John M. Lund

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

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."¹ 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.²

When confronted with the legal and political crosscurrents in New England between 1690 and 1720,³ many scholars have emphasized how the crown's insistence on laws and procedures in conformity with those of England gradually supplanted New England's "traditional system of justice," initiating what John Murrin termed the "process of Anglicization."⁴ While Murrin's famous Anglicization thesis retains much of its explanatory power, especially in clarifying the behavior and actions of eighteenth-century provincial elites who deliberately emulated their British counterparts, the linear narrative emphasizing adoption and acceptance of English law and practice arguably masks a more complex reality. This is especially true, as Barry Levy, David Narrett, and A. G. Roeber have argued, in the realm of inheritance and probate matters.⁵

The contested will of William Penn sharpens the focus on the battles surrounding inheritance and probate issues and the links between these struggles and the reality of multiple and conflicting visions of empire. In particular, the voluminous paper trail generated by Penn's case provides a singular opportunity to employ a contested will case to shed light on the actions of otherwise invisible historical actors who conducted rearguard actions against the Anglicization of the province and its integration into an evolving British Atlantic empire that insisted on uniform property laws and inheritance practices.⁶ The extraordinary cache of documents left by the Penn case specifically highlights how nonelite individuals involved in the litigation over the will made use of the various legal options available to them. The surviving court records, bringing into focus the contrasting styles of argumentation before the bar and the cultural politics abetting the logic behind different styles of pleading, provide a complicated microhistory filled with irony. Indeed, the Penn case illustrates how common folk who appeared to uphold Puritan jurisprudence nonetheless borrowed freely from English practice when it furthered their attempt to both maintain the autonomy enjoyed under the first (1629) charter and to structure an empire tolerant of local rather than uniform legal practices. The same held true for those who seemed to be committed to doing away with the "case-by-case equity-oriented Puritan approach" in law and thus create a stronger English empire.⁷ On occasion these apparent partisans of Anglicization co-opted New England's particular local legal practices. Penn's contested will also provides fascinating clues about how ordinary townspeople viewed provincial jurists, especially the elusive William Stoughton who had presided as the chief justice of the Court of Oyer and Terminer during the 1692 witchcraft crisis and served intermittently during the 1690s as both the acting royal governor and probate judge.

Goodman Penn and His English Relatives

Little is known about William Penn whose estate came to be the flash point for a contest over the creation of an empire of uniform property law and inheritance practices. It is clear, however, that despite humble beginnings, Penn achieved prominence as a substantial Suffolk County landowner by the time of his death in 1688. Born in Birmingham, England, around 1609, he most likely arrived in Charlestown in 1630 as a Massachusetts Bay Company servant.⁸ At the expiration of his indenture he moved to the newly incorporated township of Braintree where he worked providing wood for the new community. He soon began to buy unimproved land beyond the town center to expand production. During the following decades, the ever-increasing demand for firewood and lumber and Penn's desire for profit led him to purchase additional woodlands. In his lifetime, he purchased over one thousand acres.⁹

Penn's economic ascent owed much to the failure of the "Company of Undertakers for an Iron Works in New England." Between 1647 and 1657 he bought 557 acres in Braintree previously owned by the company.¹⁰ Penn made his woodlands profitable by operating sawmills and at least one fulling mill along the Monatiquot River. His strategic location along the river allowed the former servant to supply Boston with firewoood as well as lumber for shipbuilding. His was a lucrative trade in an otherwise chronically cash-poor region. To better market his commodities, he began renting properties in the 1660s along Boston's waterfront.¹¹

Penn's involvement in buying and selling land accelerated in the 1670s and 1680s. His peak involvement in purchasing property occurred in March 1675. During that month, he bought an additional 400 acres of unimproved town land. At the same time, he secured seven house lots in Braintree, paying the substantial sum of £450 and adding an additional 123 acres to his holdings.¹² He quickly sold five of these homesteads for £350. Penn then bought at least four properties in Boston that he mortgaged, rented, or resold. In one instance, for example, he purchased a lot "at the head of the Great Dock" for £120, improved it by building a "new tenement," and sold it for £300.¹³

While Penn's real estates dealings are well documented in seventeenth-century Suffolk County records, there is no evidence to indicate that Penn joined the Puritan congregation in Braintree as a visible saint. Nonetheless he established a close friendship with Deacon Samuel Tompson, the son of William Tompson, the town's first minister. Beginning in the early 1650s, Samuel Tompson, who was twenty-two years younger than Penn, actively helped the older man conduct his business. Penn, whose mark on numerous deeds rather than a signature indicates an inability to write, relied upon the fully literate Tompson to draft "many scores of writings." These papers presumably included deeds and other documents necessary for the transfer of property. Perhaps with his neighbor in mind, Tompson composed a guide to writing entitled Magnum in Parvo Or, the Pen's Perfection.¹⁴

By the 1670s, when Penn was in his mid-sixties and controlled a vast freehold, he nonetheless had no family or relatives in the colony. Belatedly turning his attention to domestic matters, he contacted English relatives, encouraging them to emigrate. In 1676 his niece, Deborah, her thirty-three-year-old husband, Edward Hill, and their children, perhaps enticed by Penn's promises of inheriting his estate, arrived in Boston from Birmingham. Penn provided for his new arrivals, who were otherwise complete strangers to him, by granting them the use of one of his houses located next to the Boston common. There Edward Hill practiced his trade as a shoemaker. A year after the arrival of his English relatives, Penn married. His wife's name does not appear on any document after 1677, however, and, in the absence of any record suggesting separation, it is clear that she died. No children resulted from the marriage. The widower never remarried.¹⁵

William Penn's English relatives arrived penniless. In 1676, as King Philip's War wreaked havoc in New England, the shoemaker Edward Hill petitioned for the return of a servant who had been sent by authorities to the garrison defending Hadley, an outpost in western Massachusetts. Describing himself as "a poore man," Hill argued that without his servant or "other servants," his business and family were imperiled. "Customers are in great want of shooes," which he could not supply by himself. The shoemaker's poverty soon led to a series of appearances before the magistrates for debt. In each of these civil actions, plaintiffs prevailed. If Edward Hill believed that his move to New England would allow him to achieve economic competency, his first years in Massachusetts proved frustrating.¹⁶

The shoemaker's problems increased steadily in the early 1680s. In 1681 Hill's routine court appearances for debt prompted Boston magistrates to begin an inquiry to find out why the family had emigrated. Two depositions, taken on the newcomers' behalf, spotlighted Hill's expectation of inheriting Penn's estate. Twenty-five-year-old Samuel Hunt, a servant the Hills had brought with them and who had been "assigned to William Penn," testified that Penn would "give his Estate to Edward Hill and his wife whome he had sent for, for that end." The second deposition, taken from fifty-one-year-old Braintree resident Richard Thayer, asserted that Penn publicly announced his English relatives' arrival by declaring that Deborah had been "sent for to be my Heir." Penn interpreted his niece's arrival, Thayer testified, by proclaiming, "this is Bone of my Bone & flesh of my flesh" (Genesis 2:23). Though the depositions satisfied the magistrates, Penn may have had misgivings about his English relatives. Significantly he did not present testimony to explain their arrival. Nor did he convey any property to them in fee simple though historians have demonstrated that colonial New Englanders routinely delayed inheritance.¹⁷

The shoemaker's economic troubles multiplied in the following years, resulting in further, more serious encounters with authorities. In 1685 Hill appeared in court to answer an allegation of not adequately providing for a "government servant." The magistrates ruled that Hill had failed "to instruct" this laborer in either religion or the trade of shoemaking and even neglected "to provide necessary apparel." The court took the unusual step of releasing the laborer "from the indenture" with the caveat that he quickly bind "himself to a new master." That same year Hill faced a charge of counterfeiting. After being arrested and confined to prison prior to his trial, his wife, Deborah, petitioned for his release. "And in case my husband may not have his Liberties," she pleaded, "... my selfe & my infants ... will be starved." Though the decision in the counterfeiting case has not survived, this legal action suggests that desperation had led to criminal activities. For Edward Hill, the move to Boston had proved disastrous.¹⁸

It is perhaps not surprising therefore that the struggling and disgruntled shoemaker welcomed the establishment of the Dominion of New England, perceiving the new royal regime established by James II as an opportunity to improve his fortunes. The Dominion certainly heralded radical change. Created in 1686, two years after the Court of Chancery had revoked the 1629 Massachusetts Charter, the Dominion consolidated all seventeenth-century New England colonies and, by early 1688, New York as well as East and West Jersey into one centralized administrative jurisdiction. This super-sized English province, headquartered in Boston, was tasked with establishing conformity to English law, enforcing the mercantile navigation acts, and otherwise bringing the New England colonies into closer orbit with England's expanding Atlantic empire. From the standpoint of empire, much work had to be done. New England Puritans had departed significantly from the formalism of English common law, which they viewed with "wariness" because of its divergence from Scripture, and had instead privileged what they perceived as the substantive, godly issues in legal disputes.¹⁹ Indeed, the Court of Chancery had ruled in 1684 that Massachusetts exceeded its charter privileges. Yet, royal officials continued to complain that Massachusetts laws remained "'repugnant' to the laws and statutes of England." As Mary Sarah Bilder writes, "the repugnancy argument" used against Massachusetts, "embodied a vision that the laws of England should create a uniform nation and empire."²⁰

Massachusetts-born Joseph Dudley, who left Puritan New England's Congregationalism for the Church of England and who would play an important role in the Penn case, served as the first governor of the Dominion. An ambitious political figure who worked steadily to gain royal patronage, Dudley pushed for a "nearer dependence upon the crown of England," specifically advocating that "all [colonial] laws repugnant to the laws, etc. of England be declared void."²¹ In late 1686 Sir Edmund Andros, the royal governor of New York, replaced Dudley as the new English overlord of the Dominion. Committed to strengthening the empire, Governor Andros worked aggressively to bring New England into compliance with English law by recasting colonial inheritance practices. Under his directive, Massachusetts' county courts no longer handled probate matters. Instead last wills and testaments had to be proved in newly erected royal probate courts. (In Suffolk County, where litigation over the Penn estate occurred, Andros appointed Joseph Dudley judge of probate.) Dudley and his fellow servants to the crown in Massachusetts further supported the empire by enforcing primogeniture, "a defining aspect of the crown's imagined empire of uniformity," against colonial New England's practice of partible inheritance. Finally they abetted the transition to the English practice of routinely swearing witnesses to wills, discarding the earlier Puritan practice of screening potential oath takers in court before administering what Puritans viewed as penultimate godly speech act.²²

Shoemaker Edward Hill identified closely with the new regime and its leaders, befriending Benjamin Bullivant, who had arrived in Boston in 1685 from London and whose "knowledge of the [English] laws" had elevated him briefly to the post of attorney general before being named a justice of the peace by Governor Andros. (Many townspeople viewed Bullivant with unrestrained disgust. Puritan divine Increase Mather, for example, wrote that his name "will stink in New England to the worlds end.") The shoemaker further bound himself to Andros's Dominion by actively supporting the governor when he used Samuel Willard's Third (Old South) Church for services conforming to the Book of Common Prayer. Puritan worthy Samuel Sewall noted bitterly on March 25, 1687, that "Hill ... [a] shoemaker" had been among those who pressured the sexton to "Ring the Bell and open the door at the Governour's Comand." Indeed, Hill actively promoted the establishment of what became King's Chapel, serving as the clerk for new the Anglican church during the following decades. The shoemaker's activities, however self-serving, rendered him a visible partisan of Anglicization in Massachusetts. His apparent favorable reception by the crown officials suggests that they welcomed support from the town's poor in their larger effort to strengthen empire.²³

By the time Andros commandeered the Third Church, an aged William Penn had moved in with his niece and nephew-in-law in the house he had provided for them in Boston. Though he had not reached the point of infirmity, the seventy-eight-year-old unquestionably sought their help and companionship in his twilight years. The wealthy landowner hoped as well that his kinsman's ties with the Andros government would help him with the required reconfirmation of all land titles, another step in the process of creating uniformity in the empire. Governor Andros, in fact, took special aim at New England land titles. As William Offut notes, "New England towns were not legal corporations, were not accepted by the common law, and therefore had no legal authority to grant, divide, or hold land, a legal conclusion that rendered virtually all land titles worthless." Accommodating himself to the Andros government, William Penn continued to busy himself with land deals. In March 1688 he sold 105 acres in Braintree for £385. Yet, the aged William Penn continued to postpone inheritance to his nephew-in-law.²⁴

Surviving evidence suggests that Penn's move to Boston was a tragic mistake. The landless shoemaker's continued dependence on his uncle-in-law, who held a large amount of liquid capital in an otherwise cash-strapped household, bred resentment. Anger may have spilled over into verbal outbursts and physical violence. As one townsman later testified in court, Edward Hill "went up stairs to the old man and made the poor old man cry out, and when he came back down again he brought a purse of mony and sayd [']Looke here I have gott some of the old Rogues money.[']"²⁵ Soon after, on December 18, 1688, Penn died. Whether the cause of death was advanced age or his kinsman's neglect or abuse remains unclear. Some townspeople clearly believed, however, that Hill murdered the elderly man. One deponent, who offered shocking testimony concerning the alleged murder, claimed that two individuals entrusted with preparing the body for burial had found Penn's corpse lying on a bed covered "in blood," fouled with his "own dung." A sizeable wound on Penn's back, large enough "that you might turn your two fingers into it" and Penn's mutilated genitals completed this deponent's gruesome vignette of murder.²⁶

While the cause of Penn's death can not be known with certainty, surviving documents indicate clearly that Edward Hill took immediate steps to gain legal title to his uncle-in-law's land. Hill quickly hired the "legal literate" Benjamin Bullivant to ensure that the will was executed according to English law. He then paid a physician named John Lee to serve as a scribe. At Hill's direction and with Bullivant's legal expertise, Lee drafted a will that conformed to English legal tradition of primogeniture by naming the shoemaker "sole executor."²⁷

The document they crafted in late December 1688 contained provisions designed to throw off any potential suspicion of fraud. It included, for example, generous bequests, amounting to over £32 in silver, to the town church, Deacon Tompson, and the deacon's son, as well as the town school, the schoolmaster, and the schoolmaster's children. The indigent in Braintree received "three cows." The document also made "void all Wills" previously executed and stipulated that Penn had "sent for my Kinswoman Deborah the wife of my coson Edward Hill out of old England promising to make her my heir." Under the principle of coverture, Penn's nephew-in-law ("my well beloved kinsman") received "all my houses and Lands, household Goods, moneys & chattels" as well as "all and every other thing which is mine although it be not named."²⁸

The shoemaker, again guided by Bullivant, took careful steps to satisfy the "proof requisite to a will" under English law. Bullivant knew that the English 1677 Statute of Frauds required three or four witnesses for the proper execution of a will. Thus, after the scribe drafted the document, the shoemaker and the Andros official recruited a small number of pliable potential witnesses and brought them to view his uncle-in-law's body. As they stood around the corpse, "ye will was layd upon Penn's mouth" in an attempt to persuade the bystanders "that now they might lawfully Swear that these were ... [his] last words." The macabre performance combined with the promise of money worked, convincing a town butcher, Thomas Lea, and a mariner named John Tucker to sign their names. The necessary third witness, Mary Marsh, an illiterate servant who occasionally worked in the shoemaker's household, made her mark on the document. By obtaining three witnesses, the shoemaker satisfied the legal requirement for witnesses under the 1677 Statute of Frauds. Significantly, no one outside the group assembled by Hill saw the condition of the corpse. None of the shoemaker's "neighbours ... was sent for: Tho he dyed so suddainly." Thus Hill circumvented the normal process of preparing the body for burial and, more important, prevented a murder inquiry. One final legal requirement remained. In order to effect the final performance of the will, English law required at least "two Witnesses, without exception ... for the due proof of a Testament" before the probate judge. The shoemaker therefore promised each of the three witnesses £10 if they provided the sworn testimony required at the probate hearing. This endeavor succeeded in luring the requisite two witnesses. On February 14, 1689, Dominion Probate Judge Joseph Dudley authenticated the document when Thomas Lea and John Tucker "made Oath that they saw the within named William Penn signe and seale and heard him ... declare the within writing to be his last will and testiment." Edward Hill, who was by then in his mid-forties, now legally claimed Penn's estate as his own.²⁹

Yet, the shoemaker did not immediately enjoy the fruits of the estate as larger political events beyond his control intervened. Two months after the probate administration, the Glorious Revolution in Boston toppled the Andros regime. The uprising on April 18, 1689, began when townspeople, infuriated by what they perceived as the unwelcome, devilish innovations introduced to New England by crown officials, rounded up "the Major part of the Church of England People" and confined them to prison. Edward Hill, the clerk of the Anglican Church, was certainly among those imprisoned along with Andros, Dudley, and Bullivant. Though he was quickly released along with other Dominion supporters, the shoemaker viewed the revolution, the restoration of the old charter government in June 1689, and the return to the earlier system of Puritan jurisprudence as illegal actions that destroyed legitimate authority and, worse still, threatened to overturn his legal title to Penn's lands. Ironically, however, the revolution initially worked to Hill's advantage. In the ensuing crisis of authority, no inventory or valuation of Penn's properties was submitted to town officials.³⁰

The absence of an inventory as well as the imprecision of seventeenth-century land transfers renders it impossible to know with certainty the extent of Penn's estate. Nonetheless, extant Suffolk County Deeds disclose that Edward Hill gained title to at least 690 acres in Braintree as well as several properties in Boston. He also came into possession of a large amount of hard currency. In addition, Bullivant, released from prison in 1689 after "giving £3000 bail," sent "out Summonses to Mr Penns Debtors and Demanded them to pay the moneys Due to Mr Penn to Mr Hill." The shoemaker collected the money owed to his uncle-in-law because, as one Braintree resident later testified, "so many of the debtors being fearful of Mr Bullivant he being a Justice of the Peace under Sr Edmund Andros."³¹

After the tumult of the 1689 revolution, Edward Hill began to quickly sell parcels of Penn's Braintree estate. In 1689, 1692, and 1693, he sold a total of sixty acres of the Braintree property to John Bowditch. He conveyed fifteen acres to a Braintree tailor named Clement Cock in 1693. Hill also collected the final payment on a four-hundred-acre farm in Braintree that Penn had conveyed to John Hubbard. In addition to these dealings, Hill and Samuel White of Weymouth purchased a £50 bond in 1693 offered by Harvard College that yielded a £12 annual return. While the Second Anglo-Abenaki War strained the Massachusetts economy to a point where, as Bullivant explained in 1690, the "poor people are ready to eat up one another or turn Levellers," the formerly impoverished shoemaker made enough money by actively selling parcels of Penn's estate to fill his household with servants.³²

Despite the restored charter government under the aged Simon Bradstreet, Hill remained an outspoken supporter of royal government and English empire. His contempt for the restored Puritan regime found expression in his unwillingness to pay "£2–12–8 and two shillings" in taxes levied in 1691 to pay for the ongoing war against the French and their Indian allies on the New England frontier. His obstinate refusal to pay led to his arrest and imprisonment. From prison Hill wrote a petition seething with anger at what he perceived as the illegal Puritan regime. He specifically railed against departures from English law:

Contrary to Law ... Marshall Gookins in a most violent manner seized my person, and ... assaulted me in a most barbarous way without any resistance: tripped up my heels and felled me down to ye ground and struck me across ye back with his cane and ... threw me violently upon my wife in a wheel barrow, and ye major part of ye way wheeled me [and Deborah?] along and afterward haled me to Jayle. Rebels, Traitors, and murderers, in ye Kingdome of England were never by any ... haled and dragged a long ... as I was; moreover I am informed by men learned in ye law [Bullivant?] yt there is neither law nor prisident to shew forth yt every any man suffered in his person for Rates or Taxes but if able and responsible, his goods were seized.

He vexed Boston authorities even more by concluding that his confinement deprived him of his "lawfull call by ye Mother Church of England, who was pleased to prefer me to bee, ye Clarke." In the years to come, the shoemaker would find that being a partisan of empire and insisting on adherence to English law would only fuel a torrent of hostility from those who clung to the region's local Puritan jurisprudence.³³

The Contested Will: The Law, Provincial Courts, and Empire, 1694–1704

To strengthen the empire, William and Mary, the new English monarchs after the absolutist James II abdicated, issued a new charter in 1691 making Massachusetts a royal colony and requiring that all laws in the newly reconstituted province conform to English law. There were, however, some concessions to earlier colonial property laws under the new second charter. The crown "agreed to accept the legitimacy of the previous history of Massachusetts Bay," John Murrin observes, by affirming "the validity of such distinctive institutions as the New England town and land system." Yet, the important 1677 English Statute of Frauds, which "systematized inheritance practices and ended much of the diversity of local customs regarding wills and property transfers," was now in full force in the royal province. In a further departure from earlier practices, the 1691 charter empowered the royal governor and his council to "execute or perform all that is necessary for the Probate of Wills."³⁴

After the new charter went into force, many of Edward Hill's impoverished neighbors freely traded stories with each other in the streets and taverns of Boston about the steps they believed the shoemaker had taken to gain William Penn's estate. These tales were politicized by those who perceived Hill as the epitome of the dangers emanating from an English legal and political culture that turned away from the use of the courts to uphold godly discipline. In the ensuing complex legal contest over the will, these townspeople presented Edward Hill as a public scapegoat. By doing so, they signaled their resistance to full integration into the English empire. Significantly those who challenged the will also proved willing to use English legal procedure to maintain local control as practiced under the charter of 1629.

Initial public allegations against the shoemaker came from John Marsh, a town butcher, whose wife Mary had made her mark on the will. Marsh told his neighbors repeatedly about Hill's alleged efforts to suborn his wife, explaining that the shoemaker "came to his house" to offer his wife "tenn pounds" if she would "swear to sd will." (The shoemaker's offer, Marsh claimed, caused his "heart [to] smote him." He even bragged that he dissuaded his wife by threatening to "never own you for my wife nor bedd with you again.") Marsh also declared publicly that Thomas Lea and John Tucker had committed perjury for "ten pounds." Marsh claimed to have confronted Lea in the street, calling him "a perjured Rogue," and vowing to "prove him a perjured Rascal." The butcher even held "up his hands to [his] ears to signifie ... that Lea should loose his ears" for forswearing himself, a gesture demonstrating his knowledge of provincial law which sentenced convicted perjurers to "have both ... ears nailed" at the pillory. According to Marsh, Lea fled the province after the encounter. He "was gone clean away out of this government."³⁵ Marsh's boasts made Penn's will a public matter, a source of gossip throughout Boston.³⁶

Marsh's allegations slowly came to the attention of two minor town officials, Joseph Hill (no relation to Edward Hill) and Richard Draper. Both men adhered firmly to the New England Puritan strain of piety and, as their subsequent actions would make clear, the continuation of the "political-legal practices of the first charter period."³⁷ Joseph Hill, a varnisher who took part in town affairs by serving as an "overseer of the wood corders" in 1692, attended the Second (Old North) Church, where Puritan divines Increase Mather and his son, Cotton, presided.³⁸ Draper, a tobacco merchant, was a member of the Third Church (the same church Andros had used for Anglican worship) and had been made a freeman during the reestablishment of the first charter form of government after the overthrow of the Dominion.³⁹ News of the shoemaker's scheme alarmed both men. To them, Edward Hill's control over his uncle's estate undermined what godly society "perceived as the moral and religious implications embedded in the disposition of private property."⁴⁰ The shoemaker's machinations involving oaths compounded their distress. To a degree arguably unmatched by other English men and women, Puritans privileged oaths as a sacred form of religious discipline.⁴¹ Oaths sealed the covenant between God and the New English Israel and any breach of this sworn compact, as John Winthrop had famously warned those aboard the Arbella in 1630, invited God's wrath for being a "perjured people." For Joseph Hill and Richard Draper, the Anglicized practice of routinely swearing witnesses clearly promoted perjury and subornation.⁴²

Acting on the belief that no sin could remain hidden and spurred by their hostility toward the Anglicized faction in Massachusetts, Joseph Hill and Richard Draper began a belated discovery process to build a case against the shoemaker. Nonetheless, they worried that John Marsh's words and actions may have originated from a vendetta against the Hills, Tucker, or Lea. They therefore proceeded cautiously. When Marsh was committed to jail for debt, for example, they tested his sincerity by asking if he would swear to the will if it meant he might be "sett at liberty." Marsh declared emphatically that he would rather "ly there and rot first." Partially convinced by this response but seeking still further evidence, Joseph Hill and Richard Draper wrote to authorities in Birmingham, England, to find out if William Penn had other relatives who could claim the estate. They received a deposition signed by seven witnesses affirming that the deceased landowner had a nephew and heir apparent in Birmingham named Anthony Penn. News of an alternate heir to Penn's estate prompted Joseph Hill and Richard Draper to petition Probate Judge and Lieutenant Governor William Stoughton in March 1694 for a hearing. Though neither man had any legal experience, they identified themselves as attorneys to Anthony Penn and urged the probate judge to void the will and to take action against those who had testified to the authenticity of the document.⁴³

Stoughton granted their petition. Under provincial law, however, the probate judge did not have jurisdiction over contested wills. Only the "governour and council" had authority to decide differences arising from any "order, sentence, decree or denyal that shall at any time be made and given by the judge of probate, referring to the approbation and allowance of any will, grant of administration or other matter." A 1693 law expanded that power to all contested probates. Stoughton did not point out the flaw in the petitioners' legal effort, a signal to the petitioners that he was receptive to their effort to retain the earlier legal order under the first charter. Yet, at the time of the probate hearing, Stoughton was gathering evidence against Royal Massachusetts Governor Sir William Phips who had engaged in a brawl with Captain Richard Short of the HMS Nonsuch. (Captain Short's press-gang had rounded up two members of the Massachusetts Assembly.) Phips had infuriated Stoughton in 1692 when he ended the witch trials. Probate Judge Stoughton, in fact, hoped his friend Joseph Dudley would succeed Phips as royal governor.⁴⁴

At an evidentiary hearing in early April, four townspeople came forward to present depositional testimony. Though he served as an attorney in the case, Joseph Hill testified to John Marsh's accusations, specifically the butcher's claims that he had saved his wife from perjury and had confronted Lea. His testimony also identified John Lee as the scribe who wrote the will. Another deponent, forty-six-year-old Frances Coleworthy testified to having witnessed the scribe fabricating Penn's testament. More importantly, Coleworthy explained why she had remained silent in the years after the creation of the document. According to her testimony, she feared that speaking out might have implicated her during the 1692 witchcraft hysteria. She testified to having been warned "she had been a great Traveller, for she did see a man write after he was dead, meaning old Penn." Her testimony hints that the confusion during and after the witch hunt had delayed challenges to the will. This deposition also made clear that by 1694 some townspeople had no reservations informing Stoughton, who had spearheaded the 1692 witch hunt as chief justice of the Court of Oyer and Terminer, that the episode worked to the shoemaker's advantage. This oblique critique of Stoughton as a jurist could only rankle the judge. Unlike the jurist Samuel Sewall, who had repented his role as a judge on the court of Oyer and Terminer, Stoughton never showed regret for his role in the 1692 trials.⁴⁵

In addition to the evidentiary hearing, Probate Judge Stoughton also took a decidedly Puritan approach to the case by conventing twelve witnesses, listening to and assessing their accusations individually. By conventing witnesses, Stoughton displayed a willingness to accommodate and perhaps mollify the self-appointed defenders of the New England way who challenged the validity of the will. A key witness for Anthony Penn's attorneys was the deceased landowner's friend, Deacon Samuel Tompson of Braintree. He flatly denied "the Truth of the will" and asserted "Pen use to Declare it as his settled Intention that Hill should have none of his estate." Deborah Hill appeared before Stoughton and, referencing Galatians 3:15–18, argued that oral promises made by her uncle solidified her husband's title to the estate. Her family emigrated at Penn's request to be his heirs, she declared, and therefore "did not hold the Estate By sd will." Penn's promise, not the law, sustained title to the estate. (Two townspeople questioned by Stoughton, however, asserted that she had sought their "Advice" about "whether it were not best to send her husband away" if the will was declared a fraud.) The probate judge also questioned Mary Marsh and Thomas Lea, who had since returned to Boston. Marsh told Stoughton she had "signed as a witness" but "would not swear to it for all the Estate." When Lea appeared, Stoughton hoped to elicit the colonial New England ritual of free, open confession of sin. "Instead [of] ... owning what he hath done," Lea obstinately and strangely demanded, "proof that he is a witness to sd will."⁴⁶

As an experienced jurist and supporter of an empire bound together by conformity to English legal practice, Stoughton weighed both the legal as well as political dimensions of the case. He knew a high burden of proof was required under English law for overturning a probate settlement. English legal treatises stipulated that a last testament was "originally void ... when the Testator is compelled by fear, circumvented by fraud, or overcome by immediate flattery." Even in cases of fraud, a degree of deception was tolerated. "When Deceit is not evill, but good (for all deceit is not evil)," one English legal treatise directed, "such deceit doth not hinder the Testament." Judges also had wide latitude in weighing "the circumstances and strength of opposition made against [a] Will." Stoughton also knew his ruling had potentially damaging political repercussions for his friend Joseph Dudley, especially since the probate judge favored Dudley for the post of royal governor. Following English legal guidelines governing probate administration and hoping to save Dudley any political embarrassment, Stoughton ruled on April 5, 1694, that there was "nothing appearing at present Sufficient in Law to induce me to make any alteration" in the 1689 probate settlement. While Stoughton had circumvented Governor Phips by hearing the case and employed Puritan techniques to gather testimony, he in fact had little discretion under English law governing probate matters.⁴⁷

One unanswered question remained, however. Deacon Samuel Tompson had revealed when he appeared before Stoughton that "goodman Penn" had named him as one of "his executors" and had entrusted with him with a transcript of an earlier will. Tompson had presented his copy of Penn's will to the probate judge. Seeking an explanation for the alteration in Penn's choice of executors, Stoughton ordered Tompson to submit further testimony, a directive that fit the individualized case-by-case approach favored by seventeenth-century New England Puritans. In a deposition taken four days after the probate court ruling, Tompson testified that after Penn had been buried, "Mr. Hill and Doctor Bullivant and [the scribe] Doctor Lee" came to his house, showed him a document they said was Penn's will, and "desired me to give up the other will." Tompson complied, explaining that "whatever goodman Pen had said and don formerly he might alter his mind at last." Nonetheless Tompson testified that Penn's mark on the document Edward Hill presented, a scribbled "X," differed significantly from Penn's distinctive symbol." "I do asert and testify," Tompson declared, "that I having writt many scores of writings for him ... I living not far from him his mark was a Roman doblew after this form M with the heels upward." Tompson interpreted the fate of Penn's estate in terms of the story of the deception of Isaac. "If they have taken Rebecahs way to obtaine the Birth Right," he stated, "be it upon them[,] I can say nothing to it." The deacon's testimony, with its Scriptural interpretation of events, did not convince Stoughton to reconsider his decision. Once again, the probate judge had used his discretion to allow the additional testimony even though he was bound to follow the letter of English law.⁴⁸

The probate judge's 1694 ruling reassured Edward Hill. He continued to sell parcels of his uncle-in-law's Braintree holdings. In May 1695 Samuel White bought twenty-five acres for £57 from the shoemaker. The following year Hill conveyed twelve acres to Thomas and Samuel French of Braintree for £55. At the same time, the probate court's decision led those who had aided the shoemaker in probate court to let their guard down. Thomas Lea—one of the witnesses who "made oath" before Joseph Dudley—spoke openly of his involvement in the making of Penn's will. One townsman named Thomas Phillips voluntarily testified to Lea's public statements about the will. Phillips told authorities in a November 1694 deposition that he had "Mortgaged an House to William Penn" and was "about to redeem said House [when he] heard that the Will whereby Edward Hill held Pens Estate was a forged will." He therefore questioned Lea about the probate settlement. According to Phillips, Lea admitted that Penn "was dead" when the will had been drafted and that the settlement of the estate was a "damned cheat."⁴⁹

Other townspeople came forward to offer unsolicited testimony. The most damaging testimony against the shoemaker after the probate court's ruling came from Ann Despard, one of the servants who "came to live with Edward Hill some little time after William Penn dyed." In a lengthy sworn deposition she volunteered in January 1696 before Superior Court Justice Samuel Sewall, Despard recounted the angry words that passed between Thomas Lea and the Hills.⁵⁰ Lea frequented the house, Despard deposed, clutching a promissory note written by Edward Hill and demanding money for his false oath. On one occasion, Lea exclaimed within earshot of Despard, "Pay me the money and take up your bond for it will stay no longer." Frightened, Deborah Hill "told her husband that some course must be taken to pay Lea or else he would discover all." Her husband did not share her apprehensions. The "business was done," he told her. He had the "estate in [his] possession." "All that Lea could do by a discovery," the shoemaker scoffed, "would but bring his own ears to the pillory."⁵¹

The eavesdropping servant deposed to similar conversations between the Hills and mariner John Tucker. According to Despard, the seafarer had extracted better terms for his oath than Lea. Not only would Tucker receive £10, but he had also been promised lodgings for a year and "a 12 month dyett." But when the mariner "was taken sick" and remained ill for "a considerable time," Deborah Hill became greatly alarmed. "Mrs Hill did cry out and wring her hands," the servant recalled, because she interpreted Tucker's illness as "a judgment of God upon them" and believed he "would be a plague to them as Long as he lived." After he eventually recovered, Tucker, who had also not been paid for his oath, demanded his money. He threatened that "if they did not pay him quickly he would sell the bond" to someone who would take the matter to court. Confronted with this ultimatum, Deborah Hill appeased the mariner with "a new suit of clothes." At the end of his twelve-month stay, Tucker fled to Long Island. Before he left, however, the mariner had expressed his fears to Despard for playing a role in gaining "old Penn's estate" for the Hills. The seafarer confided that he "ruined his soul when he recevd ye bond" and "expected that he should suffer for that thing as long as he lived."⁵²

Anne Despard's deposition concluded with an account of arguments between Deborah and Edward Hill. The shoemaker's wife began to rail against her husband for "wasting the estate among ill company." In one especially explosive verbal exchange she inveighed against both her husband and the men who helped him gain her uncle's estate. "You white livered Rogue! Now you and the rest of you Rogues have laid your heads together: and make that devilish will, and so cutt me quite off from all, now you think to Hector me, and I am no more regarded than a dog, ... we have made ourselves slaves unto a parcel of Rogues and the Curse of God follows us." Deborah Hill also began to fear for her own life. Expressing the folk belief in "murder will out," she warned her husband: "Destroy me as you did my uncle, but if you do you will not smother [it] so well, for my blood will cry out for vengeance." Exasperated by "living such a hellish life," the shoemaker's wife determined to end her suffering. In her despair, she ran "over the Boston Common toward the water side" in order to "go and drown herself." Only with "much difficulty" did members of the household prevent the suicide.⁵³

Despard's testimony, highlighting the suicide attempt, refocused attention on Penn's will and convinced Anthony Penn's self-appointed advocates to again try to overturn the 1689 probate administration. This time they turned to the provincial courts. In April 1697, they brought a civil suit for trespass before the Suffolk County Inferior Court of Common Pleas against Clement Cock who held a fifteen-acre Braintree parcel of "woodland and meadow" by virtue of a deed from Edward Hill. This legal effort, a transparent effort to overthrow Hill's title as sole executor and achieve what Penn's advocates deemed an equitable solution, was in keeping with what Puritans viewed as the association between private property and godliness. During the English Civil War, for example, Parliament had made this connection explicit when it ordered "sequestring the estates of delinquents, papists, spyes and intelligencers." Similarly, in 1656, the Second Protectorate Parliament had debated "a proposal to punish Catholic recusants by confiscating two-thirds of their estates." Though the provincial lawmakers in October 1692 "reinstituted the old [colonial] bar on forfeiture and confiscation" as the witch craze slowly came to an end, a reflexive correlation between attaining a freehold and piety remained among New England Congregationalists.⁵⁴

The 1697 trespass case, the second challenge to the will, also raised the political stakes of the case considerably. By bringing the case before the county court, Anthony Penn's self-appointed attorneys challenged the authority of the governor, who at that time was William Stoughton. (Under provincial law only the governor and council had authority to "execute or performe all that is necessary for the Probate of Wills.") The legal effort, in fact, fit a larger pattern of resistance to the process of bringing Massachusetts into compliance with the empire. In 1695 the Lords Justices in Council had disallowed a 1692 provincial law establishing courts "since it restricts the power of appeal to the King in Council" as required under the 1691 Massachusetts royal charter. Rather than comply, provincial leaders had instead procrastinated.⁵⁵ Significantly, the Suffolk County Inferior Court agreed to hear the case at the April 1697 session. This decision reasserted county court jurisdiction over probate matters as practiced under the First Charter while circumventing Stoughton's authority and ignoring Whitehall's directive.⁵⁶

Arguments employed by attorneys in the trespass case highlight the legal and political crosscurrents in the province. Rather than plead the case themselves, Anthony Penn's self-appointed advocates turned to legal literate Anthony Checkley, the province's attorney general, a move that acknowledged the growing importance of lawyers in provincial legal culture. Checkley's strategy employed both Puritan legal logic and English law. He disputed the English practice of primogeniture and, relying on the colonial practice of partible inheritance, contended that ten acres of the defendant's fifteen-acre parcel of land "descends to the plaintiff." Checkley's approach also selectively interpreted the 1677 English Statute of Frauds in an effort to emphasize the substantive rather than formal English procedural issues. Citing the 1692 provincial law, "An Act for Preventing of Frauds and Perjuries" based on the 1677 English statute that required "three or four credible witnesses" to validate a will, Checkley maintained that John Tucker, Thomas Lea, and Mary Marsh lacked the integrity necessary to authenticate a will. They specifically lacked what godly New Englanders considered to be the requisite fear of an oath.⁵⁷ The shoemaker's confidant Benjamin Bullivant represented Clement Cock. He countered by pointing out that the defendant held the land by a deed from Edward Hill, the lawful executor of Penn's estate. Since the governor and the council had not overturned the probate decision, he maintained, the shoemaker was fully empowered to convey the land. Following the letter of the law, the jury rejected the attempt to sequester two-thirds of the defendant's land. The jurors' decision, no doubt reflecting their own uneasiness as landowners about altering a conveyance of property, signaled an acceptance of English law over what Anthony Penn's advocates presented as an equitable resolution.⁵⁸

Checkley promptly appealed to the Superior Court of Judicature.⁵⁹ The "will is not sufficiently proved to Impower the Executor to sell Pens land," Checkley continued to claim, because "the witnesses are not Credible." Again insisting on what he viewed as the substantive dimension of the case, he asserted that all witnesses "should not only be free from subornation, perjury, stigmitaion or such like flagitous crimes or markes of Infamy—But ... should be of a good reputation [and] competent judgmt." Potential witnesses had to demonstrate a commitment to the integrity of an oath "before they can be believed." This line of reasoning had special partisan meaning. According to Penn's attorney, the anglicized practice of routine swearing abetted perjury while the earlier colonial practice, in which godly magistrates screened individuals before tendering a judicial oath, protected the integrity of this penultimate religious speech act. Checkley concluded by arguing that witnesses to Penn's will were not "sufficient in number." "The statute [of 1692] requires 3 or 4," he declared.⁶⁰ Bullivant predictably reasserted that the landowner's "title is good in Law." The will had been "proved, aproved, past the seale of ye office of probate, & recorded about 7 or 8 yeares Since." With no misgivings about the routine swearing of witnesses, he declared: "Nor is it any thing more to the purpose to tell us ye witnesses required by Law to a will should be credible witnesses." While he agreed with Checkley's definition of credible witnesses—"all this we readily grant and admire the rhetorical part"—nothing presented in the case demonstrated that the witnesses were less than credible. Ridiculing the argument concerning the number of witnesses, Bullivant declared "surely Anthony Penn wanted his spectacles" when he asserted "there were too few witnesses ... any schooleboy of 7 yeares old might tell, that Tucker, Lea, and Marsh make 3 persons." He correctly pointed out that English law "doth not require that every one of these 3 be sworne to ye probate." For jurors, Bullivant's argument, demonstrating his knowledge of formal English legal procedures involving probate administration, trumped Checkley's invocation of the godly reverence for the oath. The jury upheld the lower court's verdict and the plaintiff was ordered to pay more than £3 in court costs.⁶¹

The 1697 trespass case composed only one part of Anthony Penn's advocates' legal strategy in the aftermath of the story of Deborah Hill's suicide attempt. One day after the jury rejected the plaintiff's claim at the Inferior Court of Common Pleas, Penn's attorneys initiated criminal proceedings against Edward Hill and Thomas Lea. In keeping with the trespass case, the indictments were also freighted with political meaning. Rather than constructing their case on the accusations of murder for inheritance, the indictments emphasized perjury, a sin that subverted the very foundation of godly, covenanted communities. Thus the bill of indictment against Edward Hill made no mention of murder but charged him with suborning Lea and Tucker as well as counterfeiting "the hand & seal of William Penn." Lea was simply charged with perjury. In early April 1697, a grand jury returned a true bill against Hill. Nonetheless, when the case came to trial, he was acquitted. In Lea's case, a grand jury returned his indictment ignoramus. As Cornelia Dayton suggests, "new attitudes about the reliability of evidence," especially after "the recriminations that followed the Salem witchcraft trials" helped to shape the outcome in the two criminal cases as well as the trespass case. Rather than rely on hearsay testimony and folk belief, jurors in these cases followed more rigorous and formal evidentiary standards. Once again the attempt by Anthony Penn's advocates to rely on Puritan jurisprudence had been thwarted.⁶²

Though all of the plaintiff's legal actions failed, litigation against Edward Hill nonetheless served an intended social function. Beginning in 1697, the shoemaker's practice of annually selling off parcels of Penn's Braintree estate came to an end. Potential buyers, who learned of the litigation through gossip networks, would not purchase land held by virtue of a contested will. Edward Hill never brought an action for slander or defamation. After being carted through the Boston's streets in 1691, the conspicuous beneficiary of the Dominion was well aware of the depth of animosity against him and knew better than to try to employ the courts to defend his name. Significantly, varnisher Joseph Hill, who spearheaded the challenge to the will was admitted to full church membership in the Mathers' church in June 1697. Although the timing of the varnisher's attainment of visible saint status and the legal struggle against the shoemaker might be mere coincidence, it is quite possible that his struggle against the Anglicization of his province convinced him to undertake this solemn rite of passage for New England Congregationalists.⁶³

Partial justice outside provincial courts, however, did not satisfy Anthony Penn's attorneys, who were determined to remove the stain of sin they believed Edward Hill had created. They pinned their hopes on a favorable change in provincial politics and court personnel. An opportunity arose in 1698. During that year, the aged Chief Justice William Stoughton, otherwise occupied as governor, did not partake in court deliberations. With this change in the composition of the Superior Court of Judicature, they quickly resurrected the trespass case against Braintree landowner Clement Cock by petitioning for "an action of review." Their petition came before Thomas Danforth, Wait Winthrop, Elisha Cooke, and Samuel Sewall, the four justices who actively served on the bench in the late 1690s. All four were committed, to varying degrees, to maintaining New England's godly orientation, and their sympathy for the plaintiff's goal of reasserting local control over the courts and thereby resurrecting the former "legal-political order" led them to grant the petition. Indeed, their decision to rehear the case signified that the Superior Court took up the function of an equity court, a move that usurped the crown's authority to adjudicate such cases. At the trial in July 1698, Bullivant continued to serve as the attorney to defendant Clement Cock. The plaintiff's attorneys presented the accumulated depositions as well as new testimony disclosing Bullivant's complicity in the making of the will. According to testimony presented by varnisher Joseph Hill, the shoemaker owed Bullivant £50 for "assisting him in settling ... his Estate and placing his writings in order." The former Andros official, varnisher Hill testified, had allegedly even admitted privately "the thing looks Dirty all over." This time a jury awarded Anthony Penn possession of two-thirds (ten acres) of the defendant's property. The absence of Stoughton from the bench, the willingness of the other justices to rehear the case, and testimony disclosing Bullivant's complicity unquestionably swayed jurors. The jury's decision also illustrates clearly how the determination of truth itself was affected by the composition of the bench and the political situation at that moment.⁶⁴

The 1698 verdict signified that Penn died intestate. Equally significant, the jury rejected primogeniture (refusing to grant the entire fifteen acres to the absent heir) and instead followed the colonial practice of partible inheritance, though it is not entirely clear why jurors divided the property as they did. While court records are silent on the subsequent disposition of the ten acres, the court presumably appointed Anthony Penn's primary advocate, the tradesman and member of Mathers' church Joseph Hill, as the judicial trustee for the absent heir. If so, the varnisher potentially profited from the use of the ten acres of woodland and meadow.

The decision against the Braintree landowner encouraged Penn's attorneys to revive the criminal case against Thomas Lea. In July a grand jury returned a true bill against Lea for "willfully and wickedly" perjuring himself for "six or tenn pounds." When the case came to trial before the Superior Court of Judicature in October 1698, former witnesses reasserted their accusations, depositional testimony was reintroduced, and new witnesses came forward to provide depositions. The scribe John Lee, testifying for the first time, cast serious aspersions on the legality of the document he had written by stating that he believed the will "was not rightly performed." He also testified that Edward Hill's own son-in-law, John Potwine, had blackmailed the shoemaker by threatening "that if he [Edward Hill] would not give him [John Potwine] sixty or more pounds in money then he [John Potwine] would overthrow that will." Another new witness, Richard Gredley presented hearsay testimony claiming that Edward Hill took "the dead mans hand" and "guided [it] ... to ye will and made a mark." Lea entered a plea of not guilty at his trial and was acquitted by a jury.⁶⁵

The verdicts handed down in 1698 demonstrated to Anthony Penn's advocates the limits of their efforts in the province's changing political and legal culture. Finding that they could not secure convictions based largely on hearsay testimony harping on perjury or subornation, they devoted their energy to trying to duplicate the successful trespass suit against Clement Cock. In light of their courtroom experiences in 1698, they anticipated that they would prevail without Stoughton on the bench. Between 1698 and 1704, Anthony Penn's attorneys sued five individuals who had purchased land from Edward Hill for trespass. A labyrinth of legal proceedings before the Inferior Court of Common Pleas and a seemingly endless number of appeals before the Superior Court of Judicature ensued. All these civil actions were in breach of the statute directing the governor and council to "execute or performe all that is necessary for the Probate of Wills." This rash of litigation against those who bought land from the shoemaker illustrates clearly the unwillingness of some members of Boston's Congregationalist community to be fully integrated into an English empire of uniform laws. At the same time, these legal efforts conveyed the expectation that Puritan jurisprudence would prevail in the provincial courts.⁶⁶

Defendants in the ensuing trespass cases employed various formal legal countermeasures to prevent the loss of their landholdings. In keeping with the shift toward the routine swearing of witnesses, efforts were specifically made to bring Mary Marsh before the bar to validate the will under oath. During the April 1697 trespass proceedings against Clement Cock, Benjamin Bullivant asserted that Mary Marsh "is now ready in her own person to Corroborate the said Probation." In a memorandum accompanying the records for the case, the court clerk noted: "this mark ['M'] was made in Court by Mary Marsh at the ... Tryal of this Case, and she affirmed upon Oath that this was hir usual mark." Nonetheless, the mark she affirmed as her own differed from the "X" that she had scrawled on the document drafted in December 1688. With no misgivings about the discrepancy, Marsh "utterly denyed that her mark was to it."⁶⁷ An interesting legal strategy was followed in 1699 when Edward Hill appeared in court as attorney to one of the landowners. He asserted that "two other persons living," Deborah Hill and a previously unacknowledged English niece named Mary (Penn) Ensor who resided in Birmingham, "have right to the said estate with said [Anthony] Penn." Invoking the New England practice of equal partible descent, he argued that Anthony Penn could only claim a third of each conveyance. The shoemaker's strategy worked, derailing the plaintiff's action.⁶⁸ Hiring experienced legal counsel was yet another step taken by defendants. One landowner retained Thomas Newton, an English-trained lawyer who had resigned in July 1692 as prosecutor in the witch trails. Newton argued in court that "if any will is contested it is thereby referred to the Governor and Council." Despite the ruling against Clement Cock, these countermeasures foiled the plaintiff's legal efforts.⁶⁹

Changes in provincial politics and the legal system further compounded the difficulties of Anthony Penn's attorneys.⁷⁰ In March 1699, the Privy Council again disallowed the provincial court system because of its deviations from English practice. Under a reconstituted legal system, in place by late summer, greater conformity to English law began to prevail. "Judges of the Inferior Court" now declared, "that the Wills validity could not be contested before them."⁷¹ The Superior Court of Judicature, however, heard the appeals in various trespass suits that had been initiated prior to Whitehall's disallowance. Yet, the court, led by William Stoughton who had again been commissioned chief justice and, after the arrival of Governor Bellomont, actively took part in court proceedings, had no patience for the plaintiff's efforts. When a jury again found for the defendant in a May 1700 trespass appeal, the bench ordered Joseph Hill, the self-appointed prosecutor in the case, to pay £13 in court costs.⁷² A further difficulty for Penn's advocates arose in June 1702 when Joseph Dudley, who oversaw the probate settlement in 1689, returned to Boston as the new royal governor. Not surprisingly, Edward Hill, who did not convey any land from 1697 to 1701, resumed his practice of selling parcels of William Penn's estate the year Dudley took up the reins of government. Once again, the change in royal provincial politics worked to the shoemaker's advantage.⁷³

Thomas Lea's Confession and the Politics of Empire, 1704–1716

In February 1704, a gravely ill Thomas Lea, who had signed Penn's will and gave his oath at the 1689 probate administration, summoned Joseph Hill to his bedside to unburden his tormented conscience. Lea's subsequent voluntary confession, a ritual Puritans viewed as essential to eliminate sin, turned the last days of his life into a public event as townspeople assembled in the dying man's chamber to hear the words that passed between the two erstwhile antagonists. Before a number of witnesses, Lea acknowledged that the will had been drafted after Penn had died. Joseph Hill then coaxed the dying man to reveal all: "Thomas you told me that when you & Mary Marsh went to lay out Mr. Penn, you never saw such a sight in all your life." Lea "turned his head aside the other way, saying what I did I was hired to do." Though the confession lacked pious repentance, it nonetheless conformed to what David Hall describes as the "Puritan obsession with pressuring all sinners to acknowledge immoral behavior."⁷⁴

News of Lea's confession spread rapidly in Boston. When Edward Hill was informed of Lea's disclosures, he immediately went to see the dying man and succeeded initially in forcing him to retract his confession. But the many observers in the room, including Samuel Myles, the Anglican minister of King's Chapel who had been summoned to pray with Lea, pressed him to speak truthfully. He again restated his acknowledgement of the crimes before the shoemaker and those who stood around his bedside.⁷⁵ Mary Marsh quickly learned of Lea's confession as well. Rushing to his chamber, she also labored to have him retract his statements. When her efforts failed, she unleashed her anger. "What need have you to say any thing about old Penns will[?]," she demanded, "you get nothing by it." "What need have you to say any thing to bring me into trouble"?⁷⁶ The confession exposed Mary Marsh's complicity. She had prepared Penn's corpse for burial and, despite her sworn testimony to the contrary, had affixed her mark to the will in December 1688. Interestingly, her husband's warning that he would "never own you for my wife nor bedd with you again" if she gave her oath proved to be no idle threat. Sometime after Mary appeared in court and denied under oath her role as a witness to the will, John Marsh moved permanently to New York City.⁷⁷

Lea's confession breathed new life into the otherwise stalled trespass suits. In May 1704, a trial jury at the Superior Court of Judicature, convinced by the testimony detailing Lea's acknowledgment of the crimes committed in late 1688 and 1689 and following the practice of equal partible descent, awarded Anthony Penn possession of "one third part" of a thirty-acre parcel in Braintree sold to John Hollis by Edward Hill. The court also ordered the defendant to pay the plaintiff nearly £20 in damages. Samuel Sewall personally oversaw the writ of attachment and appointment of Joseph Hill as trustee. Joseph Hill also petitioned in May for the renewal of other trespass cases that had languished in the previous years. The confession and subsequent litigation also had social consequences. If Edward Hill, who still held land in Braintree, hoped to continue to make money by conveying parcels of Penn's estate, he could not find buyers after 1704.⁷⁸

Most important, Joseph Hill and Richard Draper acted upon Lea's confession by finally following the letter of the law governing contested wills. They petitioned Governor Joseph Dudley and his council for a "revival" of case. Nonetheless, the council, largely controlled by Dudley, temporized until the summer of 1705 when it held a "hearing" to determine if the will was "false and forged" and if "forgery and perjury" had been committed. Dudley and his council decided, however, "to suspend Determination." Those involved in the dispute were ordered to find "some means to bring ... an Agreement ... so the persons who had Bought part of the Estate might not be Sufferers." (As his chief biographer has written, Dudley would revert to "an outburst of anger or some high-handed action" when other methods of achieving his will in council failed and thus his instructions to the litigants appears to be an obstinate refusal to reverse the 1689 probation.)⁷⁹ Predictably the governor's proposed solution failed to satisfy anyone. Clement Cock and John Hollis petitioned for a "new tryall," asserting they were left "altogether without remedy." Anthony Penn's attorneys found that all efforts to find a solution were "rejected with scorn" by the landowners. From Edward Hill they received "nothing but ill language."⁸⁰ Indeed, instead of reaching agreement, the controversy may have escalated as defendants appeared to have resorted to arson against Joseph Hill. By 1706, the varnisher's linseed oil mill had "been burned down three times."⁸¹

In the end, political changes in England led to the annulment of the 1689 probate administration. With the death of Queen Anne in early 1715, Dudley lost his post when the governorship of Massachusetts was bestowed upon Colonel Elizeus Burges. The new appointee never took up of the office of governor, and only in October 1716 did a new royal governor, Samuel Shute, arrive in Boston. Joseph Hill and Richard Draper recognized the opportunity presented by the change in leadership. Acting as attorneys for both Anthony Penn and Mary Ensor (William Penn's English niece), they petitioned Lieutenant Governor William Tailer and the council to declare that the will was "forged and contrived after the s[ai]d William Penn's decease." A terse diary entry dated June 25, 1716, by Samuel Sewall noted the final decision. Sewall, who was then Judge of Probate but did not have authority to annul a probate settlement, wrote simply, "Wm Penn's will is declared null and void."⁸²

As Richard Ross cogently observes, English authorities, beginning in the 1690s, increasingly regulated the empire's legal structure but could neither control individuals operating within that structure nor the way they perceived the law.⁸³ The contest over William Penn's will brings this reality to life by demonstrating how ordinary townspeople on both sides of the dispute freely employed a variety of legal strategies, including both Puritan equity-oriented jurisprudence and formalistic English common law, despite the empire's requirement of uniformity. The litigants displayed an acute awareness of the periodic changes in royal personnel in Massachusetts and the ways such changes would benefit their cause in court. Indeed, litigants in the Penn case learned to modify their legal tactics in order to accommodate shifting political realities and the political/cultural allegiances of the presiding judges. This sensitivity to changes in royal personnel and the specific allegiances of provincial justices influenced jurors as well. The determination of truth in the Penn case often hinged on which version of empire appeared to be preeminent at any given moment.

The Penn case is also a clear illustration of how a battle over probate and inheritance complicated Anglicization and the effort to create a unified British Atlantic empire based on property laws. The case spotlights the role of ordinary provincials whose rearguard actions led them to confront provincial elites, who to one degree or another, followed the path of Anglicization and abetted the strengthening of the empire. The otherwise obscure tradesman, varnisher Joseph Hill, who spearheaded the challenge to the will, learned that William Stoughton would not compromise his responsibilities either as acting royal governor or crown jurist by deviating from the empire's laws governing probate and inheritance. Conversely, the varnisher found Samuel Sewall to be more receptive to his efforts, perhaps because Sewall had a personal interest in the case. Sewall co-owned Braintree property, included half of an iron works and a saw mill, purchased from John Hubbard who, in turn, had bought the land from William Penn in 1682. Moreover, Sewall's son Samuel Jr. married Joseph Dudley's daughter Rebeckah in 1702. Perhaps Sewall is best described as conflicted or, less charitably, susceptible to self-deception. Nonetheless, the different approaches of Stoughton and Sewall toward the Penn case make clear the different degrees of Anglicization among the provincial elite and their contrasting views of the empire. Though Joseph Hill helped preserve the "patterned and distinctive legal order"—a Puritan jurisprudence—he too followed the path of Anglicization by relying on legal literates, such as Anthony Checkley, and English legal technicalities to void to the will. Significantly, the rearguard purposes of the varnisher's efforts against the shoemaker received acknowledgment from Congregationalist stalwarts, specifically Cotton Mather who dismissed Joseph Hill from the Old North Church in 1717 (soon after the voiding of the will) so that the tradesman could help establish the New South Church "in the south part of the town" where allegations against the shoemaker had originated. The lack of consensus among provincial leaders and justices combined with the hybrid legal approach of the litigants illustrates the complex and contested nature of Anglicization in Massachusetts in the decades after 1690. Ultimately, the Penn case reemphasizes the importance of studying inheritance practices to understand the relationship between law and politics and law and society in British North America.⁸⁴

John M. Lund, Ph.D., is an adjunct faculty member in the History Department at Keene State College, Keene, New Hampshire <jlund@keene.edu>. The author would especially like to thank Barry Levy for suggesting this case and sharing his vast knowledge of British Colonial American history. The author is grateful to Stephen Nissenbaum, Mason Lowance, Gerald McFarland, Lisa Gordis, Cornelia Dayton, Katherine Hermes, Randolph Roth, Christopher Grasso, David Tanenhaus, Alfred Brophy, and the anonymous readers at Law and History Review for their helpful suggestions. The author also thanks his colleagues in the history departments at Keene State College and Franklin Pierce University for their encouragement.

Notes

^1.� "Affidavit of Anne Doubleday," 27 April 1704, Court Files Suffolk, 108:11400, microfilm. Depositions from John Brocass, Mary Hands, Susanna Critchfield, and John Atkin taken in February 1704 also recount Lea's deathbed confession. Court Files Suffolk, 108:11400, microfilm. Oxford English Dictionary, 2nd ed., s.v. "Cod." On family disputes which (may have) resulted in murder, see Elaine Forman Crane, Killed Strangely: The Death of Rebecca Cornell (Ithaca: Cornell University Press, 2002).

^2.� Richard Ross persuasively argues that late seventeenth-century Congregational elites "appealed to the constitution of the first [1629] charter period as a protest ideal when calling for the protection or restoration of ancient customs and privileges." They asserted that Massachusetts "possessed a constitution, a patterned and distinctive legal order." Their claims expressed a stable and coherent "Puritan jurisprudence," the basis for resisting full integration into the English empire. Richard Ross, "The Career of Puritan Jurisprudence," Law and History Review 26.2 (2008), 12, <http://www.historycooperative.org/journals/lhr/26.2/ross.html>.

^3.� Viola Florence Barnes, The Dominion of New England: A Study in British Colonial Policy (New Haven: Yale University Press, 1923); Michael G. Hall, Edward Randolph and the American Colonies 1676–1703 (Chapel Hill: Published for the Institute of Early American History and Culture by the University of North Carolina Press, 1960); David S. Lovejoy, The Glorious Revolution in America (New York: Harper & Row, 1972); Philip S. Haffenden, New England and the English Nation, 1689–1713 (Oxford: Clarenden Press, 1974); Richard R. Johnson, Adjustment to Empire: The New England Colonies 1675–1715 (New Brunswick: Rutgers University Press, 1981); Jack M. Sosin, English America and the Revolution of 1688: Royal Administration and the Structure of Provincial Government (Lincoln: University of Nebraska Press, 1982); Jack M. Sosin, English America and Imperial Inconstancy: The Rise of Provincial Autonomy, 1696–1715 (Lincoln: University of Nebraska Press, 1985); Ned C. Landsman, From Colonials to Provincials: American Thought and Culture, 1680–1760 (Ithaca: Cornell University Press, 2000); Mary Lou Lustig, The Imperial Executive in America: Sir Edmund Andros, 1637–1714 (Madison, NJ: Associated University Presses, 2002).

^4.� David Thomas Konig, Law and Society in Puritan Massachusetts: Essex County, 1629–1692 (Chapel Hill: University of North Carolina Press, 1979), 186; John Murrin, "The Legal Transformation: The Bench and Bar in Eighteenth-Century Massachusetts," in Colonial America: Essays in Politics and Social Development, ed. Stanley Katz (Boston: Little, Brown and Company, 1971), 415–49; Law in Colonial Massachusetts, 1630–1800: A Conference Held 6 and 7 November 1981 by the Colonial Society of Massachusetts (Boston, Distributed by the University Press of Virginia for the Colonial Society, 1984); Bruce H. Mann, Neighbors and Strangers: Law and Community in Early Connecticut (Chapel Hill: University of North Carolina Press, 1987); Edgar J. McManus, Law and Liberty in Early New England: Criminal Justice and Due Process, 1630–1692 (Amherst: University of Massachusetts Press, 1993); Cornelia Hughes Dayton, Women Before the Bar: Gender, Law, and Society in Connecticut 1639–1789 (Chapel Hill: University of North Carolina Press, 1995).

^5.� Levy argues that the Delaware Valley Quakers' sensitivity toward the rearing of their children led to equitable inheritance practices. Barry Levy, Quakers and the American Family: British Quakers in the Delaware Valley (New York: Oxford University Press, 1988). Narrett highlights the continuation of equitable Dutch inheritance practices that encouraged roughly equal distribution of wealth between the sons and daughters among both yeoman and urban dwellers. David Narrett, Inheritance and Family: Life in Colonial New York City (Ithaca: Cornell University Press, 1992). Roeber finds that German immigrants to British North America adopted the English practice of writing wills in order to protect against English intestate division of property favoring the eldest son. A. G. Roeber, Palatines, Liberty, and Property: German Lutherans in Colonial British America (Baltimore: Johns Hopkins University Press, 1993).

^6.� Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge: Harvard University Press, 2004), 168. Historians have carefully explored, for example, this method of empire building after the English conquest of New Netherland in the late seventeenth century. Linda Briggs Biemer, Women and Property in Colonial New York: The Transition from Dutch to English Law 1643–1727 (Ann Arbor: UMI Research Press, 1983); Donna Merwick, Death of a Notary: Conquest & Change in Colonial New York (Ithaca: Cornell University Press, 1999); Daniel J. Huslebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005), 49; David Narrett, Inheritance and Family, 199–200; John Murrin, "The Menacing Shadow of Louis XIV and the Rage of Jacob Leisler: The Constitution Ordeal of Seventeenth-Century New York," in New York and the Union: Contributions to the American Constitutional Experience, ed. Stephen L. Schechter and Richard B. Burnstein (Albany: New York State Commission on the Bicentennial of the United States Constitution, 1990), 29–71.

^7.� Angela Fernandez, "Record-Keeping and Other Troublemaking: Thomas Lechford and Law Reform in Colonial Massachusetts," Law and History Review 23.2 (2005): 240, <http://www.historycooperative.org/journals/lhr/23.2/fernandez.html>.

^8.� Richard Frothingham, The History of Charlestown, Massachusetts (Boston: C.C. Little and J. Brown, 1845), 59, 80; James Savage, A Genealogical Dictionary of the First Settlers of New England Showing Three Generations of Those Who Came Before May, 1692 on the Basis of the Farmer's Register (Boston, 1861, reprint Baltimore: Genealogical Publishing Company, 1965), 3:389; Charles Henry Pope, The Pioneers of Massachusetts, A Descriptive List Drawn from Records of the Colonies, Towns, and Churches and Other Contemporaneous Documents (Boston: 1900, reprint Baltimore, 1985), 352; Robert Charles Anderson, The Great Migration Begins: Immigrants to New England (Boston: New England Historic Genealogical Society, 1995), 3:1426.

^9.� Samuel Bates, Records of the Town of Braintree, Massachusetts 1640 to 1793 (Randolph, Massachusetts: D. H. Huxford, 1891), 2; Charles Francis Adams, History of Braintree, Massachusetts (1639–1708), The North Precinct of Braintree (1708–1792), and the Town of Quincy (1708–1792) (Cambridge, 1891), 6; "Deposition of William Penn," 4 June 1656, Court Files Suffolk, 2:290, microfilm; William S. Pattee, A History of Old Braintree and Quincy (Quincy: Green & Prescott, 1878), 161.

^10.�Suffolk Deeds (Boston, 1880–1906), 1:299–301, 3:30–32; Edward Neal Hartley, Ironworks on the Saugus: The Lynn and Braintree Ventures of the Company of the Undertakers in New England (Norman: University of Oklahoma Press, 1957); Bernard Bailyn, The New England Merchants in the Seventeenth Century (Cambridge: Harvard University Press, 1955), 60–71; Richard S. Dunn, Puritans and Yankees: The Winthrop Dynasty of New England, 1630–1717 (New York: W. W. Norton, 1962), 90; "Deposition of William Penn," 4 June 1656, Court Files Suffolk, 2:290, microfilm.

^11.� Pattee, A History of Old Braintree, 462–63; Samuel Maverick, A Briefe Description of New England and the Severall Townes Therein Together with the Present Government Thereof (London, 1660), 16; "Deposition of Samuel White," 5 July 1698, Massachusetts Archives, 8:71, microfilm; Suffolk Deeds, 16:5; Records of the Suffolk County Court, 1671–1680 (Boston, 1933), 29:323; Massachusetts Archives, 8:92, microfilm; Suffolk Deeds, 15:173; "Copy of the Book of Accounts for the Town of Boston, 1671," Court Files Suffolk, 11:1017, microfilm; Bailyn, The New England Merchants, 115–16, 128, 145, 196.

^12.�Suffolk Deeds, 9:162–63.

^13.�Suffolk Deeds, 10:29; 11:113–14, 229–30; 13:332, 15:173.

^14.� "Deposition of Samuel Tompson," Suffolk County Massachusetts Probate Records, n.s., 1:361, microfilm; Samuel Tompson, Notebook, 1678–1698, Misc. Mss Boxes "T" American Antiquarian Society; "Deposition of William Penn," 10 March 1653, Court Files Suffolk, 1:188.

^15.�Suffolk Deeds, 10:29. By 1689, the Hills had three children, Sarah, Edward Jr., and Hannah. Suffolk County Massachusetts Probate Records, 10:458–62, microfilm; Records of the Suffolk County Court, 1671–1680, 30:962–79, microfilm; Thomas Bellows Wyman, The Genealogies and Estates of Charlestown, in the County of Middlesex and Commonwealth of Massachusetts, 1629–1818 (Boston, 1879; repr. Sommersworth, New Hampshire, 1982), 736; "Deposition of Joseph Allen and Joseph Arnold relative to land formerly in the possession of the late William Penn," 10 May 1700, Massachusetts Archives, 8:88, microfilm; "Deposition of Joseph Cooper and Thomas Quest of Birmingham, relative to the heirs in England of the late William Penn," 17 September 1700, Massachusetts Archives, 8:92, microfilm.

^16.� "The Petition of Edward Hill," 26 June 1676, Massachusetts Archives, 69:20a, microfilm. In 1680, Stephen Hopkins of Worcester won a suit against Hill for £6, the first in a pattern of similar cases. Abstract and Index of the Records of the Inferior Court of Common Pleas Held at Boston, 1680–1698 (Boston: Historical Records Survey, 1940), 25, 63, 77, 103.

^17.� "Deposition of Samuel Hunt," 3 March 1681, Miscellaneous Bound Volumes, Massachusetts Historical Society; "Deposition of Richard Thayer," 3 March 1681, Court Files Suffolk, 23:1970, microfilm; Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay ... (Boston, 1895), 8:366. On delayed inheritance, see Philip J. Greven, Four Generations: Population, Land, and Family in Colonial Andover, Massachusetts (Ithaca: Cornell University Press, 1971).

^18.�Abstract and Index, 126. Taking a servant from a household was unusual. See Barry Levy, "Girls and Boys: Poor Children and the Labor Market in Colonial Massachusetts," Pennsylvania History (Summer 1997): 287–307; "Petition of Deborah Hill," 11 March 1685, Massachusetts Archives, 40:205, microfilm.

^19.� James S. Hart and Richard J. Ross, "The Ancient Constitution in the Old World and the New," in The World of John Winthrop, ed. Francis Bremer (Boston: Massachusetts Historical Society, 2005), 241.

^20.� Bilder, The Transatlantic Constitution, 40, 41.

^21.� Michael G. Hall, "Randolph, Dudley, and the Massachusetts Moderates in 1683," The New England Quarterly 29.4 (1956): 515; Sibley's Harvard Graduates: Biographical Sketches of Those Who Attended Harvard College, ed. Clifford K. Shipton (Boston: Harvard University Press, 1933–), 1:167–76, 2:197–99.

^22.� Bilder, The Transatlantic Constitution, 32; On Dominion land policy, see Mary Beth Norton, In The Devil's Snare: The Salem Witchcraft Crisis of 1692 (New York: Knopf, 2002), 129; The Glorious Revolution in Massachusetts: Selected Document, 1689–1692, ed. Robert Earle Moodey and Richard Clive Simmons (Boston: Colonial Society of Massachusetts, 1988), 3, 48; The Andros Tracts, ed. W. W. Whitmore (Boston: Publications of the Prince Society, 1868), xxxviii; Johnson, Adjustment to Empire, 79–81; Lovejoy, The Glorious Revolution in America, 182–89; Barnes, The Dominion of New England, 174–211; Richard Godbeer, The Devil's Dominion: Magic and Religion in Early New England (Cambridge: Cambridge University Press, 1992), 184–85.

^23.� Johnson, Adjustment to Empire, 49; The Autobiography of Increase Mather, ed. Michael G. Hall (Worcester: American Antiquarian Society, 1962), 322; Diary of Samuel Sewall 1674–1729 (Boston: Massachusetts Historical Society, 1878–1882), 1:171; Henry Wilder Foote, Annals of King's Chapel: From the Puritan Age of New England to the Present Day (Boston: Little, Brown, and Company, 1882), 1:46–50, 89, 112, 115, 118, 127, 158; Lustig, The Imperial Executive, 146–47.

^24.� William Offutt, "The Atlantic Rules: The Legalistic Turn in Colonial British America," in The Creation of the British Atlantic World, ed Elizabeth Mancke and Carole Shammas (Baltimore: Johns Hopkins University Press, 2006), 172; Konig, Law and Society, 161; Suffolk Deeds, 16:94–95.

^25.� "Deposition of John Chadwick," 28 April 1697, Court Files Suffolk, 43:3897, microfilm.

^26.� "Affidavit of Anne Doubleday," 27 April 1704, Court Files Suffolk, 108:11400, microfilm.

^27.� For more on the term "legal literate," see Bilder, The Transatlantic Constitution, 15. In 1683, John Lee had been "warned out of ye town [Boston] yet remains, removinge from place to place." A Report of the Record Commissioners of the City of Boston Containing Miscellaneous Papers (Boston, 1886), 59. John Lee also appears to have been accused of witchcraft on April 11, 1692. The Salem Witchcraft Papers: Verbatim Transcripts of the Legal Documents of the Salem Witchcraft Outbreak of 1692, ed. Paul Boyer and Stephen Nissenbaum (New York: Da Capo Press, 1977), 2:535, <http://etext.virginia.edu/etcbin/toccernew2?id=BoySal2.sgm&images=images/modeng&data=/texts/english/modeng/oldsalem&tag=public&part=32&division=div1>.

^28.�Suffolk County Massachusetts Probate Records, 14 February 1689, 10:458–62, microfilm. The will is also in the Massachusetts Archives, 18 December 1688, 16:424, microfilm.

^29.� Henry Swinburne, A Treatise of Testaments and Last Wills (London, 1677), 6; "Deposition of Mary Briggs," 28 April 1697, Court Files Suffolk, 43:3897, microfilm; John Godolphin, The Orphans Legacy: Or, A Testamentary Abridgement (London, 1685), 65; Bilder, The Transatlantic Constitution, 51–52.

^30.� Richard Johnson, Adjustment to Empire, 99.

^31.� Konig, Law and Society, 41; Suffolk Deeds, 1:299–302, 3:30–31, 9:147–50, 200–2, 10:22, 29–30, 11:113–14, 229–30, 236–37, 12:59, 126–27, 278–79, 335–36, 13:331–32; Foote, Annals, 1:47; "Deposition of Joseph Hill," 28 April 1697, Court Files Suffolk, 43:162421, microfilm. For evidence of Bullivant's role as Andros's justice of the peace and the fear he seems to have inspired, see "Complaint of William Coleman," 23 January 1690, Massachusetts Archives, 35:175–76, microfilm; "Complaints of the Late Oppression," 21 January 1690, Massachusetts Archives, 35:182–83, microfilm; Bates, Records of the Town of Braintree, 1640–1793, 39, 71–72, 87.

^32.�Suffolk Deeds, 17:4; "Journal of Benjamin Bullivant," 17 March 1690, in Calendar of State Papers, Colonial Series, America and the West Indies, ed. W. Sainbury et al. (London, 1896–), 13: 263. For the presence of servants in the Hills' household, see Court Files Suffolk, 38:2693, microfilm; "Petition of Deborah Hill," Massachusetts Archives, 40:205, microfilm.

^33.� "The Complaint of Edward Hill," [1691], Massachusetts Archives, 37:71–72, microfilm. For more on the restored charter government, see Johnson, Adjustment to Empire, 106; The Glorious Revolution in Massachusetts, 418. For more on shoemaker Edward Hill's discontent, see "Deposition of Edward Hill," 3 August 1691, Massachusetts Archives, 37:147, microfilm; "Deposition of Edward Hill," 28 October 1691, Massachusetts Archives, 37:150, microfilm; "Warrant for Edward Hill, 10 April 1694, Court Files Suffolk, 33:2897, microfilm.

^34.� Murrin, "The Menacing Shadow," 29–30; Bilder, The Transatlantic Constitution, 94; Francis Newton Thorpe, ed., The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Hereafter forming the United States of America (Washington: G.P.O., 1909), 3:1881.

^35.� "Deposition of Joseph Hill [Attorney to Anthony Penn]," 3 April 1694, Court Files Suffolk, 43:3897, microfilm; Suffolk County Massachusetts Probate Records, n.s., 1:361, microfilm; Acts and Resolves, 1:54; John Demos, "Shame and Guilt in Early New England," in Emotion and Social Change: Toward a New Psychohistory, ed. Carol Z. Stearns and Peter N. Stearns (New York: Holmes & Meier, 1988), 83; Dayton, Women Before the Bar, 317–24.

^36.� "Among the neighbors who heard Marsh's public accusations was a tailor named John Chadwick." "Deposition of John Chadwick," 5 April 1694, Court Files Suffolk, 43:3897, microfilm; Suffolk County Massachusetts Probate Records, n.s., 1:361, microfilm.

^37.� Ross, "Puritan Jurisprudence," 12.

^38.� Pope, The Pioneers of Massachusetts, 231; Charles Henry Pope, Pioneers of Maine and New Hampshire (Boston, 1908), 95–96; Report of the Records Commissioners ... Miscellaneous Papers, 78; Report of the Records Commissioners ... 1660 to 1701, 211; Chandler Robbins, A History of the Second Church, Or Old North in Boston (Boston, 1852), 253; Index of Obituaries in Boston Newspapers (Boston, 1968), 155.

^39.�Report of the Records Commissioners ... Miscellaneous Papers, 78; Report of the Records Commissioners ... 1660 to 1701, 217; Diary of Samuel Sewall, 1:145; Report of the Records Commissioners ... Miscellaneous Papers (29th Report), 161.

^40.� Mann, Neighbors and Strangers, 24.

^41.� The Anglican practice of holding and kissing the Bible when swearing an oath—a ritual introduced to New England during the Andros regime—generated controversy. See The Autobiography of Increase Mather, 319, 321; Increase Mather, A Brief Discourse Concerning the Unlawfulness of the Common Prayer Worship: and of Laying the Hand On and Kissing the Booke in Swearing (Cambridge, 1686). Samuel Willard took up the issue of swearing in a 1689 pamphlet published in London. The New England position on oaths, Willard informed English readers, "will be taken for granted by all that are any whit grounded in the principles of Non-Conformity." "So essential a piece of Religion is Swearing," he wrote, "that it is in Scripture Metonymically put for all Religion." Samuel Willard, A Brief Discourse Concerning that Ceremony of Laying the Hand on the Bible in Swearing (London, 1689). See also "Criticism of the Agents for Massachusetts on the Draft Charter," September 1691, Calendar of State Papers, 13:542; Johnson, Adjustment to Empire, 77–78.

^42.� Richard S. Dunn and Laetitia Yeandle, eds., The Journal of John Winthrop 1630–1649, (Cambridge: Harvard University Press, 1996), 9, 153. See also Benjamin Bullivant to Edward Randolph, 11 September 1686, Calendar of State Papers, 12:241; Diary of Samuel Sewall, 1:439, note 1; John M. Lund, "Fear of an Oath: Piety, Hypocrisy, and the Dilemma of Puritan Identity," (Ph.D. diss., University of Massachusetts Amherst, 2001).

^43.� Stoughton also served as Lieutenant Governor and Chief Justice of the Superior Court of Judicature. "Deposition of Joseph Hill [Attorney to Anthony Penn]," 3 April 1694, Court Files Suffolk, 43:3897, microfilm; Suffolk County Massachusetts Probate Records, n.s., 1:361, microfilm. The suspicions of Hill and Draper appear well-founded. On April 10, 1694, John Marsh helped Edward Hill post "fifty pounds" as security for the shoemaker's appearance in court as a defendant in a suit brought by William Brattle for debt. Court Files Suffolk, 33:2897, microfilm; "Deposition of Abraham White and Thomas Guest," 20 March 1694, Court Files Suffolk, 35:3104, microfilm; John Murrin, "The Legal Transformation," 415–49.

^44.� "The Petition of Joseph Hill and Richard Draper of Boston as lawful Attorneys to Anthony Penn of Birmingham ... England," 28 March 1694, Court Files Suffolk, 33:209, microfilm; Suffolk County Massachusetts Probate Records, n.s., 1:359, microfilm. Stougton received his commission as Chief Justice in December 1692. Diary of Samuel Sewall, 1:370, 395, note 2; Sibley's Harvard Graduates, 1:43–45, 101, 202; Acts and Resolves, 1:43–45,101.

^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; another 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. David D. Hall, Witch-Hunting in Seventeenth-Century New England: A Documentary History 1638–1992 (Boston: Northeastern University Press, 1991), 95–96, 129–33, 158–61, 219, 274; Mary Beth Norton, In The Devil's Snare, 311–12; Peter Charles Hoffer, The Salem Witchcraft Trials: A Legal History (Lawrence, Kansas: University of Kansas Press, 1997), 144.

^46.�Suffolk County Massachusetts Probate Records, n.s., 1:360, microfilm; "Ruling of William Stoughton," 5 April 1694, Court Files Suffolk, 33:209, microfilm. On conventing, see Katherine Hermes, "Religion and Law in Colonial New England" (Ph.D. diss., Yale University, 1995); Hall, Worlds of Wonder, 172–76.

^47.� Stoughton was "scrupulous in his attention to ... the letter of the law." Johnson, Adjustment to Empire, 285. Swinburne, A Treatise of Testaments and Last Wills, 387; Godolphin, The Orphans Legacy, 65. Phips "received official notice of his recall" in early July 1694. In November he set sail for England where he died in 1695. Emerson W. Baker and John G. Reid, The New England Knight: Sir William Phips, 1651–1695 (Toronto: University of Toronto Press, 1998), 223–46; Hoffer, The Salem Witchcraft Trials: A Legal History, 141; Suffolk County Massachusetts Probate Records, n.s., 1:360, microfilm; "Ruling of William Stoughton," 5 April 1694, Court Files Suffolk, 33:209, microfilm.

^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. Lisa Gordis, Opening Scripture: Bible Reading and Interpretive Authority in Puritan New England (Chicago: University of Chicago Press, 2003), 20–25. 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 Hubbard who, in turn, had bought the land from William Penn in 1682. Suffolk Deeds, 14:5–6; John Frederick Martin, 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), 67.

^51.� "Deposition of Ann Despard," 31 January 1696, Court Files Suffolk, 43:3839, microfilm.

^52.� Ibid.

^53.� Ibid. On "murder will out," see Hall, Worlds of Wonder, 72; Crane, Killed Strangely, 20–26.

^54.� Mann, Neighbors and Strangers, 24; All the Severall Ordinances and Orders Made by the Lords and Commons Assembled in Parliament Concerning Sequestring the Estates of Delinquents, Papists, Spyes and Intelligencers (London, 1646); Leo Damrosch, The Sorrows of Quaker Jesus: James Nayler and the Puritan Crackdown on the Free Spirit (Cambridge: Harvard University Press, 1996), 192; Hoffer, The Salem Witch Trials, 123.

^55.� Konig, Law and Society in Puritan Massachusetts, 60; Mary Sarah Bilder, "Salamanders and Sons of God: The Culture of Appeal in Early New England" and Katherine Hermes, "'Justice Will Be Done Us': Algonquian Demands for Reciprocity in the Courts of European Settlers," in The Many Legalities of Early America, ed. Christopher Tomlins and Bruce H. Mann (Chapel Hill: Univ. of North Carolina Press, 2001), 55–56, 123–49; Acts and Resolves, 8:366; Calendar of State Papers, 14:498, 546, 638, 15:246, 312. Appeals to King and Council were mandated by the 1691 charter. Johnson, Adjustment to Empire, 181. News of the Privy Council's decision had reached Boston on July 12, 1696, the date when Sewall wrote that the "Laws; viz. Courts, Colledge, Habeas Corpus, Forms of Writts" were made void. March 24, 1697, was the day "apointed for nominating Judges, but the heat about what way should do it in was so great, that did nothing." Diary of Samuel Sewall, 1:429, 433–34, 450.

^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." George L. Haskins, "The Beginnings of Partible Inheritance in the American Colonies," Essays in the History of Early American Law, ed. David H. Flaherty (Chapel Hill: Published for the Institute of Early American History and Culture by the University of North Carolina Press, 1969), 209–10.

^57.� Konig, Law and Society, 171. Checkley had served as the prosecutor in the witchcraft cases beginning in July 1692. Norton, In The Devil's Snare, 239; John Murrin, "The Legal Transformation," 422; Baker and Reid, The New England Knight, 233. According to royal agent Edward Randolph, Checkley was "ignorant of the laws of England." "Memorial of Edward Randolph to the Council of Trade," 26 April 1696, Calendar of State Papers, 15:83. Checkley served as attorney general during the 1690s over the protests of Randolph, who favored Thomas Newton for the post. Acts and Resolves, 7:392, 478, 520, 643, 709; Johnson, Adjustment to Empire, 329–30.

^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. Matt Bushnell Jones, 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), 21–22; 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, 108, 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 practice 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 John Murrin, "Trial by Jury in Seventeenth-Century New England," in Saints & Revolutionaries: Essays in Early American History, ed. David Hall, John Murrin, and Thad Tate (New York: Norton, 1984), 114, 175. Some court officials, however, allowed sworn testimony even if they believed it to be erroneous. Konig, Law and Society, 140.

^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, 65.

^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. Anthony 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. Michael G. Hall, The Last American Puritan: The Life of Increase Mather, 1639–1723 (Middletown: Wesleyan University Press, 1988), 267, 269; Ross, "Puritan Jurisprudence," 10; 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, 78–79.

^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.

Defendants Date(s) Amount of Land/Damages Judgment

1. Clement Cock 1697–1698 15 acres/£100 plaintiff

2. Thomas and Samuel French 1698–1700 12 acres/£200 defendant

3. John Bowditch 1698–1700 60 acres/£400 defendant

4. Samuel White 1698, 1699 50 acres/£300 nonsuited

5. John Hollis 1702–1704 30 acres/£80 plaintiff

6. Thomas Gould 1699 "house and lands" nonsuited

Totals 162 + acres/ £1,080

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 Trespass," 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." "Deposition of Thomas Bannister," April 1699, Court Files Suffolk, 43:3897, microfilm.

^68.�Acts and Resolves, 8:368; George L. Haskins, "The Beginnings," 204–44.

^69.� Newton was "the first professional lawyer in Massachusetts." Murrin, "The Legal Transformation," 422; "Thomas Newton's Answer to Appeal," May 1703, Court Files Suffolk, 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, 294; 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." Joseph H. Smith, "Administrative Control of the Courts of the American Plantations," in Essays in the History of Early American Law, 289.

^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 Hubbard 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 50.

^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, 206–7.

^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), 138.

^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, 30–31; "Judgment of the Council," 2 June 1705, Miscellaneous Bound Volumes, Massachusetts Historical Society; "The Petition of Joseph Hill, Attorney to Anthony Penn," 1706, Miscellaneous Bound Volumes, Massachusetts Historical Society; Everett Kimball, The Public Life of Joseph Dudley: A Study of Colonial Policy of the Stuarts in New England, 1660–1715 (New York: Longmans, 1911), 91; Johnson, Adjustment to Empire, 385–86.

^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, 347. 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 administer 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," 12; Suffolk Deeds, 14:5–6; Diary of Cotton Mather (New York: F. Unger, 1957), 2:393, note 2.

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