University of Virginia Library

1. CHAPTER I.
JOHN WADLEIGH'S TRIAL.

The pilgrim fathers of New England, and their
children of the first and second generations, are justly
renowned for their grave character, their moral
uprightness, which sometimes was rather more than
perpendicular, and the vigilant circumspection which
each one exercised over his neighbor as well as himself.
It is true that Connecticut, from an industrious
promulgation of her “Blue Laws,” has acquired more
fame on this score than other portions of the “universal
Yankee nation,” but this negative testimony

against the rest of New England ought not to be
allowed too much weight, for wherever the light of
history does gleam upon portions further “Down East,”
it shows a people not a whit behind Connecticut in
their resolute enforcement of all the decencies of life,
and their stern and watchful regard for the well-being
of society. The justice of this remark will sufficiently
appear by a few brief quotations from their
judicial records.

In the early court records of New Hampshire, in
the year 1655, may be found the following entry:

“The Grand Jury do present the wife of Mathew
Giles, for swearing and reviling the constable when he
came for the rates, and likewise railing on the
prudenshall men and their wives. Sentenced to be
whipped seven stripes, or to be redeemed with forty
shillings, and to be bound to her good behavior.”

Another entry upon the records the same year is as
follows:

“The Grand Jury do present Jane Canny, the wife
of Thomas Canny, for beating her son-in-law, Jeremy
Tibbetts, and his wife; and likewise for striking her
husband in a canoe, and giving him reviling speeches.
Admonished by the court, and to pay two shillings
and sixpence.”

If it is consistent with rational philosophy to draw
an inference from two facts, we might here consider
it proved, that the pilgrim ladies of 1655 had considerable
human nature in them. And from the following
record the same year, it would appear also that there
were some of the male gender among them at that
day, who still exhibited a little of the old Adam.

“Philip Edgerly, for giving out reproachful
speeches against the worshipful Captain Weggen, is
sentenced by the court to make a public acknowledgement
three several days; the first day in the head of
the train band; the other two days are to be the most
public meeting days in Dover, when Oyster River
people shall be there present; which is to be done
within four months after this present day. And in
case he doth not perform as aforesaid, he is to be
whipped, not exceeding ten stripes, and to be fined
five pounds to the county.”

The reader cannot but notice in this case, last cited,
with what stern purpose and judicial acumen the
severity of the penalty is made to correspond with the
enormity of the offence. The crime, it will be seen,
was an aggravated one. The gentleman against whom
the reproachful speeches were uttered was a Captain;
and not only a Captain, but a Worshipful Captain.

Whether Captain Weggen was the commanding officer
of the train band, or not, does not appear; but there
was an appropriate fitness in requiring, that the crime
of uttering reproachful speeches against any Captain,
should be publicly acknowledged at the head of the
train band. There the culprit would have to face all
the officers, from the captain down to the corporal, and
all the soldiers, from the top to the bottom of the company,
could point the finger of scorn at him.

But as the injured party in this case was a worshipful
captain, it was very proper that a penalty of a
higher grade should be affixed to the sentence. Hence
the withering exposure of the offender to make public
acknowledgments on two several occasions, “to be
the most public meeting days in Dover, when Oyster
River people shall be there present.”

Whatever may be said at the present day, as to the
temperance reformation being of modern origin, it
may be affirmed without hazard that the good people
of New England two hundred years ago, were decided
and strenuous advocates of temperance. They were
not tee-totallers; they did not prohibit the use of those
“creature comforts” altogether; but if any one among
them proved to be a wine-bibber, or abused his
privilege of drinking, woe be to him, he had to feel the

force of the law and good government. Witness the
following court record in New Hampshire, in 1657:

“Thomas Crawlie and Mathew Layn, presented for
drinking fourteen pints of wine at one time. Fined
three shillings and fourpence, and two fees and
sixpence.”

The good people of the province of Maine in those
early days have also left proof, that they were on the
side of industrious and good habits and wholesome
instruction. Their Grand Juries present as follows:

“We present Charles Potum, for living an idle,
lazy life, following no settled employment. Major
Bryant Pembleton joined with the Selectmen of Cape
Porpus to dispose of Potum according to law, and to
put him under family government.”

So it seems there were some men, even in the early
days of the Pilgrims, who enjoyed that more prevalent
luxury of modern times, living under family
government.

Again say the Grand Jury, “We present the
Selectmen of the town of Kittery, for not taking care
that their children and youth be taught their catechism
and education according to law.”

They took good care in those good old times, that
the dealings between man and man should be on

equitable and fair principles, and without extortion.
In 1640, the Grand Jury say—

“Imprimis, we do present Mr. John Winter, of
Richmond's Island, for extortion; for that Thomas
Wise, of Casco, hath declared upon his oath that he
paid unto Mr. John Winter a noble (six shillings and
eightpence), for a gallon of aqua vitæ, about two
months since; and further, he declareth that the said
Winter bought of Mr. George Luxton, when he was
last in Casco Bay, a hogshead of aqua vitæ for seven
pounds sterling.”

The punishment inflicted on Mr. John Winter, for
extorting from his customer two hundred per cent.
profit on his merchandise, is not stated; but if one
Thomas Warnerton, who flourished in the neighborhood
at that time, had any agency in fixing the
penalty, it probably went rather hard with him; for
this latter gentleman must have had a special interest
in keeping the price of the article down, inasmuch as
it is related of him, that in taking leave of a friend,
who was departing for England, “he drank to him a
pint of kill-devil, alias rum, at a draught.”

Juliana Cloyse, wife to John Cloyse, was “presented
for a talebearer from house to house, setting
differences between neighbors.” It was the misfortune

of Juliana Cloyse that she lived at too early
an age of the world. Had her lot been cast in this
day and generation, she would probably have met
with no such trouble.

Thomas Tailor was presented “for abusing Captain
F. Raynes, being in authority, for thee-ing and thouing
of him, and many other abusive speeches.”

At a town meeting in Portsmouth, March 12, 1672,
“voted, that if any shall smoke tobacco in the meeting-house
at any public meeting, he shall pay a fine
of five shillings, for the benefit of the town.”

In a previous year, September 25th, at a town
meeting, it was “ordered that a cage be made, or
some other means be invented by the Selectmen, to
punish such as sleep or take tobacco on the Lord's
day, at meeting, in the time of the public exercise.”

It appears from this record that the town reposed
unlimited confidence in the inventive powers of the
Selectmen; and it appears also that the energetic
order of the town, passed on this occasion, was a few
years afterwards successfully carried into practical
operation. The following is preserved on the town
records, July 24, 1771.

“The Selectmen agree with John Pickering to build
a cage twelve feet square, with stocks within it, and a

pillory on the top, a convenient space from the west
end of the meeting-house.”

Thus far we have confined ourselves to official
records; but some of the unofficial and unwritten
records of those days are of equal importance to be
transmitted to posterity, one of which it is our present
purpose to endeavor to rescue from oblivion.

The affair of the cage, with stocks inside, and a pillory
on the top, served to wake up the congregation
for a while, so that no one was caught napping or
chewing tobacco in the meeting-house during the
public exercises for several Sabbaths after this invention
of the Selectmen became a “fixed fact” at the
west end of the meeting-house. As the novelty of the
thing wore off, however, the terror in some degree
seemed to depart with it. There was a visible carelessness
on the part of several old offenders, who were
observed to relax their attention to the services, wearing
very sleepy looks, sometimes yawning, and occasionally
putting themselves into unseemly positions,
concealing their faces, so that the searching scrutiny
of old Deacon Winslow himself could not decide for
certainty whether they were asleep or not.

Among these delinquents, John Wadleigh seemed
to be the most conspicuous, often leaning his head so

as to hide his eyes during half sermon time. He was
also gruff and stubborn when questioned on the subject.
So marked was the periodical reeling of his head,
that Deacon Winslow began to watch him as narrowly
as a cat would a mouse. Not that the Deacon
neglected the sermon; he always took care of that
matter, and for his own edification, as well as an example
to the congregation, he steadily kept one eye
on the minister, while the other was on John Wadleigh.
There began to be sundry shrugs of the shoulders
among the knowing ones of the congregation, and
remarks were occasionally dropt, such as “Don't you
believe John Wadleigh was asleep during half the
sermon yesterday?” with the reply, “Why yes, I
know he was; but he must look out, or he'll buy the
rabbit, for Deacon Winslow keeps his eye upon him,
and if he don't make an example of him before long,
I won't guess again.”

It was whispered by some, who were out of the pale
of the church, that the Deacon's watchful powers with
regard to Wadleigh were a little more acute in consequence
of Wadleigh's having over-reached him
somewhat in the sale of a cow, at which the Deacon,
who prided himself on his sound judgment, it was
alleged, always felt a little mortified. The Deacon

however was a very upright specimen of the old
puritan race, and it is not probable his sense of justice
and right was much warped. True, he manifested considerable
zeal in looking after the delinquencies of
John Wadleigh, but his “zeal was according to knowledge;”
he knew Wadleigh to be a disregarder of the
Sabbath, sleepy-headed and profane, and he did therefore
feel a zealous and charitable desire to administer
to him a little wholesome reproof, provided it could
be done in a just, lawful, and Christian manner.

He even felt it excusable, to accomplish so good a
purpose, to enter into a pious fraud with Parson
Moody. He had observed that though Wadleigh
generally appeared to be asleep at the close of the
sermon, yet when the congregation immediately rose
up to prayers, he always managed some how or other
to be up with them, but with a flushed face and
guilty countenance. The Deacon believed, and it
was the general opinion, that Wadleigh was asleep
on these occasions, and that when the congregation
began to rise, it always awoke him. He therefore
suggested to Parson Moody, that on the next Sabbath,
at the close of the sermon, instead of immediately
commencing his prayers, he should sit quietly down
three or four minutes, as though he were a little

fatigued, or had some notes to look over, and see
whether Wadleigh would not continue to sleep on,
while the attention of every one awake would of
course be attracted to the Parson. This little plan
was tried, but without any very satisfactory result.
It added something to the presumptive testimony in
the case, but nothing clear and positive. Wadleigh
held his head down about half a minute after the
monotonous tones of the preacher's voice had ceased
to fall upon his ear, when he started suddenly, rose to
his feet, looked round a moment confusedly, and sat
down again.

At last, however, repeated complaints having been
made to the Grand Jury, they saw fit to “present
John Wadleigh for a common sleeper on the Lord's
day, at the publique meeting,” a thing which Deacon
Winslow earnestly declared they ought to have done
weeks before they did.

The Deacon was in fact the most important personage
in town, being not only the first officer in the
church, but also a civil magistrate, before whom most
of the important causes in the place were tried. Of
course the offender Wadleigh, when the Grand Jury
had once caught him in their net, had a pretty fair
chance of having justice meted out to him. The

jury met early on Monday morning, and the first
business before them was the case of Wadleigh,
against whom a fresh lot of complaints had come in.
They were not long in finding a bill against him as
above-mentioned, and a warrant was put into the
hands of Bill Cleaves, the constable, to hunt Wadleigh
up, and take him before Deacon 'Squire Winslow,
and summon in the witnesses for his trial.

Bill Cleaves tipped his hat to the 'Squire as he
went by upon his official duties, and gave him to
understand what was going on. Whereupon 'Squire
Winslow proceeded to put his house in court-order,
having the floor of his large open hall, where he generally
held his courts, swept and newly sanded, and
things all put to rights. One o'clock was the hour
appointed for the trial, for as the neighborhood all
dined at twelve, the 'Squire said that would give
them an opportunity to go to the work with a full
stomach and at their leisure.

Accordingly, at one o'clock the parties began to
assemble in the hall. 'Squire Winslow, who believed
that a pipe after dinner was a good settler to the
stomach, and always practised accordingly, came in
with a pipe in his mouth, his spectacles resting on the
top of his forehead, and taking a comfortable position

in his chair, placed his feet, where he had a perfect
right to place them, being in a land of Liberty, and
in his own house, upon the top of the table. The
prisoner, who had been found asleep in his chair at
his own dinner table, was taken away suddenly, like
Cincinnatus or Putnam from the plough, and brought
into court, just as he was, in his shirt sleeves, and
placed at the other end of the table, opposite the feet
of Gamaliel. Lawyer Chandler, who was always on
hand to help the 'Squire along in all knotty cases,
appeared with book in hand ready to lay down the
law and testimony. Lawyer Stebbins was allowed
by the courtesy of the court to take his seat by the
side of the prisoner to see that he had fair play shown
him. Bill Cleaves, the constable, took his seat a
little behind the 'Squire, crossed his legs, and fell to
smoking a cigar with great composure.

'Squire Winslow's faithful bull dog, Jowler, whose
duty it was to keep order in the house, took his
watchful station under the table, directly under his
master's feet, ready for any emergency. While the
constable's dog, Trip, who had done his part in running
down the game and getting it housed, felt that
his duties were over, and caring but little for the
court scene, he had stretched himself upon the floor,

and was as sound asleep as ever John Wadleigh was
in church. The other witnesses and spectators present
were too numerous to mention.

The indictment was read, and the prisoner called
upon to answer, who, at the suggestion of Lawyer
Stebbins, replied, “Not guilty;” at which Deacon
'Squire Winslow shook his head, and remarked in a
low tone, “We shall see about that.”

The first point made by Lawyer Chandler, was,
that the prisoner should prove his innocence; and he
argued the point with much force and eloquence. It
was no easy matter to prove that a man was actually
asleep, but it was easy enough for a man to prove
that he was awake. Therefore, from the nature of
the case, the burden of the proof ought to lay upon
the prisoner. “Now, we charge that on sundry occasions,
Wadleigh was asleep in church, against the
laws of the town and the well-being of society.
Now, if he was not so asleep, let him prove his alibi.
A criminal always has a right to an alibi if he can
prove it. May it please your honor, I take that
ground,” said Chandler, “and there I stick; I call
upon the prisoner to prove his alibi.”

Lawyer Stebbins stoutly contended that the alibi
could not apply in this case. He had never heard

nor read of its being used in any case except murder.
And the wisdom of the court finally overruled that it
belonged to the prosecutors to prove the sleep.

“Well, if that be the case,” said Chandler, “I
move, your honor, that Solomon Young be sworn.
I had no idea the burden of proof was going to lay
on us, but still I've come prepared for it.”

Solomon Young was sworn, and took the stand.

Question by Chandler.—Do you know that John
Wadleigh sleeps in meeting?

Witness.—I guess taint no secret; I don't know
anybody but what does know it.

Chandler.—Well, do you know it? That's the
question.

Stebbins objected to the question. It was a leading
question, and they had no right to put leading
questions to the witness.

Chandler.—Well, then, let the court put the
questions.

Justice Winslow.— What do you know about
John Wadleigh's sleeping in meeting?

Witness.—I know all about it; taint no secret,
I guess.

Justice.—Then tell us all about it; that's just
what we want to know.

Witness (scratching his head).—Well, the long
and short of it is, John Wadleigh is a hard worken
man. That is, he works mighty hard doing nothing;
and that's the hardest work there is done. It'll make
a feller sleepy quicker than poppy leaves. So it
stands to reason that Wadleigh would naterally be a
very sleepy sort of a person. Well, Parson Moody's
sarmons are sometimes naterally pretty long, and the
weather is sometimes naterally considerable warm,
and the sarmons is some times rather heavy-like.

“Stop, stop,” said 'Squire Winslow, “no reflections
upon Parson Moody; that is not what you were
called here for.”

Witness.—I don't cast no reflections on Parson
Moody. I was only telling what I know about John
Wadleigh's sleeping in meeting; and it's my opinion,
especially in warm weather, that sarmons that are
heavy-like and an hour long naterally have a
tendency—

“Stop, stop, I say,” said 'Squire Winslow, “if you
repeat any of these reflections on Parson Moody again,
I'll commit you to the cage for contempt of court.”

Witness.—I don't cast no reflections on Parson
Moody. I was only telling what I knew about John
Wadleigh's sleeping in meeting.

'Squire Winslow.—Well, go on, and tell us all
about that; you want called here to testify about
Parson Moody.

Witness.—That's what I'm trying to do, if you
wouldn't keep putting me out. And its my opinion
in warm weather, folks is considerable apt to sleep in
meeting; especially when the sarmon—I mean
especially when they get pretty tired. I know I find
it pretty hard work to get by seventhly and eighthly
in the sarmon myself; but if I once get by there, I
generally get into a kind of waking train again, and
make out to weather it. But it isn't so with Wadleigh;
I've generally noticed if he begins to gape at
seventhly and eighthly, its a gone goose with him
before he gets through tenthly, and he has to look out
for another prop to his head somewhere, for his neck
isn't stiff enough to hold it up. And from tenthly up
to sixteenthly he's dead as a door nail; till the Amen
brings the people up to prayers, and then Wadleigh
comes up with a jerk, jest like opening a jack-knife.

Stebbins, cross-examining the witness.—Mr. Young,
how do you know that Wadleigh is asleep on these
occasions you speak of?

Witness.—Cause he is; everybody says he is.”

Stebbins.—That won't do; we don't want you to

tell us what everybody says. You must tell how
you know he is asleep?

Witness.—Well, cause he begins to gape at seventhly
and eighthly, and props his head up at tenthly,
and don't stir again till the Amen.

Stebbins.—Well how do you know he is asleep at
that time?

Witness.—Cause when I see him settle down in
that kind of way, and cover his face up so I can't see
his eyes, I know he's asleep.

Stebbins.—That's no proof at all; the witness only
knows he was asleep because he couldn't see his eyes.

Chandler.—Well, this witness has proved that the
prisoner exhibited all the outward signs of sleep; now
I will introduce one to show that he also exhibited
internal evidence of being asleep. Your honor must
know that it is a law in physics and metaphysics, and
the universal science of medicine, that being deprived
of one sense sharpens the other senses in a most wonderful
degree. Now I move your honor that my
blind friend here behind me, Jonathan Staples, be
sworn.

Jonathan Staples was sworn accordingly.

Chandler.—Now, Staples, do you know that John
Wadleigh sleeps in meeting?

Staples.—Yes, I du.

Chandler.—Do you know it?

Staples.—Yes, I know it.

Squire Winslow.—How do you know it?

Staples.—Why, don't I hear him sleep every Sabbath?

Chandler.—What is the state of your hearing?

Staples.—It is as sharp as a needle with two pints.

Chandler.—Can you always tell by a person's
breathing, whether he is asleep or awake?

Staples.—Jest as easy as I can tell whether I'm
asleep or awake myself.

Chandler.—Tell us where you sit in meeting, and
how you know Wadleigh is asleep.

Staples.—Well, I goes to meeting of a Sabbath,
and commonly takes my seat in the seventh seat at
the west end of the meeting-house. And John Wadleigh
he sets in the sixth seat, and that brings him
almost right afore me. All the first part of the exercises
he has a waking breath, till it gets along into
the sarmon, say about seventhly or eighthly, and then
he begins to have a sleepy breath; and when it gets
along into tenthly, he commonly goes it like a porpus.

Squire Winslow.—Do you know him to be asleep
at these times?

Staples.—I guess I du; I dont see how I could help
it. I know him to be asleep jest as well as I know
I'm awake.

Squire Winslow.—Well, that's sufficient, unless
Mr. Stebbins wishes to ask any questions.

Stebbins.—Now, Staples, do you pretend to say that
you can tell John Wadleigh's breath from the breath
of any other person in meeting?

Staples.—Sartainly I do. Aint everybody's breath
pitched on a different key? There's as much difference
in breathing as there is in speaking.

Chandler.—I'm willing, your honor, to rest the
cause here. I have a plenty more witnesses as good
as these, but I consider the case so clearly proved that
it is hardly necessary to bring on any more unless my
friend Stebbins should offer anything on the other
side which may need to be answered.

Stebbins.—I dont consider it necessary, may it please
your honor, for me to say a single word. I dont consider
that there has been the least particle of evidence
offered here yet, to prove that John Wadleigh ever
slept a wink in meeting in all his life. And surely
your honor wont convict this man without any proof
at all against him. Look at the evidence, sir; what
does it amount to? One man has seen him lean his

head, and another has heard him breathe; and that
is the sum total. Why, sir, if you convict a man on
such evidence as this, no man is safe. Every man, is
liable to lean his head and to breathe in meeting.
And if that is to be considered evidence of sleep, I
repeat, who is safe? No, sir; as I said before, I dont
consider it necessary for me to say one word on the
subject, for there has been no evidence offered to
prove the offence charged.

Here Lawyer Chandler rose with fire in his eyes
and thunder on his tongue.

May it please your honor, said he, I am astonished,
I am amazed at the hardihood and effrontery of my
learned friend, the counsel on the opposite side of this
cause. Why, sir, if there ever was a case made out
in any court under heaven, by clear, positive, and
irresistible evidence, it is this. Sir, I say, sir, evidence
as clear as sunshine and irresistible as thunder. Yes,
sir, as irresistible as thunder. First, sir, an unimpeachable
witness swears to you, that he sees the culprit
Wadleigh, the prisoner at the bar, gaping in meeting
and exhibiting all the signs of going to sleep;
then he sees him flatting away and muzzling about to
find a prop for his head. Now, sir, men don't want a
prop for their heads when they are awake. It's only

when they are asleep they want a prop for their heads,
sir. Well, now sir, follow the prisoner along a little
further, and what do we find, sir? Do we find him
wide awake, sir, and attending to the services as a
Christian and as a man ought to do? No, sir. We
find him from tenthly up to sixteenthly, as dead as a
door nail. Them's the witnesses' words, sir, as dead
as a door nail. What next, sir? Why, then the witness
swears to you, that when the congregation rise
up to prayers, Wadleigh comes up with a jerk, jest
like opening a jack-knife. Them's the witnesses' very
words, sir. Now, sir, persons that's awake don't get
up in meeting in that kind of style. It's only them
that's waked up out of a sudden sleep, that comes up
with a jerk, like the opening of a jack-knife, sir.
What stronger proof do we need, or rather what
stronger proof could we have, of all the outward signs
of sleep, than we have from this witness? With regard
to the internal evidence of sleep, another witness
swears to you that he hears Wadleigh asleep every
Sabbath; that he can tell when a person is asleep
or awake by his breathing, as easily as he can tell
whether he's asleep or awake himself. This witness
swears to you that during the first part of the
exercises Wadleigh has a waking breath, and when
the minister gets along to seventhly and eighthly he
begins to have a very sleepy breath. Well, sir, when
the minister gets to tenthly, the witness swears to you
that Wadleigh commonly goes it like a porpus. Yes,
sir, so sound asleep, that's the inference, so sound
asleep, that he goes it like a porpus.

Sir, I will not say another word. I will not waste
words upon a case so strong, so clear, and so perfectly
made out. If this evidence doesn't prove the culprit
Wadleigh to be a common sleeper in meetin on the
Lord's day, then there is no dependence to be placed
in human testimony. Sir, I have done. Whether
this man is to be convicted or not, I clear my skirts;
and when posterity shall see the account of this trial,
should the culprit go clear, they may cry out “judgment
has fled to brutish beasts and men have lost
their reason;” but they shall not say Chandler did
not do his duty.

The effect of this speech on the court and audience
was tremendous. It was some minutes before a word
was spoken, or any person moved. All eyes still seemed
to be rivetted upon Squire Chandler. At last
Squire Winslow spoke.

This is a very clear case, said he; there can be no
question of the prisoner's guilt; and he is sentenced

to be confined in the cage four hours, and in the stocks
one hour. Constable Cleaves will take charge of the
prisoner, and see the sentence properly executed.