Medford Historical Society Papers, Volume 13.

Ancient legal contentions in upper Medford.

by Arthur E. Whitney, of Winchester.

TWO hundred and fifty years ago our colonial ancestors did not agree in all things any more than do their descendants of today. The court records show that legal disputes were fully as popular, according to population, and as necessary, perhaps, for the good of society, as they are at present. Some of these contentions are interesting as showing the characteristics of the people who engaged in them, and the manner of dispensing justice in the early days of the colony.

The first contest to which attention is called, relates to an acute misunderstanding between Edward Collins of Medford (Governor Cradock's successor in ownership of the Cradock ‘plantation’) and Josiah Converse of Woburn, who owned the ancient ‘corne mill’ and farm, which descended to him from Edward Converse, the father of Woburn, who built the first house and mill in what was then called Waterfield, later Woburn, and at present Winchester. Edward Converse, in his will, devised the mill, now known as the Whitney Mill, Winchester, to ‘the longest liver of his two sons.’ The successful ‘liver’ proved to be Josiah Converse, his brother Samuel having been killed at the mill February 21, 1669, by being caught by the water-wheel when chopping ice from the wheel. As an interesting record, we give the conclusion of the ‘jury of quest on the untimely death of Samuel Convarse.’ ‘We saw much blood in the place whereabouts he was judged to stand, also there was blood on the snow from the place to his house; [p. 2] as is said, he was carried to his house alive and being set in his chair his blood quickly settled within him wholly preventing him from speaking & in about half an hour he was quite departed. We found the back side of his head greatly bruised, his nose grizzle, as we think, was broken, so that the said Convars, his head lying as before expressed, we judge his death to be by the water wheel of the Come Mill.’

In the case of Collins vs. Converse, it seems that Collins charged Converse with ‘detayning’ a mare and her colt at the Converse farm, which belonged to Collins, and which Converse took from Collins' ‘yard.’ Josiah Converse's property was attached June 7, 1670 (the next year after his brother's death), as security for Josiah's appearance at the county court, June 24, 1670. The witnesses for Collins were all Medford citizens—John G. Wiggin, Daniel Markham, Joseph Blanchard, and two negro servants or slaves belonging to Collins named Francis and Fortune. Wiggin testified that he ‘perfectly knows her to be the same mare he once bought of Mr. Collins notwithstanding shee is disguised by the clipping of her mane, eares & tayle, yet perfectly knows her to be the mare aforsaid, which himselfe first bought of Mr. Edward Collins and since sold to Daniel Markham.’ Daniel Markham testified that he bought the mare in question of John Wiggin, who bought her from Collins in the first place. He testified that he ‘hath divers times ridden her,’ and that she was the same mare that originally belonged to ‘his friend Collins,’ and had been sold by him back to Collins after Collins sold her to Wiggin, and Wiggin to the witness, Daniel Markham. Markham also testified that the mare had her colt after he sold her back to Collins, and that he branded the mare with an M when she was in his possession. Joseph Blanchard testified, ‘that having occasion to go to Josiah Convars mill, and accidently going by his yard he did see a mare and colt which he knew to belong to Mr. Collins shee having been bred upon his father's farm and is the very mare [p. 3] and colt now in contraversie.’ The two negro servants of Collins testified ‘that being sent to Josiah Convars farm to see the mare and colt afforsaid do affirme thay do certainly know them to be their master's mare and colt notwithstanding the mare being clipt as aforsaid.’

In defence of his ownership of the mare and colt Josiah Converse put on James Thompson, James Convars, Nathaniel Hilton and Isaac Brooks. As neither plaintiff or defendant were allowed to testify in their own behalf in 1670, neither Collins or Converse personally appear as witnesses in the case. The Converse witnesses testified that the mare would not leave the Converse farm as it was her home. When taken away five miles to better feed ‘shee returned home againe and futher shee hath all the qualities of the breed she came of.’ They testified that the mare is the mare ‘Josiah Convars bout of his owne and had not been ridden except once or twice or thereabouts.’ ‘Shee was as unrewly as colt never broken & shee would rune backwards, fowards, to ye right hand or to ye left and shee is but 4 1/2 years old or under, not like other mares.’ James Converse and Isaac Brooks testified that ‘shee hath not the least part of a brand on her neare shoulder.’

Notwithstanding that the mare was ‘not like other mares,’ the jury decided the mare and colt belonged to Collins, and both were given up to him. But Converse would not admit a permanent defeat, and six months later, December 10, 1670, he brought action against Collins for review of the case. The witnesses in the ‘review’ were mostly for Converse. They testified that after the court the mare ‘was carryd to Mr. Collins but she came back again, and being fetched away she returned again after harvist.’ When ‘lett gow at liberti shee might agon away, but would not at any time.’ Jacob Cole, Samuel Frost, John Carter, Johnathan Wade, Thomas Gleason, Jermiah Sweyn, Samuel Champney and others all testified that the mare and colt belonged to Converse, that she was not branded, and that ‘colt's [p. 4] teeth were found in hir mouth and that she was coming five years old.’ One witness testified ‘shee was going six years old’ and had never been branded. It is evident that the mare and colt claimed Josiah Converse as their owner and his farm as their home. As the mare would not remain at the Collins farm, and could not be of much use to him, it is probable the jury thought best to legally return the ‘unrewly’ pets to Converse, and it decided in the second trial that the mare and colt belonged to Converse, thus reversing the decision in the first trial. Thus the controversy ended, as many law suits do at present, with no advantage to either side, except that Deacon Josiah Converse successfully defended his good name against the reputation it might have obtained in the highest circle of Medford's colonial society of his being a horse thief.

The next neighborhood dispute to which attention is called is that of the Rev. Zachariah Symmes, first minister of the Charlestown church, with Mr. Thomas Broughton and Mr. Edward Collins, both of Medford. These three gentlemen were men of distinction in their day. The ministers of the early colonial churches were often paid for their services with other ‘considerations’ than pounds, shillings and pence. Land was cheap, and much of it was given to the ministers. Both John Harvard and Rev. Zachariah Symmes were presented with farms in ancient ‘Waterfield,’ the locality now known as Winchester but originally belonging to Charlestown. This fact may account for the high moral tone for which the town of Winchester has always been celebrated!

The Harvard farm was situated near the present Catholic cemetery in Winchester, and the Symmes farm, of several hundred acres, was situated at head of Mystic lake, and extended nearly to present Winchester center. The first Symmes house was erected in the center of the Winchester playground, and was occupied and afterwards owned by William Symmes, the only son of Zachariah. There are several homesteads in Winchester now owned by descendants of Zachariah Symmes which have never [p. 5] passed out of the family possessions. When the lines of Medford were at last established the Symmes farm was included within Medford bounds, but later this part of Medford was set off to Winchester.

Previous to 1860 the upper part of present Mystic lake was a meadow, large in extent, and not flowed over as at the present time by the Mystic Water Works dam. It was known as the Symmes' meadow, and the grass was cut for cattle. Previous to the contention now under consideration, it seems that Thomas Broughton and Edward Collins had erected a mill-dam on the Mystic river which was erected so high as to flow the upper part of the river, Mystic lake, and the Symmes' meadow, to the great damage of Symmes, according to the record. The location of the Broughton dam is said to have been just above the crossing of Arlington and Jerome streets, West Medford, but nothing in the record states the location of the dam. This mill privilege passed away long ago, and no one living remembers anything about it, but if it had been maintained to later times it would have been a valuable water power, as the dam must have flowed a very large reservoir, even if it had not flowed over the Symmes' meadows.

The record in this case is as follows: ‘At a County Court held at Charlestown, June 16th, 1675, Mr. Zachariah Symmes, plaintiff appears against Mr. Thomas Broughton and Mr. Edward Collins, defendents, in an action of the case of a nuisance done to his meadow lying at or near to Mystic Ponds, by stopping the flow of the water course by a mill Dammn, whereby his farm is rendered incapable to maintain his cattle in winter and part of the summer.’ Under attachment, both parties legally and personally appeared in court, the attachment was read and the evidences are all on file with the record of this court. The jury brought in their verdict, finding for the plaintiff with damages, ‘Forty and One Shillings and costs of court, Three pounds, Thirteen Shillings and Eight pence.’ County Court Records, Vol. 1st, Page 296.

‘The evidences’ (testimony of the witnesses) in this [p. 6] case are not to be found, but it is plain that Symmes won the suit, and that the costs of court were much larger than the amount of damage, as is liable to be the case today. The record shows that ‘Johnathan Whitney of Watertown,’ one of the writer's ancestors, was one of the jurors in this case, which has a tendency to make him believe that the verdict was a just one!

Another contention which was settled in court in Charlestown, October 6, 1663, was of a little different character from either of the other two already cited. It indicates how closely bound together were the church and the people, and how the former insisted, as much as possible, in doing all the thinking for the people, especially in church and religious matters. But some of our ancestors had commenced to think for themselves, and no amount of coercion or court proceedings could stop them. The case now under discussion was that of the church at Charlestown against Ursula Cole, wife of John Cole of Charlestown, who is recorded as being one of the owners of a Waterfield farm, now Winchester. The complaint was, that Mrs. Cole indulged in ‘defamatory talk’ against the Rev. Zachariah Symmes, who was also a Waterfield and, later, a Medford, land owner, besides being minister of the Charlestown church. After a long trial and many witnesses were examined, the said Ursula Cole was found guilty and fined ‘Five Pounds and costs of court, to be paid by her husband, or to be publicly whipped.’ History does not record whether the husband paid the fine (a very heavy one for those days) or allowed his wife to be whipped, but it is recorded that the sum of her offending, for which she was sentenced to such a grievous punishment, was this: it was proved beyond a reasonable doubt that she had said she ‘had as leife hear an old cat mew as hear the Rev. Zachariah Symmes preach.’ Perhaps Mrs. Cole's judgment was good as regards the preaching the people had to listen to in Charlestown, but she was not at liberty, as we of today, to ‘talk about the minister’ or the church or religion when and where we please.