Radio Script #1053

Little Talks on Common Things
May 25, 1975

It is not often understood that in 1637, when the Episcopal nobleman, Sir Ferdinando Gorges, obtained from King Charles I his grant of lands that encompassed a large part of what is now the State of Maine, the grant was made to him under the ancient British right of what was called villeinage. That was a class of society within the feudal system by which no persons except the great royal and noble landlords owned any land, and the people who lived on the land had certain obligations to that landlord, through themselves and their descendants forever.

A villein was a member of a class of half-free persons, having certain rights of freemen with respect to the lower class of serfs or slaves, but not free from definitely defined obligations to the lord of the manor. Only a small portion of any crop, though it resulted entirely by the villein’s labor, could be kept by him, and he was similarly restricted as to the farm animals. Sometimes he was allowed to raise food for his family on a small assigned tract within the limits of the manor. Occasionally he could work for himself on any days not specified as bound to work on the lord’s lands, and the law bound him so much to those lands that there were few days left for himself.

As lord of the manor of Devon, England, Sir Ferdinando Gorges was naturally determined to transplant what was left of that feudal system to his settlements in Maine. The Gorges charter of 1637 stated that all the land in Maine between the Piscataqua River at what is now Kittery and the Kennebec, was held personally to Gorges and his heirs forever. The charter said, “Sir F. G. may at his pleasure, grant in freehold so much of said lands and manors to any person under such rent and service as he shall deem fit.” Note that Gorges could thus rent and lease but not sell the land.

When plans for settlement got underway and when the first settlers arrived on his Maine lands, Ferdinando Gorges was 3,000 miles away in England. In fact he never stepped foot on his Maine property. His agents had a hard time getting his feudal plans underway, especially when the settlers soon learned that people in the colonies of Plymouth and Massachusetts Bay actually received ownership deeds to their lands. If the Gorges settlers were given freeholds, how long would it be before those pieces would be considered not freeholds in rent, but actually owned land?

In fact villeinage in England itself had already begun to decay. One requirement of the villein was that he could not leave his lord’s domain without the lord’s consent. Two years before the Gorges charter, in 1635, a young man in England named Bird petitioned the courts for right to leave his lord’s land, and had received legal permission. In other aspects also, the old feudal system was changing. The serfs were given rights, and all other classes came to owe less and less to the lord of the manor, even though a long time would elapse before the ordinary citizen could own British land.

It was a step backward, though, for Gorges to insist on feudal rights in America at the very time when the system was falling apart in England. In fact Gorges considered the human beings on his great manor of Devon exactly like the livestock. The people on his land had no more rights than the cattle. One of the provisions of the Gorges charter that settlers soon found objectionable was stated in these words: “No man to whom there hath been passed any grant of any freehold shall alienate the same without the consent of the Council ” (that is the council set up by Gorges). A fellow simply had to stay or forfeit the right to live anywhere within the limits of the great Gorges tract. He not only did not own the land to sell, he could not even pass on to someone else his rental rights.

A time-honored provision of the feudal code was what was known as knight’s services. Every knight – and Sir Ferdinando Gorges was one of them – was bound by law to render military service at his lord’s command. Whenever a British king undertook a foreign war – and the kings were always at war somewhere – he demanded that the knights, all under feudal allegiance to him, round up from their tenants the men necessary for the king’s army.

One of Gorges’ persistent demands of his Maine tenants was this knight’s service. He agreed that was the only way to keep tenants loyal in a pioneer country. What Gorges overlooked was the much greater difficulty of enforcing such service in a wilderness 3,000 miles from his Devon manor. As one of Gorges’ agents to Maine once expressed it: “The actual conquerors of the wilderness always had left to them the hazardous right of rebellion, with even deeper woods always at hand for withdrawal and escape, where they would be beyond the reach of noble, knightly or even royal greed.”

It therefore resulted, long before Massachusetts bought the whole territory from Gorges’ heirs in 1678, that the Lord Proprietor could in no way enforce the feudal provisions of the charter. The emigrants to Maine had already begun to assume that independence which for more than two centuries has characterized the Maine Yankee.

Yet, from the earliest time in colonial Maine, the people saw the need of laws that the magistrates must enforce. They only wanted to be sure that their own assemblies approved those laws. So we find that, as early as 1640, courts were active in Maine, both on civil and criminal cases.

Fortunately there are preserved the early court records. In five big volumes those records have been published, covering the years from 1640 to 1718, and a sixth volume is still to come from the press. The First General Court was convened at Saco in the Province of Maine on June 25, 1640. It had been set up under orders from Ferdinando Gorges by his resident council, consisting of four men, respective magistrates of the four sections of the Gorges domain.

The one best known was Richard Vines of Saco. The first business taken up by that first Maine court was a petition of the residents of Piscataqua to be relieved of the trouble of going considerable distance to attend court, and asking to have the power to hold petty court in their own plantation. It was granted, with superior authority given to the court at Agamenticus. The first civil case was brought by George Cleves of Casco against Jonathan Winter of Richmond Island. Cleves claimed that for the past ten years, he had been in possession of land within the Province, at a place known as Spurwink, and held that lot of 2,000 acres by virtue of a promise made him by Sir Ferdinando Gorges. The promise had been made to Cleves before he left England. Winter insisted that Cleves never held legal right to the 2,000 acres as an inheritance from Gorges, and that Cleves’ claim made no mention of the date of any Gorges promise. Furthermore, Gorges denied making any such promise. Winter’s own claim to the land started with a grant by the Council of Plymouth to Robert Trelawney and Moses Goodyear, merchants of Plymouth, England, of all the lands situated along the Maine coast from the eastern boundary of a grant already made to Thomas Carmock to the Bay and River of Casco and extending northwest into the mainland as far as
the limits of the land granted to Carmock. One of the signees of that grant, as a member of the Council, was Ferdinando Gorges himself.

Winter showed that, on July 21, 1632, Richard Vines, the rental magistrate, on behalf of the Gorges Council, conveyed to Trelawney and Goodyear legal delivery of the land and at the same time warned Cleves to leave the premises, but offered him tenancy on such conditions as Winter should demand, since Winter held title to the Spurwink land from Trelawney and Goodyear.

The jury’s decision shows how careful Maine’s first court was to recognize tenant rights, although claim of ownership could not be established. In this case they decreed that the house that Cleves had built and the four acres surrounding it belonged to him, but that since it stood on another’s land and he must now leave it, Cleves was entitled to 80 pounds damages. But Winter obtained the title he claimed.

At another session in 1640, the court heard a case of property damages. Thomas Williams charged Robert Grant with setting fire to the plaintiff’s hay at Winter Harbor near the mouth of the Saco River, and further that Grant, stacking hay for Williams, had stacked it so badly that it was all spoiled from top to bottom, compelling Williams to go elsewhere to get fodder for his cattle at a cost of more than 200 pounds. The jury promptly brought in a verdict for Williams.

The first case of slander to be tried in Maine was at the same court in 1640. Richard Gibson, a minister brought suit against John Bouther. Gibson and his wife alleged that, on April 28, 1640, in the house of Thomas Lewis, Bouther called Gibson a base priest and a knave, and called Mrs. Gibson a whore and a strumpet. The plaintiffs contended that later Bouther repeated his statements at the house of Richard Vines. The Gibsons demanded 500 pounds damages. Despite Bouther’s denial, the jury found for Gibson, but awarded him considerably less than his demanded $500. Their award was 6/6/8 damages and costs of court.

At the very beginning of courts in Maine, a grand jury system was instituted. After the grand jury brought in indictments, the cases were tried in the province courts. The old record describes one early grand jury as follows, bringing in their indictments on September 8, 1640. “The Grand Inquest sworn as a jury took oath of allegiance to the King and to the Lord Proprietor Sir Ferdinando Gorges, and brought in these indictments:

1. Mary, wife of George Puddington of Agamenticus, for frequenting the house and company of George Burdett, minister of Agamenticus, privately in his bed chamber and elsewhere in suspicious manner, notwithstanding she was often warned by her husband and by the constable of Agamenticus Plantation; thus causing a great scandal.

2. George Burdett, minister, is indicted as a man of ill name and fame, infamous in incontinancy, a publisher and broacher of dangerous speeches whereby to seduce the weak sex of woman, contrary to the peace of our sovereign King.”

The jury fined Burdett 35 pounds on those charges, and awarded Puddington, the injured husband, $10 damages.

At a regular court session held in the same month, the following general orders were issued. First, because of the great damage done by devouring wolves, it is decreed that, for every wolf killed between the Piscataqua and the Kennebec, the slayer shall be paid 12 pence. Second, all inhabitants from the Piscataqua to the Kennebec, who have any children unbaptized, shall bring those children for baptism as soon as a minister is settled in any of the plantations, and if they fail to do so they shall be held in contempt of this court.

Year: 1975