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Browsing: Legal Papers of John Adams, Volume 1


Docno: ADMS-05-01-02-0003-0001

Bassett v. Mayhew; Mayhew v. Bassett; Mayhew v. Allen

DocGroupNo:

1762–1768

Docno: ADMS-05-01-02-0003-0001-0001

Editorial Note

This complex litigation, a landmark in the history of Martha's Vineyard, arose out of an unhappy family situation. The genealogical as well as the legal involutions of these cases being what they were, a sketch of the members of the great Mayhew clan of Martha's Vineyard mainly concerned, and of their relationships, is almost essential to an understanding of the legal issues.1 The chief figure on one side was Dr. Matthew Mayhew (1721–1805), a physician who was repeatedly a representative to the General Court and, from 1761, a Justice of the Peace at Chilmark, the village where all the action in the cases occurred. Allied with him was his wife's brother, Robert Allen (1732–1792), the coroner of the County of Dukes County.
A sister of Dr. Mayhew, Hannah, had married into the other and much more extensive family faction.2 Her husband was Zephaniah Mayhew (1715–1751), a son of Bethiah (Wadsworth) Mayhew. Among their children who were to play parts in the physical and legal scuffles of the 1760's were Lucinda (1739–1815), Wadsworth (1741–1829), and another Zephaniah (b. 1745). Bethiah, widow since 1733 of an elder Zephaniah, was the embattled “old lady” of the trial records.
The feud seems to have begun after the death of the younger Zephaniah, husband of Hannah, in 1751. Though the details are obscure, his widow appears to have handled her affairs and brought up her numerous children in a manner so irksome to Dr. Mayhew that, it was said by those who disliked him, he “sought all occasions, to ruin and destroy them.” With the backing of her husband's family, Hannah evidently succeeded fairly well, at least for a time, in fending off the effects of her brother's ill-will.
By 1762 the widowed Bethiah and three of her daughters—Jerusha (1717–1793), Bethiah the younger (b. 1723), and Mercy (1725–1825)—as well as the widowed Hannah and several of her children were { 88 } domiciled in the Chilmark household of the elder Bethiah's nephew, Zaccheus Mayhew (1723–1775). Zaccheus, the son of the late Colonel (Judge) Zaccheus Mayhew, was one of the most prominent members of a family always prominent in the Vineyard; in the documents he is never called by his Christian name but always deferentially Squire (“Esqr.”) Mayhew. Zaccheus was married to Rebecca, and had numerous children of his own, including, it seems, Lucy (sometimes confused with her cousin Lucinda, Hannah's daughter).
Strong-mindedness was evidently endemic among the Mayhew women, notably the elder Bethiah and her daughter Jerusha; but Dr. Mayhew eventually found, or thought he found, a vulnerable point in their defenses. In 1744 Mercy Mayhew had married Abel Chase, a hatter of Edgartown. After bearing Chase two sons, Mercy quarreled with him and went to live with her mother, taking her younger son Zeph, who was actually, however, articled to his grandmother until he reached the age of fourteen. Zeph turned fourteen in 1762 and his father wanted him back. The new chapters in the old feud began when Chase applied to Justice of the Peace Doctor Matthew Mayhew for legal help in forcing the women to give up the boy. What happened thereafter is told in the documents printed here.3
The case fast became “a quarrell of the most invidious, inveterate and irreconcileable nature.”4 Conflicting testimony abounded. Some of it appears in the minutes which follow; more may be found in a large collection of depositions and processes in the Superior Court Files.5 Adams remarked years later, “it was impossible for human Sagacity to discover on which Side Justice lay.”6 The years have not resolved the problem. We propose now merely to describe the procedural framework.
Legal matters commenced with Abel Chase's giving the warrant for Zeph's return to Deputy Sheriff Cornelius Bassett. When Bassett went for Zeph at Bethiah's house on 1 June 1762, the boy evaded him. It does not appear that Bassett made any return on the warrant; thus the warrant remained effective, a fact which was to become important later on. Bassett did however formally complain to Justice Matthew Mayhew that Jerusha Mayhew, her sister Mercy Chase, and Lucy Mayhew had rescued Zeph out of his hands. The Justice then issued a warrant, dated 1 June 1762, directed to “one of the Coroners” of Dukes County for the arrest of the three women.
Coroner Robert Allen took the writ. It is not clear whether he attempted to execute it immediately, although there is some evidence that he at least read the process to Jerusha on 1 June. On 9 October 1762 Allen brought { 89 } Jerusha physically before the Justice, who bound her over to the next Sessions at £5. Jerusha refusing to post the bail, Justice Mayhew ordered her committed and issued a mittimus.7
Now began Jerusha's lengthy attempt to foil Allen. On 11 October 1762 he went to take her but forbore when she pleaded illness and when Deacon Timothy Mayhew promised that she would go on the 15th or “the next fare day.”8 Allen returned on the 19th and the 20th, but still Jerusha would not go, even though on the 20th Allen himself agreed to be one of her bondsmen.9 On the 25th, Allen came to the house once more, this time with Thomas Lothrop as aid,10 and repeated his offer. Like almost everything else in the case, what happened next is uncertain. One of Jerusha's witnesses said that Allen manhandled Jerusha as she lay in bed and had threatened her with a whip; Lothrop said that Jerusha called Allen a liar and used him “with Uncivility,” whereupon Allen told her that if she were a man he would horsewhip her. Allen asked Wadsworth Mayhew to aid him, but Wadsworth, the Mayhews said, was deaf. According to Allen and Lothrop, Wadsworth rescued Jerusha out of Allen's hands.11
Now it was Allen's turn to swear out a complaint, this one at the Court of General Sessions of the Peace which was then sitting at Tisbury. A warrant for the arrest of Wadsworth Mayhew issued, dated 26 October 1762 and directed to the sheriff or his deputy.12 It is clear that Bassett took the warrant, but the evidence is confused as to whether or not he agreed to wait until the next day before executing it.13 At any rate, he summoned a number of men to aid him and set off at about 9:30 P.M. on the 26th for Bethiah's house, where Wadsworth was supposed to be. To cloud the picture further, there was evidence that he had the old warrant for Zeph in his pocket and intended to execute that as well.14
From the depositions of members of the Aid,15 it appears that Bassett's group stole silently toward the house and surrounded it. Bassett went to the front door, demanded entrance, heard a voice cry “Fire the gun,” and received a charge of buckshot in the legs. He and his men then broke down the door and entered the house. Inside, Bethiah Mayhew, although seated in a chair, began belaboring Bassett with a three-foot stave. Seizing it to protect himself, he pulled her onto the floor. More pulling and hauling { 90 } ensued before “the People then Grew Moderate.”16 Wadsworth, being securely tied, was then carried to jail and the Sessions.
Wadsworth, Bethiah Jr, and Bethiah Sr. were all indicted for criminal assault by the Grand Jury at the May 1763 sitting of the Superior Court at Barnstable,17 but only Wadsworth was ever tried. In May 1764 the jury brought in a verdict of guilty, which the court rejected.18
Meanwhile, the civil litigation multiplied.19 Jerusha sued Allen, Bassett sued Bethiah Sr, and Bethiah Sr. sued Bassett. Bethiah Jr. later was admitted as a party in all actions, while Lucinda Mayhew was admitted to the action against Allen, and Wadsworth was admitted to the actions against Bassett. The litigation wound its way from the Edgartown Inferior Court to the Barnstable Superior Court, where finally, in May 1764, all the cases were submitted to three referees: Gamaliel Bradford, Josiah Edson, and Ebenezer Spooner. In August 1764, the referees attempted to hear the cases, but Jerusha interposed a series of objections which succeeded in postponing the hearings for a year.20 Finally, on 29 August 1765, the hearings commenced.21 The minutes which follow as Documents I and II, by Adams and Robert Treat Paine respectively, memorialize the proceedings before the referees. Adams was of counsel for Bassett and Allen, and Paine for the Mayhews. It appears from the minutes that the cross actions between Bassett and the Mayhews were tried together.
After hearing the evidence and the arguments, the referees found against Allen in favor of Jerusha, £6; for Bethiah Jr, 20 shillings; and for Lucinda, 20 shillings. They also found against Bassett and awarded Bethiah Sr. £4; Wadsworth, £3; and Bethiah Jr, 20 shillings. In addition, Allen had to pay court and reference costs of £30 16s. 11d. Bassett's costs were £43 8s. 4d.22 The controversy remained alive until 1768, by which time Bethiah Sr. had died and Bethiah Jr. as her executor prayed execution against Bassett for the £4 damages and costs. Adams interposed a multipart defense, of which the following sentence is sufficiently illustrative to stand as a commentary on the entire case: “And the said Cornelius Bassett comes and defends, &c. and Saith that this Writ is bad and ought to abate for that 1. It is in said Writ alledged that said Bethiah Mayhew before the Justices of the Superior Court of Judicature, &c. holden at Barnstable within said County of Barnstable and for the Countys of Barnstable and Dukes County, on the second Wednesday of May in the Sixth Year of his Majesty's Reign and by the Consideration of said Justices recovered the { 91 } Judgment mentioned in said writ which by Law ought not to have been alleged if the said judgment should have been alleged to have been recovered on the Wednesday preceeding the third Tuesday in May in said year.”23
Apparently Adams never pressed the technicality, for the final Record entry is: “The Defendant makes default”;24 that is, the defendant allowed the plaintiff to prevail by default.
1. All vital data in this sketch are drawn from the genealogies of the Mayhew and related families in Charles E. Banks, The History of Martha's Vineyard, vol. 3 (Edgartown, Mass., 1925).
2. Banks does not show Hannah's relationship to Matthew, but it is stated in Hovey's narrative of the background of Jerusha Mayhew's case against Robert Allen, in Doc. I.
3. Other Mayhews who had lesser roles in what followed were two brothers, “Deacon” Timothy and Simon Mayhew, who were distant cousins of Matthew, Zaccheus, and the elder Bethiah's late husband, Zephaniah.
5. SF 83471, 85247, 86474, 144133, 144145, 144187, 144233.
7. SF 144187.
8. Deposition of Rebeckah Mayhew, SF 144187.
9. Deposition of Rebeckah Mayhew, SF 144187.
10. Deposition of Thomas Lothrop, SF 144187.
11. Depositions of Rebeckah Mayhew and Thomas Lothrop, SF 144187.
12. SF 83471. The warrant is printed in Quincy, Reports 93 note.
13. Depositions of Ebenezer Smith and John Cottle, SF 85247.
14. Deposition of William Stewart, SF 85247.
15. Depositions of Eliakim Norton, Thomas Daggett, Jonathan Cathcart, Silvanus Norton, Jeremiah Manter, and Benjamin Coffin, SF 83471, 85247, and 144133. The Aid was the group of citizens enlisted by an officer to assist him in the performance of a particular task.
16. Deposition of Eliakim Norton, SF 144133.
17. SF 144145.
18. See note 4468 below.
19. Min. Bk. 72, SCJ Barnstable, May 1763, C–3, C–9; id., May 1764, N–3, N–4; Min. Bk. 82, SCJ Barnstable, May 1766, C–3, C–4; Rec. 1766, fols. 28–29; Min. Bk. 89, SCJ Barnstable, May 1768, N–4, N–5; Rec. 1768, fols. 177–178.
20. SF 144187. Part of the matter was tried at the May 1764 sitting, according to minutes in the Paine Law Notes which are not printed here. It does not appear that JA participated at this stage.
21. SF 86474.
22. Min. Bk. 82, SCJ Barnstable, May 1766, C–3, C–4.
23. SF 144233.
24. Rec. 1767–1768, fols. 177–178; Min. Bk. 79, SCJ Barnstable, May 1768, N–5.

Docno: ADMS-05-01-02-0003-0001-0002

Author: Adams, John
Date: 1765-08

Adams' Minutes of the Referees' Hearing1

Chilmark, Martha's Vineyard, August 1765

Seal. Directed to a proper Officer. The Cause. General Warrant. Martha's Vineyard
Hovey. Justifies by Warrant. Generality. Turning Point, legality of Warrant. Void in itself. Broke open in the dead of Night.
Damages. Thrown down on the Hearth. Stripd of her Cloathing. Not yet got rid of her Wounds as she saith. Fright. Weakness consequent. Bethiah and Wadsworth—Weakly. She never had got over it she says. Wadsworth.
Hovey.
Abel Chase of Nantucket married Mercy Mayhew, Daughter of Bethiah Mayhew. They disagreed and separated 15 or 20 Years ago. They had a young male Child at the Time of separation, which Chase put out by Indentures to the Grandmother Bethiah Mayhew, from 5 to 14 Years of Age. When the Boy come to be 14, his Father wanted him, and complained to Dr. Mayhew,2 that his son refused to obey him, and had run away from him. Dr. Mayhew made out a Warrant for the Boy, which Bassett was about to serve about to take the Boy, when the Women Bethiah, Jerusha and others, came out and assaulted Basset and held him, till the Boy went out of Bassetts Way. Basset { 92 } complains of the Opposition of the Women to Dr. Mayhew. Dr. Mayhew gave a Warrant to the Coroner,3 upon the Comp[lain]t of Deputy Sheriff, vs. the Women &c., for Resisting him in the Execution of his office. 1st fault directed to Coroner,4 2d. no Seal. 3d. general. Allen the Coroner took that Warrant, and went and read it to them, and told em they must go, but they said theyd die first. Another Time, told Jerusha she must go, and she said she would go home first and come, and did. The Justice Dr. Mayhew sentencd to recognise5 or go to Goal. She refused to find Bond so a Mittimus was made out, directed only to the Goaler.6 But Allen did not committ her, took her Word for her Appearance on Monday, but then she pretended to be sick from Time to time and pretended to be at one Time set forth in her Writ, when Allen only took hold of her Hand.
At this Time two young Men came up and held her and kept off Allen. Wadsworth Mayhew was the most active. Then Allen goes and complains to the Sessions, that he was opposed and resisted, by Wadsworth Mayhew. Court orders a Warrant7 to bring Wadsworth vs. all opposition, before them and to enter any House, where the officers should suspect him to be. This directed to the Sherriff. Bassett goes with Aid8 to the House, and demands Entrance &c. A Gun is fired which wounds him in the foot and Leg. He breaks the House and drags Wadsworth away to the Court.9
Jerusha Mayhew vs. Robert Allen.
3 Imprisonments and an assault and Battery. Octr. 1763. Verdict vs. her.10 Sup[erio]r C[our]t Papers in Justification rejected.11
{ 93 }
Hovey. Not for bearing hand vs. civil Authority.
Zeph. Mayhew married the sister of Dr. Mayhew. Zeph. died. His Wife administerd and was Guardian of the Children. Widow taken in by J. Webb and Company. J. Webb became Master of the Children and Property. These orphan Children, thrown upon this family. Adonijah pursues his right, his Aunt Jerusha assists him. The Dr. disliked it, and thence sought all occasions, to ruin and destroy them. Chase's marriage, separation, oldest son with the father, youngest with this family.
Dr. Mayhew issues out a Writ, intended for a Warrant for this Boy, delivered to Bassett, who attempted to execute it, but the lightfooted Boy made his Escape. Jerusha placed herself between Bassett and the Boy. Basset returns that the Boy was rescued12 by Jerusha. Now the Coroner in Tow. Sherriff and Coroner shall play into one anothers Hands. Not a Warrant of them will justify an Officer. Jerusha apprehended, carried before the Dr. and sentenced that she was sufficiently guilty of an offence and must give Bail, which she would not do. Dr. makes out a Mittimus, illegal one. How to be carried could not tell. Allen seizes Jerusha to carry her to Goal. 2 June as well as 1st.13 Then slept till Octr. 25th.14 Octr. seizes her again by same Warrant at Esqr. Mayhews, seizes her in her Bed, and would have her out, commanding assistance. Wadsworth seeing his Aunt ill used, put up the Cloths on his Aunts Breast. Allen cryd, thats enough Wadsworth has rescued you out of my Hands. Allen makes the most vile and devilish Return.15 God knows not a Word of Truth in it. The { 94 } Court then makes out a Warrant to the Sheriff, to take Wadsworth vs. all opposition. Basset comes, and makes the Disturbances of the night, and goes and complains again vs. the whole Family, a new Warrant16 is given to Allen, who comes and seizes and binds &c. them.
Jerushas demands vs. Allen. Assault and Imprisonment, 1st. June. 9th. Octr. 25th. Octr. Besides these she demands Damages for 2d time and for breaking her House on the 26th. Octr. and for imprisoning her on 11th. Octr. and 20th.
Evidence
Deposition of Rebecca Mayhew Wife of Esqr. Allen offered to be her Bail.
Deposition Mary Hunt. Heard Jerusha tell Allen he lyed.
Witnesses
Jane McGee. 25th. at Esqr. Mayhews I went, Jerusha told Allen he lyed. Then he said he'd horse whip her if well. I did not hear her complain of his griping her Hand. I took it, Wadsworth laid his Arm over to hold her and prevent Allen from taking her away. Had hold of her Hand not long.
Zeph. Mayhew. Bro[the]r to Wadsworth. He pull'd her up and about. I thought to hurt her not to take her.
Esqr. Smith. Interlocutory [ . . . ].
Simon Mayhew. Mittimus. We gave our Words for Jerusha at Dr. Mayhews. I did not see Allen touch her nor hear him make her his Prisonment [i.e. Prisoner?].
D[eaco]n Mayhew. Desird to bring her behind him to Dr. Mayhews.
Mrs. Chase. Hall'd out a Paper—at the Door—but laid Hands on no one.
Uriah Tilton. At Dr. Mayhews. She refused to find Bonds. Mittimus written. She unwilling to go that night. He unwilling to carry her. Allen [ . . . ] their Words till Monday. D[eaco]n Mayhew then present about making up, that she might stay longer.
{ 95 }
John Bassett. Beg[inning of] June. Allen wanted me to go as aid. Esqr. Mayhew would not go. We could not catch them.
Stewart, Wm. Beg[inning of] June. Dr. Mayhew advised me to go as a Friend. Esqr. Mayhew in a great Passion—'tho commanded would not go. We went to the House but could not persuade them to come out, nor could we catch them.
Esqr. Mayhew. Told Allen that it would be little less than Murder to carry her to Goal. I asked Allen if I should take his Prisoner, and he consented.17
Jeira Willis. Nothing.
Paine. Ashes raked over these unhappy Coals. Whole Bone picked and the Hatched [Hatchet] for ever buried. Boadicea the deliverer of Britain from the Invasion of the Hunts [Huns?]. Rod however broken, this Warrant however illegal, hung like a bloody Banner, over this family. Poor helpless Women—Walked between his Legs as a ship between those of the Colossus. Touching not of the Essence of Imprisonment.18 Surrounded the House, lockt up Doors, Windows, stop'd up Chimney, till starvd to death.
Vulgar Custom refuted by a vulgar Proverb. A bad Custom better broke than kept.
Jack ancient or pendant. Stings 1000 times deeper—gives a greater Weight to the Bullet. Going down stream, tide and half Tide. Noahs Dove—wise, Dove—found nowhere after flying about, to set his foot.19 Many a Case, has sunk like a Millstone to the Bottom of the Ocean, when founded on an illegal Warrant.
Cornelius Bassett vs. Mayhews.
Jeremiah Manter. Aid. Bassett stooped down to see his Wound, and the old Lady, with a stick smites Bassett 3 or 4 times over the Head. Then He took hold of the stick and in pulling it out of her Hand, she fell down, no Hurt done her that I saw. About ½ after 9. Robert Allen came to call me.
Meletiah Davis. Aid. A Deputy Sherriff. Basset came to me and desired I would go and serve the Warrant. The Clerk carried it to the high sherriff, who offerd it to me, I declind. Basset offerd me a Dollar { 96 } to go. Esqr. Mayhew advised Basset not to go that Night. Basset said he would not, if he would promise to bring him out in the Morn.
The blood running out of his stocking. The old Woman laid him over the shoulders. He caught the Clubb, and pull'd. She held so fast that the Coll.20 pull'd her out of her Chair. We were afraid of Murder, and so bound the 2 young fellows. I heard no Noise at the Door but Voices till after the Gun. She fetched Shreve21 a Blow in the face and gave him a black Eye. The old Woman was laid on the bed. Hardly time for Wadsworth to have fired the Gun.
Eliakim Norton. Aid. About Chase up Chamber and danger of his killing somebody. Gun loaded deeply. He being a friend hoped to prevent difficulty. Heard it said Basset was under a sort of a Difficulty or Engagement to Esqr. Mayhew. I thought not time for Wadsworth to fire the Gun.
Thos. Dagget. Aid. Bethiah said I shall go into a fit. He let her go. She struck him.
Silvanus Norton. Aid. Heard in the House a Womans Voice damn you all, what do you do here. Mrs. Chase wishd to God she had been there, she would have prevented all this.
Ebenezer Allen. 12 Men Aid. Bassett said he had another Writ in his Pocket. Stand off. Two Bethiahs by Voice. It appears to me it was 11 O Clock. Davis and Dagget took Bethiah from out of her Mothers Arms. Old Woman prayd. God not here, more like the devil. Robert Allen said it hurt him to take the old Lady, and agreed to omit it. Basset ordered to search the Chamber, because he did not know what Mischief might be done. Utensils brought to light a Candle. Every one went in and out as they pleasd. No Rigor used.
Robert Hammet. I knew nothing of their Coming to this House till it was over.
Benja. Coffin. Basset told Esqr. Mayhew he would not go if he'd give his Word. But Esqr. would not. But he said he believd he should not. Women cryd begone, or theyd break his Head. Many Threatening Speeches, and one cryd fire the Gun. I thought I heard somebody in the Chamber. A Woman's Voice in this Room, I thought. I take it to be Bethiah Mayhew Ju[nio]rs. The old Lady struck at me. Bethiah Mayhew seemd to look as if she was looking for a Weapon. Some of Us took hold of her Hands and raised her up. I said I thought it would be best to bind her, but nobody did. She said if she died, she hoped { 97 } somebody would prosecute for her. Basset said he did not know but he might take the Boy if he had opportunity. She talkd more than all the rest till Allen came. She laughd heartily and made the Company laugh.
Nathl. Hancock Esqr. The whole Island knows of their Threatnings, keeping Guns, &c. Jerusha reflected on the whole Court22 as guilty of Intemperance.
Ebenr. Smith Esqr. The People were almost universally for his going.23 I said I did not know but it was best.
Dr. Mayhew Esqr. Bethiah said that if officers came either from Me or the Authority they would resist them to the last degree.
Mary Mott, and Jer. Manter. Urged them to put in Things that they knew not.24
Jona. Foster. The old Women said We keep a Gun, to kill the Man that comes for the Boy and a Clubb too.
Samuel Bradford. The Dr.25 Basset had a bad Wound such as I should not chuse to have for any Money. I would not have such a Legg for £5000. 5 shot in one Legg and 2 in the other. The shot passing thro the Door, were bruisd, and inflamed. The Legg is not well yet. It swells with Exercise and never will be well.
Dr. Smith. 5 shot in one Legg and 2 in tother. The Wound was bad. One or two shots lodged against the Bone.
Hovey. Incidents. Doors, Windows, Avenues guarded. Jumbled against the door.26 Who the Persons were that fired the Gun, the Witnesses know not. Wadsworth fire the Gun, fire the Gun. 1st. convince you, that Wadsworth Mayhew could not be the Person, that fired this Gun. Norton, Davis and Manter. At the back door. Broken Way in the Entry.
Witnesses. Zephaniah Mayhew. Large Noise as if somebody pulling { 98 } down the broad side of the House. Heard Grandmother and Aunts crying Murder. Bound my Hands quite tort27 so they hurt me a great while. Basset pulled Grand[mother] out of her Chair. He turnd from her and curs'd and swore, and somebody said God ant here. Basset ordered somebody to go up Chamber and look for Zeph Chase. I waked Wadsworth up and he and I went to the back door. I heard no Gun, nor [fired?].
Lucinda [Mayhew].28 I went to Wadsworth in Bed. I saw Dagget have Jerusha by the Hands.
Zeph. Chase. Heard swearing too. Never knew there was a Gun shot, that night.
Mercy Chase. My Child, &c. Family in great Distress, Terror and Fright. Mother complained of Jams and Bruises. Sister Bethiah compland that she was mashed, and I saw burns and black spots.
Esqr. Mayhew. Manter forward. Bassetts Word. Old Lady said what have I done to be beat and abused so. Basset said he could not remember whether he mentioned Wadsworth Mayhews name.
Esqr. Hancock said if any Body should break his House he would kill them as soon as a Rabbit.29
Mary Hunt. In her Apprehension Bethiah Mayhew had been much hurt by the Persons that broke in.
D[eaco]n Mayhew.
Simon Mayhew.
John Cottle. Basset told me that one Reason of his going that night was to take Chase.
Mary Mcgee. Dr. Mayhew said the best way to get the Boy was to pull the House down. Dr. Mayhew dont remember.
Ruth Mayhew. See Deposition.30 Bruises, &c.
John Basset's Opinion.
Timothy Mayhew Jnr. Deposition. Heard Basset say he would have the Boy dead or alive,31 and heard Discourse with James Athearn, about pulling the side of the House down.32
{ 99 }
Sarah Hatch. Deposition.33 Discourse with Athern.
Elisha West. Saw the old Womens Bruises. Abel Chase told me he had employd them that he expected would get the Boy.
Jeira Willis. I took it Basset was determind not to come that Night.
Ezra Tilton Jr. Manter told me, that Robert Allen called him up, and he was ready to get up.
Jer. Tilton.
Hovey. Wadsworth could not be the Person. Witnesses perjured. Lucinda, and Zeph. Wadsworth could not get out and in again without waking Zeph.
As little Probability that the others did it as Wadsworth. Bethiah was found in such a Posture that she could not do it. Lucinda heard no Gun.
Bassetts Authority. I hold his Warrant. Vid. 2 Shaw. 382, bottom,34 will not justify. General Warrant. Law gives no such Power to Justice or sessions. 1. Shaw. 76.35 Browlow Bordmans.36 Law of Arrests. C[enter?] of p. 235,37 vid. §8;38 p. 186.39 No Necessity. Late in the Night. Agreement with Esqr. Mr. Bordmans House Damages. Confined till near April. Leg swelld at Barnstable.
Paine. Awful Night, the Aera of Liberty. Pretended Complaint of { 100 } Allen piping Hot. Sessions. Overruled in Sessions, 'tho objected to. Mrs. Jerushas Resignation and Obedience. Crusade. Veterans of death Regt.40 No Counsel. No Pleadings. Arrests 173.41 Sir Wm. Pepperells House. No remedy. We dont hear of such Procedings in Boston, nor any where else.42 Officer must demand a peaceable Entry. Night Time not the proper Time. Something else in his Mind. Zeph Chase. Clashing of Evidence. The mean to be taken.43 Doubtful whether Either of them fired the Gun. Sup[erio]r C[our]t would not receive the Verdict vs. Wadsworth.44 Family Witnesses, when none others. Something in human Nature, abandond [ . . . ]. Not Partialities &c. Characters of this family. Prejudices of Witnesses on the other side. Cobb whose wife had prompted on this unruly Proceeding.45 Threats before Hand. Faithful Memory of an Enemy. Family obnoxious to the Government, weigh nothing. [Haulescks?] Law. Widow is wounded in the House of her fri[en]ds. The Report Defamation of keeping a Gun. Cape fly a way. Resisting the sham appearance of Authority is { 101 } laudable. Fire the Gun. No Evidence vs. Bethiah Se[nio]r. Not a Word of the old Woman. Lucindas Cry to Zeph Chase. Damages. Careless of his Legg. Cases at Plymouth.46 Bulletts in Leggs, &c. Damage without an Injury.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. The minutes are in the form of a paper booklet, with “Martha's Vineyard” in large careful letters on the front cover. The matter beginning “Abel Chase” commences on the second leaf, and the notes set out here between the heading and that matter are written in a hasty hand on the front cover, some of the writing being upside down with respect to the title. These first notes pertain to Bassett v. Mayhew; it is possible that they are not courtroom jottings at all, but at least in part represent a memorandum of a conversation between JA and James Hovey, who was one of the opposing counsel.
2. Dr. Matthew Mayhew was a Justice of the Peace, commissioned 16 Oct. 1761. Whitmore, Mass. Civil List 149.
3. Robert Allen and Thomas Daggett had been commissioned Coroners of the County of Dukes County 16 Oct. 1761. Whitmore, Mass. Civil List 160.
4. The Mayhew interests argued throughout the litigation that the warrant should have been directed to the Sheriff, not the Coroner, and that any actions which Coroner Allen took in pursuance of the warrant were therefore illegal. A statute of the Province provided for service by the Coroner of writs running against the Sheriff and empowered the Coroner to return talesmen to fill up the jury in any case in which a sheriff was concerned or related to the parties. Act of 10 June 1700, c. 3, §10, 1 A&R 429.
5. That is, to post bond for appearance at the next Inferior Court.
6. A mittimus was an order of commitment. The Mayhews argued that the mittimus, an attested copy of which is in SF 144187, was illegal, because it merely commanded the jailkeeper to accept Jerusha, but did not order an officer to take and deliver her.
7. See SF 83471 and Quincy, Reports 93 note.
8. See note 15 above.
9. The position and handwriting of the preceding two paragraphs in the MS indicate that they constituted JA's statement of the whole litigation, prepared well in advance of the hearing.
10. Presumably in the Dukes County Inferior Court. No record of the case has been found. The Barnstable records were destroyed by fire in 1827. Richard L. Bowen, Massachusetts Records 20 (Rehoboth, Mass., 1957).
11. It is not clear whether JA refers to Superior Court papers which were rejected, either in the Inferior Court or before the referees, or whether it was the Superior Court that rejected other papers. Nor is it certain just which papers were intended. Possibly the reference is to Rex v. Gay, Quincy, Reports 91 (SCJ Suffolk, Aug. 1763), which held, three judges to two, that in a prosecution for assaulting an officer in the execution of his office, the warrant under which the officer was acting is not admissible as evidence unless it is legal. (Samuel M. Quincy cites Bassett v. Mayhew as contrary authority. Id. at 93 note.)
12. The elements of a rescue include the officer's lawful custody of the prisoner and the forcible removal of the prisoner from that custody. Failure to assist an officer or even impeding him in his efforts are crimes of a different nature. Hovey's point here is that Bassett never had custody of Zephaniah, and, therefore, his return, or account, of a rescue was wrong.
13. There is no indication that Allen seized Jerusha on either 1 or 2 June; it was Bassett who attempted the seizure on 1 June.
14. The testimony of one of the Mayhews' own witnesses was that Allen made several peaceable attempts to take Jerusha prior to 25 October. Deposition of Rebeckah Mayhew, SF 144187.
15. The warrant and return have not been found. In SF 83471, 144138, and 144145 are copies of the writ in Allen v. Mayhew which indicates Allen's complaint that while in the execution of his office he attempted to carry Jerusha to jail in Edgartown and was “Opposed in his said Office by one Wadsworth Mayhew of said Chilmark by Violently Seizing the body of the said Jerusha and holding her.” The mittimus, SF 144187, has only one return: Allen took Jerusha and brought her before Justice Mayhew on 9 Oct. 1762.
16. This warrant, dated 27 Oct. 1762, SF 83471, brought before the Court of General Sessions of the Peace at Tisbury Bethiah Mayhew Jr, Lucinda Mayhew, Zephaniah Mayhew, and Jerusha Mayhew Jr. (Zephaniah's sister) to answer for the disturbance of the night before; the file does not indicate what action was taken.
17. Apparently Squire Mayhew himself agreed to produce Jerusha.
18. Paine seems to be arguing that laying on of hands is not an element of imprisonment, an argument that could, in the instant case, cut both ways. See note 3612 above.
19. The sense of Paine's metaphors eludes us, as the shape of his phrases seems to have eluded JA.
20. Bassett was evidently a colonel or lieutenant colonel of militia; he is occasionally referred to by title in these minutes and in the deposition.
21. Possibly a reference to the Sheriff, Bassett, or perhaps to one of the aid.
22. The Inferior Court.
23. That is, for Bassett's going to take Wadsworth on the night of 26 October.
24. “... being present where the said Jerusha was taking evidence [I] have heard said Jerusha mention and urge things to the Deponents to give in which they refused as not knowing the same.” Deposition of Mary Mott, SF 85247. No such language appears in either of Manter's depositions, SF 83471, 144133.
25. Samuel Bradford was a physician. Charles E. Banks, The History of Martha's Vineyard, 3:44 (Edgartown, Mass., 1925). It is worth noting that so-called “Golden Rule” testimony (“I would not have such a Legg for £5000”) was apparently admissible. See also King v. Stewart, No. 2, text at notes 29, 3066, 67.
26. “Basset came from the window to the door and I heard somebody step from the bed towards the door or fireplace and just as Basset he got to the door and grumbled at it, the gun was fired through the door.” Deposition of Jeremiah Manter, SF 144133.
27. Thus in MS, for “taut” or “tight”?
28. This is presumably the “Lucy Mayhew” who was a party plaintiff only in the action against Allen. She was therefore competent to testify in Mayhew v. Bassett.
29. The Paine Law Notes (Doc. II) indicate clearly that this is Mayhew's report of what Hancock said. It seems to be hearsay, but neither Paine nor JA indicates that it was excluded.
30. SF 85247. Ruth Mayhew visited the Mayhews the day after the fracas and deponed in their behalf concerning the disordered state of the house and the poor physical condition of Bethiah Sr.
31. SF 85247. Timothy Mayhew deponed in Bethiah's behalf to overhearing Bassett state his intention on 6 June 1762.
32. SF 85247. Timothy also deponed that later in June he had overheard Bassett tell James Athearn he would have to “take the door of its hinges and pull down one side of the house.” Athearn was clerk of the Dukes County Inferior Court. His name appears in many of the file papers in these cases.
33. SF 85247. Sarah Hatch deponed in Bethiah's behalf to Bassett's telling Athearn in June or July 1762 that “he would not go to said house again without a special writ and orders to breake open the house and men enough to gard him.”
34. The editors have not located the precise edition of Joseph Shaw, The Practical Justice of Peace involved here. However, 2 id. 348 (London, 6th edn., 1756) bears on this point.
35. See note 5834 above. 1 Shaw, Justice of Peace 85 notes that “a Justice of the Peace his Warrant will not justify a Constable in breaking into a House to apprehend any Person for a less Crime than Felony or Misprision of Felony.”
36. The citation is unclear and so, at this point, is JA's handwriting. See Woody's Case, 1 Brownl. & Golds, 204, 205, 123 Eng. Rep. 756 (C.P. 1606): “A justice of peace cannot command his servant to arrest one without a warrant in writing in his absence.”
37. The Law of Arrests 235 (London, 1742): “No one can justify the breaking open another's door to make an arrest, unless he first signify to those in the house the cause of his coming, and request them to give him admittance; for the law never allows such extremities but in the cases of necessity.”
38. Law of Arrests 236 (§8): “[Breaking open the door is justified] where one known to have committed a treason or felony, or to have given another a dangerous wound, is pursued either with or without a warrant, by a constable or private person; but not where one lies under a probable suspicion only.”
39. Law of Arrests 186: “Any constable or private person, to whom any justice of the peace directs his warrant to arrest a particular person for felony, or any other misdemeanor, within the justice's jurisdiction, may lawfully execute it, whether the person mentioned in such warrant be in truth guilty or not.”
40. The allusion is unclear.
41. Law of Arrests 173: A single justice may issue a warrant for an offence “cognizable only by a Session of two or more Justices.” JA may have miscopied Paine's citation.
42. “[W]hile We were at Falmouth waiting to be ferried over to the Island the News arrived from Boston of the Riots on the twenty fifth of August [1765] in which Lt. Governor Hutchinson's House was so much injured.” 3 JA, Diary and Autobiography285.
43. That is, the truth lies between the conflicting versions.
44. Wadsworth Mayhew was indicted at the May 1763 Barnstable Superior Court, and tried at the May 1764 sitting. The Minute Book entry does not state the verdict. “The Jury bro't in a Verdict which the Court think is contrary to the Evidence. They therefore reject the same and the Indictment is continued to the next term for trial.” Min. Bk. 72. It does not appear that Wadsworth was ever retried, however. The Paine Law Notes contain the following minute of his May 1764 trial:
Barnstable Sup[erio]r C[our]t May 1764
Dom. Rex vs. Wadsworth Mayhew
Benja. Coffin. Took it to be the Voice of B[ethiah] junr. did not disting[uish] his telling his bus[iness]: took hold of the Door before.
Norton. Told his bus[iness] full.
Manter. Bethiah junr. call'd, Basset gave orders to open an inner Door.
Davis. Saw Wadsworth immediately after firing Gun. I was at back, not Time eno[ugh].
Allen.
Basset.
Defendant
Esqr. Mayhew.
Lucy. I and Wadsworth opend the Door. Thought of going for a Warrant.
Zepha[niah]. Wadsworth was Sleep, waked scared, went to back door, not to escape.
Mem[orandum]. Wadsworth was cleared at the Inf[erio]r Court for Damages.
Mem[orandum]. He told his bus[iness] but they did not hear it.
45. The reading is clear, although the meaning is not. This is true of many of the phrases which follow.
46. Presumably other cases of personal injury decided during the Plymouth term of the Superior Court. But it could also refer to Inferior Court cases determined there.

Docno: ADMS-05-01-02-0003-0001-0003

Author: Paine, Robert Treat
Date: 1765-08

Paine's Minutes of the Referees' Hearing1

Chilmark, Martha's Vineyard, August 1765

Dukes County Augt. 1765
Cor[am] Referrees
1762.
1762. June 1. C. Basset complains of Jerus[ha] Beth[i]a[h] junr. Lucinda Mahew and Mercy Chase and a Warrant issues without Seal and directed to Coroner and General who on said day serves it on all three and lets them go.
Oct. 9. Coroner Allen serves it again on Jerusha and takes her before M. Mahew who binds her to Court and makes a Mittimus directed only to the Goaler.
Oct. 25. Coroner Allen takes Jerusha being sick a bed by Words Esqrs. said Mittimus and Wadsworth hinders.
26. On this Allen complains to Sessions then sitting of Wadsworth and the Warrant goes on which the home was broke.
27. C Basset complains to M M[ayhew] and al. and he grants a Warrant vs. Bethiah, Bethiah junr., Lucinda, Jerusha junr. and Zephaniah [ . . . ] for the trespass at the breaking: directed to and serv'd by Coroner.
Jerusha brings Act[io]n vs. Allen for serv[in]g said Warrant on June 1 and Octr. 9th and the Mittimus, and Bethiah junr. and Lucinda are admitted Parties and complain of the service of the three Warrants on June 1st. and also of Allen abusing them in the Night.
Bethiah brings Action vs. Basset for abusing her that Night and Bethiah junr. and Wadsworth are made Partys complain of Bassets abusing them on the Nights and also say Basset's judg[men]t vs. them for the Trespass is wrong or too much.
{ 102 }
Jerusha Mahew et al. vs. Robt. Allen
Plaintiff
Rebbecca Mahew. Deposition 11th. Octr. 1762. Came again 20th. Came again 25th. PM came again.
Mary Hunt. Deposition same.
Jane Magee. 25th. Jer. gave defendant the lye about a Death he said if she was well he would horsewhip her tho she was a Woman. Same as Reb[ecca] and Marys.
Zeph. Mahew. Oct. 25. Same. June 1st.
Esqr. Smith. Interlocutory Recognizance.
Simon Mahew. 9th. Octr. mittimus given to Allen. He procured two men to pass word for his forth coming.
Deacon Mahew. The taking on the warrant.
Mrs. Chase. June 1 the taking by the Warrant, on the Nights.
Uriah Tilton. The imprisonment before Justice M Mahew and [ . . . ]mittimus and his <being> giving [word?] for her forthcoming.
John Basset. Went after him in June and could not catch them.
Wm. Steward. Same.
Esqr. Z. Mahew. She was too sick to be carried on the Mittimus. I ask'd Allen if I might take his Prisoner and he gave Liberty.
Law Arrests. P. 189 §22. Constable liable in executing General Warrant.2
184 §8 Cons[table] can suffer to go at large and retake.3
172 §8. Jus[tice of the] P[eace] can't grant General Warrant.4
71 §9 Not Murder to slay an officer executing bad Warrant.5
{ 103 }
13 §11. Coroner not officer to serve Warrants.6
2 Shaw. 382 §3: action lyes vs. person who executes a Warrant who is not legal <Warrant> officer.7
1 Shaw. 262 § officer cant execute general Warrant.8
Defendant
The Warrant vs. Jerusha et al.
The Mittimus vs. Jerusha.
The Province Law of Coroner. @ Plaintiff and Compl[ainan]t the same. And it doth not appear on the warrant the Sheriff was Compl[ainan]t.9
Distroying these Warrants for want of form will open a Door for Actions, As the Sup[erio]r C[our]t has condemned them.10
Thos. Lothrop. Deposition.
There was no touching therefore no Arrest. @ there may be Imprisonment without touching.
How Dr. Mahew could be interested. @ resentment.
Cornelius Basset vs. Wadsworth, Bethiah and Bethiah junr. Mahew.
Plaintiff
Last Judg[men]t.
Warrant to take Wadsworth.
Jona. Cathcart. Deposition.
Jer. Manter. Bethiah junr. cry'd Wad. fire the Gun by her Voice, Lucinda, cry'd Zeph. dont fire.
Mela. Davis. I was at Cobb's. Basset offered me a Dollar to go as { 104 } officer. Ill press you as assistance. Esqr. Mahew offered to have him forth Coming. 9 oClock when we came from Cobb's; not time eno[ugh].
Elias Norton. Deposition. Basset seemed to say he was obliged to go that Night. Not time eno[ugh].
Thos. Dogget. Some body in house said fire the Gun; told him [try].
Sylv. Norton. Forced the door with billets of Wood. Saw the Gun ly on the Stairs.
Ebenr. Allen. Came from Cobbs about 9 oClock, eat supper at Cathcarts. I think it was 11 oClock when we got to the house.
Robt. Hammet.
Benja. Coffin. Basset promised Esqr. Mahew if he would [have] Wadsworth that he believed he would not go. Bethiah cry'd Wadsworth fire Gun. Near 10 at Cathcarts.
Esqr. Hancock. The reason of the Court's granting such a Warrant and del[ivere]d about 7 oClock. I understood next morning that Basset had engaged me to go that night and [ . . . ] his preachments.
Esqr. Smith. I did not like the warrant, it was imagined they were determined to bear down the Authority of the Island.
Dr. Mahew. Bethiah junr. told me if any officers came with warrant they would resist unto the last degree, speaking of Zeph. Chase.
Esqr. Athearn. By the talk they had I concluded they would not go that night.
Nathan Mahew. Deposition. Jerusha said they had a Gun hidden and would shoot April 2 1762.
Mary Mott. Deposition.
Seth Dogget. Deposition. Jerusha shreaking that she was sory she must be the Death of some of their neighbours.
W m. Stewart. Deposition about F[ . . . ] Being threatning.
<Jona. Cathcart. Deposition.>
Jona. Forster. I ask'd to come in 2 or 3 years ago Jerusha came to the Door and bid me come in. Old Woman said we keep a Gun to shoot any officer that comes for the Boy and also a Club.
Saml. Bradford. Col. Basset had bad Legg.
Dr. Smith. Bad for a flesh Wound.
Defendant
Zeph. Mahew. Wadsworth was asleep. I waked him, I heard no report of Gun.
{ 105 }
Lucinda Mahew. Wadsworth and Zeph in bed, I waked em and they went with me to the back Door.
Zeph Chase. I was up Chamber and made my Escape and did not know if a Gun fired till next day.
Mercy Chase.
Esqr. Mahew. Warrant <Bassett> I proposed to Basset not to go till morning, Jer. Manter pushed on the thing. Basset then said if you'll undertake to acquaint the Family, I'll let it alone till morning. As I pass'd Defendants house I saw no light, I told Jerusha there was a Warrant on Wadsworth. She said We will Not stop him Against lawful Authority. Allen came with his Warrant. Esqr. Hancock said if any body should Attempt to break his house in the Night he would kill 'em as quick as a Rabbit.
Mary Hunt. Deposition as to the Damage done Bethiah junr.
Deacon Mahew. Bethiah junr. much hurt.
Simon Mayhew. Bethiah junr. much hurt.
John Cottle. Deposition of Basset's promise and intent to take Chase's Boy.
Mary Magee. Deposition of Dr. Mahews Speech about pulling down the house to take Chase Boy.
Ruth Mahew. Deposition. Bethiah junr. much hurt.
John Basset. Talk with Basset.
Timo. Mayhew junr. Deposition about Bassets Zeal in taking Zeph. Chase and said he must take door off hinges.
Sarah Hatch. Deposition of Basset threats to take the Boy Very Strong.
Elisha West. Deposition of Bethiah junr's Bruizes; of Zeph Chase carrying the Gun, Abel Chase said he had employ'd them that would get the Boy.
Jeira Willis. I took it for granted Basset was determined not to come that night, Cobb's Wife advised Basset to go and others back'd him, Basset insulted Wadsworth, late bed time when they [ . . . ].
Ebenzr. Smith. Deposition. Bassets promise not to go that Night.
Ezra Tilton. Jer. Manter told me next day how he was desirous to go.
Uriah Tilton.
Objections to Warrant
To search all suspected houses.
Not for sufficient Cause to break house.
If Warrant good, officer could not break in the night.
1. Paine Law Notes. The material down to the minutes of Mayhew v. Allen is, from the state of the MS, Paine's pre-trial statement of the litigation.
2. Law of Arrests 189, §22: “And if one Justice of the Peace direct his Warrant to a Constable, to bring the Person before him, to answer all such Matters as shall be objected against him by another, and does not set forth the special Matter in the Warrant, the Warrant is unlawful, because it does not give the Offender Time and Opportunity to find Sureties; and the Constable, if he executes it, is liable to an Action of false Imprisonment.”
3. Law of Arrests 184, §8: “And if a Constable arrests an Offender by Virtue of a Warrant from a Justice of the Peace, and afterwards suffers him to go at large, upon his Promise to come again at such a Time and find Sureties, he cannot afterwards arrest him by Force of the same Warrant.”
4. Probably Law of Arrests 173–174, §8: “A Justice of the Peace (it is said) cannot justify the Granting a general Warrant, to search all suspected Houses in general for stolen Goods; for such a Warrant seems in the very Face of it to be illegal, because it would be very hard to leave it to the Discretion of a common Officer to arrest what Persons, and search what Houses he should think fit.... And yet there is a Precedent of such general Warrant in Dalton's Justice, notwithstanding the Unreasonableness, and seeming Unwarrantableness of such Practice.”
5. Law of Arrests 71–72, states the facts and holding of Rex v. Cook, Cro. Car. 537, 79 Eng. Rep. 1063 (K.B. 1640).
6. Law of Arrests 13, 14, §11: “The Coroners are not the proper Officers of the Court in any other Case, but where the Sheriff is absolutely improper.”
7. See note 5834 above. This may be 2 Shaw, Justice of the Peace 348: “If a Justice of Peace exceeds his Authority in granting a Warrant, yet the Officer must execute it, and is indemnified in so doing; but if it be in a Case, where he has no Jurisdiction, or in a Matter whereof he has no Conusance, the Officer ought not to execute such Warrant, for if he does, he may be punished....And so note, that the Officer is bound to take Notice of the Authority and Jurisdiction of the Judge.” See also id. at 347: “If a Person says, I arrest you in the King's name, &c. you ought to obey ... and if it appears afterwards that he was no legal Officer, an Action of false Imprisonment lies against him.”
8. See note 5834 above. This may be 1 Shaw, Justice of the Peace 260–261: “If a justice sends his Warrant to a Constable, to bring a Person before him to answer to such Matters as shall be objected against him, and doth not specify the Cause in his Warrant, for which he issued the same; this Warrant is unlawful, and the Officer is liable to an Action of false Imprisonment if he executes it; for all Warrants not specifying the Cause, are utterly against Law.”
9. See note 284 above. Paine used the symbol @ to indicate an answer to, or refutation of, an opponent's point.
10. The cases have not been identified.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/