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 11
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86 Ibid. 49-53, 56-57, 58-61, 64-66, 67- 68, 69-70, 71.
87 Ibid. 52-53. For those reserved for quarter sessions see ibid. 49, 52, 59, 62-63,
67, 69-70. For the jurisdiction of two jus- tices see ibid. 67-68. See also ibid. 34.
88 Ibid. 72-74.
89 Ibid. 72-74.
MASSACHUSETTS JUDICIAL SYSTEM 85
This act of 1692 made no provision for review in criminal cases tried by justices of the peace or at quarter sessions. However, a June 1695 act remedied this omission by providing that any person sen- tenced for any criminal offense by one or more justices of the peace out of sessions might appeal to the next Court of General Sessions of the Peace held within the county. It was also provided that any per- son aggrieved by the sentence of justices of the Court of General Ses- sions of the Peace might appeal to the next Court of Assize and Gen- eral Gaol Delivery held within the county, there to be finally issued. However, this act was disallowed by the King in Council in Novem- ber 1698.90
When the act of 1692 was disallowed by the King in Council in August 1695, an act was passed in September 1696 which reëstab- lished the judicial system of 1692, except that the objectionable re- striction of appeals to the King in Council to personal actions was omitted. However, this act suffered disallowance in November 1698, along with a June 1697 Act for Establishing of Courts which substan- tially reenacted the 1692 judicial system, with the exception of the civil jurisdiction of justices of the peace in matters not exceeding the value of forty shillings, which was covered by a separate act of the same session and escaped disallowance. Finally, in June 1699 three acts were passed which placed the judicial establishment on a perma- nent footing substantially in the manner provided in the earlier dis- allowed acts, with those modifications necessary to avoid further dis- allowance.91
The charter's authorization allowing the Governor to issue com- missions of oyer and terminer was invoked on several occasions, one of which involved Hampshire. On October 5, 1696 Richard Church, a Hadley inhabitant, was killed while hunting by four Albany Indi- ans encamped near Hatfield. The culprits were quickly apprehended and examined by several justices of the peace in the presence of the ministers of Northampton and Hatfield. On October 13 Governor Stoughton issued a commission of oyer and terminer to John Pyn- chon, Samuel Partrigg, Joseph Hawley, Aaron Cooke, and Joseph Par- sons to try the offenders. On October 21 a Court of Oyer and Termi- ner was held at Northampton, John Pynchon, grd, acting as clerk and Ebenezer Pomery as King's attorney. The four Indians were in- dicted by a grand jury, two as principals and two as accessories. A petty jury found all four guilty and the principals, sentenced to be shot, were executed on October 23; the accessories were re- prieved. The records show that the court scrupulously sought to give the accused fair trials. This attitude was wisely taken for some of 90 Ibid. 217. 91 Ibid. 248, 282-283, 367-372.
86
INTRODUCTION
the Albany Indians immediately complained to Governor Fletcher of alleged lack of due process. Stoughton, to whom the complaints were relayed, defended the action taken, and in April 1697 sent the New York governor a narrative of the proceedings.92
In the decade following the establishment of the provincial judi- cial system various acts were passed giving jurisdiction to the Courts of General (or Quarter) Sessions of the Peace in various criminal, regulatory, and administrative matters.93 Other acts supplemented or reiterated the powers of a justice of the peace in such matters as failure to register births or deaths with town clerks or to pay the reg- istration fees, breach of the peace, profanation of the Sabbath, un- lawful gaming, drunkenness (including Indian offenders) , profane swearing and cursing, failure to work on the highways when called, allowing horses to graze on common lands, regulation of inns and tippling, forfeiture of cord wood not of the requisite size, false re- turns of ratable estates, regulation of the movement of certain Indi- ans, delaying the post, violation of the assize regulating shingles, sell- ing goods by measure not conforming to the established standards, refusal of grantors to acknowledge their deeds, inspection and sup- pression of disorders of licensed houses, failure to ward, apprehen- sion of suspected Jesuits, selling wine and such without a license, re- turning inhabitants to their towns, and observation of the laws respecting schools and school masters.94 Jurisdiction was given to one or more justices in offenses such as serving liquor to proscribed per- sons, disorderly firing of guns and forcible entry and detainer.95
In certain cases a person aggrieved by a statutory violation might recover damages not exceeding forty shillings before a justice of the peace and, if in excess of such amount, before an Inferior Court of Common Pleas. Such cases included action by fence viewers for re- pair of fences, failure of shipowners to pay tonnage imposts, suits by commissioners of the excise for duties, regulation of tanners, car- riers, and cordwainers, replevin of cattle from pounds, cutting or carrying away wood from another's lands, and actions by finders of strays.96 Cases involving unlawful cutting of hay, robbing gardens, breaking down fences, and damaging or taking away of trees might be tried in any court or by one justice. While not specifically stated,
92 Judd, Hist. Hadley 263-265; 7 Acts and Res. Prov. Mass. Bay 523-530. For various documents relating to this inci- dent see 30 Mass. Archives 378-412.
93 1 Acts and Res. Prov. Mass. Bay 76- 78, 93, 103, 127-128, 136-137, 141, 152, 183, 188, 191-192, 210, 218, 256, 312, 329- 332, 435-436.
94 Ibid. 104, 122-123, 136, 138-139, 154, 157, 168, 175, 183, 212, 219, 298, 327-328, 382, 423-424, 434-435, 436-437, 453, 470. 95 Ibid. 192, 268, 397, 469.
96 Ibid. 138, 164-165, 208, 274, 312-314, 322, 324, 326-327, 393.
MASSACHUSETTS JUDICIAL SYSTEM 87 the jurisdiction of the one justice was presumably limited by the forty-shilling ceiling. Similarly, in the case of certain offenses, such as selling liquor to the Indians and cutting down or carrying off wood from another's land, a single justice had jurisdiction if the penalty did not exceed forty shillings; if in excess of such amount, then quar- ter sessions had jurisdiction.97
In connection with the military establishment, a justice of the peace was given jurisdiction to punish persons evading listing for military service and those neglecting military duty, to apprehend de- serters and runaways, to return French prisoners to neighboring provinces, to imprison deserting seamen and to apprehend nonfree- holders deserting frontier towns or persons pressed into military service.98
A single justice had power to appoint shipwrights to survey the building of certain vessels (jurisdiction to fine for refusal to correct faults of workmanship uncovered by the survey was at first in one or more justices; later quarter sessions was given concurrent jurisdic- tion) ; to appoint commissions of two or more to view encumbrances on highways and cause their removal; to authorize by warrant and administer the oath to ship's carpenters for determining the tonnage of ships for impost purposes; to appoint shingle viewers; and to ap- point persons to determine whether leather seized by searchers and sealers was defective.99 A single justice was also to join with the se- lectmen in appointing suitable watches in towns. He also had power to swear in surveyors of the highways, fence viewers, assessors, town treasurers, and those freeholders authorized to set forth dowry.100
In certain cases a single justice had power to grant warrants to commissioners of the excise to search for liquors, and other things concealed to avoid payment of excise; for part of the period this power was lodged in two justices. A justice, the selectmen, or a ma- jority thereof might issue warrants to fence viewers to impress work- men. Persons receiving licenses as innkeepers or retailers out of doors were to be bound in recognizance before one or more jus- tices.101
Penalties for failure to attend ferries and to keep the boats in re- pair, for refusal to serve as tithingman, for violation of certain pro- visions regulating licensed houses, for refusing to accept or neglect- ing the office of surveyor of the highways might be imposed by a single justice of the peace or at quarter sessions.102 A person refusing
97 Ibid. 150-151, 156, 324.
98 Ibid. 128, 133-135, 142-143, 295, 399,
400, 402-403.
99 Ibid. 114, 137, 164-165, 212, 275, 312-
100 Ibid. 136, 138, 361, 381-382, 384, 451. 101 Ibid. 119, 154, 271, 306-307, 328, 334, 345.
102 Ibid. 137-138, 183, 190-191, 224, 328-329.
313, 352.
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INTRODUCTION
to accept the office of assessor might be fined by a single justice or the Inferior Court of Common Pleas. Masters failing to give in a list of passengers to the receivers of imposts might be bound over to quar- ter sessions by a single justice. A justice of the peace might order whipped persons convicted of adultery or incest who did not wear their letter A or I as sentenced.103
Some jurisdiction was granted to two justices; in some cases one was to be of the quorum. Two justices were given power to commit to prison French subjects living in seaport or frontier towns without gubernatorial permission or keeping shop or practicing a trade in any town without consent of the selectmen, to put indigent inhab- itants out to service to enable them to equip themselves with arms, to punish selectmen who failed to make rates to buy arms, ammuni- tion, and so forth, and to commit certain persons to the workhouse.104 In case of neglect by a town two justices might appoint three or more assessors; they were also authorized to investigate cases in which banns were forbidden, to license ships visited with sickness to enter port, to allow Indians to bind themselves out, to make restitution in cases of forcible entry, to impress lodgings in sickness cases, and to issue warrants to levy rates for the support of the ministry.105 Two justices or quarter sessions were vested with jurisdiction over for- feiture of excess liquors, persons absconding after enlisting, and the support of the ministry. Selectmen of a town, with two justices of the peace, had authority to assign places at which stills might be op- erated.106
While the judicial establishment under the Second Charter was clearly influenced by English standards, experience under the com- monwealth was not ignored. The prototype of the Superior Court of Judicature was certainly the Court of Assistants. The Inferior Courts of Common Pleas and the Courts of General (or Quarter) Sessions of the Peace were comparable to the County Courts, and the justices of the peace, to the magistrates. The experience under the First Charter is particularly noticeable in the practice, under at least two governors, of commissioning all councilors as justices of the peace. Under the Second Charter the complexities of the lower jurisdic- tional levels were simplified; in part, at least, this was at the expense of the towns as judicial units.
103 Ibid. 166, 209, 452.
104 Ibid. 90, 130-131, 132, 380.
105 Ibid. 166, 210, 377, 435-436, 442, 469, 505.
106 Ibid. 224, 256, 499.
1
VI. The Jurisdictional Bases of the Springfield Courts
T. HE Record covers a period of over sixty years during which the jurisdiction exercised was far from constant. This section is concerned with the delineation of the authority by which the vari- ous courts whose acts are recorded in the Record were held from time to time and, to the extent not generically described in Section V, the jurisdiction of each such court.
THE AGAWAM APPOINTMENT
The first entry in the Record, under date of February 14, 1638/9, records the appointment of William Pynchon to execute the office of magistrate in the plantation of Agawam until further directions were received from the General Court. This appointment, made by the general vote and consent of the inhabitants, recognized the many inconveniences which might befall the inhabitants, now under the jurisdiction of Massachusetts Bay, for want of a fit magistracy and the impracticality of attendance at the constituted courts of the colony.1
The appointment authorized Pynchon to give oaths to constables or military officers, to direct warrants (including process, attachment, and execution) , to take the depositions of witnesses, to inflict cor- poral punishment (such as whipping or putting in the stocks) upon proof of misdemeanor, to bind offenders to the peace or to good be- havior, to require sureties in proper cases, and, if the offense re- quired, to commit to prison. In default of a common prison, delin- quents were to be committed to the charge of some fit person or persons until justice was satisfied. In the trial of actions for debt or trespass Pynchon was authorized to administer oaths, to take the depo- sitions of witnesses, to direct juries, to take verdicts, and to keep a record of verdicts, judgments, and executions.
Rec. 2.
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INTRODUCTION
In addition to the specific, Pynchon was granted generally power to do whatever else might tend to the King's peace, to the manifesta- tion of the fidelity of the inhabitants to the Bay jurisdiction, to the restraining of any that should molest God's laws, and, lastly, to do whatsoever might fall within the power of an assistant in Massachu- setts Bay.
It was also agreed that, since a jury of twelve fit persons could not be presently had, six persons should be a sufficient jury to try any action of debt or trespass under the sum of ten pounds. This provi- sion was to continue until the inhabitants by common consent al- tered the number or until the General Court directed otherwise.
This assumption of power by the inhabitants of Agawam to estab- lish a court with powers far exceeding those of any magistrate or commissioners to end small causes was ultra vires since under the Massachusetts charter the sole power to establish courts or to grant judicial powers resided in the General Court. However, regardless of any lack of authority under the charter, William Pynchon held courts for well over two years solely by virtue of the authority conferred upon him by the inhabitants of Agawam and the appointment was never disapproved by the General Court. It is hard to believe that Pynchon, presumably the draftsman, did not fully realize that his appointment had no de jure status. Yet, having put practical consid- erations ahead of legal, the frequent references to adherence to the jurisdiction of Massachusetts Bay were shrewdly calculated to ap- pease the General Court if it should be resentful of the invasion of its prerogative.2
Several aspects of this appointment merit notice. In the first place, although civil jurisdiction was apparently limited to acts of debt or trespass, to be tried by jury, there was no limitation on the amount involved, unless the ten-pound reference is construed as a jurisdic- tional limitation similar to that of the Inferior Quarter Courts. It would appear that the reference to the powers of an assistant was de- signed to add to, and not to subtract from, the powers previously enu- merated. However, it is doubtful that the reference was designed to give Pynchon power to hear and determine civil causes not exceed- ing twenty shillings "by his discretion," that is, without a jury, as in the case of a magistrate. Secondly, Pynchon was given broad criminal jurisdiction, although presumably causes concerning life, member, or banishment were not comprehended. While the power to impose fines was not specifically conferred, Pynchon in one case in early
2 The fact that a copy of the appoint- ment, in the hand of Henry Smith, is among the Winthrop Papers (vol. 4, p. 98)
indicates that the Bay authorities had due notice of the appointment.
9 1
JURISDICTIONAL BASES
1641 did impose a small fine for swearing. On the other hand, mag- istrates exercised no general criminal jurisdiction until May 1645. Thirdly, there was no provision for an appeal to the Court of As- sistants or to the General Court from any sentence or judgment of Pynchon. Fourthly, six instead of twelve jurors were to constitute a petty jury in causes under ten pounds. Fifthly, while Pynchon was authorized or required to keep records of verdicts, judgments, and executions, it was not until 1647 that magistrates and commission- ers were required by order of the General Court to "keep a true rec- ord of all such causes as shall come before them to be determined." 3
The clause "whatever else may tend to the Kings peace" is one not usually found in grants of judicial power in Massachusetts at this period when even process did not run in the King's name. The en- larging phrase, "the restraining of any that shall molest God's laws," may reflect a May 25, 1638 order of the General Court that until laws agreeable to the word of God were drawn up by a committee ap- pointed for that purpose "the magistrates and their associates shall proceed in the courts to hear and determine all causes according to the lawes now established, and where there is no law, then as neere the lawe of God as they can." 4
THE GENERAL COURT COMMISSION OF 1641
Pynchon's appointment as magistrate was to continue only until the General Court directed further. On June 2, 1641, the General Court declared that Springfield was and always had been within the Bay jurisdiction and ordered that Pynchon, not then an assistant, have full authority for the year to govern the inhabitants at Spring- field and to hear and determine all causes and offenses, both civil and criminal, that did not reach to life, limb, or banishment, accord- ing to the laws established for the colony. In "matters of weight or difficulty" any party might appeal to the Court of Assistants at Bos- ton, provided they prosecuted such appeal according to the order of the General Court. It was also provided that "these tryalls bee by the oathes of 6 men, until they shall have a greater number of inhabitants for that servise." 5
This 1641 commission which did not specifically term Pynchon a "magistrate" or refer to magistratical powers placed the Pynchon- held court upon a de jure basis. It broadened the civil jurisdiction to all causes, still without limitation of amount, and in criminal causes made explicit the implied limitation in cases extending to life, limb,
3 Rec. 14; 2 Rec. Mass. Bay 100, 208.
4 1 ibid. 174-175.
5 1 ibid. 321-322.
9 2
INTRODUCTION
or banishment. In providing for appeals it integrated the Springfield court into the judicial system of the colony. It retained trial by jury in civil causes and was open to the construction that a petty jury was required in trial of criminal offenses. For a vague body of law it sub- stituted the established laws of the colony. It omitted, however, any requirement that a record be kept of causes heard and determined.
THE GENERAL COURT COMMISSION OF 1643
The June 2, 1641 commission was limited by its terms to one year. However, it was not renewed by the General Court in June 1642. Perhaps this body felt that, since Pynchon was chosen an assist- ant on May 18, 1642, it was unnecessary to renew the earlier commis- sion. However, after the lapse of a year (in which no entries appear in the Record) , the General Court on June 22, 1643, granted a com- mission to Pynchon, for the year ensuing and until the court made further order, with full power to govern according to the 1641 order, reiterating the power to try causes by a jury of six if twelve could not be conveniently had.6
The duration of the 1643 commission depends upon the construc- tion placed upon the clause "till the court make further order." On May 14, 1645 the General Court ordered that the Massachusetts Bay commissioners for the United Colonies for the year, together with Pynchon, have power to keep a court at Springfield and to hear and determine all causes, both civil or criminal, either by a jury of six freemen, or otherwise, according to law, and to give the oath of free- dom to such as they found capable thereof.7 Certainly this is a "fur- ther order" of the General Court and the 1643 commission must be regarded as at least suspended for a period of a year. However, there is no evidence that the three-man court thus authorized ever sat. (John Winthrop, Deputy Governor, and Herbert Pelham were the Massachusetts commissioners, with Captain Cooke and William Ha- thorne, deputies, as alternates.) The Record contains no entries for the period April 1645 to April 1648; the printed records of the Com- missioners for the United Colonies afford no assistance. The Spring- field town records for the period indicate that judicial authority was regarded as residing in a single magistrate.8
However, whether or not the court authorized on May 14, 1645 ever sat does not answer the question as to whether or not such order in effect terminated the June 23, 1643 commission to Pynchon. If the latter commission was terminated by the May 14, 1645 order, then
6 2 ibid. 41.
7 2 ibid. 109.
8 1 Burt, Hist. Springfield 181-185.
93
JURISDICTIONAL BASES
the entries from 1648 to 1650 were made in Pynchon's capacity as magistrate rather than under the broader authority of the 1643 com- mission. It seems more likely that during this period Pynchon exer- cised judicial powers by virtue of the 1643 commission.
THE HENRY SMITH COMMISSION
Out of favor for his published religious views, William Pynchon was not chosen an assistant at the May 1651 session of the General Court. Therefore, the court on May 22 issued a commission, until further order, to Henry Smith, Pynchon's son-in-law and a deputy, in substantially the same terms as the 1641 commission to William Pynchon, with the addition that Smith was authorized to give oaths to constables legally chosen and to examine witnesses under suitable oath.9 This reiteration of the 1641 commission provisions indicates that the General Court, or perhaps the Springfield inhabitants, en- tertained the view that Pynchon had been acting under the 1643 com- mission. If Pynchon had only the power of a magistrate, there was no apparent justification for granting Smith any greater powers. However, the order recited that the inhabitants of Springfield were at present destitute of any magistrate or others to put issue to such cases and differences as might arise amongst them. Since no "further order" had apparently issued terminating the 1643 commission, the fact that Pynchon had ceased to be a magistrate must have been re- garded as putting an end to judicial authority at Springfield.
There is no trace of any courts held by Henry Smith under this commission in the Record nor has any reference to such a court been found. However, Henry Smith did not remain long in New England after his father-in-law's departure, and the General Court was again faced with the necessity of issuing a new commission.
APPOINTMENT OF THREE COMMISSIONERS
On October 26, 1652 the General Court granted to John Pyn- chon, Elizur Holyoke, and Samuel Chapin a commission, until fur- ther order, to govern the inhabitants of Springfield virtually identi- cal in terms with the Smith commission. The court also provided for an oath which was taken before the selectmen of Springfield on No- vember 12 when the commissioners commenced the exercise of their powers. In May 1653 Pynchon and Holyoke were also empowered by the General Court to administer the freeman's oath. On September
9 3 Rec. Mass. Bay 230; 4 ibid. (Part I) 49.
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INTRODUCTION
10, 1653 the General Court renewed this commission for one year more. On November 1, 1654, the 1653 commission having expired, the General Court empowered Pynchon, Holyoke, and Chapin as commissioners to act at Springfield according to the commission granted Henry Smith in May 1651 until the court took further or- der. They were to take the same oath as appointed in 1652 at some public meeting of at least ten Springfield inhabitants.10 The oath was presumably taken, but it is not recorded in the Record. After April 1655 there are no entries in the Record until September 28, 1658.
The last date has significance. At first Springfield alone had a court on the western frontier of the colony. But on May 23, 1655, upon petition of the inhabitants of Nonotuck (Northampton) , the General Court empowered three commissioners to end small causes in this town-William Holton, Thomas Bascom, and Edward Elmer. These commissioners and the constable were directed to repair to Springfield and have their oaths administered by the Springfield com- missioners. A similar order was made on May 14, 1656.11 No appoint- ment of the General Court has been found for 1657, but on February 8, 1657/8 William Holton and Thomas Bascom were chosen com- missioners for the year ensuing at a town meeting at Northampton.12 Then in May 1658, a new court made its appearance in the Connecti- cut Valley.
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