And if the victualler or ordinary keeper do suffer any Townes- men to stay drinking in his house above an hour at one tyme the Victualler or ordinary keeper shall pay for every such default eleven shillings and the person so staying above the said hour three shillings.
The law also defined the state of drunkenness :
"And by drunkenesse is understood a person that either lisps or falters in his speech by reason of over-
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much drink, or that staggers in his going or that vo- mits by reason of excessive drinking, or cannot follow his calling."
It may happily be recorded that none of the leading men and very few of the inhabitants of Scituate were haled into Court for this offence. On the contrary the licenses to keep public houses and to retail liquor were given to the best men in the community. Christopher Wadsworth of Dux- bury, than whom none stand higher in the annals of the old colony was an ordinary keeper in Duxbury. Isaac Chitten- don, Nicholas Wade, Edward Jenkins, Matthew Gannett and Joseph Barstow were all, at one time or another, tav- ern keepers at Scituate. There is no record that they either offended the proprieties or the laws, in the maintenance of their hostelries or that the licenses of either were ever re- voked.
Tobacco also was taboo. The abuse sought to be reme- died by law was "in takinge of Tobacco in uncivill manner in the streetes and dangerously in out houses, as barnes, stalls about hay stackes, corne stackes and other such places." Twelve pence fine was imposed for the first offence, two shillings for the second, and a repetition subjected the de- linquent to be bound for his good behavior. Soldiers in training might use the weed however, but no person was allowed to smoke on the Lord's day going to or returning from church within two miles of the meeting house and no juror might smoke "whilst they are empannelled upon a Jurie x x x except they have given up their verdict or are not to give it up until the next day."
The only other minor offenses denounced and punished, were the making of seditious speeches against the govern- ment, failure to ring swine, and frauds by millers and tail- ors. The latter were not usual. George Pidcoke a tailor of Scituate was however indicted for withholding and detain- ing a part of a yard of "canvasse" from the owner. He was evidently one of the undesirables who had found his way across the ocean and into the Colony. In addition to
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his appearance in court for the fraud above named, he was presented for perjury, for persistent refusal to bear arms, and to "trayne" with the military company. It appears from the record that besides being a perjurer he was a suc- cessful malinger. At a Court of Assistants held on the second day of January 1643 "Upon certificates made to the Court by George Pidcock (then) of Duxburrow, Taylor, by reason of a cold palsy that his body is subject unto, is unable to bear armes or to exercise with a piece, is therefore by the Court freed from such service, and not to be fined for not trayneing hereafter, but to pay his fines for the tyme past, because the Court was not so informed formerly." Five years later however his ruse was discovered and this order was made :-
"George Pitcoke of Scituate being wholly defective in respecte of armes, is to provide arms compleat for one man, and constantly to pay his fines, for yt he beareth not armes."
He was still living in Scituate and presumably perform- ing no military duty in 1670.
The millers of Scituate, Annable, Barstow, Stockbridge and the others were all honest. In 1637 "It is enacted by the Court, that the miller of Scituate shall not take above the twelfth part (of the bushel) for the tolle of grinding corne." There is no evidence appearing by the record that either this toll or good measure were violated.
Not so, however, in regard to seditious speeches against, and the upbraiding of the government. Scituate townsmen both before and after admission as freemen, were wont to speak their minds freely and the government was quite as ready to prosecute them therefor. John Stockbridge was a persistent offender in this particular. On June 5, 1638, "John Stockbridge of Scituate is presented for disgracefull speeches, tending to the contempt of the government, & for giving speeches to them that did reprove him for yt. Wit- nesse, Edward Foster & James Cudworth." "Fined for yt Again." In the same year he was presented for "receiv-
BOUND BROOK GLEN. Morris's Sawmill and the mill-trail in November. From a painting by Walter Sargent.
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ing strangers & forreiners into his house & lands, without lycence of the Governor and Assistants, or Acquainting the towne of Scituate therewith." The next Court he took the oath of allegiance to the King and fidelity to the Colony but this did not stop his seditious speech. On the fourth of April 1642 he was put under bonds in the sum of £20 to be of good behaviour; but the following September found him again before the bench "for his contemptuous speeches against the government, proved by oath against him; is fyned £V," of which sum forty shillings were remitted. He was however elected a surveyor of highways in 1645, served as a grand-juryman in 1648 and propounded "to take up his Freedom" in 1650.
William Hatch was another to be prosecuted for his loose speech concerning the government, and his manifest con- tempt for its authority. The reason for this attitude is not readily apparent. As early as 1634, he had settled in Kent Street, was Elder of the church, frequently both a grand and petit juryman, and performed other important duties to the young colony. Even after the harsh treatment that was awarded against him for his seditious speeches he was twice elected a deputy and also placed at the head of the town's military company. He was apparently devoted to the welfare of the church, the colony and his neighbors; he was a man of some means and frequently became surety for the latter when any of them had fallen into trouble. One, however, William Holmes, was found to bear this testimony against him :--
"The deposition of William Holmes taken by and affirmed in the open Court. This deponent sayeth, William Hatch used these wordes, or to the like effect, viz: that the warrants sent from the governor were nothing but stincking commissary warrants or attach- ments and that the warrants sent in that kynd are no better than commissary court warrants; and that the warrant sent to the constable f to warne him the sd
¡ Samuel Fuller of Scituate.
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Hatch to appeare at the Court of our Soveraigne lord the Kinge was but a commissary warrant."
The only explanation for his sneering comparison of the Governor's summons with the process of the Scottish divorce court which can be given, must be, that although four years had elapsed when this speech was uttered, he still smarted at having been required to appear before the Court in 1637, for an inconsequential trespass at Marshfield. After neighbor Holmes had testified, and without further ado, Hatch was "committed to goale for want of sureties for his good behavior." He did not stay long. On the same day, the devout and kindly Thomas Cushman of Plymouth, and John Coombs recognized with him in the sum of twenty pounds each for his appearance "at the next Generall Court of our said soveraigne lord the Kinge, etc., to be holden at Plymouth, etc., and in the mean tyme to be of good behavior towards our said soveraigne lord the King and all his leige people, and abide the further order of the Court, and not depart the same without lycence." There- upon he was released. The next term of the General Court came and went but the record is silent as to any further ac- tion taken against him.
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