USA > Maine > Lincoln County > The Probate records of Lincoln County, Maine, 1760 to 1800 > Part 2
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The report of Gosnold, the survey of Weymouth, fixed the English idea of desirable locality, for eminent domain, in a national act of "Seizen and possession," for a "great state project."
Spacious harbors, grand river tributaries, magnificent woods, abound- ing in sea-shore fisheries and beaver haunts, were the appreciated features of commercial promise, in the panorama, of the Mavooshan land-fall, for places "fit and convenient, for hopeful plantations."
Sagadahoc, the notable river of the Gosnold land-fall of Mavooshan, was the magnet of subsequent colonial and commercial activity, to the west of England communities.
Gosnold's "wooded out-point" of the Mavooshan land-fall, the bea- ver haunts of Pemaquid dependencies, Sheepscot and Muscongus, with Sagadahoc, environed with waters, "the strangest fish-pond of the western seas," land-marked by Monhegan and highlands of Penobscot in the east and the twinkling mountains of "Au-co-cisco," west, in 1606, had become a land of promise, to the commercial industries of England, as a seat of English Empire in North America.
CHARTER OF APRIL 10, 1606 A. D.
Public interest and enterprise, took definite shape, 10 of April 1606.
English purposes of seizen and possession then took form and ex- pression, in legal muniments of contract.
A corporation was organized under a crown grant composed of em- inent subjects of England.
The grant covered agreements. "We do grant and agree," were the words of compact. In tenor, it was a Royal license, hedged about with conditions precedent to future and further concessions.
The grantees, were government contractors. The transaction, was a conception, legal and formal, of valid title and permanent possession, covering a purpose of enduring foot-hold of the English race, at the points of seizen and possession, made.
The Christian nobility of England, joined the commercial agencies of her great seaports, in pressing government to participate in the en- terprise. "The wings of man's life are plumed with the feathers of death," was cried in the ears of Elizabeth, in urgency of national col- onization in the New World.
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The Lord Chief Justice of the English Bench, Sir John Popham, headed the west of England movement, who is described as emin- ently* honorable and patriotic, and by the jealous Spaniards, a "Great Puritan." He manipulated the contract. The conditions were the making of habitations, leading out colonies of volunteer' sub- jects of Great Britain, and planting them in "fit and convenient places." The contractors were required to "build and fortify" where they should inhabit, and could lawfully colonize only those of English citizenship, who would emigrate as volunteers.
The salient points of the contract of April 10, 1606, for seizing and holding actual and permanent possession of the American coast at and near the 44º N. E. are full and clear in purpose and plan. Gosnold's land-fall, the out-point of fair tall trees, little green round hills inland with the rockey shores of white sand, in the country of the Mavoo- shans was the contemplated "locus in quo," of the colonial undertakings.
English voluntary colonization, domiciliation of the race, military occupancy of fit and convenient places herein and about the latitude described, were the avowed purposes of both the government and its grantees, the adventurers, of the charter license.
George Popham and Rawley Gilbert with other eminent mer of English nobility, their heirs, assigns and successors, were executive agents, under the grant.
Such a colonization by them accomplished under royal stipulations, insured, a future endowment of plenary rights to the fruits of their un- dertaking in a crown deed, or patent to the section of country by them discovered and so seized and possessed, on their petition there- for.
The contract of the 10th, April, 1606, pregnant with the forces of English common law at once began to unfold in starting effective English colonization at two eligible points in the Temperate Zone of North America, north of Florida, in English cartography, marked "Virginia." Two* colonial adventures were organized under the con- tracts of April 10, 1606, known as "the first and second colonies."
DUAL COLONIAL EXODUS.
The first sailed for Chesapeake Bay and seized the peninsula of Jamestown, on James River, May 12, 1607. (O. S.)
The second sailed May 31st, 1607, foi Mavooshan, landing at and
*Genesis of U. S. p. 45, Vol. I.
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seizing the peninsula of Sabino, Sagadahoc, 20th August, 1607 "the place to which it was directed."*
The first act of possession, was a formal solemn consecration, in the public worship of Almighty God, with prayer, praise and a sermon on the spot chosen for a town.
One hundred and twenty colonies landed and stood there together, under the English flag.
The church of England, in canonical robes with hallowed endow- ments of state, in support of law, stood among them.
The sermon endorsed the transactions of state in progress ; with the bible in her right hand and in her left, the cross, symbolic of Christian faith, the church of England, by holy invocation, consecrated the place and sanctified the occasion ; and so set up the pillars of the new state on English constitutional grounds in religion and law, for a new English Commonwealth.
A civil polity was duly organized. A body of laws promulged. George Popham was nominated and inaugurated by oath of office not as a governor, or vice-roy, but as "President," to hold and to wield the great function of sovereignty,as chief magistrate. Subordinate offi- cers were sworn in.
Then the President took a spadet and "Set the firstt spit of ground unto it ;" turning the sod, as a formal act of seizen and possession perfected by the formularies of English land title in "turf and twig," under the common law of England.
Of this colonial planting the first material fruits, were realized in an English village homestead of fifty houses, a ware house, a fort entren- ched and fortified with mounted cannon, a church with a steeple, ship- yard and thirty ton vessel on the stocks. These were the adornments of the shore margins, of the sheltering head-lands of Sagadahoc, at its mouth, where a permanent foot-hold was contemplated, and all the el- ements of English civilization in law and religion, the great civilizing forces of humanity were first combined and took organic form on the soil of New England.
*Two plantations, in virtue of Chief Justice Popham's agency were undertaken to be settled on the coasts of America, called the first and second colonies. The first was in the interest of London men and the second, the west of England. The second colony sailed on the 31st of May, 1607, under Capt. Geo. Popham and Rawley Gil- bert, for "Seizing" the place to which they were directed .- Holmes' Annals, Vol. 1, P. 155.
t Lambeth Palace Papers.
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FIRST COURT OF LAW IN NEW ENGLAND.
The President and his sworn assistants constituted the first organized court of law. It had a seal. "Sigellum Regis Magnae Britaniae Franciae et Hiberniae," was the legend on one face. On the reverse, it ran : "Pro Concillio Secundae Coloniae Virginae," and this court was within the ancient Lincoln County bounds.
LAWS.
"Tumults, rebellion, conspiracy, mutiny, sedition, man-slaughter, incest, rape and murder, were capital offences. Adultry, drunkenness, and vagrancy were punishable offences.
They all must be tried within the colonial precintsc. Magistrates were required to hold in suspense judgment on crime in aid of ap- plication to the king for pardon.
Records of judgments, were required to be set forth fully, as basis for appeals. Christian teaching and civilization of the Indians were ordained of law, which also demanded, preaching of Christian religion as established by the English Constitution.
CHARTER RIGHTS. Nucleus of American Polity.
All the rights of home-born English citizenship, were guaranteed to the residents of the Sagadahoc Town of Fort St. George. The writ* of habeas corpus trial by jury and the elective franchise, were assured rights. "These my loving subjects, shall have the right annually to elect a President and other officers, possess and enjoy forever, the right to make all needful laws for their own government" were the precious words, of their constitutional charter.
In its expansion, perpetual self-governing power, was an endowment of the Sagadahoc free-hold :- a boon of English constitutional law ; an organic element in the civil life, of English Colonization, here first planted in New England. With these facts before us, it is no matter of surprise, that under President Popham's beneficient administration the Sabbath at Sagadahoc, was duly observed to God's honor in prayers and religious services,"morning and evening ;"and without doubt accord- ing to the venerable, reverential, decorous and exact formularies of the church of England :- whose solemn and devout forms of worship of the true God here first awed the savage mind and touched the savage heart. The fear and worship of God were marked features of that ad-
*Charter 1606. Menoval, p. 94.
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ministration. Sunday* Oct. 5 th, Nahanada and wife of Pemaquid, and the Indian Pilot of the Popham colony, a member of the Royal house of Ma- vooshan, and one Amenquin, a sagamore, went with President Pop- ham, to the place of public prayers, both morning and evening, attending with great veneration, reverence and silence."
This scheme of civil polity pregnant with the seeds of our subse- quent free institutions of the United States sown in it by force of English common law, first applied here in Maine to New England homestead life, was thus set to work out natural results, with the machinery of law and religion, into which the civilizing forces of Christian ethics fully en- tered to shape the embryo of out growing states.
Beneficient progress was made during the administration of Pres't Popham. The 15th of December a dispatch was penned, in Mavooshan at Fort St George and sent to the King of England, announcing pres- ent success with sketching of incidents of promise in these beginnings of English homesteads at Sagadahoc.
It is in Latin and now extant, the usual language of State-papers of that day.
President Popham was an aged, but God-fearing man, "stout t built, honest, discrete, careful : somewhat timid, but conciliatory in demeanor. Popham was the life of the colony. Seymour, the colo- nial chaplain was eminent for his industry and honest endeavors. The same is recorded of Turner, the surgeon.
But Rawley Gilbert official representative of the London Element in the adventure, is described to have been of a jealous, ambitious turn, a sensual man of loose life, head strong, little religious zeal, poor judg- ment, little experience, though valiant. Sinister and selfish, he was a mischievous factor, in the colonial development. More or less fric- tion appeared ; but President Popham calmed and reconciled differ- ences, during his rule. ;
On the 5th of Feb., 1608, Popham, whose conduct had impressed even the savages with his virtues died, probably the victim of a cli- matic convulsion. The last of January for seven hours, thunder, light- ning, fearful and frequent rain, snow, hail and frost in excessive and and awful succession, over whelmed with cyclonic and winter rigors, the little village of English free-holders at Sagadahoc.
But the hamlet survived the dire calamities of the season, to encoun-
*L. P. Mss. Journal, Mass. Hist. Col., p. 109, Vol. 18.
+Gorges to Cecil, p. 286. Maine Hist. Quarterly, July, 1891.
#Brown's Genesis United. States.
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ter the caprice, irresolution and selfishness of succession in Gilbert.
The catastrophe of climate presaged not only the demise of the good president at Sagahahoc, but further fatalities. Though captain Davis declared on his arrival with new supplies in the spring he found "all things in good condition in the colony, many furs stored and the New Virginia-a pretty vessel launched, ready for sea, Gilbert, now in command had become restless and inclined to abandon the enterprise.
Notwithstanding the good condition of affairs at Sagadahoc, Gilbert proposed to leave Fort St. George and return to London.
The proposal met the sympathies, at least of the London people in the colony ; and the London ship Mary and John and the pretty Vir- ginia, whose master builder was Digby of London, were laden with col- onists in sympathy with their chief, and sailed away homeward bound about Oct. 8, 1608, and the settlement on the River of Sagadahoc was broken up.
The corporation dissolved. Its president Popham, buried within the precincts of Fort St. George, was left, where no doubt his ashes re- main, mingled with the soil of Maine-at the mouth of the Kenne- bec-the ashes of the first dead president, as a chief Magistrate in the United States.
The colonial life at Sagadahoc lasted a little over a year, or to Oc- tober 8, 1608. Lord Chief Justice Popham, had also died. His son and heir Sir Francis, succeeded to his father's estate and interest in the colonial undertakings.
The Popham families, especially Sir Francis, son of the Chief Justice, who had contrived the scheme of English homestead possession in the New World, valued the legal advantages gained at so much cost, and determined not to lose the legal benefits, that by seizen and possession of the continent he had taken, had been acquired.
The Popham ship and her tender (the fly-boat,) Gift of God (whose log has not been recovered) was in at the colonial debarkation and aided in the colonial transactions taken at Sagadahoc. There is no clear record of her return, on the sailing of the Mary and John.
Sir Francis protested the Sagadahoc abandonment. The record is "he would not so give over the design of the undertaking abandoned ;" but withdrew the ships and provisions remaining in his possession, and did, diverse times after, send* to the same coast for trade and fishing.
*2d series, Vol. 5, Mass. His. Coll. p. 37. Gorges.
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INTRODUCTION.
POPHAM AT PEMAQUID.
The Popham ships, were therefore kept employed within the pre- cints of the colonial posessesion, after Sagadahoc had been evacuated. But where? Here starts the thread of the legal continuity of the life of the Popham colonization, its expansion and holdings, as recorded by Strachey and Hackluit and Gorges.
"To the* north in the height of 44° lyeth the country of Pemaquid :- the Kingdom wherein our western colony upon the Sagadahoc, was sometime settled."
"The firstt place ever possessed by the English in hopes of making a plantation, was a place on the west side of the Kennebec, called Sagadahoc :- other places adjoining, were soon after seized and improved in trading and fishing." The French; reported (Pemcuit) Pemaquid, was the first point which was occupied by the English." Eight years after the abandonment of Sagadahoc and the Popham protest, history lifts its curtain on further Popham transactions, in holding possession of the colonial seizings.
A. D. 1614.
The Popham ship in the interest of Sir Francis, son of the Lord Chief Justice and heir of his estates is found in an established business, on the east shore of Pemaquid under Monhegan Island where a port had grown up, out of the fur trade and fisheries, which for many years be- fore 1614, had been used by the Pophams alone.
The Earl of Southampton was concerned with the Pophams in the business enterprises here.
PEMAQUID.
Land Titles. A. D. 1625.
Brown's purchase opens the next view of legal procedure within the limits of the Popham establishments on the coast of Maine. The tide of English emigration had already covered the environings of "Pop- han's Port," and attracted the commercial enterprise of the commer- cial centers of England. The lands had acquired marketable value.
The Mayor of Bristol, England, and the mercantile house he repres- ented bought up the lands at and about the mouth of Pemaquid River, on the Sagadahoc side of Pemaquid. The Bristol firm of "Aldworth & Elbridge" laid out a fishing plantation on their purchase at Pemaquid
*Strachey Trav. in Va. Hacklint Papers.
+ Hubbard Indian Wars, 1676, p. 246.
#Mons. Cadillac, 1671. M. His. Soc Coll., vol 1, p. 282.
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Harbor ; and Abraham Shurt, their agent, represented the firm in their business and was a civil magistrate. With an eye to the thrift and progress of the Popham Pemaquid settlements, the extent and growth and permanency of agricultural industries, then and there, Brown's purchase, suggested legal confirmation ; and on the 24th of July, 1626, Brown's Deed was duly executed by acknowledgement and record in the exact formularies of the English common law, before and by Abra- ham Shurt, at Pemaquid :- the first transaction of the kind in New England if not in all North America.
The Pemaquid settlements, says Thornton, in 1629, "were larger and more important than Quebec."
Abraham Shurt stands eminent as a man and magistrate. His in- tegrity was incorruptible. On his word the Indians relied with filial faith. East and west and in the Bay settlements, mid rivalries and competition, he conducted a native and foreign trade with skill and success. History has left neither touch or shade of taint on any of his transactions.
A. D. 1631.
A proprietor's court replaced the Shurt magistracy at Pemaquid un- der seal of patent authority of the crown ; and Thomas Elbridge, a man of small stature, presided ; and to it the residents of Monhegan and Damariscove resorted for legal redress to about 1647.
The charter powers of the Pemaquid civil organization were granted with a view to replenish the deserts with a people governed by laws and magistrates," as expressed in the grant.
The administration of civil affairs contemplated a nearly pure de- mocracy. The laws and ordinances were required to be executed by such officer and officers as should be chosen by the majority of the popular voice. The principle of a majority rule was the governing element of the civil polity. It prevailed up to the 5th of Sept., 1665.
The 12th of March, 1664, the Pemaquid Country and dependencies were assigned to James Duke of York by Royal grant. The Ducal Province was erected into a civil organization as the county of "Corn- wall" appurtenant to New York by a Royal commission, Sept. 5, 1665, at the house of John Mason, Sheepscot Farms ; and Sheepscot Farms were organized into a shire town named, "New Dartmouth." Col. Richard Nicols had been designated governor of the Ducal Province, but before he could enter on his duties was killed in a naval battle with the Dutch, 1672. The civil affairs of Pemaquid, meanwhile fell into
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confusion, till Governor Lovelace assumed command.
Pemaquid, Muscongus, and Sagadahoc, now consolidated into a county, justice was administrated by a duly organized Court of record, called the court of "General Sessions", whose sittings were held the last Wednesday of June and the first Wednesday of November at Jamestown of Pemaquid and by circuit at New Dartmouth. Henry Jocelyn, Esq., was Chief Justice and Rev. Robert Jordan, Thomas Gardiner of Pemaquid, William Dyer of Sheepscot, Nicholas Raynal, associates.
Sullivan says this court had jurisdiction in matters ecclesiastical ; and in the event of disagreement, Justice Jocelyn decided the issue.
Walter Philips was Clerk of Courts at New Dartmouth, and William Short for the Sessions at Pemaquid. Books of Record were duly kept at both places, entitled : "Rolls of acts and orders passed at sessions holden in the territories of the Duke of York." John Allen of Sheep- scot was High Sheriff.
Precepts ran, to Constables or Sheriffs, as follows, viz :
Greeting : "By virtue hereof you are required in his majesty's name and under authority of his Highness, Duke of York, to apprehend the body or goods of Deft. and take bond for value of-with sufficient surety or sureties, for his personal appearance at court, &c., &c., then and there to answer unto complaint of A. B. for not yielding a debt or due-bill, bearing date, &c., * Hereof fail not as you will answer it at your peril, &c." Return. "I have attached the body of A. B. and taken bail for his appearance at next court to answer 'to the complaint of B. C. in an action of the case. This is a true return." (Signed C. D. official.)
Walter Philips, clerk of the New Dartmouth sessions, first appears a resident at the mouth of Damariscotta River on a place called "Winne- gance," (Indian carrying place to Pemaquid) in March, 1660. Thence he moved to the "oyster banks" above the site of Newcastle, near lower falls and purchased a large landed estate of the Indians embracing their Ped-auk-gowack (place of thunder) and made large improve- ments. His orchards yielded apples to the fugitives of King Philip's war in 1676, on their flight to Pemaquid. His book of Records are lost. He fled to Massachusetts, resided in Charlestown and died there in 1680.
Chief Justice Jocelyn originally came to Black Point, Scarboro, 1635 ; from England, 1634, as agent for John Mason, then resident on the Piscataqua, of Gorges' Province of Maine.
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INTRODUCTION.
He was son of Sir Thomas Jocelyn of Kent, Knight, and of noble blood. He made an incomplete survey of interior wilds, then mar- ried the widow of Captain Cammock of Scarboro. The marshes of Scarboro made it attractive to early immigration for settlement, as did the marshes of Sheepscot farms in the Ducal Province of Pemaquid. These marshes stimulated the earliest agriculture.
Commissioned by Sir Ferdinando Gorges, Jocelyn first sat as Judge at Saco, 25 March, 1636, under the administration of Sir William, son (Governor) of Sir Ferdinando, of his Province of Maine. One of his first judicial orders was made in the interests of temperance. "Any man that doth sell strong liquor, Wine, &c., shall suffer his neighbor, laborer or servant to continue drinking in the house, said offences being seen by one Justice of the Peace or constable, or proved by two witnesses before a Justice of the Peace, such seller of strong drink, or wine, shall forfeit for every such offence, ten shillings."
In 1639, Jocelyn was nominated Counsellor of the Province of Maine and authorized to try all causes coming before him ; and also to act as Deputy Governor, under Gorges, in exigencies requiring the exercise of such office. This eminence in public affairs and in the confidence of Gorges made him an object of special surveillance with the Bay state authorities.
MASSACHUSETTS USURPATION.
In 1668, a crisis was reached in a conflict of jurisdiction between Gorges and the Massachusetts administration in Maine. 3 Issue was made at York on the 6th of July and turned on the exercise of judicial authority in Gorges Province of Maine, then limited in its boundaries to the east shores of Casco and Merrymeeting bays.
The day before court sat at York, men from Massachusetts, heralded and escorted by a troop of horse, entered the town, announced as "Mas- sachusetts Commissioners."
Jocelyn and his associates met the new-comers with courtesy. The Massachusetts men, thereupon, warned the Maine Judges not to oppose their proceedings, and repaired to the meeting- house to open their court.
Jocelyn and the King's Judges thereupon seized the meeting-house steps, and had proclamation made to hear the King's commands.
The Commission within, hearing the crier's call, "bade all persons having his Majesty's commands and showing them in court, the court
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would be ready to hear the same." Nevertheless, on account of the pressure of business, the reading thereof could not be heard before the afternoon.
An adjournment for dinner followed. While the Massachusetts in- truders were eating, Jocelyn and the associate Maine Judges entered the meeting-house and sat on the benches, holding the judicial seats.
Informed of this, the foreign commission left their dining tables, rushed into the church and took seats beside the King's Magistrates ; and now refused to read or hear the King's commissions.
Jocelyn and the* Maine Judges thereupon, in the interests of peace withdrew and abandoned the ground, making the record : "Massachu- setts entered the Province of Maine in hostile array ; turned the Judges of the King and Gorges off the bench ; imprisoned the commander of the militia ; threatened the judges and friends of Gorges, and usurped the judicial authority of Maine."
Jocelyn left Maine and took residence in the Ducal Province of Pemaquid ; and in August, A. D., 1677, we find him there holding court as Chief Justice.
He was respected, honored and trusted by royal authority. Gov- ernment assigned to his choice any lot at Pemaquid he might desire for building himself a house and f10 out of the public treasury, with provisions out of the public supplies, and orders, further, "that his rent should be paid if he elected to hire a house." These provisions were made for his support in June, 1680.
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