Paine’s Minutes of the Referees’ Hearing1
Chilmark, Martha’s Vineyard, August 1765
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.
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
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 <
1 Shaw. 262 § officer cant execute general Warrant.8
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.
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 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.
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.
Zeph. Mahew. Wadsworth was asleep. I waked him, I heard no report of Gun.
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.
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.
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 description begins Michael Dalton, The Countrey Justice; containing the Practice, Duty and Power of the Justices of the Peace as well in as out of Their Sessions and ... an Appendix ... etc., London, 1746. description ends , 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. description begins George Croke, Reports of Cases in King’s Bench and Common Bench, Part 3, Charles, London, 1657. description ends 537, 79 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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 34 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 34 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.”
10. The cases have not been identified.