USA > Massachusetts > Dukes County > Marthas Vineyard > The history of Martha's Vineyard, Dukes County, Massachusetts, Volume I > Part 26
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It is not known with certainty who constituted the full court at the first session, but it can be said with some degree of assurance that besides the Governor, James Allen, Richard Sarson, and probably Thomas Daggett were the assistants,
1N. Y. Col. Mss. (Deeds), III, 75.
2N. Y. Col. Mss. (Deeds), III, 78.
3Ibid., XXIV, 159. In addition to the laws for the disposition of legal matters, other general laws were passed. One of these related to the excise, liquor selling, the licensing of public houses, and sale of strong drink to the Indians, another to weights and measures, and another to estates of deceased persons.
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elected under the provisions of the act passed by the Governor and Council of New York, to represent the two towns. From this time forth the judicial "system" of the Vineyard became such in fact as well as in name. This court exercised both civil and criminal jurisdiction as a court of common pleas and sessions of the peace. It settled admiralty cases as well, and its functions were of the widest latitude characteristic of frontier administrations.
When Dukes County was created in 1683, the regulation of the time for holding courts here was referred to the governor and council, as previously stated. Six months after the pas- sage of the bill, the following order in council was made to cover this detail: -
WHEREAS by an act of generall assembly Entitled an act to settle Courts of Justice made the first day of November: 1683-4, the times & place for the holding of the Courts of Sessions in Dukes County is Referred to the Governour & Councill, I have therefore Thought fitt to Constitute & appointe that yearly & Every yeare there shall be twice or more if occa- sion shall require a court held at such time & places as shall bee thought fitt & Convenient by . ... Matthew Mayhue Esqre: Chief Magistrate & Justice of the peace of Martiens Vinyard Mr: Richard Sarson Thomas Dogget Mr: Thomas Mayhew Esqres & Justices of the peace of the said Martins Vinyard Giving them full power & Authority to keep the said Court of sessions untill further Order According to Law & for so Doeing this shall bee your sufficient warant.
Dated at fort James the 9th: of June 1684.1
In 1692, when the new government of the Province of the Massachusetts Bay began to legislate for its recent acquisition, Martha's Vineyard, the courts of our island had been organized on a definite authoritative basis for twenty years, and during all that time they had been in the control of the Mayhew family. On Nov. 25, 1692, the general court passed an act establishing courts of justice and provided therein that "there be a general sessions of the peace held and kept at Edgartown upon the Island of Capawock alias Marthas Vineyard . . .. upon the last Tuesday in March and on the first Tuesday of October yearly from time to time." The trial of all civil cases "by appeal or writ of error" was provided for at the Superior Court to be held at Boston.2 The old bench was reappointed with one new associate.
When the act for the "better settlement" of Martha's Vineyard was passed, May 29, '1695, provision was made for
1New York Col. Mss., XXXIII, 95, No. 8.
2 Acts and Resolves, I, 73.
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appeals from the General Court of Sessions of the Peace and the Inferior Court of Common Pleas to Plymouth as expressed in the following extract from the statute: -
And all Appeals from any Judgment or Judgments given, or to be given in any of the Inferiour Courts of Pleas within the said County, shall henceforth be Heard and Tryed at the Superiour Court of Judicature to be Holden from time to time at Plymouth, within the Neighboring County of Plymouth; any Law Usage or Custom to the contrary notwithstanding: the Jurors to Serve at the said Superiour Courts of Judicature, to be from time to time Chosen and Summoned out of the several Towns within the said County of Plymouth and Dukes County, according to the directions in the Law in such case provided.
A suit for dispossession entered in our court in October, 1695, by Nathaniel Oliver of Boston against Anthony Blaney, involving the western quarter of Naushon, disclosed a defect in the county judicial system established by Massachusetts. Blaney in his answer to the complaint declared, "that the Marshall who a rasted him had no jurisdiction power nor libertie for such action on Ilesabeth Ilands," and after due consideration of this plea the justices decided "the defendants plea sufficient to barre farther proceedings."1 The General Court of Massachusetts in its first enactments had omitted the Elizabeth Islands, or assumed they were part of the Vineyard, and thus no provision was made in reality for the administra- tion of justice on the former. All commissions limited juris- diction to Martha's Vineyard by specific designation. Con- sequently to heal this defect, the council at a meeting held on Oct. 16, 1696, ordered new commissions to be issued in which "Dukes County" was substituted for "Martha's Vineyard." 2
On June 19, 1697, and on June 16, 1699, additional acts were passed, establishing courts and "settling time and place" for holding same, but no important change was made in our local sessions. The last act established a court of general ses- sions of the peace and inferior court of common pleas, both of which were to be held as before directed.3
In 1739 the Justices of the Dukes County Court of Ses- sions sent the following petition to the governor and general courts : -
1Dukes County Court Records, Vol. I.
2Mass. Arch., XL, 266; Executive Records of Council, II, 421.
3Acts and Resolves, I, 283, 367. In 1695 the Justices were Richard Sarson, Matthew Mayhew, and Thomas Mayhew, in the order named, with Joseph Norton as marshal.
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Whereas the s'd Courts now stand Istablished by Law to be held & Kept at Edgartown with & for the County afores'd On the Last Tuesday of March & October Annually The which with Respect to March Court hath Proved very Prejudicial to the Inhabitance both of this County & the County of Nantucket both with respect to their Husbandry, whaling & fishing &c.
Your Petitioners Therefore Pray that your Excellency & Honours will be pleased to order & grant the s'd March Court may for the future be held & kept in Edgartown afores'd on the first Tusdays of March Annually and your Pettitioners as in duty bound shall ever Pray1
This request was granted by the general court and con- sented to by Governor Belcher.2
CAPITAL TRIALS.
In those days the name and honor of the king or his family could not be assailed with safety, and that our island court was fully alive to its duty in protecting the dignity of the duke is evident from an incident which occurred in 1676. John Wright, a coastwise skipper, was indicted here upon the testi- mony of Isaac Norton and Peter Jenkins, "for speaking con- tumelius werds concerning his Royall highness James Duke of York, saying he was no more looked upon then a Dog, to the wounding and impayring his fayme and Dignitie." He was tried, convicted, and sentenced to death. But an appeal for clemency to Governor Sir Edmund Andros was allowed. The royal governor wrote Mayhew that "yourself having no farther objection, but satisfyed of his Innocency, Hee ought not to be prest." The court was complimented for its "due proseedings therein" and the unlucky, and probably tipsy, sailor was saved from the gallows by a pardon. In an effusive letter of grati- tude for his delivery Wright thus apostrophises Andros: "to whome under God I am behoulding to for my all there being a sentence of death given upon my Concarnes by the Court of Martynes Vineyarde had not your Cleminessy given me a Resericktion I had bin now but the prodikt of a sifer."? It was a dangerous thing to speak ill of the duke on Martha's Vineyard.
But a real capital trial was held before this court in 1689, the defendant being an Indian. The story is thus told by a contemporary writer: -
1Mass. Arch., XLI, 345.
2Dukes County Court Records, Vol. I, comp. N. Y. Col. Mss., XXVI, 42; N. Y. Col. Doc., XII, 656.
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About the year 1668 an Indian squaw was found murdered at Martha's Vineyard, and the neighbourhood suspected an Indian man, whose name was Pamahtuk, to be the author of the murder. Nevertheless upon his examination he deny'd that fact; and because the fact could not be proved against him, he was left at liberty. More than twenty years after this there was another Indian squaw found murdered and this Pamahtuk with some others were thereupon questioned, who all denyed the murder; nor was there any evidence to convict them of it. Hereupon an Indian present moved that Pamahtuk might be again interrogated concerning the murder committed so many years ago; and behold the poor creature immediately confessed himself guilty.1
At the court holden Sept. 17, 1689, Mr. Thomas West, "their Majesties Attorney complaineth against pammatoock Indian & Eleksander for killing Sarah an Indian maid at tisbury." The grand jury found a true bill that the Indian (Pammatoock) killed the girl in 1664.3
"After a fair trial," says our authority, "he was found guilty," and the court records tell the rest in short and simple phrase.
Ordered that pommatoock Indian shall be executed the 26 of Sep- tember 1689 for murder don in or about 1664: until he is dead dead dead.3
The punishment was inflicted on the day specified, prob- ably in Edgartown, and is the first known execution on the Vineyard. In this case it will be noticed that "their Majesties Attorney" conducted the prosecution. This officer is first mentioned in the previous year, under date of Jan. 8, 1687-8, as "the King's Slissiter (solicitor)" and it is presumed he was a recent appointment to aid the court in the trial of criminal cases.4 Thomas West was the king's attorney in 1690, and in the absence of other evidence may be considered as serving as such from the first date when that officer is mentioned.
JUDICIAL.
There were few persons on the island before 1800 who were learned in legal affairs, and it is probable that litigants conducted their own cases to a great extent. The County Clerks acted in all matters involving the preparation of legal documents, and the clergy usually drew up wills for their parishioners. It is thought that Temple Phillip Cooke of
'Mather, "Magnalia," II, 444.
"This date does not agree with the above cited authority, but being the original legal record it is believed to be the correct one.
3Dukes County Court Records, Vol. I.
"On that same date the court is designated as "oyer and terminer," an ancient phrase applied to a court sitting to hear and determine causes.
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Edgartown (1724), whose beautiful cipher signature is else- where shown, was the first educated attorney on the island. Admissions to the bar were not required in those days, and not until fifty years later is there any record of such a proceeding. At the January term of the Court, 1779, William Jernegan was sworn in as attorney at law, and he was followed in 1780 by Thomas Cooke, son of Temple Phillip; by Nathan Bassett in 1784, and Ebenezer Skiff in 1798, these four representing all admissions to the bar before the beginning of the nineteenth century.
THE SHIRE TOWN.
By reason of its primogeniture, rather than by a decree by statute, Edgartown has been the county seat since the set- tlement of the island, a period of over two and a half centuries, but it has not always held peaceful possession of the title. As the only "towne uppon the Vineyard" for thirty years, there was no rival to dispute its hold on the official records of the estates of the inhabitants of the island. When the govern- ment was reorganized in 1671, and other towns were incorpo- rated, no provision was made for a county jurisdiction, and hence no shire town was required; but Edgartown continued to be the residence of the governor whose influence was para- mount, and who doubtless kept all the court and land records in his possession or in that of his family. When the county was organized in 1683, no shire town was named, but it was provided in the organization of the courts that they should be held at such "places as shall bee thought fitt & convenient" by the justices, who selected the Vineyard and Nantucket alternately without naming the township. There was really but one place for such a purpose, and that was Edgartown. In this situation matters remained until the transfer of juris- diction to Massachusetts when, on Nov. 25, 1692, in an act relating to the time and place of holding courts, Edgartown was for the first time specified as the location, and thus acquired an official confirmation of her primacy.1 This seat of the new jurisdiction remained firm for about thirty years, during which time a new generation had grown up and the towns of Chil- mark and Tisbury were increasing in wealth and population. In 1700 the province taxes for Edgartown were £15, for Chil- mark £9, and for Tisbury £7; and in 1708 they were for,
1Acts and Resolves, Mass. Bay, I, 73. In a subsequent act dated June 16, 1699, this was repeated. (Ibid., I, 367.)
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History of Martha's Vineyard
Chilmark £51, for Edgartown £50, for Tisbury £30, showing for the first time the lead of Chilmark in taxable value. In 1720 the figures were still more noticeable - Chilmark £38, Edgartown £23, and Tisbury fII, making a total of £49 or over two-thirds at the middle and west end of the island. With wealth and numbers came ambition, and we find as a result, in 1720, the first definite move made to procure the removal of the shire town to the geographical center of the island. The townsmen of Chilmark started the ball rolling at a meeting held on Sept. 15, 1720, when it was
Voted, That Pain Mayhew Esq who is the Representative of said town be & is hereby dyrected to put in a pettission in behalf of the town to the Generall Court to obtain the Remove of the sheir town from Edgartown to Tisbury and that the Courts holden for the County of Dukes County may for the futur be held att Tisbury.1
Supplemental action was taken later at a town meeting held in Chilmark Nov. 28, 1720, when it was voted that a petition be sent to the General Court to obtain a committee to see about removing the place of "setting" of the courts for Dukes County.2 With becoming modesty, as the beneficiary of this change, Tisbury took no action, maintaining a passive attitude. For several years Chilmark and Tisbury had been pooling their interests in the matter of representatives to the General Court, and with one of the Mayhew family, Major Pain, then the joint representative, it was felt that the change could be effected. But nothing came of this first concerted attempt to remove the shire town.
EARLY COURT HOUSES.
Sittings of the courts were probably held at the residence of the elder Mayhew, as appears by an entry in the court re- cords under date of March 26, 1677-8, when a person was fined for an "unseemly Act in the governers house when a difference was in triall & examination before the Govourner."
Whether there was a court house in existence before this date is not known, as there are no references to such a building in the early records. On June 3, 1680, at a general court, the following law was passed: -
Ordered That the Court shall be accommodated and provided for during their sitting at the charge of the County.3
1Chilmark Records, p. 365.
2Ibid., p. 22.
3N. Y. Coll. Mss., XXIX.
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This would indicate that no accommodations had been provided heretofore, and even this does not specify that a building should be erected for the purpose. It is not likely that such was the case, and it is probable that the quarter ses- sions were holden in the church at Edgartown. But a new element had been injected into the situation, and now Chil- mark and Tisbury were making an effort to obtain the "county seat" for the latter village. Under these circumstances the office holders of Edgartown proceeded to anchor down the title of their place as shire town by providing a court house for the county, and thus have an argument against removal in case of further squalls from the west. Accordingly the bench entered into negotiations for a site, and finally, on March 14, 1721, bought a lot from Samuel Bassett, which is described as follows: -
[Dukes Deeds, VI, 124.]
Samuel Bassett to the Inhabitants of Dukes County and the Present and future Justices.
Land on which to build a Court House in Edgartown, being a part of a lot lately bought of Simon Athearn, "25 foot in breadth, beginning at a foot path that goeth along the town on the S. W. side of sd Bassett's lot, adjoining the land of Sam'l Butler, & extending westward 40 feet . . . for the use above expressed so long as the Justices from time to time shall keep or order the County Court house yard kept, warranting they shall and may build thereon.1
This lot was on North Water street, on the west side, about half way between Thomas and Morse streets, and it is supposed that a court house was erected thereon at once as it is known that the building was in existence some years later and described as located "within 20 rods" of the water.2
For forty ensuing years peace reigned on this question and, presumably. Edgartown considered herself secure in her glory, but the same causes were still operating and the west end of the island was not satisfied. It was a state of neutrality that all understood and, in 1761, the agitation began again. We may suppose that Chilmark was the chief conspirator at this time as on the previous occasion, for the battle was started by its people in the latter part of that year. The following records show what action they took: -
1Bassett sold three acres and a house to Samuel Waldo of Boston in 1729 (Deeds' IV, 313), and Waldo deeded same to Samuel Stewart in 1734, "reserving for Court House land 30 feet in width and So feet in length joining to said foot path," i. c., along the bank, the present North Water street. (Deeds, V, 142.) This is a different measure- ment of the plot as described in Bassett's deed.
2Mass. Archives, CXV, II, 758.
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Att a Town Meeting Lawfully warned and heald in Chillmark on Wednesday the 14th of Oct. 1761 Zacks Mayhew moderator. . .. allso voted that Mr. Jonathan Allen be an agant for sd town in order to join with the agant of the town of Tisbury in sd County to Prepar a Petishon to the grate and general Court of the Province of the Massachusetts Bay that Tisbury may be made the Shear town of sd County in the room of Edgartown in sd County and to do and act all things necesary Relation thereto.1
This time Tisbury was not so shy and, when the subject was brought to the notice of the townspeople, a meeting was called to see what stand it was best to take in the premises. Accordingly, a town meeting was called two days later to con- sider the subject, and the following is a record of the action taken by the freeholders: --
At a legal Town meeting held at the Meeting House in Tisbury on the 16th Day of October Anno Dom: 1761 ... . said Meeting was Notified to se if a Vote might be Obtained to Chuse some meet Person to Prefer a Petition to the General Court or Assembly held att Boston &c: that Tis- bury might for the future be Made The Shire Town in Dukes County: Said Agent to Joyn with the Agent of Chillmark in Prefering Said Petition and said Vote being Put it Past in the Affirmative and Mr. James Athearn was Chosen for the Purpose Abovesaid Recorded.2
This joint committee, Jonathan Allen and James Athearn, acting in accordance with their instructions, prepared and pre- sented to the Governor and Council and the Representatives in General Court assembled, the following petition, dated Nov. 20, 1761, setting forth the reasons for the change desired :-
[Mass. Archives, CXVII, fol. 752.]
PROVENCE OF THE MASS. BAY
To His Excellency Francis Bernard Esq., Cap- tain General &c., & to the Hon'bl His Majes- ties Council & House of Representatives in General Court assembled:
The Petition of James Athearn & Jonathan Allen Agents for the Towns of Tisbury & Chilmark, Humbly sheweth: That the first setling of This County by the English was at the East end att the Town of Ed- gartown, which ever since has been The Shire Town in said County & the courts held there But as the People Increased They Extended towards the West End so that the Greatest Part of the Inhabitants are in the Towns of Tisbury & Chilmark, as may be seen by the lists of Valuation.
Now Your Pettrs Humbly Pray That as the Greatest Part of the In- habitants are in Tisbury & Chilmark that Tisbury may be for the future The Shire Town in said County & The Courts Held There which we ap- prehend will be vastly more Beneficial For the Community in said County as The Courts will be Held in the Center of said County which now is at
1Chilmark Town Records, I, 118.
2Tisbury Records, 179.
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one End. It will Likewise Lessen the Court Charges for Grand Jurors Bills of Costs, Travel of Witnesses &c. And further yr Pettrs apprehend it will accomodate the Inhabitants of the County much more then at pres- ent for those Persons obliged to Tend Court Cant Return Home at night which they may if s'd Courts may be for the Future held in Tisbury & Further yr Pettrs would Inform yr Excellency & Hon'rs that that Part of This County called Elizabeth Islands & the Island of Nomans Land lay Three Leagues to the Westward and Southward of the Island & have thereon about Twenty familys which are obliged to Tend Court after they have Landed on the West Part of The Island. They are obliged to Travel at Least Twelve Miles to the Courts at Edgartown, which they Cant Doe & Returne at Night, Whereas if the Courts were Held in Tisbury they might Doe their Business & Return at Night & Farther yr Pettrs would Beg Leave to Inform yr Excellency & Hon'rs That That Part of Edgartown where the Courts are Held now is Poorly furnisht with Pasture or Hay to Keep Horses &c. Moreover yr Pettrs further Inform yr Excellency & Hon'rs that The Ferry for Transporting People from the Vineyard to the Main Land is in Tisbury &c. And at a Legal Town Meeting held in the Towns of Tisbury & Chilmark your pettrs were chosen as Agents for the purpose aboves'd as may appear by the s'd Town Vote Hereto Annext, and yr Pettrs as in Duty Bound shall ever Pray.
JAMES ATHEARN JONATHAN ALLEN.
The council took the following action, under date of Nov. 21, 1761: -
In Council Read and Ordered that the Petitioners serve the Town of Edgartown with a copy of this Petition that they shew Cause (if any they have), on the second Thursday of the next sitting of this Court, why the Prayer thereof should not be granted.1
In due course this notice was served as directed, and al- though it was known what was going on, yet Edgartown had done nothing officially about the matter. When notice was received, a town meeting was called, at which the following votes were passed on Dec. 15, 1761, to meet the impending disaster: -
V'oted. John Sumner Esq., John Norton Esq., Matthew Norton, Mr. John Coffin, Mr. John Worth, Mr. Peter Norton, Mr. Elijah Butler, serve as a committee to draw an answer to a Petition which was sent into the General Court by the town of Tisbury and Chilmark praying that Tisbury might be made the Sheir Town.
Voted, that John Norton and John Sumner Esq., be joint agents for the town with full power either of them to appear in the absence of the other at the Great & General Court of this Province and there in its be- half to make answer to a Petition of the towns of Chilmark & Tisbury, which prays that Tisbury may be the Sheir town in Dukes County & to prosecute the sd answer till the fate of the Petition be determined .?
1Council Records, XXIV, 117.
2Edgartown Records, I, 233.
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This strong and formidable committee started out on the war path without delay, and the sub-committee prepared the following interesting, humorous, and powerful answer to the petitioners: -
[Mass. Archives, CXVII, fol. 758.]
To his Excellency Francis Bernard, Esq., Capt General &c., To the Honorable his Majesties Council & House of Representatives in a General Court assembled: -
Forasmuch as your Excellency & honours have been pleased to order that the Town of Edgartown should be served with a copy of a Petition of James Athearn & Jonathan Allen Esq'rs as Agents for the Towns of Tisbury & Chilmark for the removal of the Shire Town in Dukes County from Edgartown to Tisbury in order for our offering Reasons if any we have why their Prayer ought not to be granted, Wherefore we the Sub- scribers as Agents for s'd Edgartown beg leave to make Answer as Fol- loweth: - And in the first place we shall shew the true force (if any there be), in those reasons which they have alleged for the removal thereof, and then offer some further reasons why their Prayer ought not to be granted.
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