THE JUDICIAL HISTORY OF NEW HAMPSHIRE

BEFORE THE REVOLUTION.1

BY HON. SALMA HALE.

We propose to give a brief sketch of the early judicial history of New Hampshire. Perhaps we may be able to discover, in our progress, facts that have been laid away and forgotten; to make our readers acquainted with men altogether unknown to the present generation, but yet deserving to be known and remembered; and enable them to look back upon some isolated features of the past, sufficiently unfamiliar to have the interest of novelty.

The first settlement in New Hampshire was made at the mouth of the Piscataqua, in 1623, only three years after the landing of the Pilgrims at Plymouth. Unlike them, those who landed at Strawberry Bank, as Portsmouth was then called, came across the wide ocean, not to find a place where they might enjoy complete religious liberty, but " to catch fish and trade." More than a hundred years before they came, the coast of America, from Massachusetts Bay northward, was known to fishermen of Europe as the best fishing locality in the world. It is only recently that we have been told, in the "Physical Geography of the Ocean," that we are indebted for this boon to a current of cold water crowded to our shores by the overpowering gulf stream, the wonder of the ocean world. It is almost a compensation for the warm climate, which, though it belongs to us, the stream gives to England and France.

1 From the Monthly Law Reporter for October, 1855, edited by Geo. S. Hale and John Codman.

The number of inhabitants at the mouth of the Piscataqua increased slowly. For several years, no immigrants selected their home beyonds the limits of Portsmouth and Dover. In 1638, John Wheelwright, having been banished from Massachusetts for his religious opinions, repaired, with a number of his adherents, to Squamscott Falls, now Exeter, and began a plantation. The next year, he, with thirtyfour others, by an instrument in writing, combined themselves together "to set up among them such a government as should be, to their best discerning, agreeable to the will of God." They chose three rulers and as many assistants; and the people, meeting together, enacted laws which were formally consented to by the rulers. About the same time, the town of Hampton was settled.

In the same year, or the next, the people of Portsmouth formed a similar combination, or social compact, and elected Francis Williams governor, and Ambrose Gibbens and Thomas Warnerton assistants. In 1640, the settlers at Dover entered into a similar social compact, and chose Captain John Underhill governor. As the powers of these officers were not defined, we infer that they were unlimited, embracing powers executive, legislative, and judicial. Thus at this time four independent, despotic governments existed on the banks of the Piscataqua.

The first judicial proceeding, in any of them, of which history makes mention, arose in this wise. Two ministers, Knollys and Larkham, preached to a divided congregation, at Dover. A quarrel arose between their adherents; both parties armed themselves; the quarrel grew to a riot; and Larkham sent to Governor Williams of Portsmouth for aid. He marched immediately to Dover with a company under arms, arrested his brother governor, Underhill, and Knollys, tried them as a magistrate, adjudged them guilty, fined them and banished them from Dover, and then returned to his own government. This Underhill is the same often mentioned in the history of those times. He had already

become famous for his exploits and licentiousness, and being sent for by the Dutch, at Manhattan, acquired additional fame by the havoc he made among the Indians on Long Island and on the main land opposite, in the Dutch possessions, and in Connecticut.

In 1641, Portsmouth and Dover placed themselves, by mutual and written agreement, under the jurisdiction of Massachusetts; and in pursuance of the agreement, the general court appointed three magistrates and three assistants in each, and ordained that a court should be held once or twice a year in each town, to be constituted of one or more of the magistrates, and of one or more of the assistants. This was called the court of associates, and had jurisdiction of all causes to the value of twenty pounds; and inferior courts were constituted with jurisdiction of causes to the amount of twenty shillings. Portsmouth and Dover were authorized to send a delegate, each, to the general court.

Shortly after this, Massachusetts extended her jurisdiction over all the settlements in New Hampshire, Exeter and perhaps Hampton assenting, and formed a new county by the name of Norfolk, in which were included Salisbury, Hampton, Haverhill, Exeter, Dover, and Portsmouth.

In 1652, commissioners were chosen in town meeting, at Portsmouth, for the "ending of small causes," and the town appointed the times when they should hold their courts at "Strawberry Bank."

Mr. Adams, in his annals of Portsmouth, has given an account of a trial, or rather the testimony given at a trial, before the court of associates, in that town, in 1656. It belongs to our subject, and if it did not, we presume our readers would be glad to be carried back two hundred years to witness a trial, in a court of justice, disclosing the opinions and illustrating the manners of a portion at least of the population of that period. To show how the evidence happened to be preserved, we give an extract from Washburn's "Judicial History of Massachusetts," reminding the

reader that Portsmouth was, at this time, subject to the laws of that colony.

"Previous to 1639, judicial proceedings were very irregularly preserved. But in that year a law was passed requiring courts, magistrates, and commissioners to record their judgments, with all the evidence in each case, in books, 'to be kept to posterity,' and whoever has had occasion to examine the records of these courts, for many years after this period, has seen with what fidelity this order was obeyed. The testimony of the witnesses was given in open court, and written down by the clerk in form of depositions, and formed a part of the record of the case. Many of these, extending through a great number of pages, are preserved in the early volumes of the court records."

"Goodwife Walford was brought before the court, charged by Susannah Trimmings with witchcraft. Mrs. Trimmings testified: 'As I was going home on Sunday night, the 30th of March, I heard a rustling in the woods, which I supposed to be occasioned by swine, and presently there appeared a woman, whom I apprehended to be old goodwife Walford. She asked me to lend her a pound of cotton; I told her I had but two pounds in the house; and I would not spare any to my mother. She said I had better have done it, for I was going a great journey, but should never come there. She then left me, and I was struck as with a clap of fire on the back, and she vanished towards the water side, in my apprehension, in the shape of a cat. She had on her head a white linen hood, tied under her chin, and her waistcoat and petticoat were red, with an old green apron, and a black hat on her head.'

"Oliver Trimmings, her husband, said: My wife came home in a sad condition. She passed by me, with a child in her arms, laid the child on the bed, sat down on the chest, and leaned on her elbow. Three times I asked her how she did. She could not speak. I took her in my arms, and held her up, and repeated the question. She

forced breath, and something stopped in her throat, as if it would have stopped her breath. I unlaced her clothes, and soon she spake and said, Lord have mercy upon me, this wicked woman will kill me. I asked her what woman. She said Goodwife Walford. I tried to persuade her it was only her weakness. She told me no, and related as above, that her back was a flame of fire, and her lower parts were, as it were, numb and without feeling. I pinched her, and she felt not. She continued that night, and the day and night following, very ill, and is still bad of her limbs, and complains still daily of it."

"Nicholas Rowe testified, that Jane Walford, shortly after she was accused, came to the deponent in bed, in the evening, and put her hand on his breast, so that he could not speak, and was in great pain until the next day. By the light of the fire in the next room it appeared to be Goody Walford, but she did not speak. She repeated her visit about a week after, and did as before, but said nothing.'

"John Puddington deposed, that three years since Goodwife Walford came to his mother's. She said that her own husband called her an old witch; and when she came to her cattle her husband would bid her begone, for she did overlook the cattle, which is as much as to say, in our country, bewitching.'

"Agnes Puddington deposes, that on the 11th of April the wife of W. Evans came to her house, and lay there all night; and a little after sunset the deponent saw a yellowish cat; and Mrs. E. said she was followed by a cat whereever she went. John came and saw a cat in the garden; took down his gun to shoot her; the cat got up on a tree, and the gun would not take fire, and afterward the cock would not stand. She afterward saw three cats; the yellow one vanished away on the plain ground; she could not tell which way they went.'"

Mr. Adams says nothing more of this trial, nor of the