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 16
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
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
7 Ibid. 154.
8 Ibid. 31, 221.
9 Ibid. 27, 66, 83, 347.
133
CRIMINAL PROCEDURE
Presumably a more general duty to present offenders against the laws of the commonwealth was comprehended within the constable's oath of office which, in the laws of 1672, read as follows:
Whereas you [E.G.] are chosen Constable within the Town of [C.] for one year now following, and until other be sworn in the place: You do here Swear by the Name of Almighty God, that you will carefully intend the preservation of the Peace, the discovery and preventing all attempts against the same: You shall duely execute all Warrants which shall be sent unto you from lawful Authority here Established, and shall faith- fully execute all such Orders of Court as are committed to your care: And in all these things you shall deal seriously and faithfully while you shall be in Office, without any sinistre respects of favour or displeasure: So help you God, etc.10
Substantially the same language was retained and supplemented in the constable's oath provided under the Second Charter.11 How- ever, the laws enacted between 1692 and 1702 appear to contemplate that the principal duties of constables would be in enforcing ob- servance of the Sabbath, assisting officers of the excise or impost in searches, and informing of breaches of the licensing laws. A 1701 act authorized presentment of violations of a licensing law by grand ju- rors, sheriffs, undersheriffs, constables, tithingmen, and such other persons as should be appointed by the respective Courts of General Sessions of the Peace for that service.12
Several complaints or presentments by the selectmen of Spring- field and one by the selectmen of Hatfield are contained in the Rec- ord. The subject matter of these complaints covered a stranger remaining in Springfield contrary to town order, unseasonable play- ing at cards and other misdemeanors, and neglect by constables to collect town rates committed to them.13 No authority has been found in the laws for this type of proceeding but it may be an extension of the device of complaints or presentments by private persons.
Grand juries probably were not employed in western Massachu- setts until the establishment of the County Court for Hampshire. With an awareness of this deficiency the town of Springfield, com- mencing with the year 1648, provided for the election of "present- ers." The town order of November 6, 1648 establishing this office, which appears to have been sui generis, reads as follows:
It is alsoe ordered that on the first Tuesday of Novembre there shall be yearly chosen by the Inhabitants two men in their stead of Grand Jury men who shall by virtue of an oath imposed upon them by the magistrate
10 Ibid. 168.
12 Ibid. 32, 59, 119, 271, 273, 393, 477.
11 1 Acts and Res. Prov. Mass. Bay 79.
13 Rec. 85, 165-166, 237.
134
INTRODUCTION
for that purpose, faithfully Present on such Court days [those established by an order of the same date] all such breaches of Towne orders or Court orders, or any other misdemeaners as shal come to theyr knowledge either by theyr owne observation or by credible information of others, and shall take out process for the appearance of such as are delinquents, or wit- nesses to appeare the said day, when all such Presentments by the said partys shall be Judicially heard and examined by the magistrate and warrants for distresses granted for the Levying of such fines or penaltys as are anexed to the orders violated, or which shall seeme meete or reason- able to the magistrate to impose or inflict accordinge to the nature of the offence. These two men to stand in the office for a yeare or till others be chosen in theyr roome.14
How long the office of presenter was continued by virtue of this town order we do not know. Presumably the need disappeared in large part with the establishment of the County Court and a system of grand jurors. The town records show one or two presenters chosen in 1651, 1654, 1655, 1656, and 1657.15 The only presentments in the Record which are definitely attributable to the town presenters are found at four sittings from November 1648 to November 1653 and cover about a dozen violations.16 An entry for November 30, 1659 shows "John Matthews beinge presented for refusinge to obey a sum- mons sent from Authority," but there is no indication as to the iden- tity of the presenter.17 There is some evidence in the Record that an informal system of presenters existed as early as 1640 when Goody Gregory was "accused by oath of John Woodcoke and Richard Wil- liams" of swearing.18
By a May 1677 law the selectmen of each town were ordered to see to it that tithingmen were appointed in their towns, each to in- spect the families of ten neighbors with power, in the absence of the constable, to apprehend all Sabbath-breakers, disorderly tipplers, or such as kept licensed houses (later extended to public licensed houses as well as private and unlicensed houses of entertainment) , or oth- ers that suffered any disorder in their houses on the Sabbath day or evening after, or at any other time, and to carry them before a mag- istrate or other authority, or commit to prison, as any constable might do, to be proceeded with according to law.19 An October 1679 law provided that the selectmen should take care that tithingmen be annually chosen from the most prudent and discreet inhabitants and granted them powers of inspection of licensed and unlicensed houses
14 1 Burt, Hist. Springfield 195-196. As set forth in the town orders made and con- firmed on February 5, 1649/50, "Two wise discreete men" were to be chosen. Ibid. 210.
15 Ibid. 219, 235, 243, 251, 255.
16 Rec. 28, 33, 56.
17 Rec. 83.
18 Rec. 14.
19 Col. Laws Mass., 1672 250-251, 259.
135
CRIMINAL PROCEDURE
and of seizure of strong liquors on such premises, an account of which seizure was to be made to the next magistrate or commissioner vested with magistratical powers to be proceeded against according to law.2ยบ The same law also provided that:
Also the Tything-men are required diligently to inspect the manner of all disorderly persons, and where by more private admonitions they will not be reclaimed, they are from time to time to present their names to the next Magistrate, or Commissioner invested with Magistratical power, who shall proceed against them as the Law direct, as also they are in like manner to present the names of all single persons that live from under Family Government, stubborn and disorderly Children and Serv- ants, night-walkers, Typlers, Sabbath breakers, by night or by day, and such as absent themselves from the publick Worship of God on the Lords dayes, or whatever else course or practice of any person or persons what- soever tending to debauchery, Irreligion, prophaness, and Atheism amongst us, whether by omission of Family Government, nurture, and religious dutyes, and instruction of Children or Servants, or idle, profli- gate, uncivil or rude practices of any sort, the names of all which persons with the fact whereof they are accused, and witness thereof, they shall present to the next Magistrate, or Commissioner, where any are in the said Town invested with Magistratical power who shall proceed against and punish all such misdemeanours by Fine, Imprisonment, or binding over to the County Court as the Law directs.
An oath provided read as follows:
Whereas you A. B. are chosen a Tything-man within the Town of D. for one year, until others be chosen and sworn in your room and stead, you do here swear by the living God that you will diligently endeavour, and to the utmost of your Ability perform and intend the duty of your place according to the particulars specified in the Laws peculiar to your Office, So help you God.21
Some evidence of the effect given to the earlier laws is found in the County Court records. At the March 26, 1678 County Court for Hampshire, at which six tithingmen for Springfield, six for North- ampton, and four for Hadley were presented by the respective select- men and approved by the court, the following entry appears in the records:
Al which persons abovenamed being authorized the titheing men for the Several Towns as aforesaid, are hereby required faithfully to act in their Inspecting of their Neighbors, so as that Sin and Disorder may be prevented and Suppressed in their Several precincts, and as occasion may be to Assist one the others, and act in one and others precincts, discharg-
20 Ibid. 270.
21 Ibid. 271.
136
INTRODUCTION
ing the office of titheing men, according to the Laws made November 1675, May, 1677, and October 1677, they having reference thereunto.
And further this Court doth now commend to these titheing men, and require them diligently to take care that the Sabbath be not profaned by youth or Elder persons sitting or standing abroad out of their meeting houses in the time of Gods publique worship whereby they are exposed to many temptations and Diversions. And that they doe Check al such persons, and so Deal with them as thereby to enforce them to go in within their meeting houses, where they may attend better, and be in sight, or otherwise to present their Names in Case Such do not reforme, to the magistrates Comissioners or other Authoritie in the Several Townes to proceed against such as shal remayne refactory, according as they shal see Cause, as also to have a vigilant eye upon al persons that shal with out just and necessary Cause be unseasonably abroad in the Evenings from their parents or masters houses or familyes; Al persons be- ing to repaire to their lodgings and homes by nine of the Clocke at night, or rather before; And what persons soever they find faultie herein, in be- ing abroad unseasonably, or other waies faulty, they are to admonish and hasten to their own proper places of abode, whither they are to re- paire when it draws toward nine of the Clocke at night, and in Case of their neglect hereof, or non attendance thereto, then to complain of Such to authoritie, that So they may be brought to better order, or proceeded against according to their demerit.22
With this elaborate background it is surprising that only two pre- sentments by tithingmen are found in the Record. One, made in July 1685, was for "wicked and horrid desperate words of a Develish nature and Notorious lying"; the other, in September of the same year, for coming through the streets with a laden cart after sunset on a Saturday night.23 No adequate explanation has been found for this paucity. It is doubtful that all the inhabitants of Springfield and neighboring towns were paragons of virtue. Nor is it probable that entries of presentments by tithingmen were omitted from the Rec- ord on a wholesale scale. The sentiments of the County Court ex- pressed in cases involving sexual offenses at that time certainly indi- cate sympathy on the part of Pynchon with the legislative objectives. One can only surmise that the tithingmen adopted a live-and-let- live attitude to the neglect of their sworn duties, or perhaps, concen- trated their presentments on the County Court level.
The office of tithingman apparently lingered on, surviving the loss of the Charter. In March 1693/4 it was rejuvenated by an act which provided that tithingmen be chosen annually in each town and that they have the power and duty to inspect all licensed houses and those selling at retail without license and to inform of all disorders
22 Rec. Cty. Ct. Hamp. 9.
23 Rec. 193-194.
137
CRIMINAL PROCEDURE
and misdemeanors committed in such houses to a justice of the peace or to quarter sessions. They were also to present or inform of all idle and disorderly persons, profane cursers and swearers, Sabbath-break- ers, and the like offenders. Where they informed, they were to have the informer's share.24 There is, however, no entry in the Record of any presentment or informing by a tithingman pursuant to this act.
Under the First Charter a few laws, as a means of stimulating en- forcement, included provisions that a portion of the penalty should go to the informer-in effect qui tam actions. Those laws designed primarily for informing at the magistrate's level included such mat- ters as sale of defective casks, unlawful entertainment of young peo- ple, gaming for money, sale of adulterated beer, failure of a taverner or vintner to report purchases of wine, sale by a maltster of unclean malt, and unlawful taking of tobacco.25
An examination of the Record leads to the conclusion that use of qui tam actions by informers was not an important means of initiat- ing prosecution in western Massachusetts under the First Charter. Only two cases, presentments in 1652/3 by the town presenter for un- lawful taking of tobacco, refer to an informer; in both cases the pre- senter released his share of the fines imposed.26 The Record does not disclose the accusatory process in several card-playing cases in 1661- 62; the offenders may have been informed against.27 The word "in- forming" had no precise procedural meaning in the laws; one law concerning the offense of lying, which made no provision for an in- former's share in the penalty imposed, spoke of the "party complain- ing or informing." 28 It has already been pointed out that "present- ing" was regarded as synonymous with "informing" in the 1668 law and in the case of the town presenter. Probably for procedural pur- poses there was little distinction made between a complaint, a pre- sentment, and informing.
Under the Second Charter, while qui tam actions or suits by in- formers were provided for in many of the laws, in most cases they were required to be brought in a court of record. Apparently, a jus- tice of the peace was not regarded as a court of record, contrary to the practice in England.29 However, in January 1700/1 Josiah Marshfield informed against himself for selling strong liquors with-
24 1 Acts and Res. Prov. Mass. Bay 155. For the annual choice of tithingmen in Springfield commencing in March 1692/3, see 2 Burt, Hist. Springfield 211, 332, 342, 346, 349, 352, 353, 356, 359.
25 Col. Laws Mass., 1672 16, 27, 57, 80, 82, 106.
26 Rec. 56.
27 Rec. 97-99.
28 Col. Laws Mass., 1672 92.
29 See 1 Acts and Res. Prov. Mass. Bay 138, that fence viewers might recover pen- alties for insufficient fences by "action, plaint or information" before a justice of the peace. That justices of the peace were judges of record in England, see Lambard, Eirenarcha (1607) 62-66; Dalton, The Country Justice (1635) 7-8.
138
INTRODUCTION
out license and against Joseph Williston for the same offense. Both matters were transferred by Pynchon to the Court of General Ses- sions of the Peace.30
While grand juries were not utilized by any of the lower level Springfield courts, mention has been made of one instance in which a Suffield grand juryman presented to Pynchon an inhabitant of that town for scurrilous speeches against the late minister. Pynchon took no action on the presentment but brought it to the attention of the Court of General Sessions of the Peace. However, when the offender failed to appear, the matter was referred back to Pynchon to proceed thereon.31 Such a presentment made to Pynchon seems irregular in that the oath of a grand juryman appeared to contemplate present- ment to the Court of General Sessions of the Peace. In any event, this device does not appear to have been widely employed, being ex- pressly authorized only in connection with breaches of the licensing laws. 32
In several cases the accusatory process operated on the County Court level and, after coming to the notice of the County Court, examination into the offense or sentencing was referred to John Pyn- chon as magistrate.33 In the case of several persons presented for for- nication the County Court ordered that Pynchon send for and exam- ine them and bind them over to the next court or otherwise. Similar action was taken in the case of a Suffield inhabitant presented for beating his wife and wasting his estate in drink. Two cases of the same type are found in September 1692 when the Court of General Sessions of the Peace ordered Pynchon, as justice of the peace, to deal with a Westfield offender who entertained youths in a riotous man- ner after midnight and with a Suffield offender for lying and scandal- ous speeches against the late minister.34 In each of these cases it ap- pears that the offender was not before the higher court and the reference was apparently designed to accelerate law enforcement. Of course, if the offender, having been summoned, failed to appear be- fore the higher court, Pynchon might be ordered to proceed against the offender for contempt of authority. The reference might order Pynchon to send for the offender or a special warrant might issue from the higher court to a constable to bring the offender before Pynchon. An examination of the Essex County Court records reveals that this court from time to time delegated to a magistrate (William
30 Rec. 248.
31 Rec. Cty. Ct. Hamp. 159-160. See also the complaint made via a juryman to the commissioners in September 1662, of cattle being violently taken away en route to the pound. 1 Hamp. Cty. Probate Ct. Rec. 15.
32 1 Acts and Res. Prov. Mass. Bay 191, 477.
Rec. Cty. Ct. Hamp. 142; 1 Hamp. Cty. Probate Ct. Rec. 127, 131, 163; Pynch- on Waste Book for Hampshire 83, 88, 130.
34 Rec. Cty. Ct. Hamp. 73, 159-160.
139
CRIMINAL PROCEDURE
Hathorne) power to hear and determine all presentments undis- posed of at the end of a session.35 No such delegation has been found in the case of John Pynchon. However, the practice in other counties of referring certain cases to a magistrate to handle appears consist- ent with that of Hampshire.
The entries do not always reveal the accusatory device used; in some cases, only the examination and sentence is referred to and, in a few, only the sentence. In some cases at least, it seems likely that the court acted upon its own view or common knowledge of the of- fense. Certainly pregnancy attendant upon fornication in time must have become common knowledge. In several cases in 1655 the entries refer to offenses "being taken notice of" by the commissioners.36 It may be that such entry denotes action upon the basis of common knowledge or report.
Apart from the several accusatory devices, merely coming into court might entail dangers for an offender. An Indian coming before the commissioners to acknowledge a debt confessed his misdemeanor several years earlier in breaking some windows of John Pynchon's farmhouse "and other miscariage" and was ordered to pay treble damages.37 In several instances after a complainant's witnesses were heard, he himself ended up with a fine.38 A person accused of one offense might be punished for another uncovered in the course of the hearing.39
INITIAL PROCESS
Once a complaint or presentment had been made to the court, process issued by the court to the constable to bring the alleged of- fender before it. (This would not be true, of course, if the offender had already been brought before the court without issuance of proc- ess, a possibility adverted to above.) Process might consist of either a warrant or a summons. In general, a warrant would require the constable to arrest the body of the person named in the writ and
35 2 Rec. and Files Quart. Cts. Essex Cty. Mass. 167, 311, 314, 338, 344; 3 ibid. 18; 4 ibid. 42, 273-275. Rec. 69-70.
37 Rec. 106.
38 Rec. 83, 102.
39 See the additional penalty imposed upon William Armes for fornication (Rec. 165-166; Rec. Cty. Ct. Hamp. 8) and on Mary Burt for committing wickedness with Joseph Bond (Rec. 63-64) . See also the 1698 act which provided that, if in
pleading any action of trespass, there be disclosed and proved any breach of the peace, the party guilty thereof should be fined or otherwise punished as the law provided. 1 Acts and Res. Prov. Mass. Bay 325. In 1669 the County Court for Hamp- shire fined the defendant, in a civil action for "abusing" the plaintiff, forty shillings for breach of the peace, as well as receiv- ing a jury verdict for ten pounds damages. 1 Hamp. Cty. Probate Ct. Rec. 109.
140
INTRODUCTION
bring him before the issuing authority to answer or be examined touching the offense charged; a summons would merely require such officer to notify the person named in the writ of the charge and require his appearance before the issuing authority on a day named to answer thereto.
In the period of the First Charter several laws contemplated the use generally of a warrant, without further specificity, as initial proc- ess in criminal matters.40 Other laws dealing with specific offenses conferred upon the court the power to send for offenders or call them before it by warrant.41 However, there are several laws which indicate that, in some criminal cases at least, it was contemplated that a sum- mons would be used as initial process. The laws dealing with a few offenses provided that offenders were to be "summoned" by the courts having jurisdiction.42 Several laws refer to offenders being "convented" before authority; there is some indication that consist- ent with statements in Dalton and Lambard, a warrant was used in cases in which offenders were "convented." In one case against a third offender, process provided was in the nature of a mittimus.43
The "Presidents and Formes" in the several volumes of printed laws of the commonwealth contain no form of "warrant." The form of summons provided for civil causes, while addressed to the defend- ant directly and not to the constable or any other officer, could by reason of the inclusive scope of its language be readily adapted to certain criminal offenses such as slander or assault and battery. De- spite the form of the summons provided in the laws, it was custom- ary under the commonwealth to have the summons in civil cases ad- dressed to and served by a constable or his deputy. In only a few cases is there evidence that service was made by a party.
Since apparently no file papers have survived, process has to be reconstructed from the entries in the Record. With one exception, there is no reference to initial process in criminal causes until after 1660. In this case a warrant issued by William Pynchon to the con- stable of Springfield in July 1650 to take the body of an Indian who had broken into a house or the stolen goods, if the Indian should escape.44 In the earlier years covered by the Record the term "war- rant" was generally applied to initial process in civil causes. When the same term was used in connection with criminal causes it is not clear whether the instrument called for the constable to arrest or attach the body of the accused. Hugh Parsons was "attached" upon suspicion of witchcraft and presumably the same process was used
40 Col. Laws Mass., 1672 22, 31, 61, 153, Ibid. 39, 88, 101, 233, 237.
221, 324.
43 Ibid. 22, 101.
41 Ibid. 27, 52, 83, 145.
44 Rec. 39.
141
CRIMINAL PROCEDURE
in the case of Mary Parsons. An examination of the period from 1660 to 1692 indicates that in most cases, in which the method of initial process is determinable, a summons was used.45 However, some caution must be used in this semantic inquiry for an entry that an alleged offender was "summoned" may mean "summoned by war- rant," as in one 1679 entry.46 Those cases in which the entry notes that the accused "appeared" were probably cases in which a summons was used.47 A few entries record that the alleged offender "was sent for." 48 Only one reference in haec verba to such process appears in the laws which leads one to suspect that an inept draftsman intended the use of a summons. In one case several persons were "convented" before the commissioners.49 In only two other cases in the Record does it appear that a warrant of arrest may have been used as initial process. One involved theft by an Indian, the other a riotous assem- bly at Hadley.50
The practice revealed by the Record is consistent with that in the Bay where the printed records of courts on the county level in- dicate that a summons (or a warrant to cause to appear) was used for minor offenses and a warrant of arrest or attachment (sometimes referred to as a "special warrant") , for more serious crimes. The rec- ords of the County Court for Hampshire show that a summons was normally used as initial process; if the summoned offender failed to appear, he might be fined for contempt of authority or ordered to be warned a second time or referred to a lower judicial level to be proceeded against for contempt, if he had "legall warning." Of course, on the county level many of the serious offenders had been bound over by a magistrate or commissioners for their appearance so that choice of initial process offered no problem.
To some extent the use of warrants by magistrates in criminal causes may have been a reflection of English practice by justices of the peace. This practice made a distinction between process and warrant or precept. The term process was limited to the use of venire facias and further process ad respondendum to bring in an offender at quarter sessions or the assizes after indictment found or other con- viction. The warrant or precept of a justice of the peace was used only to attach and convent the accused before any indictment or con- viction. During the seventeenth century the jurisdiction of a justice of the peace to hear and determine offenses was limited, and text writers such as Lambard, Dalton, and Keble questioned whether proc- ess in the sense used above could in any event issue by a single justice
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.