History of York County, Maine, with illustrations and biographical sketches of its prominent men and pioneers, Part 14

Author: Clayton, W. W. (W. Woodford)
Publication date: 1880
Publisher: Philadelphia, Everts & Peck
Number of Pages: 730

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liam Phips .* Mr. Davis was a worthy member of the Council, and elected to the same body the next year.

In the places of Messrs. Alcock and Heyman, Francis Hooke and Charles Frost were elected in 1693. They had been members of President Danforth's Council, and were two of the most popular and useful men in the province. In the first Inferior Court, or Common Pleas, they were both judges, and Mr. Hooke was two years judge of probate in Yorkshire, or the county of York. In 1694, they were re-elected. The same year the places of Messrs. Donnell and Davis were filled by Mr. Samuel Wheelwright, of Wells, son of Rev. John Wheelwright, the original and principal proprietary settler of that town, and Mr. Joseph Lynde, who was a non-resident proprietor of lands in Sagadahock.t He lived in Boston, and was province treasurer. The Sa- gadahock territory was represented in the Council by a non- resident landholder, with a few exceptions, through a period of sixty or seventy years. When elected, and before taking the qualifying oath, he usually made affidavit at the Board that he was a proprietor of lands in said province.

The council was annually chosen on the day of general elec- tion in May, by the members of the Board and the new House of Representatives assembled in convention, and if any va- cancies happened during the political year they were filled in the same way by the two branches united. Seven formed a quorum for the transaction of business, the Board being both a co-ordinate branch of the General Court and an advisory Council of the Governor. When the offices of Governor and Lieutenant-Governor were vacant, all acts of executive power were exercised by a majority of the whole Council, and there have been instances, especially in the Revolution, when commissions were signed by fifteen coun- cilors.

The other branch of the General Court, called the House, was constituted of deputies, or representatives, elected by incorporated towns. Governor Phips, for the first time, issued warrants, May 20, 1692, to every town "to choose two and no more," and appointed a session ou the 8th of June, when one hundred and fifty-three were returned. In this Legislature eight appeared from Maine, or Yorkshire, viz., two from each of the towns, as follows : Kittery, James Emery and Benjamin Hodson; York, Jeremiah Moulton and M. Turfrey ; Wells, Eliab Hutchinson and John Wheelwright ; Isles of Shoals, Roger Kelley and William Lakeman. Subsequent to the first year, the Isles of Shoals were never represented in the General Court, nor did any town in Maine afterwards for sixty years return at the same time more than a single member to the House. Some of the towns were always represented during that period, ex- cept in 1697. The whole delegation from the province in any single year never exceeded ten or eleven. The entire number in the House for the first ten years was usually between sixty and eighty, never, till 1735, exceeding a hun- dred members. Forty constituted a quorum for doing bus- iness ; every one was entitled to a daily compensation of three shillings for his attendance, but was finable five shil- lings if absent a day without leave.

# Report of Capt. Davis, on file in Massachusetts office of State.

1 The charter did not require councilors for that province to be residents, if they were proprietors of lands there.

HISTORY OF YORK COUNTY, MAINE.

Kittery was represented in 1693 by James Emery; in 1694, by William Screvens; in 1695, by James Emery, again ; in 1696, by John Shapleigh, and in 1698, by Rich- ard Cutts. York and Wells, united, were represented in 1694 by Ezekiel Rogers, Jr. ; and, in 1698, Abraham Preble represented York alone. Any one twenty-one years of age, worth forty pounds sterling, or a freehold which would yield an annual income of forty shillings, was entitled to vote. Every town having thirty votes and upwards could return one representative; one hundred and twenty voters, two; having less than thirty, it might unite with the adjoining town in the election of a representative.

The General Court, consisting of both legislative bodies, had full powers to establish, with or without penalties, all wholesome and reasonable laws, statutes, ordinances, and orders not repugnant to those of England ; to name and settle annually all civil officers whose appointment was not otherwise provided for, and to levy taxes needful for the support of the government and the protection of the people. But all orders, laws, statutes, and ordinances had to be transmitted by the first opportunity after enactment to the king for his approval under the royal signature. Hence the laws under this system were denominated the statutes of the reigning monarch who approved them, as, for example, " the Statutes of William and Mary," " the Statutes of Queen Anne," etc. A law, however, not approved by the king and Privy Council within three years, became of full force by the lapse of time. The necessity of transmitting the laws across the ocean, and submitting them to the criti- cism and liability of rejection of the royal board, made the legislators exceedingly careful to pass good laws, and re- stricted the number of them to a very moderate quantity compared with those made in later years. But to avoid transmitting every minor act, the General Court often acted by Resolves, and thus introduced a practice in legislation still continued more or less.

Among the first things done by the General Court under the new charter was to effect a thorough revision of the whole judiciary system. In the reorganization five judi- cial tribunals were established, viz., a Supreme Court, Common Pleas, Quarter Sessions of the Peace, and Jus- tices Courts ; afterwards Probate, Chancery, and Admiralty Courts. We give the following synopsis of these courts as furnished by Williamson in his " History of Maine :"

1. The Superior Court consisted of one chief justice and four puisne or side judges, any three of whom formed a quorum. It was a tribunal of law and justice in all civil and criminal cases through the province, and of assize and general jail-delivery in each county. But the statute establishing it was not approved by the crown till nearly three years had elapsed, so that none of the judges, except the chief justice, was permanently commissioned till 1695, nor before Governor Phips' return to England. In the mean time the jurisdictional powers of this tribunal were exercised by special commissioners of Oyer and Terminer, one of which, for instance, was issued by the Governor, June 2, 1692, to try witches. But after the statute took effect, it was found in its practical operations not to be sufficiently broad and explicit ; and another was passed in 1699, which gave the court a jurisdiction of all matters

civil and criminal, including appeals from the lower courts, reviews and writs of error, as fully to every intent as the courts of Kings Bench, Common Pleas, and Exchequer, had within the kingdom of England. The judges were appointed in 1695, and held terms in most of the counties twice every year. In June the sessions of the court were held in Yorkshire, and the shire town till the close of the second Indian war was Kittery, subsequently York.

The chief justice of this court was William Stoughton, first Lieutenant-Governor under the charter, a graduate of Harvard in 1650, appointed chief justice in 1695, and held the office till 1700. The judges were Thomas Danforth, late president of Maine, appointed judge in 1695, and held the office till his death, 1699; Elisha Cook, an eminent physician of Boston, appointed in 1695, and left the bench in 1702; Samuel Sewall, of Newberry, graduate of Har- vard College in 1671, put on special commission in 1692, appointed judge in 1695, chief justice in 1718, and left the bench in 1728; Wait Winthrop, appointed in 1696, and left the bench in 1717. Each judge's pay was a grant of £40 a year till 1700, when it was raised to £50 .*

2. An Inferior Court, or Common Pleas, was established in each county, consisting of four judges, who had cogni- zance of all civil actions arising within its limits triable at the common law. The statute constituting this court was also revised in 1699, but not essentially altered. The first bench of judges commissioned in Yorkshire, now commonly called the County of York, were Job Alcock, Francis Hooke, Charles Frost, and Samuel Wheelwright. The high-sheriff was Joseph Curtis. The terms in this county were holden at York on the first Tuesdays of April and July, and at Wells on the first Tuesdays of January and October. Appeals lay from the decisions of this court to next Superior Court sitting in the same county.

3. The Court of General Quarter Sessions of the Peace was holden by the justices of the peace within the county at the same time and place as the Court of Common Pleas. It had authority to determine all matters relating to the conservation of the peace, and punishment of offenders cog- nizable by them according to law. But it being a needless expense for all the justices in the county to meet four times a year to try a few minor offenses, the number was made by the revising statute of 1699 to consist only of those justices named in the commissions. Appeals were allowed from this tribunal to the Superior Court, the appellant being put under recognizance to prosecute the cause, to file his reasons, to produce copies of the process and of the evidence adduced at the trial.

4. Justices of the peace were civil officers known under the charter of Gorges, but never hitherto in the colony of Massachusetts, the assistants acting as justices through the jurisdiction. A considerable number was now ap- pointed and commissioned for each county by the Governor with the advice of the Council. They were to hold their office during good behavior. Each one had jurisdiction in all civil causes to the amount of forty shillings, and of all crimes so far as to commit or recognize to a higher tribu- nal all heinous offenses, and to punish such, as assaults and

# Massachusetts Records, p. 391.

CIVIL AFFAIRS UNDER THE CHARTER OF 1691.

batteries, violations of the Sabbath, gambling, drunkenness, profanity, and breaches of the peace, either by the stocks, cage, a fine of twenty shillings, or stripes not exceeding ten.

5. Probate business until the colony charter was va- cated was transacted in the County Court. But in 1687, amidst the changes in government, Joshua Scottow, of Scarborough, was commissioned judge, and his son Thomas, a young graduate of Harvard College, was appointed dep- uty recorder for Yorkshire. Under the new charter, a judge and register of probate were commissioned by the executive for each county, to hold office during good be- havior. In York County, in 1693, Francis Hooke was appointed judge, and John Wincoln register. Any ap- peal made from this court went directly to the Governor and Council.

6. A Court of Chancery was established, with powers to hear all matters of equity not relievable by common law. It was held at Boston by three commissioners, assisted by five masters in chancery, all of whom were appointed by the Governor and Council.

7. There was likewise an American Vice-Admiralty Court, and Wait Winthrop was appointed judge for New England and New York, by the crown, May 22, 1699. The successive judges were Messrs. Atwood, Mempeson, Na- thaniel Byfield, John Menzis, Robert Achmuty, and, in 1747, Charles Russell .* Besides this there was a Provin- cial Judiciary Court of Admiralty held by the Governor and Council, sitting with the judge of the American Vice-Ad- miralty Court and the Secretary of State, for the trial of piracies and other crimes committed on the high seas.

From any decision of the Provincial Courts, in any per- sonal action wherein the matter in difference exceeded three hundred pounds sterling, the charter allowed an ap- peal to the king and Council of England.

To revise and regulate the militia a statute was passed in 1693, which directed all the male inhabitants between sixteen and sixty years of age, other than those exempt by the law, to be enrolled and to do military duty four days in a year ; who were all to be armed and equipped with a fire- lock and its appendages, furnished at their own expense. They were organized by the captain-general and com- mander-in-chief into companies severally of sixty men, and classed into regiments, whose musters were directed to be triennial. All military officers of and above an ensign's rank, the commander-in-chief appointed and commissioned without the advice of the Council, and all under that rank were appointed by the captains. On any alarm given- which was understood to be a discharge of three guns in succession at measured intervals-all the soldiers in the same town were required, under heavy penalties, to convene in arms at the usual place of rendezvous, and await the orders of their officers. No officer could quarter or billet a soldier upon any other inhabitant than an inn-keeper with- out his consent.

Liberty of conscience in the worship of God was granted to all Christians by the charter, except Papists, or Roman Catholics. No attempt to legalize the old platform of church

government met with any favor, nor would the General Court, after this period, be persuaded to interfere in any ecclesiastical disputes, otherwise than to recommend an ar- bitrament or compromise. To every church, with the ex- ception named, was given and secured by law all its rights and privileges in worship and discipline. The reason why the Catholics were not protected was, that the struggle against the French in England and America at that time was over the very question of Catholic rule, and a feeling of strong animosity existed against them, both in the cabinet of William, the Protestant king, and ou the part of the peti- tioners for the charter. It was too much to expect that either party would be willing to grant free toleration to their open and avowed enemies.

While this famous charter guaranteed the rights of reli- gion, it also provided for what was deemed scarcely less in importance, as the bulwark of justice and liberty, and the safeguard of good government, viz., education. While cach town was required by law-a provision which was in- serted in each new grant for a colony or plantation-to supply itself with an able, learned, and orthodox minister as conveniently as practicable, and lots of land were required to be set off for the first minister who would venture into the new settlement, and for the support and maintenance of a constant ministry, they manifested equal care and zeal for the support of schools. Not only was a portion of land set off in each new settlement for educational purposes, but a law was passed making every town of fifty householders finable that failed to employ a schoolmaster constantly ; and when the town embraced twice that number of families, it was required to employ an instructor capable of teaching the sciences and learned languages, or to support a grammar school. Hence it was that many of the liberally educated at Harvard and other colleges, who found their way into the new settlements, paved the way for professional life and for distinction in public affairs, by first being school-teachers. The names of many distinguished citizens of Maine, at a later day, such as David Wyer, Rev. Dr. Edward Payson, Theophilus Bradbury, Judge Freeman, Judge Frothing- ham, and Theophilus Parsons, afterwards the learned chief justice of Massachusetts, who were a portion of their lives teachers of these grammar schools.t

Without going further into details, it may be remarked that the political axioms of this period, drawn up in a statute, or bill of rights, was passed in 1692, showing in a peculiar manner the sentiment, sense, and intelligence of the federative community. By these no one might be despoiled of his liberties or rights, except by the judgment of his peers or the laws of the land. Justice shall never be sold, denied, nor deferred ; nor shall any one be twice tried or sentenced for the same offense. All trials shall be by juries of twelve men, or by prior established laws. Bail shall always be allowed, except in cases of treason and in capital felonies ; wherein reasonable challenges shall be granted at the trials. Writs of habeas corpus shall never be prohibited, nor shall any tax be levied or laid upon the people without an act of the Legislature. Such was the bill which was refused approval by the crown, because the Eng-

t History of Schools of Portland.

* 1 Douglas Summ., p. 494.

HISTORY OF YORK COUNTY, MAINE.

lish ministry foresaw that it would be a security against taxation by Parliament.

The administration of Sir William Phips continued ouly about two years and a half. Ile embarked for London, Nov. 17, 1694, where he died the ensuing February. In his administration of the government he sought to promote the best interests of Maine, the province of his nativity.

CHAPTER XV.

PROGRESS OF SETTLEMENTS AFTER THE WAR.

Towns Resettled-Civil Affairs-Committee of Claims and Settle- ments-Couneilors and Representatives-Revival of the Superior Court-Trouble with the Indians -- Depreciation of the Currency- Retirement of Governor Shute.

THE close of the war began to witness a fresh revival of settlements and public and private business. On the 9th of June, 1713, a new town was added to the list of those in York County by the incorporation of all that portion of Kittery above Thompson's Brook into a municipality by the name of Berwick. Ministers began to return to their scattered flocks, and parishes to be revived. This year the General Court ordered the resettlement of five towns ; these were Saco, Scarborough, Falmouth, North Yarmouth, and one on Arrowsic Island. The next year, 1714, these towns became inhabited by several returning families, to which accessions were annually made until they were enabled to resume their municipal privileges. The settlement of Saco was so rapid that in 1717 the inhabitants exhibited a com- pact hamlet at Winter Harbor, and to encourage their zeal in settling among them Rev. Mr. Short as their minister, forty pounds were annually granted them out of the provincial treasury, for four or five years, in aid of his support.

Scarborough, prior to 1714, had been without inhabitants about ten years. The settlement of the town was recom- menced at Black Point, and was immediately followed by other settlements at Blue Point and Dunstan. In Decem- ber, 1719, a town-meeting was held, and the next year the records, which had been preserved in Boston, were safely returned. The number of families resettled at that time was about thirty. In 1727 a Congregational Church was formed, and Rev. William Thompson settled over them as pastor.

None of the desolated towns were resettled earlier or more rapidly than ancient Falmouth. . The scattered in- habitants began slowly to return in 1709, and several dilapi- dated cottages upon the Neck were repaired so as to be ren- dered habitable. The first new framed house was erected by George Ingersoll, about 1714. To encourage the settlers the General Court, in 1716, granted them twenty pounds. At this time there were twenty families settled upon the Peninsula. In 1727 they built a meeting-house and settled their first regular parish minister, Rev. Thomas Smith.

The resettlement of North Yarmouth was delayed several years, and Cape Porpoise became the town which had a simultaneous revival with those just mentioned. Though it had never before its destruction compared with its neigh- bors in wealth and population, it had been inhabited by a

bold and resolute people, and on the 5th of June, 1718, the town was re-established by the name of Arundel, in honor of the Duke of Arundel, who was a member of the Plymouth Council. In 1723 it was represented in the Gen- eral Court by Alanson Brown, its first deputy to that body.

The Committee of Claims and Settlement, in 1715, con- sisted of two councilors, John Wheelwright and Ichabod Plaisted, of Maine, and six members of the House,-Oliver Haynes, Edward Hutchinson, Adam Winthrop, Samuel Phips, Lewis Bane, and John Leighton.

Mr. Joseph Hammod, of Kittery, was one of the mem- bers of the Council from Maine from 1700 to 1709, the date of his death. He was also one of the judges of the Common Pleas, and a man of great integrity and worth, whom the people held in high estimation. He left a son of the same name, the worthy inheritor of his virtues, who first represented his town in the Legislature in 1711, and in 1718 was chosen to the Council, of which he was a member twelve years.

Mr. Ichabod Plaisted was a member of the Council from 1706 till his death. He was the grandson of Roger Plaisted, and the father of Samuel Plaisted, who died March 20, 1731, aged thirty-six years. Mr. Plaisted lived in Berwick, where he died Nov. 16, 1715, at the age of fifty-two, deeply lamented. No other name iu the province of Maine had been more distinguished for military intre- pidity than that of Mr. Plaisted, and he was also an honored judge of the Court of Common Pleas for several years.

Mr. John Wheelwright was a member of the Council twenty-five years. He resided in Wells, probably upon the patrimonial estate of his grandfather, Rev. John Wheel- wright, who was one of the original settlers of the town in 1643, and of his father, Samuel Wheelwright, who was a member of the Council six years, from 1694. He died in 1700. John, the grandson, was first elected in 1708, and was a member till 1734. He was also a judge of the Com- mon Pleas many years, and a gentleman of talents, merit, and distinction. He died in 1745.

With the exception of one year, in which Mr. John Leverett was councilor, Mr. Joseph Lynde continued, by annual re-election, to hold his place in the Council from Sagadahoek till 1716.

On the memorial of the councilors and representatives from Maine, the General Court, June 5, 1711, revived the annual term of the Superior Court, appointed by law to be held at Kittery, for the county of York, which for six or seven years prior, by reason of the war, had been entirely suspended. This was followed the next year by a settle- ment of the county treasurer's accounts, a speedy return of order, and the regular administration of law and justice.

This continued without interruption till 1722. In that year another town was added to the number of those already re-established. At the session of the General Court, in May, a petition was presented by John Smith and other proprietors of North Yarmouth, praying that the township might be re-established and suitable persons ap- pointed to revive and manage the resettlement, in place of the trustees who had been appointed under President Dan- forth. Accordingly, William Tailer, Elisha Cooke, William Dudley, John Smith, and John Powell were appointed

FOURTH INDIAN WAR.

trustees, who held their meetings in Boston for five years, but afterwards within the township. The heirs or assigns of Gendall, Royall, Lane, Sheppard, and a few others held their old lands, otherwise no regard was paid to the orig- inal allotments or to quit-rents. The town had laid waste since it was destroyed by the Indians in 1688, eight years after it was first established. The records, which had been preserved in Charlestown, were returned, and the municipal government re-established. The town was laid out in a compact square of one hundred and sixty lots of ten acres each, so as to be more easily defended from attacks by the Indians. A fort was built and occupied by a small garri- son. The progress of settlement was not rapid, yet it was such that within the next eight years a meeting-house was built, and Rev. Ammi R. Cutter, the first resident minister, was settled among them. He continued till his death, in 1763, and was succeeded by Rev. Edward Brooks, and he by Rev. T. Gilman, in 1769, who died in 1809. The next minister was Rev. F. Brown, afterwards president of Dart- mouth College.

This was the last effort made for several years to effect a new settlement in the province. Within the same year trouble again broke out with the French and Indians. The Governor, also, was not in harmonious relations with the House, and the currency of the country was very much depreciated. Large loans of paper money, made by statute order of the Legislature on pledge of lands, became oppres- sive to debtors. In 1719 it was ascertained by the Com- missioners of York County-Messrs. Preble, Leighton, Came, and Plaisted-that this county had received loans to the amount of one hundred thousand pounds; yet they were to be discharged upon the payment in specie of fifty pounds, nineteen shillings, and nine pence .* Such was the depreciation of the paper enrrency. The hard times occasioned by it was one chief cause of the resignation of . Governor Shute, in 1722. He had expected an established salary of one thousand pounds a year, whereas he was allowed only an annual stipend of five hundred pounds in de- preciated currency,-less, in fact, than two hundred pounds sterling. There had been a late instance when he could not so much as obtain a vote of the House to give an In- dian tribe ten pounds, though it were for the purpose of perpetuating peace. At length, tired of controversy, with- out popularity, pleasure, or emolument, he suddenly formed the resolution of retiring, which he did, and in December embarked for England. He had been Governor six years and two months. His administration, though not popular, was not wholly unsuccessful.

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History of York County, Maine, with illustrations and biographical sketches of its prominent men and pioneers, Part 14

Author: Clayton, W. W. (W. Woodford) Publication date: 1880 Publisher: Philadelphia, Everts & Peck Number of Pages: 730

Author: Clayton, W. W. (W. Woodford)
Publication date: 1880
Publisher: Philadelphia, Everts & Peck
Number of Pages: 730