A Fundamental Flaw (Part III)

In this final installment, Roby’s checkered career as a justice.

Justice of the Court of Sessions

New Hampshire received its name with the grant to Captain John Mason on November 7, 1629. Mason poured his own money into improving his grant, but when he died unexpectedly in 1635, his widow informed his tenants that they would have to shift for themselves. These men, who had built the settlements of Portsmouth and Dover, looted the entire property, selling off the cannon and cattle and dividing the land among themselves. Other groups encroached on the southern end of Mason’s grant to settle Hampton and Exeter. By 1643 all four towns were under the jurisdiction of the Massachusetts Bay Colony, but when Mason’s heir Robert came of age in 1650, he began pressing his claims of ownership. Nothing came of it until 1679, when, to break the power of Massachusetts, Charles II chartered the Royal Province of New Hampshire. The King appointed a locally-constituted president and council, but would later send Lieutenant Governor Edward Cranfield to oversee the affairs of the colony and to intervene between the inhabitants and Mason. Cranfield favored Mason, and he aggressively used the executive and judicial powers of the government to help him turn landowners into tenants.

From the start Henry Roby supported their schemes; his loyalty rewarded with an appointment as a justice of the peace and a seat on the highest court in the Province. His unpopularity among the locals was guaranteed when Mason granted him 100 acres of Hampton’s common grazing land, but it was his part in the trial of Reverend Joshua Moodey of Portsmouth that sealed his fate. Moodey, a Puritan, was convicted of administering the sacraments contrary to the laws of England and for refusing to administer them according to the rites of the Church of England. This was clearly a political hit engineered by Cranfield to silence Moodey, who was a vocal opponent of the Cranfield-Mason regime. To his credit, Roby was at first for acquittal, but after a night of threats and hectoring he changed his mind, as did Justice Henry Green, also of Hampton. Both were intensely aware of how their neighbors would react to a guilty verdict, and even as they sought to appease their masters, they contrived their rulings to leave a bit of wiggle room. Or they may have been truly conflicted, unsure of which ruling took precedence: Parliament’s laws governing the sacraments or the King’s commission that allowed liberty of conscience. It was “very clear,” Roby stated, “that the statutes are clear against the said Moodey, if the commission that gives liberty of conscience doth not take away the force thereof.” Apparently it did not, and Moodey served a six-month sentence in the Great Island prison.

Although Justice Green was “much afflicted” by what he had done and would later beg Moodey’s forgiveness, Roby was decidedly unapologetic. Had he been otherwise, his position of authority might not have crumbled so quickly beneath his impenitent feet.

Justice of the Peace

If we could drop in on Roby’s public house around noon on January 2, 1685, we would find an incensed 65-year-old justice of the peace furiously scribbling out arrest warrants for Samuel Leavitt and Moses Gilman, two impudent Exeter men who just moments earlier had dared to utter “seditious” words right to his face. Roby had summoned the men to answer to the provost marshal’s complaint of abuse and for treasonous remarks made against the Governor—to which Leavitt was now cheerfully admitting his guilt.

The trouble had started four days earlier, when a gang of club-wielding Hampton men accompanied Marshal Thomas Thurton and his deputy John Mason as they went to Exeter to enforce a court-levied fine on the town constable, who had refused to collect the province tax. Since the Governor had dissolved the representative assembly, no one felt obliged to pay his unlawfully raised taxes, and men were understandably vexed at attempts to collect them. The marshals were harassed everywhere they went; goodwives threatened them with buckets of scalding water and the minister came out with a club. Their unwelcome escorts “jostled them in a very rude manner,” called them names, made fun of their swords, and turned their horses loose. When Thurton called for order, the crowd bragged that even if Cranfield himself had shown up they would not obey.

In reporting the incident to Roby, Thurton identified Leavitt and Gilman as the ringleaders. Now, as the two agitators were making their appearance at Roby’s house, the marshal was a short distance away, attempting to enforce a fine levied on Captain Samuel Sherburne for his assault on the town doctor. When Sherburne refused to pay, Thurton placed him under arrest and brought him before Justice Roby.

With a house full of hot-headed men, Roby’s quill continued fly, now scratching out a warrant to commit the insolent Leavitt to prison. When Thurton attempted to make good the arrest, Leavitt punched him. Roby tried to intervene, but was “violently” prevented from doing so by Sherburne, who then took the opportunity to escape Thurton’s custody. Moses Gilman joined the melee, striking Roby and saying that Leavitt would not be going to prison. Roby managed to abate the chaos long enough to order Thurton to put both Leavitt and Gilman in prison, but Thurton was not in need of any more prisoners. It was left to Roby’s son Ichabod to deliver the men while Thurton tramped out to reacquire the one who had just escaped.

Leavitt and Gilman refused to go along, peaceably or otherwise, until Sherburne’s young son came in and whispered to them. Amazingly, Roby saw nothing fishy in their sudden change of heart (or was relieved to be rid of them in whatever way presented itself), and Ichabod escorted them across the meeting house green to the prison. As they passed Sherburne’s tavern, several men ran out to knock Ichabod to the ground and relieve him of his prisoners.

Thurton was inside the tavern, trying to convince Sherburne to pay his fine. As he recalled it, at Sherburne’s signal a “great number of men” grabbed hold of him, beat him up, and with a rope tried to strangle him. Afterwards, under cover of night, they hogtied him and took him across the border into Massachusetts, where they left him in Salisbury at the house of a man named Smith. Meanwhile in Hampton, Gilman and four others returned to Roby’s house, and, according to Roby, for the next five hours they banged on the door demanding to be let in. Only when Roby threatened to shoot them did they ride away.

And these were just the incidents that fixed the court’s attention. Under such a cloud of hostility, the next three years could not have been pleasant ones for Roby and his family. According to Reverend Joshua Moodey, Roby became a “common drunkard,” never repenting for his part in the minister’s politically motivated conviction. Reverend Seaborn Cotton, whom Roby had publicly denounced in the 1660s, prophesied that “when he died he would not have so honorable a burial as an ass.” Cotton’s bitter soothsaying may have proved true. Moodey wrote that Roby was excommunicated from the church, and when the end came in 1688, his friends buried him in a secret location to prevent creditors from ransoming his body for outstanding debts. It was an ill-starred end for one of Hampton’s most interesting early settlers.

Originally published in the Hampton Union on February 3, 2017.

Image courtesy of Harold Fernald and the Hampton Historical Society.

History Matters is a monthly column devoted to the history of Hampton and Hampton Beach, New Hampshire. Cheryl Lassiter’s latest book is “The Queens of Hampton Beach: A History of the Carnival Queens and the Miss Hampton Beach Beauty Pageant, 1915-2015.” Her website is lassitergang.com.


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