USA > Maine > The history of the state of Maine; from its first discovery, A. D. 1602, to the separation, A. D. 1820, inclusive, Vol. II > Part 2
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To fill the places of Messrs. Alcot and Heyman at the Coun-
* Written, or spelt sometimes, " Alcock," and sometimes " Alcot."_See ante-the burning of York, 1692.
t Sullivan, p. 390.
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A. D. 1692 to 1693. cil-board, in 1693, Francis Hook and Charles Frost were elected. They had been members of President Danforth's
Messrs.
Hook, Frost, Wheel- wright, and Lynde, Councillors.
Council, and were two of the most popular and useful men in the Province of Maine. In the first Inferior Court, or Com- mon Pleas, they were both Judges ; and Mr, Hook was two years Judge of Probate. In 1694, they were re-elected. The same year, the places of Mr. Donnell and Mr. Davis were filled by Mr, Samuel Wheelwright, of Wells, son of the Rev. John Wheelwright, the original and principal proprietary settler of that town ; and by Mr. Joseph Lynde, who was a non-resident proprie- tor of lands, within Sagadahock. He lived in Boston and was Province treasurer, Indeed, the Sagadahock territory was rep- resented 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 such proprietor,
Annual election of The Council were annually chosen on the day of the general the Council. election in May, by the members of the old Board and the new House of Representatives, assembled in convention ; and if any vacancies happened, during the political year, they might be filled in the same way by the two branches united. Seven form- ed a quorum for transacting business ; the Board being both a co- ordinate branch of the General Court, and an advisatory Coun- cil of the Governor. Nay, when the offices of both the Gov- ernor and Lieutenant-Governor were vacant, all acts of executive power were exercised by a majority of the whole Council; and there have been many instances, especially in the Revolution, when commissions were signed by fifteen Councillors.
House of Represent- atives.
The other branch of the General Court, called the House, was constituted of deputies, or representatives elected by towns- corporate, Governor Phips, for the first time, issued warrants, May 20, 1692, unto every town, to choose 'two and no more ;' and appointed a session on the 8th of June, when 153* were returned. In this Legislature, eight appeared from Maine ; Kittery, York, Wells, and the Isles of Shoals, [Appledore,] severally re- turning two representatives.| Subsequent to the first year, how-
Members from Maine.
* That is to say, from Plymouth 12; Essex 30; Middlesex 35; Suffolk 25; Hampshire 12; Barnstable 11; Bristol 16 ; Martha's Vineyard 2; Nan- tucket 2; and Maine 8 ;= 153.
t In 1692, from Kittery, James Emery and Benjamin Hodsdon ; from
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CHAP. I.]
ever, those Isles were never represented in the General Court ; A. D. 1692 nor did any town in Maine, afterwards, for sixty years, return at to 1693. the same time, more than a single member to the House. Some of its towns were always represented, during that period, except in 1697 ; though the whole delegation from this Province, in any single year, never exceeded ten or eleven .* The entire number in the House for the first ten years, was usually between 60 and 80; never till 1735, exceeding 100 members. Forty constituted a quorum for doing business ; and every one was entitled to a daily compensation of 3s. for liis attendance, but was finable 5s. if absent a day without leave.
To be entitled to the right of suffrage, a man must be 21 years of age, own an estate, worth $40 sterling, or a freehold, which representa. would yield an annual income of 40 shillings. In the first leg- tion. islature, the ratio of representation by towns was graduated to the number of their respective voters ; every town having 120 might return two ;- 40 and upwards, one ;- 30 and less than 40, one, or in the latter case the town might elect one or none at pleasure :- having less than 30 voters, it might unite with the next adjoining town in the election of a representative.
To the General Court, was given full power to establish Powers of with or without penalties, all manner of wholesome and reasona- Court, ble laws, statutes, ordinances and orders, not repugnant to those of England,-to name and settle annually, all civil officers, whose appointment was not otherwise prescribed,-and to levy taxes needful for the support of government, and the protection of the people. But all " orders, laws, statutes and ordinances" were Laws to be to be transmitted by the first opportunity after enactment, to the by the king. approved king for his approval, under the royal signature.t If, however,
York, Jeremiah Moulton and M. Turfrey ; from Wells, Eliab Hutchinson and John Wheelwright ; and from the Isles of Shoals, Roger Kelley and William Lakeman. In 1693, from Kittery, James Emery. In 1694, from the same town, William Screven; and from York and Wells united, Eze- kiel Rogers, Jr. In 1695, from Kittery, James Emery, and in 1696, John Shapleigh. In 1697, -. In 1698, from Kittery, Richard Cutts, and from York, Abraham Preble.
* The non-resident act was passed in 1694, by which no man might " serve " in the House for any town, unless where he did at that time live and dwell."-2 Hutch. Hist. p. 78.
t Hence these were denominated the Statutes of the reigning monarch who approved them, as ' the Statutes of William and Mary ;' ' Anne, &c.'
Voters and ratio of
the General
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A. D. 1692 any one of them were not expressly disallowed by him in privy to 1693. council, within three years, from the day it reached the Board, it had, after that period, full force and effect by lapse of time. Manifest inconveniences attended this process and requirement, though not without some beneficial effects. For great pains were taken to render the enacted bills perfect ;- besides, a needless multiplication of them, so reprehensible in later times, was greatly prevented. In legislation, the General Court soon became more parliamentary than formerly,-each house sending bills to the other for concurrence, amendment or rejection. How- ever, to avoid transmitting every minor legislative measure across Resolves. the Atlantic, the General Court often acted by " Resolves ;" and in this way, introduced an anomaly into legislation, still exten- sively practiced, though the reason has long since ceased.
The Judici- ary.
The General Court, being authorized by charter to erect Courts of Justice, for the trial of all cases, criminal and civil, arising within the Province, immediately effected a thorough revision of the judiciary department. Some of the first legislative enact- ments provided for the erection and establishment of five judicial tribunals ; a Supreme Court, Common Pleas, Quarter Sessions, and Justice's Courts ;- and afterwards, Probate, Chancery, and Admiralty Courts.
The Su- preme Court.
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 gaol-delivery in each county. But the statute establishing it, was not approved by the crown, till three years had nearly elapsed, subsequent to its passage by the General Court ; so that none of the judges, except the chief justice, was permanently commissioned, till 1695, nor before Governor Phips' return to England. In the meantime, the jurisdictional powers of this tribunal were exercised by special commissions of Oyer and Terminer,* one of which, for instance, was issued by the Governor, June 2d, 1692, to try witches. But after the statute took effect, it was found in its practical operation not to be sufficiently broad and explicit ; and another was passed
* One special commission was filled with Lieut. Gov. Stoughton, Major Saltonstall, Major Richards, Major B. Gedney, Mr. Wait Winthrop, Capt. Samuel Sewall, and Mr. Sargent .- 1 Doug. Summ. p. 450.
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CHAP. J.] OF MAINE.
in 1699, which gave to the Court a jurisdiction of all matters, A. D. 1692 civil and criminal,-including appeals from the lower courts, re- to 1693. views and writs of error, as fully to every intent, as the courts of king's bench, common pleas and exchequer had within the king- dom of England. The judges were appointed in 1695,* and held terms in most of the counties, twice in every year. June was the month for the sessions of the Court in Yorkshire ; and the shire town, till the close of the present Indian war, was Kit- tery-subsequently York.
Common Pleas.
2. An " Inferior Court," or [Common Pleas] was established in each county, consisting of four Judges, who had cognizance 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 more commonly called ' the county of York,' were Job Alcot, Francis Hook, Charles Frost The Judges and Samuel Wheelwright. The high sheriff was Joseph Curtis. ty of York. in the Conn- The terms in this county, were holden at York, on the first Tues- days of April and July ; and at Wells on the first Tuesdays of January and October. Appeals lay from the decision of this Court, to the next Superior Court sitting in the same county.
3. The Court of General Quarter Sessions of the peace, was The Quar- holden by the Justices of the Peace within the county, at the
ter Sessions.
*1. The Chief Justice was William Stoughton, born at Dorchester, A. D. 1632, graduated at Harvard College 1650, and was appointed the first Lieut. Governor under the charter of William and Mary. Though he was in the executive chair after Governor Phips left it, he was appointed Chief Justice of the Supreme Court in 1695; which office he held till 1700, when he again took the chair on the death of Lord Bellamont. He died 1702 .- 2. Thomas Danforth, late President of Maine, was a man of great probity and stern political virtues-the idol of republicans. His name was not inserted among the charter Councillors, though expressly desired by the agents. " The people received the intelligence with sur- prise and grief." He held the office of Judge till his death, 1699 .- 3. Eli- sha Cook, a physician of Boston. He was a " high liberty man," and a popular leader in the General Court near 40 years. He was an assistant in 1681; and appointed Judge in 1695 ; left the bench 1702 ; and died 1715, -aged 78 .- 4. Samuel Sewall of Newbury, agraduate of Harvard College, 1671, was put into the special commission in 1692 ; appointed Judge, 1695; and Chief Justice, 1718 ; and left the bench, 1728 .- 5. Wait Winthrop, appointed, 1696 ; left the bench, 1717. Each Judges' pay was a grant of £40 a year, till 1700, when it was raised to £50 .- Mass. Rec. p. 391.
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A. D. 1692 same times and places, the Court of Common Pleas held their to 1693. terms ; having authority to " hear and determine all matters re- lating to the conservation of the peace, and punishment of of- fenders, cognizable by them according to law." But it being a needless expense for all the Justices of the county to attend court, four times in the year, merely for the trial of a few minor offences ; they were made by the revising statute of 1699, to consist only of those designated for the purpose, in the commis- sion itself. Still, though the list of Justices was not large, it was a numerous and expensive court, till the Revolution. Appeals were allowed from this tribunal, to the Superior Court-the ap- pellant being put under recognizance to prosecute the cause, to file his reasons, and produce copies of the process, and of the evidence adduced at the trial.
Justices of the Peace.
4. Justices of the Peace were civil officers known under the charter of Gorges,-never hitherto in the Colony of Massachu- setts ; the Assistants acting as Justices through the jurisdiction. An indefinite number, though not great, was now appointed and commissioned for each county by the Governor with advice of Council ;- to hold their offices during good behavior. Each one had jurisdiction of all civil causes to the amount of 40s. and of all crimes, so far as to commit or recognize to a higher tribu- nal, if they were heinous, and to punish such offences, as assaults and batteries-violation of the Sabbath-gaming-drunkenness- profanity-and breaches of the peace,-either by the stocks, cage, a fine of 20s. and even stripes not exceeding ten.
Court of Probate.
5. Probate business, until the colony charter was vacated, was transacted in the County Court. But in 1687, amidst the Crranges of government, Joshua Scottow* of Scarborough, was commissioned Judge, and his son Thomas, a young graduate of Harvard College, was appointed recorder for Yorkshire .- Now, under the new Province-charter, a Judge and Register were commissioned by the Executive, during good behavior, for each County ; and in Yorkshire, 1693, Francis Hook was appointed Judge, and John Wincoln, Register. Any appeal made from this Court, went directly to the Governor and Council.
6. A Court of Chancery was established with power, " to hear
* Previously, under President Danforth's administration, Mr. Scottow had been one of the Provincial Council of Maine.
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all matters of equity, not relievable at common law." It was A. D. 1692 to 1693.
holden in Boston, by three Commissioners, assisted by five Court of Masters in Chancery,-all of whom were appointed by the Gov- Chancery. ernor and Council.
7. There was likewise an American Vice-Admiralty Court ; Courts. Admiralty and Wait Winthrop* was appointed, May 22, 1699, by the crown, or by the high admiral of England, the Judge for New-England and New-York. Besides this, there was a Provincial Justiciary Court of Admiralty, holden by the Governor and Council, sit- ting with that Judge and the Secretary of State,-for the trial of piracies and other crimes, committed on the high seas.
From any decision of the Provincial judicatories or courts, in Appeals to any personal action, wherein the matter in difference exceeded the crown, £300 sterling, an appeal was allowed, by the charter, to the king in council.
To revise and regulate the Militia, a statute was passed, in The Militia. 1693, which directed all the male inhabitants, between 16 and 60, other than specified exempts,t to be enrolled and to do military duty four days in a year ; who were all to be well armed and equipped with a firelock, and its appendages, furnished at their own expense. They were organized by the Captain-Gen- eral and Commander-in-Chief, into companies, severally of 60 men, and classed into regiments, whose musters were directed to be triennial. All military officers of and above an ensign's rank, he himself without the advice of Council, appointed and commissioned ; 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 pen- alties, to convene in arms at the usual place of rendezvous, and await the orders of their officers. But no officer could quarter or billet a soldier upon any other inhabitant than an innholder without his consent.
All christians, except papists, were expressly allowed by the
* The successive Judges of this Court were Messrs. Atwood, Mempes- son, Nathaniel Byfield, John Menzis, Robert Achmuty, and, in 1747, Chambers Russel .- 1 Doug. Summ. p. 494.
t These exempts were many-extending not only to all members of the legislature, ministers, deacons, and all judicial and executive officers ; but to Masters of Arts, herdsmen, and sea captains.
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A. 1) 1692 charter, " liberty of conscience in the worship of God." No at- to 1693. tempt to legalize the old platform of church government, met Ecclesiasti- cal affairs. with any success ; nor would the General Court, after this period, be persuaded to interfere in any ecclesiastical disputes, otherwise than to recommend an arbitrament or compromise .* To every church, however, was given and secured, by a new law, all its former rights and privileges in worship and discipline-also the power of electing its own minister. But if the choice was non- concurred by the town voters, a council, consisting of three or five neighboring elders, or delegates from their respective churches, was to be called,-whose decision was by the statute of 1695, to be conclusive. One great and important duty was still enjoined upon towns by law,-which required them to be constantly provided with an able, learned and orthodox ministry.
Education
In defence of government, justice, liberty and religion, the corner-pillars of the community, there were now provided with no less assiduity than formerly, what were esteemed their indis- pensable safeguard and panoply, viz .- schools and early educa- tion ; the ardor for mental culture and improvement having no- where undergone any abatement. Nay, such was still the public zeal for learning, that every town of 50 householders was by a new law finable, that failed to employ a schoolmaster constantly ; and when the town embraced twice that number of families, the instructor must be capable of teaching the sciences and learned languages.
Land-titles.
Land-titles were a subject of great importance and early con- sideration. By a colony ordinance of 1652, confirmed by stat- ute in 1692, peaceable possession, five years, acquired a title in fee-simple. As the limitation, however, was very short, the law provided, that the owner should not lose his right, if he pursued his claim, within that length of time, after the close of the present or second Indian war. This provision was intended for the particular benefit of the settlers in Maine. But no territorial purchases of the Indians were considered valid, unless they were sanctioned by the laws and usages, extant within the constituent sections of the Province, where the lands lay,
Bill of rights.
In short, the political axioms of this period, drawn into a stat- ute bill of rights, and passed in 1692, shew in a more peculiar
* Nor has any Synod since been called .- 2 Hutch. Hist. p. 18.
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CHAP. I.] OF MAINE.
manner the sentiment, sense and intelligence of the federative A. D. 1692 community. By these, no one might be despoiled of his liber- to 1693. ties, 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 of- fence. All trials shall be by juries of twelve men, or by prior established law. 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 Habeas Corpus. be prohibited,-' nor shall any tax be levied or laid upon the 'l'axes. people, without an act of the legislature.'*
Former laws were perpetuated for a period, by a special statute, Other Laws till opportunity was given, either to amend, to revise or re-enact and usages. them ;- all usages retained and practices approved-as the legal expletives of such legislative acts as remained unrevived, if not inconsistent with the charter, becoming in after time the accredit- ed parts of our ' common law.' For the furtherance of justice, any judgment rendered in the courts of Yorkshire, since 1686, might, by a provisional law, be reviewed in the new court of Com- mon Pleas. Judicial process and legal remedies became as- similated, by degrees, to the free principles of the English com- mon law ;- a code, in most of its parts, too sacred in the peo- ples' view, ever to be touched by a despotic hand. Inheritances were made divisible or partible, equally among heirs, excepting to the oldest son a double portion. Every justice of the peace was authorized to solemnize marriages within his county ; and every settled minister within his town. But all questions of di- vorce and alimony, were committed to the decision of the Gov- ernor and Council. Rules were given to counties for the man- agement of their prudential affairs ; also particular duties and re- strictions were prescribed to licensed houses. The powers and obligations of towns were revised in the choice and number of town officers; in the support of their poor ; in the repairs of their highways; and in the regulation of public ferries, and even of fences between man and man. Nay, almost every object of con- siderable importance, or public utility, received the particular
* But the Crown refused to approve this Bill, for the ministry foresaw that if the act was approved, it would be a security against parliamentary taxation.
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to 1693.
A. D. 1692 attention of the General Court, within its first three or four years of legislation, under the province charter. Nor will the writer Remarks. be charged with a needless multiplication of remarks upon the form of government, and the general administration of affairs- when their importance is realized, and when it is further consid- ered, many of the most prominent laws and regulations, occasion- ally revised and amended, were not only continued in operation till the American revolution, but are the foundation of the "acts" that fill our present statute books.
Criminal Laws.
In no department, it is said by able civilians, do the lights and shades of a people's public character appear more conspicuous, than in their code of ' criminal law,'-in the scale and species of penalties and punishments. If European governments, in their progress, tarnish its pages with more and more blood, it is a happy consideration, that with us, practical experience and im- proved policy, have taken a juster view of crimes, and pursued them with a correspondent moderation as to penalties. By ed- ucating the mind, and deepening the moral sense, crimes may be prevented-not by aggravating the forfeitures, or sharpening the punishments. According to a classification in the code at that Crimes and time enacted,-murder, treason, piracy, rape, robbery on a sec- ond conviction, bestiality, arson, polygamy, and witchcraft were all capital crimes : Burglary, forgery, blasphemy, perjury, adultery and larceny were public offences of the second class : and the third embraced assaults and batteries, gambling, drunkenness, frauds, usury, sabbath-breaking, and all breaches of the peace.
offences.
Though among the penalties and punishments, torture no lon- ger makes its appearance, ingenuity seems to have been not a little exerted in the work of inventing new and various kinds and modes ;- some of which were cruel if not barbarous. In truth, that age, mistaken as it was, appeared determined to try by tests of experiment, what indelible marks of disgrace upon the body could effect, towards preventing crimes, and reforming the heart and habits of the offender. For, besides a confinement in the pillory, stocks or cage, and sitting on the gallows, convicts were whipped ; their foreheads branded ; their ears cut off or nailed to a post ; and the tongue of a convicted blasphemer, perforated with a redhot iron. Even ten stripes might be inflicted by a constable, in execution of a sentence awarded by a justice of the peace.
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Idolatry and heresy, which had been capital, were no longer A. D. 1692 considered offences punishable by law ; and it is greatly to be re- to 1693. gretted, that a page of the statute book should be again sullied, by a re-enactment recorded against witchcraft,-more especially since the penalty affixed was death .* If such a crime were ever com- mitted, the difficulty of proving it, necessarily borders on utter impossibility. The trials of the accused were principally in Sa- lem (Massachusetts); and the height of the delusion was in 1692, when the country was involved in a bloody war with the eastern Indians. Of the whole number, convicted of witchcraft, 19 were executed ; and fifty others were prisoners in close confinement, when the spell was dissolved, and this master spirit of delusion, became effectually expelled from distempered and credulous minds, by force of good sense and sound principles in religion and reason.
Witchcraft.
Though we have no record of a conviction for this crime in Maine ; a single case of one, formerly an inhabitant, may without Burroughs- George impropriety be mentioned. George Burroughs, a native of Essex execution .. county, and a worthy minister of the gospel, who preached at Falmouth between 1685 and 90, was arrested at Danvers, and tried for witchcraftt at Salem, in 1692, on three indictments ; and
* To encounter a ' demoniacal spirit of delusion,' a colony ordinance was passed against witchcraft in 1646. The first execution under it, was at Charlestown in 1650. There were several other cases in different parts of New-England before 1688, when the infatuation became more dreadful ; and in the course of three or four successive years, filled Massachusetts with misery and alarm. The sufferers said they were pinched, pressed and otherwise tortured by an invisible hand-accusing some one, who was hence soon arrested and tried .- See 2 Hutch Hist. p. 22-62.
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