USA > Maine > York County > Province and court records of Maine > Part 2
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41 Or 9 May. See Fannie Hardy Eckstorm, "Pigwacket and Parson Symmes," New England Quarterly, IX (1936), 378-402.
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Father Rale, gave "Rhum or strong drink" to some Indians, an offense for which he was summoned before the Court of Sessions at York.42 Two witnesses, Capt. Thomas Sanders of the Province Galley, and Capt. Joseph Heath of Fort Richmond, called to give evidence, viewed their attendance at court as "impractical" because of their military obligations. Upon their petition,43 the General Court ordered the York justices to stop all proceedings in spite of the Council's proposal to transfer the case to Suffolk County as a more convenient location.44 The charge was not taken up again, possibly because of the popularity of Jacques' exploit at Norridgewock.
In connection with this same ceremony, Major Samuel Moody, the Maine justice, took umbrage at the conduct of Benjamin Wright who, when ordered to attend as a member of the military, replied that he "was very willing to wait on his Honor [the Lieutenant Governor] But he would not do so by old Beelzebub's Order." His dignity considerably ruffled, Major Moody complained to the court that he had been abused and scandalized. Wright, bound over to the next court, posted the re- quired bond, wrote abject apologies, but failed to appear at the assigned court, and forfeited his bond, thus closing the case.45
A CASE OF MURDER
The presence of the militia in Maine during Dummer's War was the occasion of the murder of John Peter by Joseph Quason (or Quasson) at Cape Porpus. They were among the score or more Indian volunteers serving in Capt. Dominicus Jordan's company at Spurwink. Quason was probably the grandson of Mattaquasson, sagamore of Monomoy, who with other Indians sold a large tract of land at Nauset, Cape Cod, to William Bradford and his associates in 1666. He was born at Monomoy on 28 March 1698. At the age of six when his father died leaving a debt of £5., he was bound out to Samuel Sturgis of Yar- mouth. In his confession, Quason stated that he never drank to excess until the age of eighteen; from then on he kept bad company. Tried and convicted before the Superior Court, he was hanged by Sheriff Jeremiah Moulton on the seashore about one mile from the York Gaol where he had been imprisoned. About three thousand persons, it was said, at- tended, attracted by a spectacle unknown for seventy years. Moulton
42 Below, pp. 234-236.
43 Massachusetts Archives, xxxi, 132-133 (17 Dec. 1726).
44 House Journals, VII, 190-191 (26 Dec. 1726).
45 Below, pp. 267, 268, 271.
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submitted his complete bill, including the cost of building a gallows and making a coffin, to the General Court which apportioned part of the cost to York County.46 Witnesses were brought from a considerable distance to give evidence. Robert Staford was allowed £16:9s for 114 miles travel from Duxbury to Plymouth and then thence to York.47 Two Indians, Joseph Tapan and Jacob Ketow were allowed &3., "they being Twelve days from home Attending Court and Travelling."48
"Father" Samuel Moody, the York parson (not to be confused with Major Samuel Moody of Falmouth), made the most of the tragedy. He interviewed the prisoner, saw that he was properly visited in the gaol, pleaded with him, impressed him with the awfulness of his crime and the possibility still of salvation, marched with him to the gallows along with nearly all the ministers of the county, and finally published an account of his life, including for good measure, the sermon he preached after the execution.49
COMPLAINTS AGAINST OFFICIALS
The dignity of high office did not prevent the justices themselves from being brought to judgment. Capt. Gray was presented in his own court for selling rum without license. His defense was that "the neces- sity of Some of the people of Bidiford Obliged him to Supply them with a small Quantity of Liquor & that he thought his So doing was no breach of the law."50
Justice Hammond complained that Justice Frost "had call'd a meet- ing by his warrant to vacat what a former Meeting of the parish [Kittery] had done," whereupon Hammond brought a suit against Frost in the next court. "The Application made to him for obtaining that warrant was written with his own hand, which he confess'd when shew'd him. 49. of the Parish subscrib'd a Petition to him to desist; yet he violently went on. He prefer'd an Indictment against Major Ham-
46 Below, pp. 234-235.
47 House Journals, VII, 23 (June 1, 1726).
48 Ibid., VII, 77-78 (22 Aug. 1726). Indians evidently travelled more cheaply than white men. Other details may be found in ibid., VI, 400 (10 Dec. 1725).
49 A Summary Account of the life and death of Joseph Quasson, Indian, who on the 28. day of August 1725 at Arundel in the county of York, & province of Maine, shot his fellow-soldier and kinsman, John Peter, so that he died of the wound in a few days. For which murder being apprehended, tried, and after conviction, condemned at York in the province aforesaid, on the 12th of May following, he was there executed on the 29th of June, 1726. By Samuel Moody, M.A., pastor of the church in York. Boston, printed for S. Gerrish, 1726.
50 Below, pp. 17, 20, 30-31 (5 Jan. 1719/20).
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mond, the Clerk, for breach of his Oath in entring the vote of the Parish at their former meeting, and took affidavits before himself to support it. Resisted the Coming to distress for his Rate, which he had refus'd to pay," wrote Samuel Sewall.51 The Council suspended Frost from acting as Justice of the Peace,52 but, Sewall continued, "He is not suspended from his office as Judge of the Inferior Court of Common Pleas. Judge Davenport mov'd a question for Explanation."53 If one was forthcoming, it does not appear in the records.
Kittery had considerable trouble with town business. Charles Frost, the newly appointed clerk of courts, was presented for not entering and recording in the town books several land grants. The court concluded that he had not been well apprized of his duty and dismissed the case upon his paying costs, advising him in the future "to comply with the Antient practice."54 There was also the question as to who could vote in town meeting-a serious matter when townsmen were nearly equally divided on issues. A list of men who voted in town meeting, though not entitled to, was submitted to the court on 6 April 1727.55 It was possibly on account of these that Charles Frost was bound over to ap- pear in court on the charge that he had encouraged some to vote illegally.56 The law on the subject was too complex for the jury which handed down a "special verdict." On the basis of its interpretation of the law, the court decided that the men were not qualified to vote. The case was then appealed, the appellants claiming that they should have been acquitted and that William Leighton and the other complainants should have paid costs. In the end the appellants paid the costs and they were non-suited. At a later time John Harmon was bound over by Justice Hammond for presuming to vote for selectmen of Kittery when he was not qualified, the constable certifying that his name was not on the list of those paying rates.57 Historically the important result in the case of Kittery is that a list of Kittery inhabitants and their rates is preserved in the records.58
Samuel Plaisted, who first sat on the Court of Sessions on 1 October
51 Diary of Samuel Sewall, III, 286-287 (Massachusetts Historical Society, Collec- tions, ser. 5, vol. VII).
52 Council Records, vii, 250 (March 31, 1721).
53 Frost was restored as Justice of the Peace by Lieut. Gov. William Dummer on June 16, but the fact was not recorded until June 21, 1721. Ibid., vii, 279.
54 Below, p. 185.
55 Below, p. 171. Below, p. 184.
56 Below, pp. 202-204.
57 Below, p. 223.
58 Below, pp. 172-173.
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1717,59 was particularly troublesome. He was charged with "fighting and saying, let the Moon go down and be damn'd."60 His continued erratic actions did not prevent him from sitting on the court at several sessions from 1725 to 172761 before his removal from office on 17 June 1728 by the province council "for his prophane and immoral be- havior."62
CONTEMPT OF AUTHORITY
Conserving the peace in the new frontier town of Georgetown was not easy. John Penhallow, the Justice of the Peace there, accused Thomas Newman, already mentioned, of "rudeness and Abuzes." When Newman demanded a copy of Pierce Shortwell's complaint against him, Penhallow had replied that he could not provide it immediately and asked what good a partial copy would be. How abusive Newman be- came at this point, the record does not tell us, but Penhallow considered his insolence sufficiently serious to order five men63 (presumably by- standers) to put Newman in the stocks. Newman then asked, "who the Devil, or what Devil" gave Penhallow the power to set him in the stocks. The men apparently complied with Penhallow's order but "all of 'em geting into the Stocks together, they Shouted in a Contemptuous manner & sat there a minute or two, & then went their ways & so Defyed me [Penhallow] doing anything with them, where upon I was obliged to Call 'em to Account for their Contempt."64 Newman successfully de- layed Penhallow's action against him from the July court 1721 to April 172265 when, Newman not having appeared as ordered, the court issued a warrant of distress against him for £5. to which fees of court, 49s were added.66 There is no further record of the case. Meanwhile New-
59 MPCR, V, 198.
60 Below, p. 30 (5 July 1720). The disposition of the case is not recorded.
61 Below, pp. 171, 226, 256, 338.
62 Council Records, ix, 61. Capt. Samuel Jordan was appointed Justice of the Peace for York County the same day. Ibid., 60. For more about Plaisted, see MPCR, V, xxviii, xxix.
63 One of them was Benjamin Wright, already mentioned.
64 Below, p. 85.
65 His delay was undoubtedly due to his having appealed to the province council accusing Penhallow of maladministration of his office. An inquiry was ordered by the council but no record appears. Council Records, vii, 293 (20 July 1721). At this time also a petition signed by sundry inhabitants of Georgetown setting forth that Penhallow had not been duly elected their representative was taken up by the House of Representa- tives which declared, 6 June 1721, that he was not duly elected and had no right to sit in the House. House Journals, III (1721/22), 8. The petition is not now to be found. For Newman, see also MPCR, V, xliv, 89-90.
66 Below, p. 83.
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man had become further embroiled. On 10 March 1722, Abraham Ayers, Sheriff John Leighton's deputy, going to Georgetown was denied "Entertainment" by John Butler, the inn-holder,67 and threatened by Lodowick Macgoon with a firelock.68 Two days later, seven or eight armed men came down to John Penhallow's house. One of them was Macgoon who attacked Newman who was there with Ayers, stabbing him in the head and arm, saying "that if the High Sheriff or all the Sheriffs in the County were there they should not touch any man" and further told Ayers that "he look't like a rogue." Macgoon and Samuel Rogers were also said to have declared that "no Officer should dare to touch any man in that River," while Robert Poor, "late Constable," said "kill him, kill him, kill him." Newman was compelled to lodge with Samuel Denny for a number of days, not daring to return to his family. As might be expected Newman complained to the court. Two of the men, Rogers and Magoon, were fined 10s and fees of 27s:7d for their abuse of Ayers and 20s and costs of 27s:7d for their abuse of New- man.69 Robert Poor, William Rogers, and several others of the as- sailants escaped into the garrison where they were presumably soldiers, and avoided the arresting officer. Newman was pursuing them as late as July 1724 when his petition to the court that the warrants against them and others might be served was dismissed.70
One evening in Kittery, Justice Hammond, being in Capt. John Heard's "publick house," got into an altercation with the host over Hammond's alleged statement that Heard could not tell how many pence were in 40 shillings. In the height of his anger, increased by drink, Heard called the Justice "son of a whore," threatening to strike him, saying that it "was no more to Strike him than another man and that he could but pay for it." Brought into court, Heard paid a fine of 10s and costs of 20s:6d, and was placed under bond to be of good behavior.71
In another incident, Justices John Wheelwright and Joseph Hill, finding the Wells town meeting in tumult because of Daniel Morison's threatening speeches, ordered Constable Malachi Edwards to take Mor- ison out of the meeting and keep him under guard until the meeting was over. Instead of obeying, Edwards, invoking the name of the king, com- manded Justice Hill to stand guard over Morison who was still in the
67 Licensed July 4, 1721. Below, p. 53.
68 Below, p. 104.
69 Below, p. 103.
70 Below, p. 163.
71 Below, pp. 92, 97-99. Heard appealed but no further record has been found.
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meeting. Both Morison and Edwards were brought before Justice Wil- liam Pepperrell and bound over to the Court of Sessions where Morison was fined 10s and Edwards £10. Edwards appealed to the Superior Court alleging as his reasons that he had obeyed orders, that he had a right to command assistance, that he accordingly ordered Justice Hill, and that, when he asked for a jury trial from the court, he was refused. It was perhaps for the latter reason that the higher court reversed the decision of the Sessions Court, and let both Edwards and Morison go free. 72
THE CLERGY IN COURT
The war, as well as inflation caused by the issuance of bills of credit, is reflected in the problems of the clergy. Most prominent in these records is Rev. Hugh Henry of Scarborough who also preached at the garrison at Black Point. Henry may have been one of the Irish Presby- terians recruited by Capt. Robert Temple. In some way in touch with the Boston clergy, he was recommended by them to the town of Scar- borough which in June 1722 engaged him as minister. The impover- ished town, made poorer by the war, found it difficult to pay him the sum promised, and, after his suit against the town for back salary in 1725,73 discontinued his services. Henry, who had been receiving sup- plementary pay from the province for his ministerial services at the garrison, was also constantly petitioning the General Court either to maintain or increase its largesse.74 The town having failed him, the General Court finally refused him his former subsidy and he disappears from the records after March 1727. He was said to have been "an eccentric character" who "rendered himself contemptible, by his levity and indiscretion."75
Another preacher who received supplementary pay as chaplain (at Fort Mary, Winter Harbor, Saco) was Rev. John Everleth (Everleigh) (1669/70-1734), Harvard 1689, minister at Arundel (Cape Porpus), 1719-1729, after his dismissal from the church at Stow, probably for intemperance. From the court records76 we learn that his house was the scene of the sale of half a pint of rum by John Murphy to Francis
72 Below, pp. 196-202 (6 July 1725). For more on Edwards, see MPCR, V, 21-22, 28-31.
73 Below, pp. 153, 154, 155, 178-179, 186-187. The court ordered the town to pay Henry's salary to June 30, 1735.
74 House Journals, v, 56-57, 241-242; vi, 11, 67, 243, 246, 324, 348; vii, 23, 141.
75 James Sullivan, District of Maine, Boston, 1795, p. 194. Sullivan got his informa- tion from Rev. Thomas Smith of Falmouth.
76 Below, 112-113 (2 Oct. 1722).
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Dagar. Murphy was fined £10, one third to the poor of Arundel, one third to the commissioner of excise, and one third to the informer, who quite understandably was the legally licensed retailer of the town, Jabez Dorman. Of Everleth, it was said that he was a good blacksmith, a good farmer, and the best fisherman in town."77
Rev. John Rogers (1692-1773), Harvard 1711, the minister of the upper parish of Kittery (Eliot) had financial difficulties with his parish which made it necessary for him to ask the court's intervention at its session of 5 July 1720. He had not received his salary from September 1718 to March 1719, due to the negligence of the selectmen and as- sessors.78 At the next court, 5 October 1720, the selectmen appeared to answer the complaint and alleged that enough money had been raised for his support.79 Accordingly a committee was appointed to examine the selectmen's accounts. They duly reported the following January that the parish was in arrears to Mr. Rogers for £76:9s:7d up to 29 September 1720. Being assured that the selectmen had committed to the constable a rate of £86 for Roger's salary beginning 29 March 1720 for one year, the court ordered that £33:9s:7d be assessed ac- cording to law. Three Berwick men were then designated to be the assessors, the money collected to be paid to Capt. Nicholas Shapleigh for the use of the minister before 31 May 1721. The matter became more serious when the assessors from Berwick refused to make the rate ordered. Three assessors from Kittery were thereupon appointed: Mr. John Adams, Nicholas Weeks and Capt. William Pepperrell. The new assessors ran into trouble when a "Scandulous pamplet or Libell written & posted up in the Country way near the house of Mr. John Adams in Kittery nailed to the post of said Adamses Gate, in which pamphlet the said Adams and Mr. Nicholas Weekes ... are very much Abused & Scandulized & Authority Contemned & reflected on." The pamphlet was found on 27 April 1721. After that, Adams' two gates, which had been set up by authority of the Court of Sessions, were "torn down, removed & broken to pieces and his Inclosure laid waste."80 John Tompson and Thomas Ham of Kittery were summoned to appear before the court to tell what they knew about it. Ham denied every- thing but Tompson "denied that he knew Any thing relative thereunto Against any person Excepting himselfe and refused to make oath to the truth of what he knew Aledging it was the privilege of an Englishman
77 Sibley, Harvard Graduates, III, 424-428.
78 Below, pp. 38, 41-45, 50-51, 56-57, 67.
79 Below, p. 41.
80 Below, p. 56.
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not to Condemn himself."81 After comparing Tompson's handwriting with that of the writer of the "pamphlet," Justice Hammond required Tompson to appear at the next court, 4 July 1721, when he was ad- monished and ordered to pay court fees of 20s:6d.82 Since we hear no more of Mr. Rogers' salary, we assume that the assessors performed their duty and that the minister's rate was duly collected.
STRONG DRINK
On the whole, the laws regarding the sale of liquor were enforced leniently even in one case where the purchaser was an Indian. It is understandable perhaps that John Gray, presented in his own court for selling liquor, should have been acquitted, his excuse seeming reason- able to his fellow-justices.83 John Woodbridge was permitted to keep a public house of entertainment (and to sell liquor) on the ground that he had a "stock of Lycure by him."84 Thomas Herculus (a negro) accused Henry Miles of selling strong beer or ale without license. Miles was acquitted on paying costs of court.85 Nathan Miller excused him- self for violating the law on the ground that being an officer (of the militia) he had only liquors lodged with him by the commissary, yet he was under the necessity of supplying travellers with small quantities. He was directed to obey the laws in the future and paid costs of court. Richard Jacques, bound over by Major Samuel Moody for "giving or unlawfully disposeing of Rhum to the Indians" was acquitted by a jury specially appointed for the service. His costs of court were £2:14s.86 When Samuel Denny of Georgetown was accused of selling strong drink at retail, the presentment was found erroneous and he was acquitted paying costs of £5:17s.87 Richard Coller of Falmouth was acquitted of the charge of selling strong drink by retail, in spite of
81 Below, pp. 56-57.
82 Below, p. 55. This seems light punishment. In another case in which Tompson was accused of mutilating a ram belonging to Richard King, he seems no less defiant of the authority of the court. In the ram case, the ambiguity of his testimony and his advice to his servant, John Harmon, not to make oath, seem clear attempts to stand on technicali- ties. Yet Harmon was acquitted on paying costs and Tompson's actions were ignored. Below, pp. 76-78. For Tompson, see also ibid., p. 41.
83 Below, pp. 30-31 (5 Jan. 1719/20).
84 Below, p. 207 (5 Oct. 1725).
85 Below, p. 217 (4 Jan. 1725/6).
86 Below, pp. 231-232 (4 Oct. 1726).
87 Below, pp. 252-258 (8 Aug. 1727). This recognition of technicalities in the law seems to indicate increasing sophistication in legal matters. He was however fined 10s for breaking away from the constable.
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the testimony of five witnesses. "No evidence sufficient to convict him," the record says.88
Drunkenness was more serious, though it may be presumed that only those who made themselves offensive in public came before the courts. Penalties were minimal: John Wherren, who, summoned before the court for drunkenness, appeared there drunk, was fined 10s (with costs of course), possibly because even that amount was a severe penalty in proportion to his means. The fine went to the poor of York, the place of his residence.89 This disposition of the fines-to the poor of the offender's home town-was followed in the cases of non-attendance at church, which are considerably more numerous.90 One man and his wife convicted of non-attendance, too poor to pay the fine, sat in the stocks for an hour. 91
MORALS
The presentments for fornication, most of them for the offense before marriage, appear with monotonous regularity, the principal evidence being impossible to conceal without the commission of a far greater crime. Most of the offenders, both men and women, managed to pay the fine, which was usually but not always, 30s and fees of court, rather than to accept the alternative of 10 stripes. In a notable case Sarah Simpson, wife of Henry Simpson, told the court that it was no matter who fathered her child-"she had a husband to maintain it & leet the Court do as they pleased she was ready to answer her fine." It was her defiance rather than her offense that resulted in her fine of ££5.92 The law did not catch up with Henry Simpson until some time later; he pled not guilty, his wife had not charged him, and the court, finding the evidence insufficient to convict, acquitted him, the costs of court being 13s.93
Another case suggests that if all the offenders had had good legal advice, few of them would have been convicted. Mary Bean, "reputed wife" of John Bean94 of York answered the charge of fornication with a
88 Below, p. 14 (7 April 1719).
89 Below, p. 230.
90 Below, pp. 5, 15, 20, 21, 22, 136, etc.
91 Below, pp. 195-196.
92 Below, p. 155.
93 Below, p. 229.
94 John Bean, son of Lewis Bean, born 18 July 1700, married on 18 Nov. 1726, Mary Hubbard.
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bill of exceptions95 to the presentment saying that the defendant was not sufficiently described, that no time or place where the offense was committed was stated, that because she was a married woman, she could not be guilty of fornication, that the crime was not said to be contrary to the law of the province in that case made and provided, and that the presentment lacked proper form. She was given a jury trial and acquitted.96
The case of Bathsheba Lydston, who accused Daniel Paul, Jr. of fathering her bastard child has equal interest. Paul's denial of paternity was based not on innocence but on the chronology of their intimacy. The four justices divided equally as to whether or not she should be admitted to her oath and both parties were put under bond to appear at a later court.97 In the meantime, upon his own confession, Paul was convicted of fornication and fined the usual 30s. The confusion of the court seems to have been because, on the basis of the evidence offered in various depositions, there were at least three other possible fathers.98 To add to the complication, Daniel Paul, Jr.'s. sister Abigail, the wife of Bathsheba's brother, John Lydstrom, testified that Bathsheba dur- ing the summer before her child was born, "was a telling what a great Liberty a Young woman has to what a young man hath, for, Said She, I will Let any young man get me with child and then Said She, I can lay it to who I please because a woman has that Liberty granted to them."99 This sharp observation was confirmed in the end, for the justices, their eyes on the finances of the case, accepted the mid-wife's testimony that Bathsheba had named Paul at the time of her travail. Consequently he was saddled with the expense of supporting the child.100
Bastardy was a more serious offense than fornication before mar- riage because the product of the illicit affair as well as its mother might become publick charges. The accusation of the mother was usually sufficient to prove, so far as the court was concerned, the identity of the father who was therefore charged with paying the mother 2s: 6d per week from the birth of the child "during the court's pleasure." Possibly the bond of £ 60 to the overseers of the Poor to save the town harmless from the child is a measure of how long the payments were expected to
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