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The Contested Will of “Goodman Penn”: Anglo–New England Politics, Culture, and Legalities, 1688–1716

Published online by Cambridge University Press:  18 August 2010


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In February 1704, a Boston laborer named Thomas Lea found himself surrounded by townspeople as he lay on his deathbed. These spectators had gathered hoping to hear a much anticipated confession of the crimes they believed Lea had committed fifteen years earlier during the Dominion of New England. In Suffolk County, many townspeople had long maintained that Lea and others had used the confusion and chaos generated by the unsettling political and legal transformations introduced to New England during the 1680s to surreptitiously gain legal title to the estate of a prosperous Braintree, Massachusetts, landowner named William Penn. Standing by Lea's bedside, one witness, who believed Lea had perjured himself at the 1689 probate administration of Penn's estate, demanded: “Thomas can you as you are going out of the World answer at the Tribunal of God to the Will of Mr Penns, which you have sworn to[?]” “Was Mr Penn living or Dead when this Will was Made?” In the presence of assembled witnesses, Lea acknowledged, “he was dead.” Other townspeople pressed Lea to reveal the role he played in what many believed had been a murder for inheritance scheme. They reminded Lea that Penn's corpse had been found covered “in blood, in his own dung” with “a hole in his back, that you might turn your two fingers into it” and, even more disturbing, “one of his [Penn's] stones in his codd [scrotum] was broken all to pieces.” Averting the onlookers' gaze, Lea “turned his head aside the other way, saying what I did I was hired to do.” For these witnesses, the death-bed confession confirmed the rumors of Lea's crimes and strengthened their belief that a wave of corruption introduced in the 1680s had sabotaged New England's distinctive Puritan jurisprudence. Indeed, townspeople had labored for years to overturn the 1689 probate of Penn's estate in an effort forestall the crown's efforts to bring New England into political and legal conformity with the dictates of the growing English empire.


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References

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45. “Deposition of Joseph Hill,” 3 April 1694; “Deposition of Frances Coleworthy,” 5 April 1694. The other depositions came from Gilbert Coleworthy, dated March 1694; an-other from John Chadwick, dated 5 April 1694; and a second deposition from Joseph Hill dated 29 March 1694. Court Files Suffolk, 33:209, microfilm. Witch-lore is filled with tales of supernatural travel by those who had been ensnared by the devil . Hall, David D., Witch-Hunting in Seventeenth-Century New England: A Documentary History 1638–1992 (Boston: Northeastern University Press, 1991), 95–96, 129–33, 158–61, 219, 274Google Scholar ; Norton, Mary Beth, In The Devil's Snare, 311–12Google Scholar ; Hoffer, Peter Charles, The Salem Witchcraft Trials: A Legal History (Lawrence, Kansas: University of Kansas Press, 1997), 144Google Scholar.

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48. “Deposition of Samuel Tompson,” 9 April 1694, Suffolk County Massachusetts Probate Records, n.s., 1:361, microfilm. Tompson referenced Genesis chapter 27. In the text, Jacob traded Esau potage for his birthright (bechora) and then Rebecca orchestrated a deception, by disguising Jacob as his brother, in order for Jacob to receive Esau's blessing (beracha) from Isaac, their father . Gordis, Lisa, Opening Scripture: Bible Reading and Interpretive Authority in Puritan New England (Chicago: University of Chicago Press, 2003), 2025Google Scholar . Two depositions supported Edward Hill's claims. “Deposition of John Tucker,” 21 April 1694, Court Files Suffolk, 35:3104, microfilm; “Deposition of Elizabeth Poore,” 18 April 1695, Miscellaneous Bound Volumes, Massachusetts Historical Society.

49. For the Frenches, see Court Files Suffolk, 43:162471, microfilm. For White, see Court Files Suffolk, 38:3341, microfilm; “Deposition of Thomas Phillips,” 20 November 1694, Court Files Suffolk, 35:3104, microfilm.

50. Sewall may have had a personal interest in what the servant had to say. He co-owned Braintree property, included half of an iron works and a saw mill, purchased from John Hub-bard who, in turn, had bought the land from William Penn in 1682. Suffolk Deeds, 14:5–6; Martin, John Frederick, Profits in the Wilderness: Entrepreneurship and the Founding of New England Towns (Chapel Hill: Published for the Institute of Early American History and Culture by the University of North Carolina Press 1991), 67Google Scholar.

51. “Deposition of Ann Despard,” 31 January 1696, Court Files Suffolk, 43:3839, micro-film.

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56. “Unlike contemporary England, where such causes were belonged to ecclesiastical courts, the administration of estates [in the Massachusetts Bay Colony] was handled in secular courts.” Haskins, George L., “The Beginnings of Partible Inheritance in the American Colonies,” Essays in the History of Early American Law, ed. Flaherty, David H. (Chapel Hill: Published for the Institute of Early American History and Culture by the University of North Carolina Press, 1969), 209–10Google Scholar.

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58. Acts and Resolves, 8:366–68; “Anthony Penn v. Clement Cock,” 6 April 1697, Massachusetts Superior Court of Judicature Records, microfilm. Bullivant and Checkley had confronted one another before in a 1696 case. Jones, Matt Bushnell, Thomas Maule, the Salem Quaker, and Free Speech in Massachusetts Bay, with Biographical Notes, reprinted in Essex County Historical Collections, vol. 72 (Salem Mass.: Essex Institute Press, 1936), 2122Google Scholar ; Diary of Samuel Sewall, 1:416.

59. Thomas Danforth, Wait Winthrop, Elisha Cooke, and Samuel Sewall sat on the bench at the April 1697 session of the court in Boston, . Massachusetts Superior Court of Judicature Records 1692 –1700, 98, 108Google Scholar , microfilm. Chief Justice William Stoughton did not sit on the bench after taking up the responsibilities of the governorship. He was the acting governor from November 17, 1694 until May 26, 1699. Diary of Samuel Sewall, 1:370, 395, note 2; Sibley's Harvard Graduates, 1:202.

60. “Reasons of Appeal,” 14 April 1697, Court Files Suffolk, 41:3736, microfilm. The prac-tice of screening witnesses was most pronounced in the New Haven Colony. Gail Sussman Marcus, “Due Execution of the Generall Rules of Righteousness”: Criminal Procedure in New Haven Town and Colony, 1638–1658,” and Murrin, John, “Trial by Jury in Seventeenth-Century New England,” in Saints & Revolutionaries: Essays in Early American History, ed. Hall, David, Murrin, John, and Tate, Thad (New York: Norton, 1984), 114, 175Google Scholar . Some court officials, however, allowed sworn testimony even if they believed it to be erroneous . Konig, , Law and Society, 140Google Scholar.

61. “Answer to Appeal,” 27 April 1697, Court Files Suffolk, 41:3736, microfilm; Acts and Resolves, 8:367–368; “Penn v. Cock,” April 1697, Massachusetts Superior Court of Judicature Records 1692–1700, 108, microfilm; Swinburne, A Treatise of Testaments and Last Wills, 6 ; Godolphin, , The Orphans Legacy, 65Google Scholar.

62. The indictments claimed £1,500 damages for depriving Anthony Penn his right to the estate. “The Case of Edward Hill,” 7 April 1697, Court Files Suffolk, 41:3765, microfilm; “The Case of Thomas Lea,” 7 April 1697, Court Files Suffolk, 41:3738, microfilm; “Dom Rex v Edward Hill,” April 1697, Massachusetts Superior Court of Judicature Records 1692–1700, 110, microfilm; Court Files Suffolk, 43:162421, microfilm; Cornelia Dayton, Women Before the Bar, 59–60; Ross, “Puritan Jurisprudence.”

63. In 1699, however, Hill conveyed a house and land in Boston to Thomas Gould. An-thony Penn's advocates promptly sued Gould for trespass. Massachusetts Superior Court of Judicature Records, 1695–1700, 259, microfilm; Robbins, A History of the Second Church, 253.

64. Cooke was the leader of the opposition to royal control . Hall, Michael G., The Last American Puritan: The Life of Increase Mather, 1639–1723 (Middletown: Wesleyan Uni-versity Press, 1988), 267, 269Google Scholar ; Ross, , “Puritan Jurisprudence,” 10Google Scholar ; Massachusetts Court of Judicature Records 1695–1700, 173, microfilm; Acts and Resolves, 8:370; “Deposition of Joseph Hill,” 28 April 1697, Court Files Suffolk, 43:162421, microfilm. The crown struck down a Massachusetts effort in the 1690s to create an equity court. Bilder, , The Transatlantic Constitution, 7879Google Scholar.

65. “Deposition of John Lee,” 24 October 1698, Court Files Suffolk, 43:3897, microfilm; “Deposition of Richard Gredley,” 24 October 1698, Court Files Suffolk, 43:3897, microfilm; “The Case of Thomas Lea,” October 1698, Court Files Suffolk, 41:3738, microfilm; “Dom Rex v. Lay,” Massachusetts Superior Court of Judicature Records 1692–1700, 200 microfilm. The change in the spelling of his name (Lay instead of Lea) may have been part of Lea's efforts to substantiate his claim—made in 1694 before Probate Judge Stoughton—that he had not signed or sworn to the document purported to be the will of William Penn.

66. The six civil actions for trespass are summarized below. The amount of land and damages (in pounds) are those sought by Penn's attorneys.

Massachusetts Superior Court of Judicature Records 1695–1700, 108–9, 141, 143, 173, 176, 205–6, 213, 250–51, 259, 269, microfilm; Massachusetts Superior Court of Judicature Records 1700–1714, 13, 24, microfilm; “Anthony Penn v. Thomas French and Samuel French, Anthony Penn v. John Bowdidge,” October 1698, Court Files Suffolk, 43:162471, microfilm; “Thomas French and Samuel French v. Anthony Penn, Anthony Penn v. John Bowdidge,” 25 April 1699, Miscellaneous Bound Volumes, Massachusetts Historical Society. For the case against Samuel White, see “Writ of Tres-pass,” 10 October 1698, Court Files Suffolk, 43:3739, microfilm. For the case against John Hollis, see “Writ of Trespass,” 27 December 1702, Miscellaneous Bound Volumes, Massachusetts Historical Society; “Writ of Trespass,” 18 May 1704; Court Files Suffolk, 70:7986, microfilm.

67. “Answer to Appeal,” 27 April 1697, Court Files Suffolk, 41:3736, microfilm; Acts and Resolves, 8:368, 373. The merchant Thomas Bannister offered a deposition about a conversation with Marsh. According to Bannister, Marsh had said “I know my mark and where to find it well enough but I would not swear to that will for all the world.” “Deposi-tion of Thomas Bannister,” April 1699, Court Files Suffolk, 43:3897, microfilm.

68. Acts and Resolves, 8:368; Haskins, George L., “The Beginnings,” 204–44.Google Scholar

69. Newton was “the first professional lawyer in Massachusetts.” Murrin, , “The Legal Transformation,” 422Google Scholar ; “Thomas Newton's Answer to Appeal,” May 1703, Court Files Suf-folk, 70:7086, microfilm. Joseph Hill believed deceitful, corrupt tactics thwarted justice in the courtroom. See “Petition of Joseph Hill,” October 1698, Court Files Suffolk, 41:3740, microfilm; “Complaint of Joseph Hill,” April 1699, Court Files Suffolk, 41:3740, microfilm; “Petition of Joseph Hill,” 31 May 1704, Massachusetts Archives, 40:973–75.

70. Acts and Resolves, 8:370–71.

71. Johnson, , Adjustment to Empire, 294Google Scholar ; Acts and Resolves, 8:372. The 1697 statute “for erecting courts, which attempted to provide generally for jury trials, was set aside because it would have affected Admiralty Court trials under the Navigation Acts.” Smith, Joseph H., “Administrative Control of the Courts of the American Plantations,” in Essays in the History of Early American Law, 289Google Scholar.

72. Stoughton served on the bench after the arrival of Governor Bellomont in May 1699. Diary of Samuel Sewall, 1:500; Massachusetts Superior Court of Judicature Records 1700–1714, 1, 24, microfilm.

73. Diary of Samuel Sewall, 2:59–65.The shoemaker sold one acre for £10 to John Hub-bard in 1702 and a house and land to Hannah Walker in 1704. Suffolk Deeds, 21:675, 30:117; Sibley's Harvard Graduates, 1:523–4 ; Johnson, , Adjustment to Empire, 386, note 50Google Scholar.

74. “Deposition of John Brocass,” 15 February 1704, Court Files Suffolk, 108:11400, microfilm. Brocass was Doubleday's neighbor. “Deposition of Anne Doubleday,” 27 April 1704, Court Files Suffolk, 108:11400, microfilm. The three other depositions were taken from Mary Hands, Susanna Critchfield, and John Atkin in February 1704. Court Files Suffolk, 108:11400, microfilm; Dayton, Women Before the Bar, 159; Hall, , Worlds of Wonder, 129, 172–78, 206–7Google Scholar.

75. “Deposition of John Brocass,” 15 February 1704, Court Files Suffolk, 108:11400, microfilm.

76. “Deposition of John Atkin and Susanna Critchfield,” 3 June 1707, Court Files Suffolk, 108:11400, microfilm.

77. “Affidavit of John Marsh,” 4 December 1705, Court Files Suffolk, 108:11400, microfilm; New York State Archives, Series A1894–78, 42:159–60; Court Files Suffolk, 33:2897, microfilm ; Calendar of Council Minutes 1668–1783, (Harrison, New York, 1987), 138Google Scholar.

78. Court Files Suffolk, 43:3792, 70:7086, 108:11400, microfilm.

79. “Petition of Joseph Hill,” 31 May 1704, Massachusetts Archives, 40:975, microfilm. By 1704, Draper had been elected one of the selectmen of Boston, . Report of the Record Commissioners…1701 to 1715, 3031Google Scholar ; “Judgment of the Council,” 2 June 1705, Miscel-laneous Bound Volumes, Massachusetts Historical Society; “The Petition of Joseph Hill, Attorney to Anthony Penn,” 1706, Miscellaneous Bound Volumes, Massachusetts Historical Society ; Kimball, Everett, The Public Life of Joseph Dudley: A Study of Colonial Policy of the Stuarts in New England, 1660–1715 (New York: Longmans, 1911), 91Google Scholar ; Johnson, , Adjustment to Empire, 385–86Google Scholar.

80. “Petition of John Hollis,” 1705, Massachusetts Archives, 45:350–51, microfilm; “Petition of Clement Cock,” 1708, Massachusetts Archives, 40:866, microfilm; “Petition of Joseph Hill,” 1706, Miscellaneous Bound Volumes, Massachusetts Historical Society.

81. “A Petition Against the Rebuilding of Hill's Distillery in the South End of Boston,” 27 May 1706, Massachusetts Archives, 68:6898, microfilm. Whatever interest Sewall might have had in the case was perhaps briefly overshadowed by the bonds formed with the royal governor, a connection solidified by the marriage of his son and namesake to Rebeckah Dudley. Diary of Samuel Sewall, 2:59–65.

82. Johnson, , Adjustment to Empire, 347Google Scholar . Sewall's friendship with Joseph Dudley soured when the marriage of their children ended in a bitter separation. Diary of Samuel Sewall, 3:88–89; Court Files Suffolk, 108:11400, microfilm; Suffolk County Massachusetts Probate Records, 21:4278, microfilm; Acts and Resolves, 8:414. In June 1717 Joseph Hill, acting as attorney to Mary Ensor, conveyed one half of a twelve-acre Braintree “House Lott” to Comfort Belcher for £15. In 1720 Samuel Sewall gave Joseph Hill “full power” to admin-ister the Suffolk County holdings of Anthony Penn. An aged Edward Hill continued to assert his title to the estate. In 1724, the eighty-one-year-old conveyed four hundred acres, which constituted “all my lands and Tenements … in Braintree,” to a Boston hatter named Jeremiah Clements. In the deed Edward Hill maintained, “I am the sole and lawfull owner” by virtue of a “perfect absolute Estate of Inheritance in Fee Simple.” This final conveyance was not contested. Sewall also ordered Joseph Hill to compile an inventory of Anthony Penn's holdings. Unfortunately, the inventory Hill presumably presented has not survived. Suffolk Deeds, 31:239, 37:204; Suffolk County Massachusetts Probate Records, 21:317.

83. Richard Ross, “Legal Communications in the Early Modern Atlantic World” (paper presented at “Atlantic Legalities, 1500–1825,” international seminar on the history of the Atlantic World, 1500–1825, Harvard University, Cambridge, April 16, 2005).

84. Ross, , “Puritan Jurisprudence,” 12Google Scholar; Suffolk Deeds, 14:5–6; Diary of Cotton Mather (New York: F. Unger, 1957), 2:393, note 2Google Scholar.

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