USA > Massachusetts > Hampden County > Springfield > 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 > Part 10
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51 Col. Laws Mass., 1660 219, 222 (quaere if the later act required more than one commissioner) , 236 (the selectmen or a majority thereof were also given the power to punish drunkenness in towns not having a magistrate or commissioner) ; Col. Laws Mass., 1672 212, 234, 235.
52 4 Rec. Mass. Bay (Part I) 288, 348,
375, 420; 4 ibid. (Part II) 335, 377, 406, 424, 425, 451-452, 467, 496, 516, 554; 5 ibid. 5, 88, 101, 145, 187 205, 226. Cf. 3 ibid. 423.
53 4 ibid. (Part II) 5, 21, 536; 5 ibid. 5, 30.
54 5 ibid. 139.
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INTRODUCTION
Commissioners for Ending Small Causes
The General Court in its order of September 6, 1638 conferring jurisdiction upon magistrates to hear small causes, also provided that, in any town in which no magistrate resided, it would from time to time nominate three men, two of whom were to constitute a quorum, with like power to hear and determine all causes wherein the debt, trespass, or damage did not exceed twenty shillings. Any party ag- grieved by the sentence of such commissioners might appeal to the Court of Assistants. In June 1641 the General Court authorized the next magistrate to advise with any commissioners for hearing small causes who might desire assistance and to administer oaths to wit- nesses for better deciding causes according to justice.55
In 1647, when the jurisdictional limitation upon magistrates in civil causes was raised, it was also ordered that any three commis- sioners (of which two constituted a quorum) have like power to hear and determine by their discretion (without a jury) all causes arising within the county wherein the debt, trespass, or damage did not ex- ceed forty shillings. It was further provided that the appointment of such commissioners, in towns in which no magistrate resided, should be made from time to time by the Court of Assistants or the several County Courts upon request of such towns signified under the hand of the constable. An oath was to be taken by the commissioners be- fore the County Court or some magistrate in the county for faithful discharge of the trust and power committed to them. They were also to keep a true record of all causes which came before them for deter- mination and to publish their times of meeting.56 The Laws and Lib- erties of 1648 gave commissioners powers to send for parties and witnesses by summons or attachment directed to the constable, to administer oaths to witnesses, and to give defendants time to answer if they saw cause. It was also stated that commissioners had no power to commit to prison in any case. In the event the party sentenced re- fused to give bond for his appearance or satisfaction and had no goods in the town in which the plaintiff resided or the commissioners sat, the commissioners were authorized to direct the constable to carry such party before a magistrate or the County Court, if then sitting, to be further proceeded with according to law. From the sentences of the commissioners an appeal was to lie to the County Court. In the event the cause concerned one of the commissioners, then the select- men of the town were authorized to hear and determine the cause and to grant execution.57
57 Ibid. 2, 8-9. An October 1652 order of the General Court provided that any three commissioners to end small causes
55 1 Rec. Mass. Bay 239, 327.
56 2 ibid. 188, 208; Laws and Liberties Mass. 8-9.
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MASSACHUSETTS JUDICIAL SYSTEM
Commissioners for ending small causes were rarely granted gen- eral jurisdiction in criminal matters comparable to that of a mag- istrate.58 However, commissioners were in the case of certain offenses given concurrent jurisdiction with a single magistrate.59 In still other instances a single commissioner might exercise jurisdiction concur- rent with that of a single magistrate, or, more rarely, with a single magistrate or one or more selectmen.60 In a few cases, concurrent jurisdiction was lodged in the County Courts, a magistrate, and a commissioner, and, in one case, an associate. In some instances, con- current jurisdiction was granted to a single magistrate and to a "com- missioner authorized by law in such cases" or some similar language.61 The meaning of such clauses is obscure and jurisdiction in such cases may have been limited to commissioners specifically granted juris- diction in criminal matters.
Selectmen of Towns
In March 1635/6 the General Court ordered that the freemen of each town have the power to make such orders as might concern the well-being of their towns, as also to lay mulcts and penalties for the breach of such orders and to levy and distrain the same to an amount not exceeding twenty shillings. At later dates the General Court granted the freemen or selectmen specific authority in such matters as the fixing of commodity prices and wage rates, the disposition of single persons, and the making of orders with respect to ringing of swine, the maintenance of fences, and the maintenance of watches.62 No. 66 of the Liberties of 1641 provided that the freemen of every township should have power to make such laws and constitutions as might concern the welfare of their towns, provided they were not of a criminal but only of a "prudentiall nature," that the penalties did not exceed twenty shillings for one offense, and that they were not repugnant to the public laws and orders of the colony. If any inhab- itant neglected or refused to observe such laws, the freemen were to have power to levy the appointed penalties by distress.63
While these various grants clearly contemplated the exercise of
should have the same power to give oaths to witnesses in any civil case as a magis- trate. 4 Rec. Mass. Bay (Part I) 103. It is doubtful that this order added to the powers already granted under the 1648 laws.
58 See, however, the criminal jurisdic- tion granted to the commissioners of Souther Town in October 1658. 4 ibid. (Part I) 353.
59 Col. Laws Mass., 1660 136, 165, 188, 198-199; Col. Laws Mass., 1672 80.
60 Col. Laws Mass., 1660 164, 189-190, 198-199, 219 (cf. p. 222), 228-229, 236; Col. Laws Mass., 1672 58, 234, 235.
61 Col. Laws Mass., 1660 236, 261; Col. Laws Mass., 1672 212, 236-237.
62 1 Rec. Mass. Bay 172, 183, 186, 215; 2 ibid. 220-221; 4 ibid. (Part I) 153, 293. 63 Col. Laws Mass., 1660 47.
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INTRODUCTION
judicial or quasi-judicial powers by the freemen or selectmen, the laws contained virtually nothing as to process or procedure in con- nection with such exercise. For the most part, no provision was made for judicial review of the enforcement of town orders by the freemen or selectmen.64 The town records examined usually merely record the imposition of a fine or penalty and afford no insight into the pro- cedure employed. In certain cases the selectmen of Springfield, em- powered, as in most towns, to order the "prudential affairs" of the town, held hearings on violations of town orders which appear judi- cial in nature.65 In other cases, they sought to recover penalties for such violations in the courts held at Springfield, rather than imposing and levying their own penalties.
It has already been pointed out that selectmen were given power to hear and determine civil causes in those cases in which the mag- istrate residing in a town or one of the commissioners was a party and that selectmen, or even a single selectman, might exercise concurrent jurisdiction with a magistrate or commissioners for ending small causes or a single commissioner, in cases of certain offenses against the laws of the colony. A colony law also authorized selectmen to is- sue warrants to levy upon the estates of delinquent land owners or tenants the double recompense to which fence viewers were entitled for repairing certain defective fences. A 1647 law made nonfreemen who were church members liable to serve as constables, jurors, select- men, and surveyors of highways and, if they refused to serve, liable to pay such fine as the town imposed, not exceeding twenty shillings. Presumably these penalties could be imposed by the selectmen. This would also appear to be the case under a law which permitted towns to assess inhabitants for damage done to the corn fields of Indians for which the town had made satisfaction.66 A 1666 law granted select- men, or the majority thereof, power to fine or whip Indians con- victed of drunkenness in towns in which there was neither magistrate nor commissioners. Another authorized selectmen to make orders for increasing the production of saltpeter and to provide penalties up to ten shillings for violation thereof. A 1668 act authorized selectmen to impose penalties for letting stallions run loose, unless allowed by the majority of the selectmen.67
64 Violations of town orders fixing prices or wage rates were apparently to be punished at the discretion of the Gen- eral Court, not by the freemen or select- men. 1 Rec. Mass. Bay 183. Persons ag- grieved by town orders disposing of single persons were to have liberty to appeal to
the Governor and Council or to the Gen- eral Court (ibid. 186) .
65 1 Burt, Hist. Springfield 336-338, 376, 377, 381, 386, 405, 407-408, 419, 421, 431; 2 ibid. 197.
66 Laws and Liberties Mass. 9, 23, 28.
67 Col. Laws Mass., 1660 236-237, 243- 244.
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MASSACHUSETTS JUDICIAL SYSTEM
Miscellaneous Courts
From time to time the General Court provided for the establish- ment of courts limited in jurisdiction to such matters as causes con- cerning strangers, matters arising among the Indians, causes relating to the rights of creditors or employees, cases arising under the Acts of Trade and Navigation, and certain land claims.68 However, these establishments had no significance for western Massachusetts.
In June 1665 the royal commissioners (Carr, Cartwright, and Maverick) appointed a number of justices of the peace for the east- ern parts of the colony. Three or more were to have jurisdiction to hear and determine all causes, both civil and criminal, "proceeding in all cases according to the lawes of England as neere as maybe." Ex- cept for these appointments for the eastern parts, no use was made of justices of the peace under the First Charter.69
1686-1692. THE INTERCHARTER PERIOD
The President and Council of the Territory and Dominion of New England, on June 10, 1686 published An Order for the Holding of Courts and execution of Justice which established a new judicial system for Massachusetts. At the apex was a Superior Court of Grand Assize and General-Gaol Delivery to be held three times a year at Boston by the President and Council. This body had jurisdiction of all cases of appeal, all capital cases and all such pleas of the crown and "other matters of greater Concernment as are above the Cogni- zance of Inferior Courts." 70
The same order provided for the erection in each county or prov- ince of a County Court "to be held and kept as a Court of Pleas and of General Session of the Peace." The court in each county or prov- ince was to consist of the resident member or members of the Council together with such justices of the peace as were particularly commis- sioned thereunto. Jurisdiction extended to all civil causes and all criminal causes, excluding those concerning life or limb, with an ap- peal in all civil cases to the President and Council. The order further provided:
And for the more ready Dispatch of small Causes, where the Dammage besides Cost shall not exceed the Summe of Forty Shillings, It is Ordered
68 1 Rec. Mass. Bay 264; 2 ibid. 188; 4 ibid. (Part I) 155-156, 334; 4 ibid. (Part II) 15, 83-84; 5 ibid. 337-338, 398. Cf. 3 ibid. 322; 4 ibid. (Part II) 63; Col. Laws Mass., 1672 38, 207.
69 4 Rec. Mass. Bay (Part II) 250-251, 401-403. Cf. the references at 5 ibid. 193,
263, and the powers of justices of the peace conferred upon the governor and certain magistrates in August 1630. 1 ibid. 74.
70 1 Laws N.H. 104. Compare the judi- cial powers, granted in the commission, to the President or any seven of the Council. Ibid. 96.
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INTRODUCTION
and declared that the President and each Member of the Council hath Power to hold Plea of, and to give Judgment, and award execution in all such Causes, as heretofore hath been in use. The like Power have any two of the Justices joyning together. And from the Sentence and Judgment in these Cases to be given, there shall be an Appeal to the next Court of the County and no higher.71
The President and Council had in May appointed justices of the peace in order "that speedy and effectual Care be taken for the main- tenance and preservation of the peace." 72 However, the order of June 10 made no reference to the jurisdiction of such justices of the peace in criminal matters, nor for that matter, of members of the Council. No copy of any commission of the peace for this period has been found but it seems unlikely that criminal jurisdiction was spelled out in detail in such commissions. Presumably the Council members exercised jurisdiction in criminal matters comparable to that of a justice of the peace, an assumption supported by the scant entries in the Record, but there is no specific authority for the exer- cise of such jurisdiction, and it is unlikely that, as at a later date, each councilor was made a justice of the peace.73
Following the arrival of Governor Andros in late December 1686, a new court system was erected by means of an Act for Establishing Courts of Judicature and Publick Justice, passed on March 3, 1686/7. The principal court, the Superior Court of Judicature, was:
Authorized and Impowred to have Cognizance of all pleas reall per- sonall or mixt as well in all Pleas of the Crowne and in all matters relat- ing to the Conservacion of the Peace and Punishment of Offenders as in Civill Causes or accions betweene party and party; and betweene his Maj- estie and any of his Subjects; Whether the same doe concerne the Reallity and Relate to any Right or Freehold and Inheritance Or whether the same doe Concerne the personallity and relate to matter of Debt Contract Damage or personall Injury And alsoe in all mixt accions; which may Concerne both realty and personalty.74
This court was not, however, to have any jurisdiction over any matter or cause of action not exceeding ten pounds, unless freehold was concerned. Appeal was to lie "in case of Errour" to the Governor or President and Council in all civil causes, provided the value ap-
71 Ibid. 103-104.
72 Ibid. 100.
73 See the provision for a five-pound penalty for drawing drink without license upon conviction before any member of the Council or any two justices within the county (ibid. 106) ; the fine for selling liquor to any Indian or Negro without ex-
press license from a member of the Coun- cil or two justices of the peace (ibid. 117) ; and the allowance of amounts to defray public charges of towns by two justices of the peace or a member of the Council (ibid. 115) .
74 Ibid. 192-193.
MASSACHUSETTS JUDICIAL SYSTEM 81 pealed for exceeded one hundred pounds sterling. The criminal ju- risdiction of the Superior Court of Judicature might yield to a com- mission of oyer and terminer in the case of capital offenses.75
The act further provided that in each county a quarterly Court of Sessions be held by the justices of the peace to hear and determine all matters relating to the conservation of the peace and punishment of offenders and "whatsoever else is by them Cognizable, according to Law." An Inferior Court of Common Pleas was to be kept at the same time and place by a judge assisted by two or more justices of the peace. This court had jurisdiction over all causes wherein free- hold was not concerned to the value of ten pounds with costs, except in any matter not exceeding the value of forty shillings. Appeals were to lie to the Superior Court of Judicature in cases of error. By a De- cember 29, 1687 act these inferior courts were given "power and Jurisdiction in all Causes and Cases personall and mixt, Wherein Tittle of Land is not Concerned To any Summ or value whatsoever," with defendant having the right of removal to the Superior Court of Judicature by habeas corpus or certiorari.76
A further act of March 3, 1686/7 provided that "all manner of Debts Trespasses and other matters not Exceeding the value of Forty shillings (wherein the Title of Land is not Concerned) " should be heard and determined by any justice of the peace within his precinct. In criminal matters, jurisdiction presumably was spelled out, if at all, in the commissions of the peace, although a few acts specifically conferred jurisdiction in criminal and administrative matters. In a few instances, two justices, of whom one was of the quorum, were given jurisdiction.77
Statutes and records during the Andros regime leave obscure the jurisdiction of members of the Council in civil and criminal matters. Statutes which might be expected to treat justices of the peace and Council members on the basis of parity refer in only one case to the issue of a warrant by a Council member. The evidence as to inclu- sion of members of the Council in commissions of the peace is incon- clusive.78 A proclamation of the Governor and Council, issued March 8, 1687/8, ordered that:
... the severall Justices Town Officers and other persons concerned do proceed in their severall places and trusts according to former usage and
75 Ibid. 193, 253. See also the commis- sion to Andros, ibid. 149.
76 Ibid. 190-191, 193, 213-214. For later statutory jurisdiction in administrative matters, see ibid. 198, 207, 209, 220-221.
77 Ibid. 194-196, 198, 199, 201, 203, 215, 217, 219-220, 222.
78 Ibid. 195-196. On February 15, 1686/7 upon reading in Council a commission of the peace for Rhode Island, "Upon the question whether the members of Councill ought to be Inserted in it, It was resolved in the Negative." Andros Records, 13 Amer. Antiq. Soc. Proc. (ns) 250-251.
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INTRODUCTION
directions given by the late President and Councill, and such other Locall Laws in the Severall parts of this Dominion, as are not repugnant to the Laws of England, his Majestie Commission for Government and Indul- gience in matters of Religion, nor any Law or Order already made or passed by the Governour and Councill untill further Order.79
This proclamation may be construed as permitting Council mem- bers to exercise whatever judicial powers they had exercised during Dudley's period of office.
A provision in the royal instructions to Andros suggests the pos- sibility that members of the Council might be regarded as the equiv- alent of the former magistrates and exercise the jurisdiction vested in magistrates under the First Charter.80
Within a few months after the overthrow of Andros, Massachu- setts, in effect, returned to the form of government which had existed under the First Charter. On June 5, 1689 the Governor, Deputy Gov- ernor, and assistants declared their acceptance of the government of the colony according to the Charter rules by the name of Governor and Council of the Massachusetts Colony. On June 22nd the Gov- ernor and Council and representatives declared that all laws made by the Governor and Company in force on May 12, 1686, except any that might be repugnant to the laws of England, were the laws of the colony and were to continue in force until further settlement.81 On July 3 it was declared that:
. .. all Courts of Judicature as formerly held within this Collony ac- cording to the Direction of the Law Title Courts, made by the Governor and Company; be holden at the stated times and places, as mentioned in said Law.82
This declaration in its reference to the "Law Title Courts" pre- sumably intended the 1672 edition of the laws which, under such ti- tle, made no reference to the jurisdiction of magistrates, of persons vested with magistratical powers or of commissioners for ending small causes. However, the several appointments of commissioners for small causes and of persons vested with magistratical powers by the General Court clearly demonstrate an intention to restore the en- tire pre-Dudley judicial system.
1692-1702. THE SECOND CHARTER
Under the October 7, 1791 charter for the Province of Massachu- setts Bay the Governor with the advice and consent of the Council was authorized to nominate and appoint judges, commissioners of
79 1 Laws N.H. 249.
80 Įbid. 157.
81 Ibid. 281, 294. 82 Ibid. 308.
MASSACHUSETTS JUDICIAL SYSTEM 83 oyer and terminer, justices of the peace, and other officers of the ju- dicial establishment. The General Assembly was given full power and authority to enact and constitute judicatories and courts of rec- ord and other courts to be held in the King's name.83
Governor Phips arrived in the province with the new charter on May 14, 1692. Whitmore in his Civil List indicates that various jus- tices of the peace were commissioned shortly thereafter. While no commissions of the peace for Hampshire have been found, a May 30, 1692 commission for York County is virtually identical with the con- temporary English form. A later York commission from Bellomont, dated July 26, 1699, was more suited to local conditions in that it omitted reference to certain specific offenses (such as forestalling, re- grating, and engrossing) not important in colonial law enforcement. We assume that the forms of the Hampshire commissions of the peace were identical with those for York. We have seen no evidence that the jurisdiction actually exercised was enlarged by the reference to offenses not covered by the province laws.84
It appears likely that until late in November 1692 administration of justice in the province centered in the justices of the peace. By a June 15 act all local laws ordered and made by the late Governor and Company of Massachusetts Bay, not repugnant to the laws of Eng- land nor inconsistent with the present constitution and settlement by royal charter, were to continue in full force until November 10 next, except where otherwise provided. The "several justices" were empowered to the execution of such laws as the magistrates formerly enforced. A June 28 act provided for the holding in each county by justices of the peace of Courts of General Sessions of the Peace and of County Courts or Inferior Courts of Common Pleas.85
Within the next several months a number of acts were passed which gave jurisdiction to a single justice of the peace or to "any jus- tice or justices" or to one or more justices of the peace in such mat- ters as violations of the law regulating casks, cursing and swearing, drunkenness, theft (as long as the treble damages did not exceed forty shillings) , lying, or libeling, violations of a law against unli- censed ordinaries and gaming in ordinaries, violation of the Lord's Day, slaughtering outside assigned slaughterhouses, cruelty to ani- mals en route to market, pulling down marriage notices, neglect or refusal to maintain common boundaries, neglect of constables in having certain town officers take their oaths, breach of town orders
83 1 Acts and Res. Prov. Mass. Bay 10- 12, 14-15, 19.
84 Whitmore, Mass. Civil List 139; 4 Prov. and Ct. Rec. Me. 21-23, 245-246.
85 1 Acts and Res. Prov. Mass. Bay 27, 37.
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INTRODUCTION
and by-laws, neglect of constables to settle their accounts, idling, neg- lect of constables to call town meetings, failure to comply with the law regarding weights and measures, and improper curing of fish or use of nets in fishing.86
In addition, every justice of the peace in the county where the offense was committed had jurisdiction over all affrayers, rioters, dis- turbers or breakers of the peace, and such as rode or went armed of- fensively before any justice or other officer or minister or uttered menacing or threatening speeches; also in cases of breach of the peace and forcible entrys and detainers. He also was authorized to make out hues and crys after runaway servants, thieves, and other criminals. Some offenses were reserved for quarter sessions. Little use was made of the jurisdiction of two justices as such.87
It was not until November 25, 1692 that a comprehensive judicial system was established by An Act for the Establishing of Judicatories and Court of Justice within this Province. This act provided for a Superior Court of Judicature held by a chief justice and four justices with cognizance over all pleas, real, personal, and mixed, as well as all pleas of the crown, and all matters relating to the conservation of the peace and punishment of offenders. However, the court was to have no jurisdiction in actions under ten pounds unless an appeal of freehold was concerned. On the criminal side the justices constituted a Court of Assize and General Gaol Delivery for each county.88
The act also provided for Courts of Quarter Sessions of the Peace held by the justices of the peace in each county who were empowered to hear and determine all matters relating to conservation of the peace and punishment of offenders and whatsoever was cognizable by them by law. At the same times and places Inferior Courts of Com- mon Pleas were to be held by four justices of the peace (three consti- tuting a quorum) with power to hear and determine all civil actions arising in the county triable at common law of whatsoever nature, kind or quality, except those under forty shillings, with liberty of appeal to the next Superior Court of Judicature held in Boston or Charlestown. It was also provided that all manner of debts, tres- passes, and other matters not exceeding the value of forty shillings (wherein the title of land was not concerned) should be heard, tried, adjudged, and determined by any justice of the peace within the county in which he resided. The party cast was to be free to appeal to the next Inferior Court of Common Pleas.89
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