Writs of Assistants, pursuant to the recited Acts, to be granted by the Supreme Court of Justice having jurisdiction in the Colony. Reign of King William the Third, you are to apply by letter for such writs, to Officers of the Customs in the said Now why was this enactment, unless the Crown Counsel had abandoned the ground heretofore (in 1761,) taken, that the course pursued had been legal? What is the deduction from these sugges tions and extracts? Obviously this, that the Crown lawyers had hitherto been at fault, and had just recovered from the shaking which James Otis gave them six years before, in arJohn Adams says, that if these writs were ever used it was only clandestinely. guing the Salem Collector's petition. They had since then searched and weighed the auHutchinson says, in his third volume of his-thorities, found them adverse, rubbed open tory, they were not in the exact form of writs their eyes and brushed up their legal lore, and from the Exchequer. And in a general letter to the Salem Collector, &c., signed by Charles Paxton, Henry Hulton, Wm. Burch, John Robinson and John Temple, January 11, 1768, this paragraph oc curs: p. 216-"You are to mention if you have received the Act of 7th of his present Majesty ch. 46, the directions of which you are strictly to observe, and particularly, if you are not already furnished with Writs of Assistance, concluded to make an entire new movement. So in the 7th of George III. they got Parlia ment to pass ch. 46; the Crown Solicitor to prepare a new form; the Commissioners to issue new instructions and commissions to sixty officers in Salem; and gave up applying through the Surveyor General for writs; directed application to be made to a Justice or Clerk of the Superior Court, who are, by the Act of 7th George III, empowered to grant such writs, as, I submit, for the first time, Now if this court had authority before 1767, why give it to them again? Why issue new commissions to a swarm of sixty officers in Salem, unless it were to "harass our people and eat out their substance?" Why ignore all the old forms, if, as pretended and contended in February, 1761, they were legal and valid? Why were the commissioners so very cautious to have the revenue officers attended by "a constable, headborough, or other public officer next inhabiting?" Why not let them go by night as well as day? Why so circumspect as to instruct them only to enter and break open "in case of resistance?" Why commission so many extra officers and call naval officers from the quarter-deck of the frigate Lively to be sworn in as revenue officers at the Salem Custom House? The truth is, the Crown officers had become alarmed and wanted to make a show of force. They doubted their legal position and distrusted themselves, but wanted, like the British Ministry, to die game. Therefore it was that they kept up the semblance of authority and claimed to be right. But these odious instruments of authority were never openly used in the Colony, and no revenue officer, from Gov. Bernard down to Nath' Digadon, the extra tidesman, ever dared to use them. This volume demonstrates, that these writs were deemed illegal in 1761. Hutchinson says they were never issued in the exact form of Writs of Assistance; the old form of commission is conceded to be inadequate to authorize "entering and breaking open," by its being abandoned; the new form indicates that the Crown lawyers deemed the old one illegal; and the Commissioners of Customs at Boston say that the Superior Court is empowered to grant them writs by the Act of 1767– instruct the officers to whom to apply and get them, and if they fail, direct and demand to know of the failure and the reasons. If only this is made certain, that the Crown officers conceded that James Otis was sound in his argument upon Cockle's petition in Feb ruary, 1761, then the volume, which has now become the property of the Essex Institute, is worth all the time I have bestowed upon it; and whether it is worthy of being published will be for the management to consider hereafter. Why it did not share the fate of other records I know not. Evidently it was the intention of some minion to have destroyed it, as its gashed and mutilated condition plainly indicates. ABSTRACTS FROM WILLS, INVENTORIES, &c., ON FILE IN THE OFFICE OF CLERK OF COURTS, SALEM, MASS. COPIED BY IRA J. PATCH. Continued from Vol. II, Page 132. "To the Honoraed now assembled at Salem 27th 4th mo., 1676, Whereas it hath pleased my honoured Brother, Mr. Ezekiel Cheever, to present the honoured Court with a writting containing divers particulars, which if they did only concern myselfe I could the better keepe silence. But reflecting so much upon the memory of my deare husband, and being so exceeding contrary to the speeches and acting of my dear husband when he was with me,as I humbly conceive they are. I think if I should keepe silence I should sinne against God and against the memory of my deare husband, whose precious remembrance is as deare to mee as my life, and contrary to whose minde so far as he was pleased to exprese himselfe to me I would not willingly act, If I might gain thereby more than his whole estate is worth, and therefore I have cause to Blesse the Lord, and doe humbly returne humble thanks to the honoured court that they have bin pleased so to order it as to give me leave to fulfill my deare husband's desire. I Blesse the Lord I can approve my heart to him who is the searcher of the heart and tryer of the reines, that while my dear husband was with me I never was unwilling but very willing, yea very desirously willing that my deare husband should bestow of his estate what hee pleased upon his dearly Beloved sister, Mrs. Ellin Cheever, and when I did desire him to make his will, which whe, he was sicke I did more than once or twice, and his answer to me was that he did looke upon it as that wt was very requisite and fitt should be done. But dear wife thee hast no cause to bee troubled if I should dye and not make a will it would be never the worse for thee, thy selfe would have the more. to which his speach I made this reply that I looked upon it as a duty which God required of a master off a family to sett his house in order, and I did earnestly desire if it were God's good pleasure that himselfe might have the free disposall of his estate and might dispose off what he pleased off it to his own kinred. I should be so far from beeing troubled at it that I should be very glad and Blesse ye Lord that it might be done according to his own free will and heart's desire and therefore bless the Lord I was no occasion of temptation to cause my deare husband to conceale his minde from me. But if my deare husband had advisedly forborn to make his will upon the account my honoured Brother is pleased to expresse, then he would not have expressed himselfe to me so farr as he did concerning the disposall of his estate; my deare and precious husband was well known to bee a man regarding truth and faithfulness both in his speeches and in his actions. Concerning my husband his adopted daughter, I humbly thus reply shee was not counted a stranger by himselfe neither did he put his name upon her for compliments sake, But as he owned her for his adopted child. She was dearer in his affections than I can express. If my deare husband had power to adopt a childe, then I humbly apprehend that he did as really and as truly accept of that childe for his adopted daughter as ever he accepted of me to be his wife, and that of his own free will without being persuaded to it by any person in the world. But as the father of the childe did freely tender it so did he freely accept of it; and after some discourse betwene themselves concerning this matter he was pleased thus to express himselfe to the childe's father, Cousin if upon good consideration and the advice of your friends you think it best thus to dispose of your childe and are freely willing to give her to me as my childe then I doe freely accept of her and owne her for my child, and this moreover I say to you that if God give mee anything when I die I will leave her something to live upon. And while it was an infant my dear husband was a tender nursing father to it and many times when himselfe hath had her in his arms and when he hath sate by and I have held the childe he hath solemnly taken notice of the providence of God in disposing of the child from one place to another till it must be brought into his house, that he might be a father to it. And then solemnly presenting her in his desires to God for his blessing upon her as upon his deare childe. And as she grew capable of Instruction as a godly father he did instruct her; and amongst many arguments he was pleased to use with her to persuade her to her duty he was pleased many times to say to her Sarah if you love your father you must behave yourself soberly and dutifully in your place; there is no childe in the world that I have done that for I have done for you or look upon with such an eye as I looke upon you And when my deare husband tooke his last and sadd farewell of his house he was pleased to charge and commend her from his fatherly affection to her that if shee loved her father as she had often said to him she should now show her love in desiring to fear God and in carrying herselfe dutyfully and loving to her mother, that if God brought him home again he might have Joy of her The Lord knows how little Joy I have had in making this Relation; were it not that it goes very neere my heart to have that annexed to the memory of my precious husband as his act which if himselfe were here present he would utterly disowne, I should not have dared to presume so far upon the patience of the honoured court I humbly request I may finde favor in the sight of the honoured court. I humbly referr myselfe to the wisdom and plea- | dren, but only that lying in the woods about sure of the honoured court, for the settlement of my estate. Yours humbly to serve, Bethiah Ławthropp, now Bethiah Grafton " Snake hill. But seriously considering my deare husband's expressions, I doe conclude he gave the plaine and the pasture by it together with the land at Snake hill to his sister Cheever. For thus my dear husband was pleased to expresse himselfe to me as we rode together to Wenham the last spring, in the week before the court of election. Speaking to mee concerning the disposall of his land, as he had formerly done, he said the house lott I give to the towne for the use of the ministery, not to any particular person, but to the town for the use of the ministery, hoping it will be an acceptable service to God. And as we were riding over part of his land belonging to Snake kill he said this land here I intend for my sis "Whereas it is expressed by my Honoured Brother, Mr. Ezekiell Cheever, that my deare husband did not willingly take Sarah Gott into his house but was persuaded and prevailed with by others to doe it, Humbly requesting leave I shall humbly present the Honourable Court with the whole truth concerning this matter. When the child's mother was dead my husband being with mee at my cousin's burial and seeing our friends in so bad a condition, the poor babe having lost its mother and the woman that nursed it being fallen sick, I then did say to some of my friends that if my husband would give me leave I could be very will-ter's children except God take my Brother ing to take my cousin's little one and nurse it for him awhile till he could better dispose of it, whereupon the child's father did moove it to my husband. My deare husband considering my weaknesse and the incumbrance I had in the family was pleased to returne this answer hoe did not see how it was possible for his wife to undergoe such a burden. The next day there came a friend to our house a woman which gave suck and she understanding how the poor babe was left being intreated was willing to take it to nurse and forthwith it was brought to her, but it had not been with her 3 weeks before it pleased the Lord to visit that nurse with sickness also and the nurse's mother came to me desiring I would take the child from her daughter, and then my deare husband observing the providence of God was freely willing to receive her into his house. But she was then received only as a nurse child and so she remained above a quarter of a yeare before her father did tender her to my husband to accept of her for his adopted child. Yours humbly to serve you, BETHIAH LAWTHROPP." "My deare husband never spake word to me concerning the giving of any of his land lying in the woods to his sister Cheever her chil Cheever away before my sister, then it shall be for her use as long as she iiveth and afterward for her children, whereupon I doe cor.clude he gave the other land mentioned which lyeth but a little way from it to his sisters, else that at Snake hill would not be so usefull for my sister if God should be pleased to take my brother away before her, and so I have faithfully declared what I apprehended was my husband's will and pleasure concerning this matter, which he said he did intend to put in writting, but the providence of God was pleased to prevent it in calling him forth upon publick service. BETHIAH LAWTHROPP.” · of "Upon further consideracion and the declared mynde of Capt. Lathrope wee finde that hee intended the Legaceys of £40 bequeathed to Noah Fiske and the 4 youngest children of Josiah Rea should be paid out of the land that lyeth in the woods toward Joshua Rea his farm, which is part of that land which is assigned by the Court to Mr. Cheever. It is therefore ordered, with the consent of Mr. Grafton and his wife, the relict of the aforesaid Capt. Lathrop, that the said Mr. Cheever shall have present possession of all the lands formerly allotted to him by this Court excepting only the land in Beverly belonging too and nowe used with the house there, hee the said Cheever paying the aforesaid Legacies of £40, and the Court doeth further declare and judge in equall that what disbursments shall be layd out upon the house or land in Beverly by Mr. Grafton or his assigns shall be repayed againe by the said Towne to whom the said house and land is given after the death of Mrs. Grafton, soe far as it shall be repared or made better than it was at the decease of the said Capt. Lathrop, and his division and proving of the said estate we judge equall and just according to the mynde of the deceased, which we submit to the honoured genall Court for further appbated and considered,'(?) 2: 4, 1676. "My wife affirms that her brother hath oft spoke in her hearing dissatisfiedly concerning Noah Fisk being brought to his house when his mother was very weak and not able to look after him, being very weak also, yt he never knew upon wt termes he kept him and wondered what they did intend to do, then saith Lieut. Dixey told her, my brother told him when he had brought him as fit to go to appreentice he had done, he should do no more. Wife's Testimony. (Ezekiel Cheever's hand writting.) 1-"It does not appear that my brother ever set himself seriously as the thing requires to make his last will. But all that is said is, that he expressed such and such purposes at such times, but purposes and actions are different things. 2-No man but in case of absolute necessity, when he is surprised by sudden weakness and inability, will make such a nuncupative will, and then he will do it in the surest and strongest way that may be, by positive and peremptory declaring it his last will, and confirming it by sufficient witnesses that are legall. But in this case no such thing is found. 3-The persons testifying in this case are persons concerned and interested and so not competent witnesses in law in any case, much less in such a weighty one as a last will and testament. Beside they agree not in their testimony, but in some things directly contradict each other, which docs demonstrate that either they mistook my brother and he never expressed such purposes and desires, or that his purposes and desires altered. 4-It seems to be an act of prudent and deliberate choice in my brother not to make a will, For, 1-He was oft importuned to it by my sister but did not. 2-He had warning of death by a long and dangerous sickness last winter, in which, after some degree of recovery, he had several relapses. 3-After that by the mercy of God he was recovered to perfect health, he had time sufficient for such a work, if he had judged it expedient. 5-I conceive that the true reason of his not making a will was, he could not do for his own sister and her children what he thought was most just and right, and they might be likely to need after the decease of his brother Cheever, but he should displease his wife and her relations, who would be expecting more, though he had done in his lifetime so much for them, and nothing for his sister and her children. And he well knew the equity and justice of the law which makes provision for the widow and the next of kin, but nothing for strangers, as also the faithfullness of the Magistrates in doing things according to law. 6-The matter which they testify is so unjust and unreasonable, that none that knew my brother's goodness and love, will believe that my brother would be so unnatural to prefere strangers before his own natural sister and her children, whom he so dearly loved, as many that knew them both can abundantly testify. 7-My Brother, when he brought his sister from England with him from all her friends and relations very loth to part with her, used this as a great argument with her mother to perswaide her, Viz., That he had no children of his own, nor was likely to have any, and otherwise he must give what he had to strangers. And her mother told this to friends in her hearing, that that was a great motive that induced her to be willing to part with her; and committed her to the love and care of her brother as a father, with great confidence and assurance of his tenderness toward her. |