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Little Talks on Common Things
January 4, 1976

Pertinent to the celebration of the nation’s bicentennial is the development of Maine’s legal system before the Revolution. That record is contained in six carefully edited volumes, taken from the old record books of what was originally Maine’s only county, York. They have been edited by Dr. Robert Moody of Boston University, who a few months ago gave an historical address before a department of the Waterville Womens Club, meeting at the Redington Museum.

By 1700, the court system in Massachusetts District of Maine had become well organized. Simple civil cases between individuals, such as land disputes and claims of debt, were held before a single judge, but his decision could be appealed to the Court of General Sessions, where most cases were tried by jury. The court also had original jurisdiction overtax claims, control of highways and ferries, licenses to innholders and sellers of alcoholic beverages, and maintenance of jails. From the Court of General Sessions appeals could be sent to the Superior Court of Massachusetts. The General Sessions Court, held at stated intervals in various towns, but most frequently at York, had broad jurisdiction over criminal cases. These included Sabbath breaking, sex offenses, cursing, blasphemy and failure to attend church, as well as the usual crimes of larceny, robbery, and assault. Nearly every year saw at least one murder trial.

In 1713 the Treaty of Utrecht ended what was called Queen Anne’s War. It was actually war between England and France which spilled over into the colonies of both nations in North America. Here it was chiefly conflict between the British settlers and the French and their Indian allies. During that war, only Kittery and York, for the larger settlements, had not been abandoned. The settlement at Cape Porpoise that had been renamed Arundel, was destroyed. Saco, Scarborough, Falmouth (old Portland) and North Yarmouth were utterly deserted.

The York court immediately faced the problem of adjusting claims of new settlers in the deserted areas against the old claims of those whom the Indians had driven out. A group of the old settlers, though now living elsewhere, organized as proprietors in opposition to the newcomers. Adjusting their claims occupied the Court substantially between 1715 and 1740.

In the area of Casco Bay and along the coast as far as Waldoboro those proprietary groups had such titles as the Pejepscot Company, Clark & Lake, the Muscongus Company, and the Kennebec Company. Farther out there were claims by earlier owners. All the claims traced back to grants made by the Court of Plymouth before the Great Gorges Grant of 1639. To complicate the matter, other owners claimed rights under deeds from the Indians.

These disputes, quite as much as any further Indian threats, discouraged further settlement. To the Massachusetts authorities it seemed enough to get people to go to the already established towns. In 1720, Col. Robert Temple brought 1,50 immigrants from Ireland, planning on a new town on the Kennebec to be given the Irish name of Cork. The best he could do was to scatter the new people among the already existing wilderness settlements in Maine.

The rapid settlement of older towns excited the Maine Indians, who felt new encroachments were being made on their cherished hunting grounds. The Governor of Quebec became equally concerned lest New France lose its claim to Maine land east of the Kennebec. So Quebec tried to stir up the Kennebec Indians against the English. Conditions so worsened that Governor Shute at Pemaquid declared war on the Indians in 1722. Two years later the Indian village at Norridgewock was destroyed, and their French missionary Father Rasle was killed. Peace came with the Treaty of Falmouth in 1726.

So much for the historical background. Now let us note some of the cases that came before the court at York. One of considerable interest concerned two Indians in 1722. At the time they were serving in the militia company of Capt. Jordan at Cape Elizabeth. One of them was an indentured servant who 18 years earlier had been bound to Samuel Sturgess of Yarmouth. One of the Indians was accused of killing the other in a drunken brawl. Note that in those days drunkenness was not an acceptable defense. The jury convicted the man and he was hanged at York, before what may have been the extravagant estimate of 3,000 people. There could hardly have been more than that number in all of Maine in 1722. Sheriff Moulton submitted to the court a bill of two pounds, twelve shillings for building a gallows, hanging the convicted man, making his coffin and digging his grave. Two Indian witnesses were allowed three pounds for expense of travel to the court. Parson Moody of York preached the customary sermon at the gallows.

Sheriffs themselves got into trouble for the same reason that a few Maine sheriffs did two hundred years later in prohibition days. Sheriff Gray in 1723 was indicted for himself selling rum. His defense was that “the necessity of some of the people of Biddeford obliged him to supply them a small quantity of liquor, and he thought his doing so was no breach of the law.”

We often hear today of contempt of court. One case heard in York in 1724 concerned contempt of judges outside the courtroom. One evening in Kittery, in John Heard’s tavern, Judge Hammond had a verbal controversy with the innkeeper – when the judge said that Heard didn’t know how many pence there were in 40 shillings, Heard called the Judge a “son of a whore.” Brought to court, Heard had to pay a fine of 10 shillings for contempt of the judiciary.

Even the clergy were brought into the province court. Rev. John Eveleth of Saco was hailed into court for selling rum in his house. He was fined ten pounds, one-third to go to the poor of Arundel, one-third to the county and the remaining third to
the informer, the man who had complained of the reverend’s liquor selling. It turned out that the informer was a licensed liquor seller in Saco. He considered the minister as illegally competing with him for business.

Sometimes a minister himself was the plaintiff in a case. Rev. John Rogers of Eliot sued for back pay as the town’s minister. It was a complicated case. The selectmen testified that the taxes had been collected to cover the agreed salary. The court learned that $86 had indeed been raised for the purpose, but the Reverend had received only $33, 9 shillings. Three Berwick men were named as assessors to secure the delinquent amount and pay it to Nicholas Shapleigh for the minister before May 31, 1723. The Berwick men refused to serve, and three men from Kittery were appointed, including the celebrated William Pepperell. In a few days appeared a poster accusing Adams, one of the Kittery trio, of scandalous libel. Then his gate was torn off and broken to bits. Two Kittery men were summonsed to court to tell what they knew about it.
Both refused to say anything, on the grounds that it was the right of an Englishman not to bear witness against himself – a very early instance of what we now call the Fifth Amendment. Fortunately, the judge himself had seen a man nailing up the offensive poster and he fined that man 20 shillings. Eventually, after even further litigation the Rev. Rogers finally got his delinquent 52 pounds.

You have heard me say more than once on this program that liquor was a major cause of the disintegration of Maine Indians. Before the coming of the white men they had not known drunkenness. The depredation, even murders, caused by wildly intoxicated Indians very soon forced the province authorities to outlaw liquor sale to the red men.

But like too many of our laws today, the laws of the early 1700s were more easily passed than enforced. When Sheriff Gray was hailed into court for such traffic, the judge acquitted him. Nathan Miller, accused of selling to Indians at a muster of militia was let off with his excuse that common hospitality bade him supply to assembled visitors regardless of race. In another case the jury took the word of Joseph Samuel Moody that while it was true some of his liquor had been sold to Indians, the sales had been made by a servant, and Moody himself knew nothing about them. Despite the testimony of five witnesses, Robert Collins of Falmouth secured a similar acquitual.

In fact the court was more severe on those who failed to attend church than on those who sold rum to the Indians. John Whitten was acquitted on a charge of liquor selling, but was fined two pounds for failure to go to church. One man and his wife, who had been absent from church and were too poor to pay the fine, sat in the town stocks for an hour, pelted with snowballs by youngsters.

The law was severe on itinerant peddlers. Numerous cases were heard and convictions obtained because the peddler was not an inhabitant of the town where he tried to dispose of his wares. Though no so-called witch was ever hanged in Maine, the witchcraft fever did reach the province in the late 17th century. In 1692, Sarah Keene had John Spinney brought
into the York court, saying he had called her a witch and claimed he could prove it. When Judge Pepperell fined Spinney five shillings, he appealed. When the case reached General Sessions where several judges were together on the bench, those judges showed little respect for contemporary superstition, but several of the witnesses were clearly sincere in their belief in witchcraft. One of the witnesses declared she had heard Mrs. Keene say she would ride Spinney down to Judge Pepperell’s house, and she saw Mrs. Keene’s daughter pick up a bridle and say she would make the head shorter so it would fit Spinney. Another witness said she had seen Mrs. Keene in the moonlight with a dozen other women, all on horseback, and that one time Mrs. Keene asked her if she thought a person could be a witch and not know it.

The judges, more sensible and less swayed by superstition than the judges at Salem, were ready to uphold the original Pepperell decision and make Spinney pay the fine, when a respected and credible Kittery citizen contradicted Spinney’s story that a number of unknown men had one night taken him to Mrs. Keene’s place and tied him to her plum tree. That was 150 years before the Ku Klux Klan was heard of. Although Spinney was acquitted and Judge Pepperell’s decision was reversed, the verdict did not mean that Mrs. Keene was convicted of witchcraft. No action at all was taken against her.

Typical of the numerous sex cases heard in that Maine Province court in the early 1700’s was the conviction for fornication of both Hopewell Ware and his wife, because their child had been born three months after their marriage. Each was sentenced to ten strokes on the naked back.

Such was justice meted out by the Court of General Sessions in the Province of Maine 250 years ago.

Year: 1976