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Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45
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GENEALOGY COLLECTION
ALLEN COUNTY PUBLIC LIBRARY 3 1833 01101 6778 E
Colonial Justice in Western Massachusetts (1639-1702)
THE PYNCHON COURT RECORD
LEGAL STUDIES OF THE WILLIAM NELSON CROMWELL FOUNDATION
Digitized by the Internet Archive in 2019
https://archive.org/details/colonialjusticei00unse
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Flor Aux . Der's.
WILLIAM PYNCHON, 1590-1662
Colonial Justice in Western Massachusetts (1639-1702)
THE PYNCHON COURT RECORD An Original Judges' Diary of the Administration of Justice in the Springfield Courts in the Massachusetts Bay Colony
EDITED WITH A LEGAL AND HISTORICAL INTRODUCTION BY Joseph H. Smith OF THE NEW YORK BAR
PUBLISHED UNDER THE AUSPICES OF The William Nelson Cromwell Foundation BY Harvard University Press Cambridge, Massachusetts 1961
@ 1961 by The William Nelson Cromwell Foundation All rights reserved
Distributed in Great Britain by Oxford University Press, London
Library of Congress Catalog Card Number 61-7394
Printed in the United States of America
TRUSTEES OF THE WILLIAM NELSON CROMWELL FOUNDATION
William Dean Embree
Edward H. Green
Joseph M. Proskauer
Whitney North Seymour
I. Howard Lehman
Lawrence Edward Walsh
David W. Peck
Bethuel M. Webster
Bernard Botein
S. Pearce Browning, Jr. Bruce Bromley
J. Edward Lumbard John F. Brosnan
Eli Whitney Debevoise
1214989
Foreword
In generously establishing the Foundation which bears his name, Mr. William Nelson Cromwell charged the Trustees thereof to use his gift for a variety of purposes related to the law. The recital of these in the Purposes clause of the Trust Indenture points up the universality of his interest in legal matters.
First in the long list of projects to which the Trustees are directed to devote his funds and their energies is that of "Research of the laws, judicial systems, legal procedure and legal history of the Co- lonial period of the United States of America."
By a fortuitous circumstance, the Trustees ascertained that the Law School of Harvard University is the owner of a unique Diary kept in large part by William Pynchon and John Pynchon, from 1639 to 1702, covering their judicial acts and judgments as magistrates or commissioners in Springfield, in the Massachusetts Bay Colony.
An examination of the document, which is in longhand, but well preserved, and largely legible, disclosed that it is a most interesting record, from the legal, the historical, and the human viewpoint.
Therefore, the Trustees offered to publish the same. Harvard University accepted the offer, and, by direction of Mr. William Dean Embree, the Chairman of the Board of Trustees, the undersigned was assigned the interesting task of supervising the publication.
The work required the preparation of the text, carrying with it the deciphering and modernizing of the seventeenth-century script in which it is written, and researches in many places for the purpose of tracing down the ultimate determination of those cases which were appealed or transferred to a higher tribunal.
Upon Mr. Joseph H. Smith, of the New York bar, has fallen the major portion of the work. His most able treatment of the Massa- chusetts Bay judicial system and the jurisdictions and procedures of the Springfield courts adds immeasurably to our understanding and appreciation of the Diary, and speaks volumes for his erudition and for the thoroughness of his work. To these, he has added most interesting biographies of the compilers of the Diary. His articles present clearly the legal aspects of the Diary and the light it sheds upon some of the legal practices and procedures of our colonial an- cestors.
But the Diary is also a colorful record of the mores of that co- lonial community. Witchcraft, juvenile delinquency, bootlegging- they are all there. There, also, are the determinations of the guard-
viii
FOREWORD
ianships of children, the just distributions of estates of decedents, the protection of widows and orphans, and the resolution of the financial disputes of the community.
Follies and foibles; prejudices and petty quarrels; crimes and misdemeanors; jealousies, hopes, and fears-the Diary runs the gamut of human frailties and human passions. It is enlivened every so often by pungent pronouncements, such as the following:
The answer of the man accused of card playing, who pleaded to the Court: "I did not so well know the Law against it and I was will- ing to have recreation for my wife to drive away melancholy," add- ing, when pressed by the Court, that he was willing to do any thing when his wife was ill to make her merry.
The case of the "Goodwife," who, found guilty of the "continuall Trade upon every occasion to be exorbitant with her Toung," was dealt with as follows: "I sentence her to be Gagged or else set in a ducking stoole and dipped in water as Law provides: Shee to choose which of them shee pleases within this halfe howre: or else I to de- termine and order either as I see cause. She not choosing either: I ordered her to be Gagged and so to stand halfe an hour in the open streete which was done accordingly."
This gem of Pynchon wisdom, tempered by mercy: "Though at first he was alitle saucy yet afterward Confessing all and being ad- monished and told of the evill, he seemed very Penitent and prom- ised to be more watch full against such like disorder: I therefore dealt more gently with him by a small fine bearing Testymony against such disorders."
Compiled on the spot and by the judges themselves, it is, indeed, a fascinating legal and human document.
Acknowledgments, in addition to the one to Mr. Joseph H. Smith, heretofore noted, are made to:
Professor Mark DeWolfe Howe, of the Law School of Harvard University, who, despite his many duties, made himself available at all times for consultation, and gave most helpful advice;
Mr. Charles McClumpha, formerly of the New York bar, now of Northampton, Massachusetts, who ably carried on the preliminary stages of the investigation until forced by illness to relinquish, re- luctantly, the task;
Miss Juliette Tomlinson, Director of the Connecticut Valley Historical Museum, in Springfield, Massachusetts, for most helpful cooperation in modernizing the text of the Diary, in making avail- able manuscript material relating to the Pynchons, and in connec- tion with the biographical portion of the Introduction;
The respective staffs of the New York Public Library, the Massa-
ix
FOREWORD
chusetts Department of Archives, the Massachusetts Historical So- ciety, the Connecticut State Library, the Connecticut Historical So- ciety, the Registry of Probate, Northampton, Mass., the Office of the Clerk, Superior Court, Northampton, Mass., the Office of the Clerk, Superior Court, Springfield, Mass., the Office of the Clerk, Superior Court, East Cambridge, Mass., the Columbia Law School Library, the Boston Public Library, the American Antiquarian Society and the Library of Congress for cooperation in making available manu- scripts or printed material in their custody;
Miss Ruth A. McIntyre, who has transcribed a portion of the Pynchon Account Books, for expert guidance concerning biographi- cal details relating to John Pynchon;
Miss Madeleine Conners, formerly of Harvard University, who originally transcribed the Diary;
Mrs. Margaret M. Emmison, M.A., for research on William Pynchon in the Essex Record Office in Chelmsford, England;
Mrs. Joseph H. Smith for editorial assistance in connection with the Introduction and the supplemental court records interspersed with the text of the Diary; and
My fellow Trustees, for their tolerant understanding as the work progressed slowly toward its goal.
In thus rescuing from the secluded files of a law school and giv- ing to the profession and the public this Diary, the Trustees are certain that they are carrying out Mr. Cromwell's wishes, and are hopeful that the publication thereof may reveal the existence of like records in other sections of our land, so that one day a series of books similar to this one may adorn the shelf holding the publica- tions of The William Nelson Cromwell Foundation, a result which we are certain would meet with the unqualified approval of Mr. William Nelson Cromwell.
JOHN F. BROSNAN
New York, N.Y. May 15, 1960
CONTENTS
Foreword by John F. Brosnan vii
LEGAL AND HISTORICAL INTRODUCTION
I The Pynchon Manuscript 3
II William Pynchon 6
III John Pynchon 32
IV Elizur Holyoke and Samuel Chapin 60
V The Massachusetts Bay Judicial System 65
VI The Jurisdictional Bases of the Springfield Courts 89
VII Criminal Jurisdiction 103
VIII Criminal Procedure 129
IX Civil Jurisdiction 159
X Procedure in Civil Actions 174
XI Conclusion 197
THE PYNCHON COURT RECORD 203
APPENDIX 389
INDEX 393
ILLUSTRATIONS
frontispiece :
William Pynchon at the age of 67, painted by an unknown artist in 1657. (Re- produced through the courtesy of the Essex Institute, Salem, Massachusetts.)
facing page 203:
Page 2 of the Pynchon Diary, showing the entry of February 14, 1638/9 appoint- ing William Pynchon magistrate for Agawam. (Reproduced through the courtesy of the Law School of Harvard University.)
LEGAL AND HISTORICAL INTRODUCTION TO THE PYNCHON COURT RECORD
BY JOSEPH H. SMITH OF THE NEW YORK BAR
I. The Pynchon Manuscript
A MONG the material preserved in the Treasure Room of the Law School of Harvard University is a small manuscript volume known as the Pynchon Diary or the Pynchon Magistrate's Book. Neither designation is quite accurate and for the purpose of this pub- lication the volume is called The Pynchon Court Record, or for brev- ity, the Record. The bulk of this manuscript consists of a record kept by William Pynchon, the founder of Springfield, Massachusetts, by his son-in-law, Elizur Holyoke, and by his son, John Pynchon, of matters coming before various courts on the lower jurisdictional levels (below the county level) held for Springfield and the vicinity during the period from February 14, 1638/9 to January 9, 1701/2.1 The present publication makes available the complete text of the manu- script with the exception of a few pages not deemed of sufficient in- terest to warrant publication.
The manuscript was acquired by Harvard in May 1927 from Goodspeed's Book Shop in Boston. From 1899 until then the Record had been owned by a Boston collector, Sumner Hollingsworth, who had obtained it from another Boston bookseller. It appears probable that it was in the possession of historian Judge Henry Morris of Springfield in the latter part of the nineteenth century.2
In appearance the manuscript consists of approximately 360 pages measuring 7} by 52 inches. A few pages are torn and fragmentary; a few have been removed or mutilated by cutting; some have been left blank. The present binding dates from the latter half of the eighteenth century, but most likely the volume was originally bound
1 The word "courts" is used in the broad sense of a person or persons exercis- ing judicial powers, although the laws of Massachusetts, during the seventeenth cen- tury, did not normally comprehend within the term "court" the jurisdiction exer- cised by a magistrate, by commissioners for ending small causes or by a justice of the peace.
2 See C. D. Wright, Report on the Cus-
tody and Condition of the Public Records of Parishes, Towns and Counties (1889) 345. An 1826 address to members of the bar of western Massachusetts indicates ac- cess to the Record, but not ownership. See George Bliss, An Address to the Members of the Bar of the Counties of Hampshire, Franklin and Hampden at Their Annual Meeting at Northampton, September 1826 (1827) .
4
INTRODUCTION
in vellum. The entries on the first forty-nine pages (1638/9-1650) are in the handwriting of William Pynchon, with the exception of a few entries inserted at later dates by John Pynchon or Elizur Holyoke. Following six pages of entries by John Pynchon, pages 61 through 90 (1653/4-1660) are in Holyoke's hand. The remaining pages are in the hand of John Pynchon, with the exception of pages 102-105 writ- ten by Elizur Holyoke, one page by John Holyoke, a copy of a General Court order in William Pynchon's hand, and a page in an unidenti- fied hand (perhaps John Pynchon, Jr.'s) listing persons joined in marriage during the period 1711/2 to 1716/7. Many of the later en- tries of John Pynchon are extremely difficult to read being closely written with numerous abbreviations and interlineations.
For use in this publication the text of the Record was modernized in accordance generally with the Rules for Style adopted for use in the American Legal Records Series by the Committee on Legal His- tory of the American Historical Association. The same rules have been adopted in the interspersing of extracts from the Hampshire County Probate Court Records, the Records of the Acts of the County Courts Holden in the County of Hampshire, and the Hampshire Book of Records for the Court of Pleas begun March 7th, 1692/3, all manuscript sources which supplement material in the Record, and, as an appendix, a return made to the County Court at Cam- bridge by John Pynchon and Elizur Holyoke in a criminal matter.3 Any material from other contemporary sources quoted in this Intro- duction has been modernized in accordance with the same rules.
That portion of the Record not included in the present publica- tion consists of eleven pages listing persons joined in marriage by John Pynchon as magistrate or justice of the peace, commencing April 1665, as well as the later list of persons joined in marriage and
3 The three manuscript volumes re- ferred to in the text appear to be en- grossed minutes or records; the first is in the Registry of Probate Office, Northamp- ton, Mass .; the second, in the Office of the Clerk, Superior Court, Northampton, Mass .; the third, in the Office of the Clerk, Superior Court, Springfield, Mass. The Pynchon Waste Book for Hampshire, a manuscript in possession of the Connecti- cut Valley Historical Museum, Springfield, Mass., contains rough minutes of the County Court for Hampshire for the pe- riod from April 1663 to January 1676/7. The American Antiquarian Society in Worcester, Mass., has two more manu- script volumes of rough minutes. One cov- ers sessions, mostly at Springfield, of the
County Court for Hampshire and the later Court of General Sessions of the Peace and Inferior Court of Common Pleas for the period March 1677 to June 1694. The oth- er volume covers sessions, held almost en- tirely at Northampton, of the same courts for the period March 1677 to June 1696, plus the incomplete record of a court of oyer and terminer held at Northampton in October 1696. There are also some entries of the County Court for Hampshire for the period covering September 1690 to April 1692 in Volume A, Registry of Deeds, Springfield, Hampden County, 1690-1692. This abundance of judicial rec- ords for the County of Hampshire derives from the practice of keeping records at both Springfield and Northampton.
5
THE PYNCHON MANUSCRIPT
the copy of the General Court order. Included are seventeen pages of entries, found toward the end of the Record, of meetings of the freemen of Springfield for the period 1660/1 to 1696-material closely connected with the public career of John Pynchon.
While the manuscript volume was maintained as a judicial record for approximately sixty-three years, it is obvious that entry was not made therein of all judicial acts of the various courts held at Spring- field on the lower jurisdictional levels during the period. There are several substantial periods of time for which no entries of a judicial nature are found. Internal evidence and the records of the County Court for Hampshire confirm that, in the case of offenders let off with a warning or bound over to the County Court, no entry might be made in the Record. For the years 1660-62 some entries (which have been included) were made in the Hampshire County Probate Court Records rather than in the Record. However, apart from these entries and one enigmatic reference in the manuscript, there is no evidence that either Pynchon or Elizur Holyoke maintained any other records of a judicial nature on the jurisdictional levels covered by the Record.4 Apparently none of the file papers kept by the Pynchons or Holyoke has survived.
Legal historians of colonial Massachusetts have tended to concen- trate upon the courts of higher jurisdiction of the Bay. This book is the first to print in extenso any colonial court records for western Massachusetts or, with one exception, records of any court below the county level for that portion of the Massachusetts Bay colony now in- cluded within the Commonwealth of Massachusetts.5 The Record, supplemented by records of the County Court and successor courts for Hampshire, affords a representative and vivid portrayal of the ad- ministration of justice on the lower jurisdictional levels-the "grass- roots" level-in western Massachusetts during the seventeenth cen- tury.
4 Rec. 134.
5 See Early New England Court Rec- ords, A Bibliography of Published Materi- als, prepared by W. Jeffrey, Jr .; published
for The Ames Foundation, Harvard Law School (n.d.) ; also contained in The Bos- ton Public Library Quarterly, July 1954.
II. William Pynchon
W. ILLIAM PYNCHON who was primarily responsible for the establishment of the first court in western Massachusetts and for the administration of justice in that region until 1651 was born in England on or about December 26, 1590. His birthplace was the village of Springfield, some thirty miles northeast of London, near Chelmsford, the shire town of Essex.1 His name, spelled in various ways, appears to have been Norman in origin. His ancestry can be traced to William Pynchon, a yoeman of Writtle (the ancestral vil- lage of the Pynchons, also near Chelmsford) , who died in 1552 pos- sessed of substantial holdings. His eldest son, John Pynchon, grand- father of the founder of Springfield, seemingly established the family properties and prestige on a sounder basis by marriage to a daugh- ter of Sir Richard Empson. John, the second son of this marriage, in- herited the family properties at Springfield upon his father's death in 1573 and received a bachelor's degree at New College (Oxford) in 1581.2
When John Pynchon, described as "gent." in his will, died in 1610, he provided that William, his elder son, should receive during the life of decedent's wife, a portion of the rents and profits of cer- tain lands and tenements in the parish of Writtle, and, after her death, in fee, all the houses, lands, and tenements of decedent in Springfield. Some biographers of William Pynchon have stated that he was educated at Oxford, matriculating at Hart Hall (afterward Hartford College) in 1596; however, since he was born in 1590, this
1 The date of birth is based upon the statement in Chancery Inquisitions post Mortem C. 142, 321/130, taken October 7, 1611, that, at the time of his father's death on September 4, 1610, William Pynchon was aged 19-1/2 years and 10 weeks. See 87 N. Eng. Hist. and Gen. Reg. 224. Since the age is expressed in years and weeks, there may have been some rounding. This dating is consistent with the inscription
appearing on the well-known portrait of Pynchon at the Essex Institute, Salem, Mass., reading in part, Delin. Anno. Dom. 1657 Aetat 67.
2 For the Pynchon genealogy see 2 Wa- ters, Genealogical Gleanings in England (1901) 854-857, 859, 863-867, and the more recent article by S. E. Morison, "William Pynchon, The Founder of Springfield," 64 Mass. Hist. Soc. Proc. (1931) 67-107.
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WILLIAM PYNCHON
appears highly unlikely.3 Where he acquired his education, which, judging by his published works, included extensive knowledge of Latin, Greek, and Hebrew writers and of theological doctrines re- mains unexplained, but biographers have unanimously regarded him as a "gentleman of learning." He married Anna Andrew (or An- drews) , daughter of William Andrew of Twiwell, Northampton- shire, and member of an old Warwickshire family, and had one son and three daughters when he embarked for New England.4
Presentments found in the Essex Quarter Sessions Rolls reveal that Pynchon was a churchwarden of Christ Church in Springfield in January 1619/20 and in December 1624.5 However, the assertion that Pynchon served as justice of the peace in Essex is not supported by an examination of the Essex commissions of the peace for the pe- riod. Similarly no evidence appears that Pynchon was a "lord of the manor." The Manor of Springfield with Dukes was held by the Tyr- ells; the manor court records show that William Pynchon, "gent.," did fealty to the lord for certain lands inherited from his father.6 His social status is brought into sharper focus by noting that the Pynchon family was included in the Heralds' Visitations of Essex in 1612 and 1634, although not in the earlier visitation of 1558, and that the widow of the earlier John Pynchon married Sir Thomas Wilson, Sec- retary of State under Elizabeth. A cousin of William Pynchon mar- ried Richard Weston, later first Earl of Portland and Chancellor of the Exchequer.7 Thus, while not a lord of the manor, William Pyn-
3 Morison, William Pynchon 69; 2 Wa- ters, Genealogical Gleanings 854-855, 866. Andrews states, without citation of au- thority, that Pynchon owned many houses and lands in the parishes of Writtle and Widford. 2 Col. Period Amer. Hist. (1936) 126.
4 2 Waters, Genealogical Gleanings 866- 867; Morison, William Pynchon 69.
5 Q/SR 227/13 3 (Epiphany Session, 1619/20) and Q/SR 247/48A (Epiphany Session, 1624/5) in Essex Record Office, Chelmsford, England. For this and other material from the Essex Record Office we are indebted to Mrs. Margaret M. Emmi- son, M.A. of Chelmsford, one-time acting Archivist, Essex Record Office. Several bi- ographers have referred to the tablet in the Springfield parish church showing Pynchon as churchwarden in 1624.
6 The statements are based upon re- search conducted by Mrs. Emmison at the Essex Record Office. An October 1622 en- try in the Ms. Court Rolls for the Manor
of Springfield with Dukes shows William Pynchon doing fealty to the lord in court for a parcel of lands called Varneswell Fields and Varneswell Moores, conveyed to his father in February 1596/7. An October 1631 entry reveals that the lands were later sold to a William Bentall. There is no reference to William Pynchon in the Manor Court Rolls of Writtle. The Manor of Writtle, one of the largest in Essex, was held by the Petres. By a May 1, 1612 docu- ment Sir Edward Pynchon released to his cousin William Pynchon all rights in some farms and other lands in the parishes of Writtle, Broomfield, and Chignall St. James. Sir Edward Pynchon was lord of the Manor of Roman's Fee (probably identical with the Manor of Turges) , one of the nine sub-manors of Writtle.
7 The Visitations of Essex, 13 Harleian Soc. Pub. 266, 319, 470; Morison, William Pynchon 68. Earlier, John Pynchon of Writtle had been overseer of the will of Richard Weston, Justice of Common Pleas,
8
INTRODUCTION
chon was on the fringe of the social class which usually held manors and served as justices of the peace.
The available facts do not indicate how or when Pynchon be- came interested in the Massachusetts Bay Company project. His ex- tensive and successful business activities in the colony suggest that his motivation was in part economic. His profoundly religious nature and his proximity to Chelmsford, the center of a strong Puritan group, suggest a less worldly motive. Passages in his later writings indicate that political considerations may have played a part. Evi- dence is lacking that personal friendship influenced his decision.8
William Pynchon was one of twenty-six patentees and one of eighteen assistants named in the charter to the Governor and Com- pany of Massachusetts Bay in New England which passed the seals March 4, 1628/9. Confirmed and taking his oath as assistant on May 13, 1629, he was a regular attendant at the meetings of the General Court and of the Court of Assistants held in England and also a sig- natory of the well-known Cambridge Agreement of August 26, 1629.9 His subscription to the joint stock in the amount of £25 was recorded August 29, and he disposed of some of his Springfield holdings prepar- atory to leaving England.1º He was on the committee appointed by
former solicitor-general who acquired the Manor of Skreens in Roxwell, Essex; the will was proved July 29, 1572. 74 N. Eng. Hist. and Gen. Reg. 69; The Visitations of Essex 319. The lengthy DNB article on Richard Weston, first Earl of Portland, shows that his wife was buried on Febru- ary 10, 1602/3, before he was knighted. His father, Sir Jerome Weston, had been high sheriff of Essex in 1599.
8 Thomas Hooker was an Essex neigh- bor for many years but nothing indicates that Pynchon was among the many whom he induced to emigrate to New England. The supposition that the Reverend John White of Dorset influenced Pynchon to join the Massachusetts Bay Company rests largely upon inference. Morison, William Pynchon 70-71. Rose-Troup in John White, the Patriarch of Dorchester (Dor- set) and the Founder of Massachusetts, 1575-1648 (1930) refers only to the fact that White authorized Pynchon to de- mand, receive and, if necessary, sue for certain debts owing from New England inhabitants (pp. 463-466) . See also 2 Win- throp Papers (1931) 268; 47 Mass. Hist. Soc. Proc. 346-347 and the supposition in Wright, The Genesis of Springfield (1936) 6-7. In the same vein, the later business
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