John Brocket, to visit Fugill’s second division and measure it. Brocket reported back that he had surveyed the land and found that, while Fugill’s “full proportion” of land in that area was twenty-four acres, Fugill had instead taken over fifty-two acres.
The court was not pleased. It asked Fugill “what warrant or ground” he had for doing what he had done. Fugill confessed his fault in fencing in the land without a surveyor and “his sinful miscarriage in taking in a quantity so far above his proportion.”
The court found this worthy of censure, but there was more to come. It turned out that the 1641 record had been falsified. The actual grant to Fugill had specified that his second division had to be more than two miles from the center of town, not granted to any other person, and bordered by two rivers in the area. Fugill’s official notes had left out both the two-mile limit and the reference to the rivers. Instead, his notes had added the clause “or so much as he desires.”
There was still more. Fugill had kept at least three sets of books. It appears that none of these books agreed with each other. Two of the books left out the clause “not granted to any other person.” All of them had added the clause “or so much as he desires.”
The local schoolmaster, Ezekiel Cheevers, decided to inspect more carefully the official record that Fugill had written down in 1641. When the book was viewed, it appeared that the clause “according to his proportion” was itself a late insertion, added “with other pen and ink, a less character and crooked, as with a trembling hand.” Cheevers proceeded to question Fugill about this matter “before the Governor and elders.” When Fugill began to justify himself, the governor stepped in.
“To prevent further rashness and sinful expression,” the governor cautioned Fugill that the book was within and he had viewed it. If the governor could judge the writing, “these words were added and written after the former part of the order with other pen and ink and with a different character.” When Fugill boldly offered to take an oath to the contrary, the book was brought out. The difference in the handwriting was so apparent that Fugill changed his story.
Fugill now said that he would take an oath that he had not written in the book after Cheevers had seen and reviewed it. At this point, Fugill’s second book was sent for and examined by the governor and elders. That book contained a similar addition, apparently in different handwriting, although a line drawn in blacker ink made the difference in handwriting difficult to discern.
The governor then told the court that he had privately warned Fugill that his protests and offers to take an oath were “bold and sinful.” In the governor’s view, “confident contradictions” would not “drive men from the truth they knew.” Moreover, as the governor saw it, “Oaths, even in certain truths, are not lawful until they are necessary and duly called for.” Instead, he reminded Fugill of the “rule” to “let your communication be yea, yea, nay, nay.” The governor explained that “profane men indeed in other places who little attend truth think they must swear that they may be believed, and in his [Fugill’s] place, it would be no other than a high breach of the third commandment.”
Fugill attempted to justify his taking the oath, but when reminded of the particular facts before the court, he “began again to turn and wind and so to evade the governor’s testimony but gave no satisfaction.”
Hearing this, some of the members of the court suggested it might be appropriate to choose another secretary of the colony. Fugill “confessed his unfitness for the place by reason of a low voice, a dull ear, and slow apprehensions.” The court told him that it “had long taken notice of sundry miscarriages through weakness or neglect, yet in tender respect to himself and his family, they had continued him in the place.” This, however, was the last straw. “They were called to lay aside these private respects for the public safety.” Fugill was promptly voted out of office.
Fugill’s troubles had not ended. Four months later, he appeared before the court to be sentenced “for his unrighteousness in taking and detaining of the town’s land and falsifying of orders.” Fugill pleaded that he had already lost his position as secretary of the colony and, in addition, the church had excommunicated him. He also pleaded that he had suffered great “bodily weakness.” The court, however, found further punishment appropriate. He was ordered to pay a fine of twenty pounds to the town. In addition, his land was “reduced to its due bounds, according to the first grant, namely between the two rivers and without the two miles.”
The trial of Thomas Fugill was surely an odd sort of trial not only by modern standards but also by sixteenth-century standards. Rather than being a formal trial commenced by some sort of official charge or accusation, the proceeding began as an investigation into the size of Fugill’s acreage and quickly metamorphosed into a trial concerning the falsification of records. Once again, of course, there were no jurors or attorneys to be found. The governor’s reprimand of Fugill for his willingness to take an oath underlines the cultural aversion that the New Haven court had to oath taking in general. Instead, we are told, the court (or at least the governor) wanted unsworn witnesses simply to say “yea, yea, nay, nay.”
This being said, some features of Fugill’s trial strike a familiar chord to the modern observer. The close scrutiny of the handwriting and ink used in the allegedly altered document is vaguely reminiscent of modern handwriting analysis, although it is striking that no one thought to compare the handwriting in question to known exemplars of Fugill’s handwriting. This is the first thing that a modern handwriting expert would do and wouldn’t have been difficult for the New Haven court, since many of its own records had been written by Fugill himself.
Beyond the particulars of the handwriting and the oaths, however, some universal truths, known to observers of trials in every age, peek through this little narrative. It’s never a good idea to change your story during a trial, and witnesses who do this (there are many) invariably make a poor impression. Ditto for the witness who begins to “turn and wind and so to evade” the questions, as Fugill did when examined by the governor. Needless to say, it’s not a good idea to keep two sets of books. Keeping three sets of books is surely beyond the pale. Above all, physical evidence prevails over oral testimony. Fugill could hardly deny the physical dimensions of his landholdings. And whatever he said by way of explanation, he could not overcome the physical facts of different handwriting and different ink.
6
THE SEXUAL HARASSMENT CASE
Sexual harassment in the workplace is a focal point of modern employment law and a source of periodic headline news when the perpetrators turn out to be public figures, but there is nothing new under the sun.1 The travails of Goodwife Fancy (whom we briefly met as a witness in the Case of the Exploding Gun) stand as eloquent testimony to the appalling workplace conditions faced by countless low-status women in every age, including our own. Although her voice was heard, her ultimate fate stands as an indictment of the General Court.
In April 1646, Governor Theophilus Eaton, “being informed of several lewd passages, ordered William Fancy to appear with his wife at the court to answer for them.” At some point, both spouses were examined outside of court, and their examinations were subsequently read in court.
Goodwife Fancy (we never learn her first name) told the examiner that, about two years previously, she had been working for Goodwife Robinson. She found herself alone in a cellar with Goodwife Robinson’s husband, Thomas Robinson. Thomas took hold of her, pulled
