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Originally published in the Historic Nantucket, Vol. 44, no. 2 (Summer 1994), p. 20-22

The Courts of Nantucket
By Allen Coffin

The Law and Lawyers from an Early Period.

"Taken in courtroom, Nantucket, 1909"

My recollections of the courts in Nantucket date back to an early period of my life, as I was born near the old courthouse which stood upon the site ... near the Soldier's Monument, now called Monument Square. A tall flagstaff known as the Liberty Pole and a wooden oil-lamp post stood upon the triangular space now enclosed by the monument fence. My grandfather, James Bunker, holding the office of Town Clerk and Constable, was the custodian of the courthouse edifice, which also served as a Town Hall, and the upper floor as a schoolroom where I attended school.

The largest bell upon the island hung in the courthouse belfry, but in my time it was used only as a fire alarm bell, its tone being louder and very unlike the church bells. On the courthouse front was nailed the sign of "Main Street," beneath which designation was faintly preserved the words "State Street," indicating that the name of the street had been changed at some period more remote. Long before the erection of this courthouse and the raising of the Liberty Pole this section of the town was known as the "Old White Bone" because the jaw bone of a whale stood at the corner of Main and Gardner Streets.

During the sittings of the courts the floor was covered with coarse mats which reduced to a minimum the foot-falls of attorneys, jurors and sheriffs and all others "having anything to do with the Honorable the Supreme Court" and the Court of Common Pleas, for Nantucket then, with its vast maritime interests had been awarded a Supreme Court, and causes involving matters of admiralty and the complex business relations incident to the whaling industry and the manufacture and sale of oil and candles and the varied other industries connected therewith constituted the principle business for our courts, and brought to our Island many of the most eminent proctors and attorneys of the Commonwealth — Daniel Webster in the resplendency of his legal fame once appearing and for the fee that induced him to come to the Island Court he agreed to argue the whole docket upon either side that his Quaker client chose to designate. He not only won the cause for which he was primarily secured, but all the other causes which he advocated, and the client who secured the services of the eminent proctor — whose name was Gardner — farmed out the services of his attorney to other litigants for enough to cover the expense of his own suit. I do not undertake to vouch for the truth of this story in detail, although I have been credibly informed that Webster often told the story of his coming to Nantucket and arguing the whole docket for one fee, while his Quaker client received the profits.

The earliest causes of litigation which I recall were known as the "sheep cases" which fomented discord and engendered antagonisms between neighbors and friends and sundered families that had previously lived in harmony and peace, so that the common of pasture upon which basis our Island was first peopled has become only a memory and the delightful annual festivity of "sheep shearing" with its unique pastoral scenes mellowed by the plaintive lambkin bleats throughout the vast arena of the shearing pens can never be recalled. Some of the largest owners of the commons owned no sheep while others owned more sheep than commons, and, at the time of this memorable controversy, it was found that the man owning the largest flock of sheep on the Island owned not a single common. The system of stock raising which had contributed to the earliest prosperity of the Island had outlived its adaptability to the conditions of the people, and the wool market is no longer quoted at our afternoon teas.

On the 20th of June, 1795, the Nantucket Bank was robbed. It was the third bank chartered in Massachusetts, two others having previously been chartered at Boston. The case got into the courts as a number of Nantucket citizens were accused of the robbery and as being accessories before the fact. The capital stock was $40,000 to be paid in three different installments. One installment only had been paid in, but there had been large deposits made, and about $8,000 more than all the stock paid in was lost. The indictment recited the kind of money stolen as follows:

400 pieces of French coined gold .........................$1,733
150 Spanish pistoles .............................................. 550
300 English guineas ............................................ 1,400
50 English half guineas ........................................... 116
20 pieces of coined gold called half Joannes ............. 176
18 pieces of coined gold called quarter Joannes .......... 72
$ 4,047 In dollars ................................................ 12,007
4430 French crowns ............................................. 4,873
Total................................................................. $20,927

This legal controversy lasted many years and produced a most bitter hatred between parties interested. The papers in the case are not recorded here. They may have been taken to Boston and never returned for record. Randall Rice, one of the five persons indicted by the grand jury, was the only one found guilty and his sentence was delayed until the Governor pardoned him. A pamphlet narrative of the robbery, published in 1816, states emphatically that no Nantucket man was concerned in the robbery and that the real robbers of the bank were James Witherly, John Clark, and Seth Johnson. The case has been immortalized by Nantucket bards.

Of the resident lawyers who maintained offices at Nantucket I recall Charles K. Whitman, who was a justice of the peace and of the quorum and held a justice's court. Josiah Hussey of like attainments. Charles Bunker, who was afterwards United States Consul at Lahaina, Hawaii: and James M. Bunker, who subsequently became the judge of probate for Nantucket County. My old school teacher, Edward M. Gardner, and Alfred Macy were subsequently admitted to the bar. The former was judge of probate at the time of his death and the latter filled a place in the Governor's council.

In the retirement of his ample house and lands on the Cliff road lived Esquire Benjamin Gardner, who had been the clerk of the courts at Nantucket for a number of years. A witness who was to testify in a case stated to the court that he had conscientious scruples about taking an oath and asked to be allowed to affirm under the pains and penalties of perjury, as all Quakers were permitted to do when testifying in court. It was shown to the court, however, that the witness had never before exhibited any scruples about taking an oath, but, on the contrary, was frequently addicted to swearing when there was no occasion for it. The judge directed the clerk to administer the usual oath to the witness and the clerk, having conscientious scruples about compelling a man to swear against his will, said he would rather relinquish the office than do so. The judge removed the clerk and appointed George Cobb, who administered the oath, and the witness gave his testimony.

As a boy I was sent to the residence of Esquire Benjamin Gardner on an errand. He was in his garden and the lady of the house suggested my meeting him. I found the old gentleman and made known to him my errand and he said he would have to go to the house to get the money. On our way to the house he inquired my name and then the name of my father. On learning my father's name he seemed pleased and told me that he had known my father and mother many years before and had officiated as the magistrate at their marriage. He was a genial, courtly gentleman and, in addition to his legal labors, was the popular magistrate of his time for officiating at marriage ceremonies where gentlemen of the cloth were not desired, or one of the contracting parties was not within the Friends meeting fold which precluded the Quaker service.

George Cobb, when notified that he had been appointed clerk of the Court of Common Pleas, was at work in a cooper's shop. He washed his hands, rolled down his shirt sleeves, put on his coat and went to the court house, was sworn in, and commenced his career as clerk of the courts, a position which he held with honor and efficiency for many years, almost to the end of his octogenarian career, besides filling other places of trust conferred upon him by his fellow citizens.

There have been many offices of legal and semi-judicial functions in Nantucket that have been filled by non-professional men who have been able to grasp their stations and perform their duties with painstaking accuracy and satisfaction. Our present judge of probate (Thaddeus C. Defriez), now, perhaps, the oldest in service of any of the probate judges, commenced his career upon a whaleship and rose to the command of a ship before entering the domain of the probate jurisprudence. And the register of probate now in service (Henry Riddell), as well as most of his predecessors, commenced his official service without having previously been "learned in the law"; as also the present clerk of the Superior Court, like many of his predecessors, commenced duty without previous legal education. And, in looking back through the history of our local courts and justices and officials, I find many names of persons who had enjoyed no special training for the official duties which they performed with conscientious grace, dignity and fidelity.

At this point I may name a few of the Nantucket people who have acquired a legal education and have become more or less distinguished in their practice in the courts of the United States.

Walter Folger, who became a member of Congress from this district, and distinguished as an astronomer, a mechanist and a mathematician, became learned in the law and was made a Judge of the Massachusetts Court of Common Pleas, and resigned his judgeship because its duties were not consistent with his higher ideals of citizenship.

Jacob Barker, remarkable as a financier of national renown, who established the first steamboat line between Nantucket and the Continent, qualified himself as an attorney at law in New York for the purpose of pleading his own cause in the court, not having confidence in any of the lawyers then practicing at the New York Bar, (his cause being an important one) and won his suit to the dismay of his opposing counsel, thus reversing the legal maxim that "the lawyer who manages his own suit has a fool for a client."

Charles J. Folger, Chief Justice of the Supreme Court of Appeals of New York, and Secretary of the U. S. Treasury, was another favored son of Nantucket, learned in the law.

Timothy G. Coffin, the nestor of the legal fraternity of the Bristol County bar for many years, is remembered as a proctor of magnificent attainments. He bequeathed his library to the Coffin School and the Town of Nantucket.

In the primeval government at Nantucket gentlemen were doubtless called to perform legal and municipal functions without a previous educational or legal preparation therefore. Tristram Coffin was appointed the first Chief Magistrate of the Island by Governor Lovelace of New York, and Thomas Mayhew Chief Magistrate of Martha's Vineyard, in 1671, and the two Chief Magistrates constituted a General Court for the two islands, with appellate jurisdiction over both islands. The records of the General Court were kept at Edgartown and several matters concerning Nantucket are found only with the archives at Edgartown. The several Chief Magistrates of Nantucket appear, from the records, to have exercised judicial functions and to have held courts and rendered decisions upon various matters where 20 pounds in value or less were in issue, and of criminal matters where life and limb or banishment was not involved, and might punish offenders so far as "whipping,stocks and pilloring or other public shame" might suffice. And parties not satisfied with the Magistrate's decision might appeal to the General Court next sitting, whether it be at Nantucket or Edgartown. But the matters beyond the jurisdiction of the island courts were heard and determined by the Court of Assizes at New York. Tristram Coffin, Thomas Macy, John Gardner and Richard Gardner, each in turn, exercised judicial as well as administrative functions over the island.

The General Court consisting of the Chief Magistrates of Nantucket and Martha's Vineyard, and the four Assistants — two being chosen from each island — not only possessed appellate jurisdiction over inferior court decisions of the two islands, but it was empowered with and exercised legislative rights to enact laws for the better government of the jurisdiction, not repugnant to the laws of England. This General Court at its first sitting enacted the first prohibitory liquor law anywhere recorded, and it may be found among the court archives at Edgartown. It prohibited the sale of intoxicating drinks to Indians, the evil of rum drinking having become a serious matter among them at this early period of the island's history. Our ancestors, for the love of gain, engaged in the traffic of intoxicating beverages before the enactment of this prohibitive liquor law; and after its enactment, violated its provisions. Yet the law, then as now, was occasionally enforced, and the illicit article confiscated. Under date of March 15, 1676, John Gardner complained to Governor Lovelace of New York that a half barrel of rum had been taken from him by Thomas Macy, then Chief Magistrate of Nantucket. Mr. Gardner also represented that the Indians were not pleased with the enforcement of the laws which discriminated against them and that they would fight to maintain their rights. Thomas Macy, two months later under date of May 9, 1676, wrote Governor Lovelace concerning his apprehensions of the Indians if strong drink was permitted to be sold them. He asks the Governor to make an order prohibiting any vessel that shall come into the harbor from selling strong drink to Indians, stating that he believed an order from the Governor of New York would have more force than laws enacted by the local Magistrates. Mr. Macy concludes his representation to the Governor in this strong language: "Concerning the peace we have heretofore enjoyed I cannot imagine it could have been if strong liquor had been sold among the Indians as formerlly [sic]. For my own part I have been to the utmost opposed to the trade these 38 years; and I verily believe it has been the only ground for the present ruin to both nations. It has kept the Indians from civility, and they have been drunken and kept all the while like wild bears and wolves in the wilderness."

Peter Folger was Clerk of the Court until removed by Thomas Macy, who appointed his own son-in-law, Wm. Worth, to be Clerk. Folger was imprisoned for contempt of court. The issues involved went to the Court of Assizes at New York. Macy's term as Chief Magistrate expired, and the little community was in turmoil, the people taking sides upon the legal problems of that period. Tristram Coffin was again called to the Chief Magistracy, and he took the oath of office before his son, Peter Coffin, who was acting as an Assistant Magistrate during the term of Thomas Macy. Tristram Coffin affixed his signature to this oath of office upon the official record book, and it is the only autograph of this Chief Magistrate that I have observed in all the records of the island.

Peter Coffin, the oldest son of Tristram, born at Brixton, County of Devon, England, in 1631, must have acquired a knowledge of the law somewhere. He was reputed to be the richest of the first purchasers of the island. After his permanent removal to New Hampshire and serving some time as Associate Justice of that colony, he was made Chief Justice of the Supreme Court. He died at Exeter, March 21, 1715, although most of his judicial life was passed at Dover. The Reverend Joshua Moody, an independent preacher at Portsmouth, New Hampshire, had been convicted under the Uniformity Act of 1684, and imprisoned thirteen weeks and then dismissed with the admonition to preach no more under penalty.

Peter Coffin was one of the judges who imposed that sentence. For a time afterward Moody preached in Boston, and then came back to Portsmouth. Pastor Moody's version of the affair follows:

"The judge of the court was Walter Barefoot, the justices Mr. Fryer, Peter Coffin, Thomas Edgerly, Henry Green and Henry Robey. Overnight four of the six dissented from his imprisonment, but before next morning, Peter Coffin, hectored by Canfield, drew off Robey and Green. Only Mr. Fryer and Edgerly refused to consent, but by the major part he was committed. Not long after, Green repented and made his acknowledgement to the pastor, who frankly forgave him. Robey was excommunicated out of Hampton church for a common drunkard, and died excommunicate, and was by his friends thrown into a hole, near his house, for fear of an arrest of his carcase. Barefoot fell into a languishing distemper, whereof he died. Coffin was taken by the Indians and his house and mills burnt, himself not slain but dismissed. The Lord give him repentance, though no sign of it has appeared. Psalm ix, 16."

James Coffin, the third son of Tristram, who was also born at Brixton, England, in 1640, two years before the family removed to New England, was the first Judge of Probate for Sherburne in Nantucket.

The earliest court records in the office of the Clerk of the Courts for Nantucket County bear the date of 1721. It is an interesting record of the causes of litigation at that period. The first entry is of a bond filed: Benjamin Quithel, of Dighton, as principal and Ebenezer Pitts, of the same town, as surety, in the sum of sixty pounds for the appearance of the said Quithel to answer to His Majesty's Court for charges against him. Quithel did not appear, and after being called three times, was defaulted.

At the same session of the Court, "Will Sasapana, an Indian, complains against Eben Cain, an Indian, that he lost his coat and twenty-five shillings in money and two silk neck cloths, being taken from him when asleep, and his coat found on the said Eben Cain.

"Eben Cain, being examined, says he got the coat at Ezeky's house; and after a full hearing, it appearing to the Court that Titus, the son of Ezeky, was with Cain, ordered that Titus be sent for and the Court then adjourned till tomorrow at three o'clock in the afternoon, at which time both Titus and Eben Cain, being severally examined, they endeavored to lay the taking of the coat upon each other; and in the end were both found equally guilty. Ordered that Titus and Eben Cain shall each of them pay to Will Sasapana four pounds ten shillings, being their part of treble damages — the coat returned, valued at three pounds, to be a part — and shall pay each a fine of twenty shillings to the King, or be whipped not exceeding ten stripes; and Titus shall pay four shillings and sixpence costs of prosecution and stand committed till sentence be performed."

Tooth Harry and Jo. Bones, Indians, were complained of by Thomas Bunker for stealing 8 gallons of rum and for breaking windows in Bunker's house. They were tried and convicted, and this is the judgment of the Court:

"The sentence of the Court that Tooth Harry and Jo. Bones shall be branded in the forehead with the letter B, and shall pay to Thomas Bunker £7-7s-6d, and for other Court charges 16s-6d; in the whole £8-4s-6d. They were both branded with the letter B according to the sentence."

The earliest books of the Proprietors contain records of the court proceedings anterior to the entries found in court record books. Some of the court proceedings are interesting but not elevating in their moral tone. The aborigines were frequently before the courts charged with petty crimes and misdemeanors as between themselves and also between themselves and the whites. And again the white settlers during the earlier occupation of the island were not always in harmony and accord. They were not exempt from legal friction, and many legal complications arose not especially consistent with the better angels of their nature. Court records furnish a better index of the true character of a people than the Parish records. For it may be remembered that the white population increased to rising seven hundred souls before any religious society was gathered among them, a like parallel among English speaking colonists can nowhere else be found. But, compared with the difficulties which afflicted many New England communities — the oppressive spirit of puritanic laws, the intolerance of religious opinions, the prohibitions concerning female attire, and the Indian warfares — Nantucket was indeed blessed with "plenty's golden smile" and a "refuge of the free."