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 15
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84 Rec. 12. Cf. the ten-pound fine im- posed by the Court of Assistants in 1637 for lending a gun to an Indian for four days. 2 Rec. Ct. Assts. Mass. Bay 71.
85 Rec. 69-70; 1 Hamp. Cty. Probate Ct. Rec. 8, 11.
86 Pynchon Waste Book for Hampshire 73, 75, 91; 4 Rec. Mass. Bay (Part II) 375. 87 Pynchon Waste Book for Hampshire 91-92.
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Come, that he do no more So offend, and become an occasion of bringing down Gods Judgmente upon the Land, as is most Certaine the Custome and trade of Selling Strong drinkes thus in this manner to them doth demerit, in as much, as such their Cravings of such drinkes are not to Satisfy needy Nature, but beastlike to fil a Sensual appetite." 88
OFFENSES INVOLVING INDIANS
Considering the frontier position of Springfield, relatively few other cases involving Indians are found in the Record. The most se- rious offense occurred in May 1660 when Thomas Miller and his wife were beaten by some Indians from the Nipmuck country. An Indian who broke into Rowland Thomas' house in June 1650 and stole some goods was not brought to justice but a sachem at Woronoco finally gave some wampum to William Pynchon in satisfaction.89 This inci- dent reveals that in the case of Indian offenders justice might have to yield to expediency. In May 1671 an Indian was found guilty of breaking into Samuel Bliss's house on the Sabbath and stealing some wampum. Two months later two Indians were punished for stealing some wampum and other goods from Obadiah Cooley's house. In the last two cases corporal punishment was imposed.90
Two Indians, charged in December 1674 with stealing a trap eighteen months earlier, were discharged when other Indians en- gaged that the offenders would return the trap and pay some wam- pum toward the charges. A runaway Indian from New York was ap- prehended by hue and cry in November 1694 after stealing a horse and other goods. Following examination by John Pynchon, although none offered to prosecute, he was committed to prison by mittimus and later returned to his New York master-an example of informal extradition.91 At a March 1664/5 sitting of the Springfield commis- sioners an Indian who owned to breaking the windows of Captain Pynchon's farm house some years ago and to other misdemeanors was ordered to pay treble damages.92 Despite the legendary aboriginal thirst for strong waters, only two cases of Indian drunkenness are found in the Record, one in 1662 and one in 1674; in both cases ten- shilling fines were imposed.93
A few cases concerned damage to the person or property of In- dians. In May 1648, for striking an Indian squaw, Francis Ball was
88 Rec. Cty. Ct. Hamp. 51.
89 Rec. 39-40, 87-88.
80 Rec. 139-140, 141.
91 Rec. 156, 224.
92 Rec. 132. See also 1 Hist. and Proc.
Pocumtuck Valley Mem. Asso. 173.
93 Rec. 100, 156. An examination of the Pynchon Account Books would undoubt- edly disclose other fines. See 1 Hist. and Proc. Pocumtuck Valley Mem. Asso. 79.
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ordered by William Pynchon to pay the injured Indian two hands of wampum, but Ball refused to make payment. Two years later, Wil- liam Pynchon, with the advice of the Reverend Moxon and others who were present, adjudged that Thomas Miller receive fifteen lashes for breach of the peace in striking an Indian with the butt end of his gun. However, Miller avoided the whipping by paying down four fathom of wampum.94 In August 1659, when some Indians complained of damage done by cattle to their cornfields on the west- ern side of the Connecticut River, the damage was viewed and judged at eight shillings. The Springfield commissioners accordingly ordered the constable to raise this amount from the inhabitants on the west side of the River. In June 1664 the commissioners, finding that some youths had damaged a canoe left by an Indian, ordered the constable to gather up for the Indian twopence apiece from each person implicated.95 At the March 1665 County Court an Indian sought help in respect of a sentence of the Springfield commissioners taking two guns from him for Thomas Miller. The court ordered the commissioners to review the case, but no entry appears in the Record.96
VIOLATION OF TOWN ORDERS
In outlining the Massachusetts judicial system note was taken of the power of the town freemen or selectmen to make orders of a "prudential nature." Although Agawam had not been recognized as a town by the General Court, on February 14, 1638/9, the same day that they commissioned William Pynchon with judicial powers, the inhabitants issued the first of many "town" orders. One provided a five-shilling fine for anyone selling or transferring out of the planta- tion a canoe under five years old; the other provided for payment for damage done by cattle put over the River to graze in violation of a restrictive order.97 In the next few years a number of town orders covered a wide variety of subjects such as attendance at training ex- ercises, trading, selling or giving powder to Indians (a forty-shilling penalty) , fixing laborers' wages, keeping highways clean and in re- pair, felling "canoe trees," failure to possess certain arms and ammu- nition, failure to possess ladders (as protection against fires on roofs) , carrying fire in the open without covering, making and maintaining ditches, allowing strangers to live on one's land without the consent of the inhabitants, and fixing prices of sawed wood.98
94 Rec. 25, 39.
95 Rec. 82, 104-105.
96 Pynchon Waste Book for Hampshire
22; 1 Hamp. Cty. Probate Ct. Rec. 52.
97 1 Burt, Hist. Springfield 164.
98 Ibid. 165-171.
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The first election of selectmen was held on September 26, 1644, when by general vote of the town it was agreed that Henry Smith, Thomas Cooper, Samuel Chapin, Richard Sikes, and Henry Burt:
,shall have power to order in all the prudential affaires of the Towne, to prevent anythinge they shall judge to be to the dammage of the Towne or to ordr any thing they shall judge to be for the good of the Towne: and in these affaires they shall have power for a yeere space and that they, 5, or any three of them shall also be given full power and vir- tue, alsoe to here complaints, to Arbitrate controversies, to lay out High ways, to make Bridges, to repayr High wais ... to see to the Scouring of Ditches, and to the killing of wolves, and to training up of children in some good caling, or any other thing they shall judge to be to the profitt of the Towne.99
The September 1646 appointment of selectmen specifically au- thorized them to impose five-shilling fines upon those neglecting to keep their chimneys clean or carrying fire uncovered in the open. In the event of refusal to pay such fines the selectmen were "to com- plaine to the magistrate who will grant his warrant to distraine for the said fine." Their authority was also "to reach to reconsile dis- grements and disputes between neighbor and neighbor." 100
Later town orders, most of which were issued by 1653, covered such subjects as sweeping of chimneys, taking canoes without leave, absence from town meetings, restrictions on grazing of cattle, work on highways, removal of wood and timber, attendance at town meet- ings, the burning of tar, the keeping of swine, clearing of highways, transporting building lumber outside the town limits, watering hemp or flax in streams near habitations, gathering of hops, recording of land grants, maintenance of fences, the location of houses, entertain- ing and selling lands to strangers, regulation of wages, refusal to ac- cept town offices, leaving gates open, laying out land boundaries, children playing near the meetinghouse, riding of horses in town, regulation of seating in the meetinghouse, misbehavior of children in the meetinghouse, misbehavior at town meetings, and the gather- ing of turpentine.101
Considering the wide range of subject matters covered by town orders, there are relatively few instances of violations of town orders to be found in the Record. On November 17, 1648 John Clark was presented by Griffith Jones, presumably one of the recently elected "presenters" for the town, for leaving an offensive carrion by the
99 Ibid. 175-176.
100 Ibid. 185.
101 Ibid. 177-178, 180-181, 183-184, 186-
189, 191-194, 200-217, 229, 252-255, 256-
257, 259, 269-270, 273-276, 280, 307, 314, 317, 334-335, 359, 371-373, 379, 385-386, 405-406, 418-419, 423-424, 428-430; 2 ibid. 54-71, 123-124, 145, 154-155.
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brookside. Whether this was regarded as a violation of a town order or came within the category of "any other misdemeanor" which the presenter had authority to present is not clear. The next May a num- ber of inhabitants were presented for leaving their oxen over the Connecticut River in violation of a town order. In March 1652/3 the wife of Griffith Jones was presented for carrying uncovered fire in the open and fined five shillings. During the following November seven persons were presented for unspecified breaches of town or- ders and ordered to pay sums ranging from sixpence to ten shil- lings.102 At the March 27, 1660 court three selectmen of Springfield presented a complaint against John Wood for staying in the town contrary to a legal warning to depart. (Wood in May 1659 had been fined forty shillings for taking up residence in the town without con- sent of the inhabitants, contrary to town order.) 103 In July 1685 sev- eral inhabitants complained against the appointed fence viewers for neglect of their duties in violation of the colony laws and of a town order. In February 1687/8 suit was brought for penalties for taking some swine out of pound in violation of both a town order and a "Publike act of the Council." 104
THE ROLE OF THE CHURCH
The role of the church in the administration of justice in western Massachusetts in the seventeenth century is difficult to assess since the only church records remaining for the period are those for North- ampton and Westfield. A recent study based largely upon unpub- lished manuscript records makes reference to only four instances of church intervention in western Massachusetts during the seventeenth century. In 1682 John Maundesly, charged by the church at West- field with violation of the Eighth, Ninth, and Tenth Commandments in presenting a petition to the General Court, confessed his errors, and was restored. In 1685 Joseph Pomeroy, constable at Westfield, publicly confessed in church his embezzlement of county funds. In 1697 Abigail Bush, apparently suspended, was restored with an ad- monition to be "very tender of Parentall honour." In 1698 the church at Northampton excommunicated John Taylor who, upon release from the Springfield jail to attend church, profaned the Sab- bath by absenting himself from public worship to elude authority.105
102 Rec. 28, 33-34, 56.
103 Rec. 85; 1 Burt, Hist. Springfield 264, 276.
104 Rec. 193, 204.
105 See Oberholzer, Delinquent Saints (1956) 59, 124, 190-191, 206-208. For the
manuscript sources see 1 The Publick Rec- ords of the Church, 1679-1836 125-129, at the Westfield Athenaeum, Westfield, Mass., and 1 Northampton First Congregational Church Minutes, 1661-1833 25, in the pos- session of said church.
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The Record itself shows the Reverend Moxon present on several oc- casions in a role other than litigant but there is no indication of any close relation between church and commonwealth in the admin- istration of justice on the local level.
Certain generalizations can be made concerning the criminal ju- risdiction appearing in the Record. The various jurisdictions exer- ยท cised ranged widely in taking cognizance of different offenses, but there was at no time any substantial volume of any one class of of- fenses. While jurisdiction was exercised in various capacities, there was no great contrast in the nature of the offenses handled from time to time, except perhaps for the earliest years and the years under the Second Charter. In terms of volume and variety, the period during which John Pynchon acted as magistrate is foremost. Another out- standing feature is the flexibility of administration, both in taking jurisdiction without seeking support in the letter of the laws and in awarding punishment. Lastly, the significance of the magistrate or justice of the peace in examining and binding over offenders to courts on the county level and in dealing with cases referred back from such level can be seen. From the first volume of County Court records for Hampshire it appears that Pynchon was responsible for almost one-half of the offenders bound over to that court; most of the remainder were bound over by the commissioners for North- ampton, Hadley, and Hatfield.
In evaluating the jurisdiction exercised in the Record from a statistical standpoint it must be kept in mind that the County Court of Hampshire exercised concurrent jurisdiction in minor offenses for about twenty-three years. Of the almost two hundred offenses han- dled in the first volume of the County Court records (to 1675) , many were minor offenses such as breach of the peace, drunkenness, swearing, lying, abusive speeches, neglect of duty, theft, lascivious carriage, profanation of the Sabbath, and offenses by Indians. The use by the County Court of grand jury presentments served to ac- count for a substantial volume of the jurisdiction exercised.
A comparison of the jurisdiction in criminal matters appearing in the Record with that exercised on comparable judicial levels in the Bay during the period of the First Charter (county court level until 1665, magistrate or commissioners level from 1665 to 1686) shows a much greater volume of cases handled in the Bay, covering, particularly on the county level, a wider variety of offenses in a more settled, but less homogeneous, society, with a better defined and, to some extent, hardened criminal class. However, it is obvious that in both areas law enforcement was primarily based upon the laws and
1
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INTRODUCTION
orders of the General Court. As to offenses not specifically covered by such laws and orders, there was no cleavage in treatment between the two geographic areas. It seems likely that both found guidance in this respect in the activities of the Court of Assistants, or perhaps in the word of God. If there was any significant reliance upon sub- stantive laws supposedly received from England, it is not patent in the Record or in any of the printed and manuscript material exam- ined for comparative purposes. This conclusion is not intended to derogate in any way from the importance of the laws of England as precedents or models in founding the laws and orders of the General Court and in furnishing standards in procedural matters not cov- ered by colony laws and orders.
VIII. Criminal Procedure
T HE Massachusetts laws of the seventeenth century de- voted much space to the enumeration and description of criminal offenses and to granting jurisdiction to various courts over such of- fenses. However, little space was devoted to the procedures to be em- ployed in the exercise of the jurisdiction thus conferred. Perhaps such neglect was beneficial in that it permitted each court to shape its procedure, to some degree, in accordance with its own circumstances.
ACCUSATORY DEVICES
The cases appearing in the Record and related County Court records reveal that flexibility was the principal characteristic of the initial step in setting in motion the judicial process in criminal mat- ters. Thus, such step might be found to take any one of the follow- ing forms:
(a) Complaint or presentment by a private person;
(b) Complaint or presentment by a constable or the watch, in- cluding those cases in which an offender was taken without warrant by the constable or watch and brought before the court for examination;
(c) Complaint or presentment by the selectmen of Springfield or another town;
(d) Presentment by the elected town presenters of Springfield;
(e) Presentment by tithingmen;
(f) Presentment by a grand juror;
(g) Qui tam action by an informer;
(h) Reference from the County Court or the Court of General Sessions of the Peace;
(i) The court's own view of the offense.
(It should not be assumed that all these devices were in use for the en- tire period.)
Conspicuously absent from this list is presentment or indictment by a grand jury. No use was made of the grand jury by any of the
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INTRODUCTION
courts whose acts are recorded in the Record; the evidence in the supplemental Registry of Probate material is equivocal. Largely be- cause of the sparse population, the grand jury did not thrive as an institution in western Massachusetts. Although it was employed by the County Court, petty jurors were compelled to double as grand jurors. Formal informations were not used as there were no com- monwealth or Crown attorneys or clerks of the peace. A few instances appear in the Record and the supplemental Registry of Probate ma- terial of the use of a jury of inquest in case of "any suddain, untimely or unnatural death." 1
While it received little recognition in the laws, the most widely used device for initiating judicial action in criminal offenses during the period covered was the complaint made to the court by a private person. This was in effect what Lambard stated was most aptly termed a "suit of the party"-whether in the form of a bill, plaint, complaint, or information.2 Normally the complainant was the person injured or aggrieved, as in the case of offenses such as assault and bat- tery, defamation, and theft.3 In a few cases the complaint might stem from the relation of master and servant, husband and wife, or parent and child. A 1668 law provided that any person, whether or not twenty-one years of age, might "inform and present any misdemeanor to any magistrate, Grand-juryman or court." However, little use of "presentments" by private persons appears in the records examined, with the exception, perhaps, of those made to grand jurymen on the county level. No requirement appears that such complaints be made in writing or in any particular form and most complaints probably were made orally. However, a notation of August 1681 shows Jona- than Winchel "Presenting his suspition" of Robert Old taking away a bushel of complainant's wheat meal from Westfield. Old being sent for, what Winchel had presented in writing was read to him. No re- quirement that complaints or presentments be made under oath was found, nor any evidence that complainants were bound or sum- moned to prosecute, the practice in some instances by the county courts.4
1 For the inquest juries see Rec. 87, 158; 1 Hamp. Cty. Probate Ct. Rec. 3. For the law see Col. Laws Mass., 1672 39. Perhaps several presentments made at the Septem- ber 1661 court held by the commissioners were made by petty jurors acting as a grand jury. 1 Hamp. Cty. Probate Ct. Rec. 8.
2 For some acts referring to complaints under the Second Charter see 1 Acts and Res. Prov. Mass. Bay 136, 138, 219, 256. See Lambard, Eirenarcha (1607) 502.
3 See also the appointment by the com- missioners in March 1661, when the widow Bliss complained of the annoyance from Elizur Holyoke's mill. 1 Hamp. Cty. Pro- bate Ct. Rec. 5.
4 For the Winchel "presentment" see Rec. 180. For the 1668 law see Col. Laws Mass., 1672 2. The 1652 law entitled "In- ditements" appears to contemplate that a written complaint, presentment or infor- mation be "made and exhibited" but most of the complaints in the Record would be
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CRIMINAL PROCEDURE
Next in importance to complaint by a private person was the com- plaint or presentment by a town constable. While the role of the con- stable in criminal law enforcement was of greater importance prior to 1692, the Record does not reflect its decline as sharply as does a read- ing of the laws passed under the Second Charter with their emphasis, derived from English practice, upon the role of the sheriff. By laws under the First Charter every constable was given full power where no magistrate was near, to make, sign, and put forth pursuits or hues and cries after murderers, manslayers, peace-breakers, thieves, rob- bers, burglars, and other capital offenders. He also had power to ap- prehend without warrant such as were overtaken with drink, those swearing, Sabbath-breaking, or lying, vagrant persons, and night- walkers. The constable was to act upon his own view of the offenses or upon present information from others. He was directed to make search for all such persons, either on the Sabbath or any other day when there was occasion, in all houses licensed to sell beer or wine, or in any other suspected or disorderly places, and to apprehend of- fenders and keep them in custody until they could be brought before a magistrate for further examination.5
Under the law regulating inns the constable was given power, in the case of persons found drunk or in their drunkenness abusing the constable or others, to commit such persons to safekeeping or impris- onment or to take bond for their appearance, as he saw cause, and to inform the next magistrate thereof. If there was no magistrate in town, he was to convent such person before one or more commis- sioners for ending small causes. Several acts gave constables power to apprehend without warrant persons found at Quaker meetings. A 1662 act provided that constables might apprehend vagabonds, with or without further warrant, and bring them before the next magis- trate for examination. The law regulating Indians provided that any person finding any Indian with strong liquors, obtained without au- thority, was empowered to seize such liquors and deliver them to the constable of the town where the Indians were found, together with the persons of the Indians, to be conveyed before a magistrate or commissioner with power to deal with such cases.6
Various laws regarding the watch gave power to the constable or
excepted from the operation of this law. Ibid. 79. No fine distinction is drawn be- tween complaints and presentments in the County Court records. Some offenders are "presented and complained of"; a com- plaint might be presented; a complaint at one session might be designated a present- ment at another. For complainants bound
or summoned to prosecute see 1 Hamp. Cty. Probate Ct. Rec. 41, 89, 132; 2 Rec. and Files Quart. Cts. Essex Cty. Mass. 70. For what amounted to a complaint under oath see 2 ibid. 152.
5 Col. Laws Mass., 1672 31.
6 Ibid. 77, 153, 234, 250.
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the watch to apprehend certain offenders without warrant. The laws of 1672, for instance, provided that:
And the Constables in every Town from time to time, are hereby en- joyned to give in their charge to Watch-men, that they duely examine all Night-Walkers after ten of the clock at night (unless they be known peaceable Inhabitants) to inquire whether they are going, and what there business is; and in case they give not reasonable satisfaction to the Watch- men or Constable, then the Constable shall forthwith secure them till the morning, and shall carry such person or persons before the next Mag- istrate or Commissioner, to give satisfaction for their being abroad at that time of night. And if the Watch-men shall finde any Inhabitant or Stranger, after ten of the clock at night, behaving themselves any wayes debauchedly, or shall be in drink, the Constable shall secure them, by commitment or otherwise, till the Law be satisfied .?
In those cases in which the constable, or perhaps the watch, ap- prehended offenders without warrant the initial step appearing in the Record was the examination of the offender by the court. Pre- sumably this examination would be preceded by the constable's ex- planation of the circumstances of the apprehension, which in effect served as a complaint or presentment. However, the number of cases found in the Record in which constables apprehended offenders without warrant are relatively few, but certain brief entries merely recording imposition of fines may also be cases of apprehension with- out a warrant. By law a constable was required to carry a five-foot black staff tipped with brass when executing his office (later modi- fied where the constable was acting under warrant from authority) .8 Such badge of office seems somewhat incongruous for western Mas- sachusetts but cases in the Essex County Court records show that im- portance attached to the requirement.
In addition to those cases in which constables were authorized to arrest without warrant, several acts under the First Charter especially enjoined them to search out all offenses against such laws, presum- ably with a view to presenting the offenders. Such acts included that regulating inns and an act prohibiting the entertainment of young people in ordinaries. A 1677 act provided that constables were to pre- sent to the magistrate the names of all persons transgressing a law prohibiting horse racing for money. Under the law regulating "Idle Persons" constables were to use special care to take notice of per- sons spending their time idly or unprofitably, especially of "common Coasters, unprofitable Fowlers, and Tobacco takers" and present them to the next magistrate.9
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