# 'Way Down East; or, Portraitures of Yankee Life/John Wadleigh's Trial

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John Wadleigh's Trial
The Early Jurisprudence of New England, including a Sketch of John Wadleigh's Trial before Squire Winslow, for Sleeping in Meeting on the Lord's Day; with a brief Report of Lawyer Chandler's memorable Speech on the occasion.
The pilgrim fathers of New England, and their children of the first and second generations, are justly renowned for their grave character, their moral uprightness, which sometimes was rather more than perpendicular, and the vigilant circumspection which each one exercised over his neighbor as well as himself. It is true that Connecticut, from an industrious promulgation of her "Blue Laws," has acquired more fame on this score than other portions of the "universal Yankee nation," but this negative testimony ​against the rest of New England ought not to be allowed too much weight, for wherever the light of history does gleam upon portions further "Down East," it shows a people not a whit behind Connecticut in their resolute enforcement of all the decencies of life, and their stern and watchful regard for the well-being of society. The justice of this remark will sufficiently appear by a few brief quotations from their judicial records.
In the early court records of New Hampshire, in the year 1655, may be found the following entry:
"The Grand Jury do present the wife of Mathew Giles, for swearing and reviling the constable when he came for the rates, and likewise railing on the prudenshall men and their wives. Sentenced to be whipped seven stripes, or to be redeemed with forty shillings, and to be bound to her good behavior."
Another entry upon the records the same year is as follows:
"The Grand Jury do present Jane Canny, the wife of Thomas Canny, for beating her son-in-law, Jeremy Tibbetts, and his wife; and likewise for striking her husband in a canoe, and giving him reviling speeches. Admonished by the court, and to pay two shillings and sixpence."
​If it is consistent with rational philosophy to draw an inference from two facts, we might here consider it proved, that the pilgrim ladies of 1655 had considerable human nature in them. And from the following record the same year, it would appear also that there were some of the male gender among them at that day, who still exhibited a little of the old Adam.
"Philip Edgerly, for giving out reproachful speeches against the worshipful Captain Weggen, is sentenced by the court to make a public acknowledgement three several days; the first day in the head of the train band; the other two days are to be the most public meeting days in Dover, when Oyster River people shall be there present; which is to be done within four months after this present day. And in case he doth not perform as aforesaid, he is to be whipped, not exceeding ten stripes, and to be fined five pounds to the county."
The reader cannot but notice in this case, last cited, with what stern purpose and judicial acumen the severity of the penalty is made to correspond with the enormity of the offence. The crime, it will be seen, was an aggravated one. The gentleman against whom the reproachful speeches were uttered was a Captain; and not only a Captain, but a Worshipful Captain. ​Whether Captain Weggen was the commanding officer of the train band, or not, does not appear; but there was an appropriate fitness in requiring, that the crime of uttering reproachful speeches against any Captain, should be publicly acknowledged at the head of the train band. There the culprit would have to face all the officers, from the captain down to the corporal, and all the soldiers, from the top to the bottom of the company, could point the finger of scorn at him.
But as the injured party in this case was a worshipful captain, it was very proper that a penalty of a higher grade should be affixed to the sentence. Hence the withering exposure of the offender to make public acknowledgments on two several occasions, "to be the most public meeting days in Dover, when Oyster River people shall be there present."
Whatever may be said at the present day, as to the temperance reformation being of modern origin, it may be affirmed without hazard that the good people of New England two hundred years ago, were decided and strenuous advocates of temperance. They were not tee-totallers; they did not prohibit the use of those "creature comforts" altogether; but if any one among them proved to be a wine-bibber, or abused his privilege of drinking, woe be to him, he had to feel the ​force of the law and good government. Witness the following court record in New Hampshire, in 1657:
"Thomas Crawlie and Mathew Layn, presented for drinking fourteen pints of wine at one time. Fined three shillings and fourpence, and two fees and sixpence."
The good people of the province of Maine in those early days have also left proof, that they were on the side of industrious and good habits and wholesome instruction. Their Grand Juries present as follows:
"We present Charles Potum, for living an idle, lazy life, following no settled employment. Major Bryant Pembleton joined with the Selectmen of Cape Porpus to dispose of Potum according to law, and to put him under family government."
So it seems there were some men, even in the early days of the Pilgrims, who enjoyed that more prevalent luxury of modern times, living under family government.
Again say the Grand Jury, "We present the Selectmen of the town of Kittery, for not taking care that their children and youth be taught their catechism and education according to law."
They took good care in those good old times, that the dealings between man and man should be on ​equitable and fair principles, and without extortion. In 1640, the Grand Jury say—
"Imprimis, we do present Mr. John Winter, of Richmond's Island, for extortion; for that Thomas Wise, of Casco, hath declared upon his oath that he paid unto Mr. John Winter a noble (six shillings and eightpence), for a gallon of aqua vitæ, about two months since; and further, he declareth that the said Winter bought of Mr. George Luxton, when he was last in Casco Bay, a hogshead of aqua vitæ for seven pounds sterling."
The punishment inflicted on Mr. John Winter, for extorting from his customer two hundred per cent. profit on his merchandise, is not stated; but if one Thomas Warnerton, who flourished in the neighborhood at that time, had any agency in fixing the penalty, it probably went rather hard with him; for this latter gentleman must have had a special interest in keeping the price of the article down, inasmuch as it is related of him, that in taking leave of a friend, who was departing for England, "he drank to him a pint of kill-devil, alias rum, at a draught."
Juliana Cloyse, wife to John Cloyse, was "presented for a talebearer from house to house, setting differences between neighbors." It was the ​misfortune of Juliana Cloyse that she lived at too early an age of the world. Had her lot been cast in this day and generation, she would probably have met with no such trouble.
Thomas Tailor was presented "for abusing Captain F. Raynes, being in authority, for thee-ing and thou-ing of him, and many other abusive speeches."
At a town meeting in Portsmouth, March 12, 1672, "voted, that if any shall smoke tobacco in the meeting-house at any public meeting, he shall pay a fine of five shillings, for the benefit of the town."
In a previous year, September 25th, at a town meeting, it was "ordered that a cage be made, or some other means be invented by the Selectmen, to punish such as sleep or take tobacco on the Lord's day, at meeting, in the time of the public exercise."
It appears from this record that the town reposed unlimited confidence in the inventive powers of the Selectmen; and it appears also that the energetic order of the town, passed on this occasion, was a few years afterwards successfully carried into practical operation. The following is preserved on the town records, July 24, 1771.
"The Selectmen agree with John Pickering to build a cage twelve feet square, with stocks within it, and a ​pillory on the top, a convenient space from the west end of the meeting-house."
Thus far we have confined ourselves to official records; but some of the unofficial and unwritten records of those days are of equal importance to be transmitted to posterity, one of which it is our present purpose to endeavor to rescue from oblivion.
The affair of the cage, with stocks inside, and a pillory on the top, served to wake up the congregation for a while, so that no one was caught napping or chewing tobacco in the meeting-house during the public exercises for several Sabbaths after this invention of the Selectmen became a "fixed fact" at the west end of the meeting-house. As the novelty of the thing wore off, however, the terror in some degree seemed to depart with it. There was a visible carelessness on the part of several old offenders, who were observed to relax their attention to the services, wearing very sleepy looks, sometimes yawning, and occasionally putting themselves into unseemly positions, concealing their faces, so that the searching scrutiny of old Deacon Winslow himself could not decide for certainty whether they were asleep or not.
Among these delinquents, John Wadleigh seemed to be the most conspicuous, often leaning his head so ​as to hide his eyes during half sermon time. He was also gruff and stubborn when questioned on the subject. So marked was the periodical reeling of his head, that Deacon Winslow began to watch him as narrowly as a cat would a mouse. Not that the Deacon neglected the sermon; he always took care of that matter, and for his own edification, as well as an example to the congregation, he steadily kept one eye on the minister, while the other was on John Wadleigh. There began to be sundry shrugs of the shoulders among the knowing ones of the congregation, and remarks were occasionally dropt, such as "Don't you believe John Wadleigh was asleep during half the sermon yesterday?" with the reply, "Why yes, I know he was; but he must look out, or he'll buy the rabbit, for Deacon Winslow keeps his eye upon him, and if he don't make an example of him before long, I won't guess again."
It was whispered by some, who were out of the pale of the church, that the Deacon's watchful powers with regard to Wadleigh were a little more acute in consequence of Wadleigh's having over-reached him somewhat in the sale of a cow, at which the Deacon, who prided himself on his sound judgment, it was alleged, always felt a little mortified. The Deacon ​however was a very upright specimen of the old puritan race, and it is not probable his sense of justice and right was much warped. True, he manifested considerable zeal in looking after the delinquencies of John Wadleigh, but his "zeal was according to knowledge;" he knew Wadleigh to be a disregarder of the Sabbath, sleepy-headed and profane, and he did therefore feel a zealous and charitable desire to administer to him a little wholesome reproof, provided it could be done in a just, lawful, and Christian manner.
He even felt it excusable, to accomplish so good a purpose, to enter into a pious fraud with Parson Moody. He had observed that though Wadleigh generally appeared to be asleep at the close of the sermon, yet when the congregation immediately rose up to prayers, he always managed some how or other to be up with them, but with a flushed face and guilty countenance. The Deacon believed, and it was the general opinion, that Wadleigh was asleep on these occasions, and that when the congregation began to rise, it always awoke him. He therefore suggested to Parson Moody, that on the next Sabbath, at the close of the sermon, instead of immediately commencing his prayers, he should sit quietly down three or four minutes, as though he were a little ​fatigued, or had some notes to look over, and see whether Wadleigh would not continue to sleep on, while the attention of every one awake would of course be attracted to the Parson. This little plan was tried, but without any very satisfactory result. It added something to the presumptive testimony in the case, but nothing clear and positive. Wadleigh held his head down about half a minute after the monotonous tones of the preacher's voice had ceased to fall upon his ear, when he started suddenly, rose to his feet, looked round a moment confusedly, and sat down again.
At last, however, repeated complaints having been made to the Grand Jury, they saw fit to "present John Wadleigh for a common sleeper on the Lord's day, at the publique meeting," a thing which Deacon Winslow earnestly declared they ought to have done weeks before they did.
The Deacon was in fact the most important personage in town, being not only the first officer in the church, but also a civil magistrate, before whom most of the important causes in the place were tried. Of course the offender Wadleigh, when the Grand Jury had once caught him in their net, had a pretty fair chance of having justice meted out to him. The ​jury met early on Monday morning, and the first business before them was the case of Wadleigh, against whom a fresh lot of complaints had come in. They were not long in finding a bill against him as above-mentioned, and a warrant was put into the hands of Bill Cleaves, the constable, to hunt Wadleigh up, and take him before Deacon 'Squire Winslow, and summon in the witnesses for his trial.
Bill Cleaves tipped his hat to the 'Squire as he went by upon his official duties, and gave him to understand what was going on. Whereupon 'Squire Winslow proceeded to put his house in court-order, having the floor of his large open hall, where he generally held his courts, swept and newly sanded, and things all put to rights. One o'clock was the hour appointed for the trial, for as the neighborhood all dined at twelve, the 'Squire said that would give them an opportunity to go to the work with a full stomach and at their leisure.
Accordingly, at one o'clock the parties began to assemble in the hall. 'Squire Winslow, who believed that a pipe after dinner was a good settler to the stomach, and always practised accordingly, came in with a pipe in his mouth, his spectacles resting on the top of his forehead, and taking a comfortable position ​in his chair, placed his feet, where he had a perfect right to place them, being in a land of Liberty, and in his own house, upon the top of the table. The prisoner, who had been found asleep in his chair at his own dinner table, was taken away suddenly, like Cincinnatus or Putnam from the plough, and brought into court, just as he was, in his shirt sleeves, and placed at the other end of the table, opposite the feet of Gamaliel. Lawyer Chandler, who was always on hand to help the 'Squire along in all knotty cases, appeared with book in hand ready to lay down the law and testimony. Lawyer Stebbins was allowed by the courtesy of the court to take his seat by the side of the prisoner to see that he had fair play shown him. Bill Cleaves, the constable, took his seat a little behind the 'Squire, crossed his legs, and fell to smoking a cigar with great composure.
'Squire Winslow's faithful bull dog, Jowler, whose duty it was to keep order in the house, took his watchful station under the table, directly under his master's feet, ready for any emergency. While the constable's dog, Trip, who had done his part in running down the game and getting it housed, felt that his duties were over, and caring but little for the court scene, he had stretched himself upon the floor, ​and was as sound asleep as ever John Wadleigh was in church. The other witnesses and spectators present were too numerous to mention.
The indictment was read, and the prisoner called upon to answer, who, at the suggestion of Lawyer Stebbins, replied, "Not guilty;" at which Deacon 'Squire Winslow shook his head, and remarked in a low tone, "We shall see about that."
The first point made by Lawyer Chandler, was, that the prisoner should prove his innocence; and he argued the point with much force and eloquence. It was no easy matter to prove that a man was actually asleep, but it was easy enough for a man to prove that he was awake. Therefore, from the nature of the case, the burden of the proof ought to lay upon the prisoner. "Now, we charge that on sundry occasions, Wadleigh was asleep in church, against the laws of the town and the well-being of society. Now, if he was not so asleep, let him prove his alibi. A criminal always has a right to an alibi if he can prove it. May it please your honor, I take that ground," said Chandler, "and there I stick; I call upon the prisoner to prove his alibi."
Lawyer Stebbins stoutly contended that the alibi could not apply in this case. He had never heard ​nor read of its being used in any case except murder. And the wisdom of the court finally overruled that it belonged to the prosecutors to prove the sleep.
"Well, if that be the case," said Chandler, "I move, your honor, that Solomon Young be sworn. I had no idea the burden of proof was going to lay on us, but still I've come prepared for it."
Solomon Young was sworn, and took the stand.
Question by Chandler.—Do you know that John Wadleigh sleeps in meeting?
Witness.—I guess taint no secret; I don't know anybody but what does know it.
Chandler.—Well, do you know it? That's the question.
Stebbins objected to the question. It was a leading question, and they had no right to put leading questions to the witness.
Chandler.—Well, then, let the court put the questions.
Justice Winslow.—What do you know about John Wadleigh's sleeping in meeting?
Witness.—I know all about it; taint no secret, I guess.
Justice.—Then tell us all about it; that's just what we want to know.
​Witness (scratching his head).—Well, the long and short of it is, John Wadleigh is a hard worken man. That is, he works mighty hard doing nothing; and that's the hardest work there is done. It'll make a feller sleepy quicker than poppy leaves. So it stands to reason that Wadleigh would naterally be a very sleepy sort of a person. Well, Parson Moody's sarmons are sometimes naterally pretty long, and the weather is sometimes naterally considerable warm, and the sarmons is some times rather heavy-like.
"Stop, stop," said 'Squire Winslow, "no reflections upon Parson Moody; that is not what you were called here for."
Witness.—I don't cast no reflections on Parson Moody. I was only telling what I know about John Wadleigh's sleeping in meeting; and it's my opinion, especially in warm weather, that sarmons that are heavy-like and an hour long naterally have a tendency—
"Stop, stop, I say," said 'Squire Winslow, "if you repeat any of these reflections on Parson Moody again, I'll commit you to the cage for contempt of court."
Witness.—I don't cast no reflections on Parson Moody. I was only telling what I knew about John Wadleigh's sleeping in meeting.
​'Squire Winslow.—Well, go on, and tell us all about that; you want called here to testify about Parson Moody.
Witness.—That's what I'm trying to do, if you wouldn't keep putting me out. And its my opinion in warm weather, folks is considerable apt to sleep in meeting; especially when the sarmon—I mean especially when they get pretty tired. I know I find it pretty hard work to get by seventhly and eighthly in the sarmon myself; but if I once get by there, I generally get into a kind of waking train again, and make out to weather it. But it isn't so with Wadleigh; I've generally noticed if he begins to gape at seventhly and eighthly, its a gone goose with him before he gets through tenthly, and he has to look out for another prop to his head somewhere, for his neck isn't stiff enough to hold it up. And from tenthly up to sixteenthly he's dead as a door nail; till the Amen brings the people up to prayers, and then Wadleigh comes up with a jerk, jest like opening a jack-knife.
Stebbins, cross-examining the witness.—Mr. Young, how do you know that Wadleigh is asleep on these occasions you speak of?
Witness.—Cause he is; everybody says he is."
Stebbins.—That won't do; we don't want you to ​to tell us what everybody says. You must tell how you know he is asleep?
Witness.—Well, cause he begins to gape at seventhly and eighthly, and props his head up at tenthly, and don't stir again till the Amen.
Stebbins.—Well how do you know he is asleep at that time?
Witness.—Cause when I see him settle down in that kind of way, and cover his face up so I can't see his eyes, I know he's asleep.
Stebbins.—That's no proof at all; the witness only knows he was asleep because he couldn't see his eyes.
Chandler.—Well, this witness has proved that the prisoner exhibited all the outward signs of sleep; now I will introduce one to show that he also exhibited internal evidence of being asleep. Your honor must know that it is a law in physics and metaphysics, and the universal science of medicine, that being deprived of one sense sharpens the other senses in a most wonderful degree. Now I move your honor that my blind friend here behind me, Jonathan Staples, be sworn.
Jonathan Staples was sworn accordingly.
Chandler.—Now, Staples, do you know that John Wadleigh sleeps in meeting?
​Staples.—Yes, I du.
Chandler.—Do you know it?
Staples.—Yes, I know it.
Squire Winslow.—How do you know it?
Staples.—Why, don't I hear him sleep every Sabbath?
Chandler.—What is the state of your hearing?
Staples.—It is as sharp as a needle with two pints.
Chandler.—Can you always tell by a person's breathing, whether he is asleep or awake?
Staples.—Jest as easy as I can tell whether I'm asleep or awake myself.
Chandler.—Tell us where you sit in meeting, and how you know Wadleigh is asleep.
Staples.—Well, I goes to meeting of a Sabbath, and commonly takes my seat in the seventh seat at the west end of the meeting-house. And John Wadleigh he sets in the sixth seat, and that brings him almost right afore me. All the first part of the exercises he has a waking breath, till it gets along into the sarmon, say about seventhly or eighthly, and then he begins to have a sleepy breath; and when it gets along into tenthly, he commonly goes it like a porpus.
Squire Winslow.—Do you know him to be asleep at these times?
​Staples.—I guess I du; I dont see how I could help it. I know him to be asleep jest as well as I know I'm awake.
Squire Winslow.—Well, that's sufficient, unless Mr. Stebbins wishes to ask any questions.
Stebbins.—Now, Staples, do you pretend to say that you can tell John Wadleigh's breath from the breath of any other person in meeting?
Staples.—Sartainly I do. Aint everybody's breath pitched on a different key? There's as much difference in breathing as there is in speaking.
Chandler.—I'm willing, your honor, to rest the cause here. I have a plenty more witnesses as good as these, but I consider the case so clearly proved that it is hardly necessary to bring on any more unless my friend Stebbins should offer anything on the other side which may need to be answered.
Stebbins.—I dont consider it necessary, may it please your honor, for me to say a single word. I dont consider that there has been the least particle of evidence offered here yet, to prove that John Wadleigh ever slept a wink in meeting in all his life. And surely your honor wont convict this man without any proof at all against him. Look at the evidence, sir; what does it amount to? One man has seen him lean his ​head, and another has heard him breathe; and that is the sum total. Why, sir, if you convict a man on such evidence as this, no man is safe. Every man, is liable to lean his head and to breathe in meeting. And if that is to be considered evidence of sleep, I repeat, who is safe? No, sir; as I said before, I dont consider it necessary for me to say one word on the subject, for there has been no evidence offered to prove the offence charged.
Here Lawyer Chandler rose with fire in his eyes and thunder on his tongue.
May it please your honor, said he, I am astonished, I am amazed at the hardihood and effrontery of my learned friend, the counsel on the opposite side of this cause. Why, sir, if there ever was a case made out in any court under heaven, by clear, positive, and irresistible evidence, it is this. Sir, I say, sir, evidence as clear as sunshine and irresistible as thunder. Yes, sir, as irresistible as thunder. First, sir, an unimpeachable witness swears to you, that he sees the culprit Wadleigh, the prisoner at the bar, gaping in meeting and exhibiting all the signs of going to sleep; then he sees him flatting away and muzzling about to find a prop for his head. Now, sir, men don't want a prop for their heads when they are awake. It's only ​when they are asleep they want a prop for their heads, sir. Well, now sir, follow the prisoner along a little further, and what do we find, sir? Do we find him wide awake, sir, and attending to the services as a Christian and as a man ought to do? No, sir. We find him from tenthly up to sixteenthly, as dead as a door nail. Them's the witnesses' words, sir, as dead as a door nail. What next, sir? Why, then the witness swears to you, that when the congregation rise up to prayers, Wadleigh comes up with a jerk, jest like opening a jack-knife. Them's the witnesses' very words, sir. Now, sir, persons that's awake don't get up in meeting in that kind of style. It's only them that's waked up out of a sudden sleep, that comes up with a jerk, like the opening of a jack-knife, sir. What stronger proof do we need, or rather what stronger proof could we have, of all the outward signs of sleep, than we have from this witness? With regard to the internal evidence of sleep, another witness swears to you that he hears Wadleigh asleep every Sabbath; that he can tell when a person is asleep or awake by his breathing, as easily as he can tell whether he's asleep or awake himself. This witness swears to you that during the first part of the exercises Wadleigh has a waking breath, and when ​the minister gets along to seventhly and eighthly he begins to have a very sleepy breath. Well, sir, when the minister gets to tenthly, the witness swears to you that Wadleigh commonly goes it like a porpus. Yes, sir, so sound asleep, that's the inference, so sound asleep, that he goes it like a porpus.
Sir, I will not say another word. I will not waste words upon a case so strong, so clear, and so perfectly made out. If this evidence doesn't prove the culprit Wadleigh to be a common sleeper in meetin on the Lord's day, then there is no dependence to be placed in human testimony. Sir, I have done. Whether this man is to be convicted or not, I clear my skirts; and when posterity shall see the account of this trial, should the culprit go clear, they may cry out "judgment has fled to brutish beasts and men have lost their reason;" but they shall not say Chandler did not do his duty.
The effect of this speech on the court and audience was tremendous. It was some minutes before a word was spoken, or any person moved. All eyes still seemed to be rivetted upon Squire Chandler. At last Squire Winslow spoke.
This is a very clear case, said he; there can be no question of the prisoner's guilt; and he is sentenced ​to be confined in the cage four hours, and in the stocks one hour. Constable Cleaves will take charge of the prisoner, and see the sentence properly executed.