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 17
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Rec. 142, 186, 208, 209.
46 Rec. 171.
47 Rec. 135, 146, 150, 152, 177, 194, 200.
48 Rec. 165-166, 170, 172, 178, 180.
49 Rec. 101.
50 Rec. 141, 161.
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without a prior indictment, except where the power of process upon information proceeded from a special statute. In such cases perhaps either a warrant or process could be granted.
When in Massachusetts Bay judicial powers were conferred by the General Court upon a single magistrate the analogy to a justice of the peace must have been obvious. Reliance upon the use of war- rants in exercising these powers was perhaps natural. The fact that the jurisdiction of a single magistrate to hear and determine extended to a wide variety of offenses, in contrast to the limited jurisdiction of a single justice of the peace in England, may have been obscured. Perhaps the choice was deliberate in order to achieve greater flexi- bility in process and yet to retain apparent consistency with English practice in this one particular. In any event the availability to mag- istrates of a warrant of arrest made for more efficient administration of justice on the lower jurisdictional levels.
The law entitled "Burglary and Theft" (1652) provided that when any goods were stolen the constable "by warrant from Author- ity" was to search any suspected places or houses and if he found the goods or any part thereof or had any ground of suspicion, he was to bring the delinquent or the suspected party to a magistrate to be proceeded against according to law. Several entries in 1691 disclose the use of search warrants.51
By implication from the law entitled "Constables" a magistrate had the authority to put forth hues and cries against certain capital offenders. Perhaps magistrates were regarded as having the power of a justice of the peace in this respect. In May 1660 some Indians who had beaten Thomas Miller and his wife were pursued by hue and cry and three Indians who were taken were brought before the commis- sioners.52 Since there was no magistrate at Springfield at that time, the hue and cry may have been put forth by the constable.
An obvious weakness in the use of a summons was that the sum- moned offender might not appear at the appointed court, as in the case of Samuel Harmon, complained of for misbehavior on the Sab- bath in June 1661.53 However, this was corrected by a 1672 law which provided that if any person presented by a grand jury for any offense, or summoned by a magistrate to answer any crime, did not upon summons appear at the time appointed, after having been three times called in the court by name, after the first forenoon of the court, such person was to be proceeded against by contempt, unless restrained or prevented from appearing by the hand of God.54 Even
51 Col. Laws Mass., 1672 13-14; Rec. 212.
52 Col. Laws Mass., 1672 31; Rec. 87-88. 53 Rec. 93.
54 Col. Laws Mass., 1672 87-88. Compare the June 1672 case in which the County Court of Hampshire ordered a Quabaug
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without this law it would appear that attachment of property might be resorted to in order to secure appearance in criminal cases. It was used at times by the County Court for Essex.55 In one case in July 1690 in which the offender, being summoned, had withdrawn him- self, John Pynchon issued a "special warrant" to the constable to ap- prehend the offender and bring him before the Court.56 The Record affords no information as to the form of return used by the constable in connection with a summons, attachment, or warrant in criminal cases.
Under the Second Charter no specific provision was made for the form of initial process by justices of the peace in criminal matters. A table of justice's fees appears to contemplate the use of warrants in criminal matters.57 However, in most cases appearing in the Record initial process seemingly consisted of a summons, although again pro- cedural terminology tended to be loose.58 However, warrants were used in a few cases involving disorderly conduct by youths, theft by an Indian, lying and cursing, and defamation.59 In one case a con- stable of Springfield was "convented" upon presentment for failure to collect town rates; the term was apparently used as synonymous with "summoned." 60 Several laws referred to offenders being "con- vented" before a justice of the peace, but it is not clear whether a war- rant or summons was intended.61 In several theft cases search war- rants issued. The constable remained the principal arm of the justice of the peace, but in one case a search warrant was addressed to "the Marshal and Sherifs Deputy." 62
The Record affords no clue as to the form of summons or warrant used in criminal causes after 1692 or as to the form of return em- ployed by constables in connection with such process. No instance of attachment in a criminal case is found for this period. The alteration in the statutory form of summons in civil actions obviously made more difficult adaptation for use in criminal causes.
HEARING OR EXAMINATION
Most of the laws or orders which gave jurisdiction in criminal matters to magistrates, commissioners, or justices of the peace in no
inhabitant who failed to appear to answer for his "evill demeanure" toward the min- ister to make public acknowledgment of his offense or appear at the next court to answer therefor. 1 Hamp. Cty. Probate Ct. Rec. 138.
55 2 Rec. and Files Quart. Cts. Essex Cty. Mass. 151; 4 ibid. 245.
56 Rec. 209.
57 1 Acts and Res. Prov. Mass. Bay 84- 85. See Rec. 225, 232-233, 235B, 237, 244, 251.
59 Rec. 216, 224, 228, 253.
60 Rec. 237.
61 1 Acts and Res. Prov. Mass. Bay 58, 64, 66-67.
62 Rec. 222, 242.
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way specified the manner in which the jurisdiction conferred was to be exercised. A few laws under the First Charter provided that a mag- istrate "hear and determine" certain offenses. Under a 1662 law mag- istrates were to examine and proceed against vagabonds.63 Probably the most articulate provision was in the laws of 1672, entitled "In- keepers, Ordinaries, Tipling, Drunkenness," which ordered:
That al offences against this Law, may be heard and determined by any one Magistrate, who shall hereby have power by warrant to send for, and examine parties and witnesses concerning any of these offences: and upon due conviction either by view of the said Magistrate, or Affirmation of the Constable, and one sufficient witness with circumstances concur- ring, or two witnesses, or confession of the party; to leavy the said several fines, by warrant to the Constable to that end.64
No greater explicitness is found under the Second Charter, the term "hear and determine" being most commonly used. The com- missions of the peace under the Second Charter also employed the "hear and determine" language, consistent with English usage.
An early law (1641) provided that in all "Actions of Law" the plaintiff and defendant were to be at liberty by mutual consent to determine whether they would be tried by the bench, or by the bench and jury, unless otherwise provided by law, and that "the like liberty shall be granted to all persons in any Criminal case." It was also pro- vided that both plaintiff and defendant in actions of law, and like- wise "every Delinquent to be judged by a Jury," were to be at lib- erty to challenge any of the jurors, and if the challenge was found just and reasonable by the bench or the rest of the jury, as the chal- lenger should choose, and allowed, tales de circumstantibus, that is, other persons present in court, were to be impaneled in room of those challenged.65
However, only one jury trial of a criminal matter appears in the Record and in the supplemental material from the Registry of Pro- bate records. In March 1654/5 Samuel Wright, Jr., charged with fa- thering an illegitimate child, desired to be tried by a jury of twelve and "tryall was made accordingly." 66 The bare entry affords no in- sight into how the jury was summoned or how the trial was con- ducted. This practice is consistent with that of the County Court for Hampshire where relatively few criminal cases were tried by juries. The same is true for those records of the County Courts of Suffolk, Middlesex, Essex, Norfolk, and York which have been examined and for some fragmentary records of courts on the lower jurisdictional levels in Essex, Norfolk, and York.
63 Col. Laws Mass., 1672 13, 66, 80, 153. 65 Ibid. 152.
64 Ibid. 83.
66 Rec. 63.
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Under the Second Charter, despite some sweeping statutory state- ments concerning the right to jury trial, there is no indication that this right was regarded as extending to criminal matters within the jurisdiction of a justice of the peace.67 The Record shows no offender seeking jury trial.
In the Record the procedural step following the appearance of the accused before the court was usually referred to as an "examina- tion." This examination appears to have been judicial, rather than inquisitorial in nature; it would appear that witnesses, for example, were examined in the presence of the accused. In principle, English justice of the peace practice was followed in that before conviction it was necessary, as allowed by God's law, to give the accused an op- portunity to make a sufficient defense or excuse against the charge. Although not specifically required by any law or order, the examina- tion probably commenced with an informal arraignment by means of which the accused was informed of the offense with which he was charged. If complaint was made in writing, it was presumably read to the accused; an oral complaint or presentment was probably sum- marized. In one case the "arraignment" took the form of the con- stable "making his declaration" against the offenders.68 In a late defa- mation case the offender was required to answer to the evidence which was read to him. This was basically the procedure followed in the attachment of Hugh Parsons for witchcraft.69 In the event an of- fender had been taken without warrant or had been summoned, such an "arraignment" may have served only to determine whether the accused would own or acknowledge the offense or whether, guilt be- ing denied, the court would have to proceed to an examination of the offender and of witnesses. (No traverse of a presentment ap- pears.) In a substantial number of cases the accused owned or ac- knowledged the offense charged, but sometimes this confession only followed an examination of the accused or of witnesses or both. In a few cases the acknowledgment was made in writing, presumably sub- scribed, and filed by the court. (Whether made under oath as found occasionally in other courts is not clear.) There is no evidence of a plea, answer or defense made in writing or of any reply by a com- plainant. In only one case did an accused stand mute.70
67 Col. Laws Mass., 1672 40, 286.
68 Rec. 137. For English practice see Dalton, The Country Justice (1635) 22, 26.
69 Rec. 235B. In the case of the 1675 witchcraft charges against Mary Parsons of Northampton various "diverse testimonyes on oath," exhibited to the County Court, were read before her when she. voluntarily
appeared in court. 1 Hamp. Cty. Probate Ct. Rec. 161.
70 Rec. 138, 144, 225. Compare the en- try in 1 Hamp. Cty. Probate Ct. Rec. 138 (March 1675) that "Westcarr put in his defense in writing and John Smith putt in a Reply thereto." In a 1675 case in the County Court for Hampshire in which the accused in an assault case, upon examina-
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INTRODUCTION
Apparently the accused was not examined under oath. Whether this was due to acceptance of the common law maxim given currency by Dalton, Nullus tenetur seipsum prodere, is not clear. There is some suspicion that John Pynchon and other magistrates upon occa- sion engaged in judicial browbeating of alleged offenders. Whether defendants were ever required to purge themselves on oath does not appear. (Such procedure was given statutory form in several acts prohibiting selling strong drink to Indians.) In no case did the ac- cused claim privilege against self-incrimination. Some witnesses, con- sistent with English practice, testified under oath; others apparently did not; in most cases it is not clear from the entries whether or not testimony was given under oath. In the face of testimony under oath, the denials of the accused were probably accorded little weight. In seventeenth-century English practice, witnesses for the accused were not sworn on the theory that it was improper to have witnesses against the King. No specific law with respect to administration of oaths to witnesses in criminal causes has been found, but in other parts of the colony cases appear in which witnesses for the accused were sworn.71 The form of oath to be taken by a witness, presumably in both criminal and civil causes, appears in the laws of 1672 as fol- lows:
You swear by the Living God, that the Evidence you shall give to this Court concerning the Cause now in question, shall be the Truth, the whole Truth, and nothing but the Truth: So help you God, etc.72
The measure of proof required for conviction of various offenses was usually expressed in the laws of the period, if at all, in general terms. Under the First Charter, for instance, the laws referred to such standards as "due proof," "good testimony," "due conviction by
tion saw "noe Reason to answer such Questions," the court proceeded to sen- tence upon circumstantial evidence. Ibid. 161. See also 5 Rec. Mass. Bay 323 where the General Court gave no answer to the question whether a court should proceed if a person complained of or indicted re- fused to put himself on trial.
71 For the acts permitting purgation see Col. Laws Mass., 1672 78; 1 Acts and Res. Prov. Mass. Bay 150-151. For cases under the earlier law at the County Court see the refusal of Nathaniel Ely to purge himself (1 Hamp. Cty. Probate Ct. Rec. 91) and the refusal of the court to allow Benjamin Waite and John Westcarr to purge them- selves. Ibid. 119, 121. As to self-incrimina- tion it was provided by law that "no man
shall be forced by Torture to confess any Crime against himself or any other." Col. Laws Mass., 1672 129. At a September 1671 sitting of the County Court for Hampshire John Stewart, accused of stabbing John Bliss, upon examination "refused to con- fess against himself though also he deny- eth not the fact." The court limited itself to a "serious admonition" since Stewart had suffered commitment and the charge "was not legally proved against him." In addition, Stewart had apparently effected a settlement with Bliss. 1 Hamp. Cty. Pro- bate Ct. Rec. 152. For an instance in which witnesses for the accused were sworn by the County Court for Essex see 2 Rec. and Files Quart. Cts. Essex Cty. Mass. 41. 72 Col. Laws Mass., 1672 167.
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testimony or confession," "confession or other manifest proof," "suf- ficient testimony" brought against the delinquent, proof by oath of a public officer or "other sufficient witness," and "upon sufficient proof." 73 The law regulating ordinaries provided for conviction of offenders by view of the magistrate, or affirmation of the constable and one sufficient witness with circumstances concurring, or two wit- nesses, or confession of the party. The last standards probably stemmed from acts of Parliament regulating ordinaries in England or practice manuals commenting thereon.74 However, in general, it should be noted that a May 1657 law stated in civil cases it behooved both court and jury "to see that the affirmation be prooved by suffi- cijent evidence, els the case must be found for the defendant and so it is also in a criminall case for in the eye of the lawe, every man is honest and innocent, unless it be proved legally to the contrary." 75
Under the Second Charter most of the acts conferring jurisdic- tion upon justices of the peace made no reference to standards of proof. A few specified the view of a justice of the peace, confession of the party, or the oaths of two witnesses; confession or sufficient witness; the justice's own view, confession, or other legal conviction; due proof; the justice's own view or other legal conviction. An act relating to breaches of excise regulations permitted two witnesses to testify to different violations, if committed within a month.76
An examination of the Record indicates as implicit requirement that conviction, in the absence of confession or the court's own view of the offense, rest on the testimony of at least two "sufficient" wit- nesses to the same unlawful act or acts, unless otherwise specifically provided. No statutory basis for the requirement has been found, al- though commentators such as Dalton lend support to the rule in summary proceedings as in accordance with God's word.77 File papers
73 Col. Laws Mass., 1672 13, 16, 31, 52, 55, 59, 83, 131, 145; 4 Rec. Mass. Bay (Part I) 290-291.
74 Col. Laws Mass., 1672 83. For the English statutes see 1 Jac. 1, c. 9, 21 Jac. 1, c. 7, 1 Car. 1, c. 4, 3 Car. 1, c. 3.
75 4 Rec. Mass. Bay (Part I) 290.
76 1 Acts and Res. Prov. Mass. Bay 51- 53, 58, 60, 155-156.
77 See Dalton, The Country Justice (1635) 156, 297. For a vague answer by the General Court to objections of the Crown law officers that the commonwealth laws did not absolutely bind to two or three witnesses. 5 Rec. Mass. Bay 199. For statu- tory implication of the need for two suffi- cient witnesses in unlawful gaming cases
see Col. Laws Mass., 1672 58. For the ques- tion before the County Court for Hamp- shire see 1 Hamp. Cty. Probate Ct. Rec. 161; Rec. Cty. Ct. Hamp. 59, 67. For the Essex County Court see 3 Rec. and Files Quart. Cts. Essex Cty. Mass. 213 (civil) ; 5 ibid. 144. For Suffolk see 1 Rec. Suffolk Cty. Ct. 311; 2 ibid. 892-893. See also Howe, Readings in American Legal His- tory (1949) 142, 184; Fortescue, De Laudi- bus Legum Angliae in 1 Works (ed. T. Fortescue, 1869) c. xxxii ("But the mean- ing of the law is this: that a less number than two witnesses shall not be admitted as sufficient to decide the truth in doubt- ful cases.") ; McBratney, "The One Wit- ness Rule in Massachusetts," 2 Amer. Jour. Legal Hist. 155.
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INTRODUCTION
found in Essex and Suffolk make occasional reference to the prevail- ing judicial view of the inadequacy of one witness.
Although the large number of witnesses examined in connection with the Hugh Parsons witchcraft accusation has been noted, the Record fails to disclose any explicit evidentiary standards employed in cases in which offenders were examined and then bound over or committed to await trial in a higher court. In several cases the evi- dence in part was documentary in nature. In a battery complaint the commissioners took notice of the fact complainant's nose "was much bruised and bloody." 78 In relatively few cases was the evidence found insufficient to support the complaint or presentment, sufficiency be- ing tested by such vague standards as "any proofe of Justice" and "full proofe." When some young people at Westfield, complained against for breaking down fences, "put al upon profe" and "desyred to know their accusers and se the Proofe," Pynchon, although suspi- cious of their guilt, dismissed them with admonitions. This is con- sistent with cases in the County Courts of Essex and Suffolk of ad- monishing the accused where there was a failure of proof.79
In a number of instances appearing in the Record witnesses ap- peared before the court and gave evidence and, in some cases, were examined viva voce. In other cases it appears likely that testimony had been taken down in writing earlier and sworn to before a mag- istrate or commissioner authorized thereunto and then read at the ex- amination or hearing. Such procedure was authorized under the First Charter "in any Case, Civill or Criminal," provided that, in the case of a witness who lived within ten miles of the court and was not disabled by sickness or other infirmity, such testimony taken out of court was not to be received or made use of unless the witness was present to be further examined about it. A 1650 law which in effect required all testimony to be in writing (experience having shown the inconvenience of taking oral testimony in court) , may not have been applicable to criminal proceedings but, undoubtedly, testimony taken down in writing by a complainant or presenter out of court could be sworn to in court.80
Under the Second Charter it appears by implication in a 1695 act that in both civil and criminal causes a witness was required to tes- tify in person unless bound for sea before the time of trial. If so bound, the justice was authorized to take his deposition, the adverse
78 Rec. 89, 138, 235B.
79 Rec. 12, 69, 101, 102, 216, 225. For the Essex County Court see 2 Rec. and Files Quart. Cts. Essex Cty. 219; 3 ibid. 60. For Suffolk see 1 Rec. Suffolk Cty. Ct. 116, 307.
80 Col. Laws Mass., 1672 158-159; 4
Rec. Mass. Bay (Part I) 27. The require- ment that all evidence be in writing re- sulted in so many badly written, illegible, and soiled evidences that every court, magistrate, or commissioner was empow- ered to order and regulate them. 4 ibid. (Part I) 85.
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party being present or having received notification of the taking. In some cases Record entries refer to "testymonys" of witnesses being on file. It seems probable that such a notation usually indicated that the testimony was taken down out of court and read at the trial. How- ever, in the Hugh Parsons case and various cases transferred to the County Court examinations were taken down in writing and sworn to in court; therefore a reference to "testymonys on file" may not al- ways mean that testimony was taken out of court. A 1652 act, which required the keeping of "all the Evidences (which are to be given in, in writing, in fair and large papers) ," was on its face limited to civil actions.81
A magistrate or commissioner taking the testimony of a witness out of court would seem to be performing a merely ministerial act. However, in one case in December 1684 "testimonys" were brought to John Pynchon who was desired to swear the witnesses thereto, prior to the making of a complaint. Pynchon, perusing the papers proffered, declared that he "did not find them to reach to a ly in the sence or words of the Law." The violent reaction this declaration evoked resulted in the would-be complainant being committed for contempt.82 The importance of such a "screening" process in the ad- ministration of justice is not evident from the Record.
Little appears in the Record concerning the mechanics of secur- ing the appearance of witnesses. The laws of 1672 designated the use of a warrant by a magistrate to send for witnesses in case of infrac- tions of the law regulating innkeepers and ordinaries. A June 1690 entry in connection with a complaint refers to witnesses being sum- moned.83 Although no general provision regarding process in the case of witnesses in criminal causes can be found, from the practice in the courts of the Bay it appears that a summons was normally used to se- cure the appearance of witnesses in criminal causes. Perhaps, in some cases, a summons or warrant to summon, addressed to the constable, might require the appearance of witnesses as well as of defendant.
In some cases the accused, instead of denying or owning the of- fense, interposed an affirmative defense or excuse. The reception ac- corded bona fide defenses or excuses attests to the pragmatic ap- proach employed in the law enforcement appearing in the Record.84
SENTENCE
Following the examination and, in some cases, a more extended hearing, the court in most cases adjudged the offender guilty of one
81 1 Acts and Res. Prov. Mass. Bay 226; Col. Laws Mass., 1672 129.
83 Col. Laws Mass., 1672 83; Rec. 208. 84 Rec. 12, 28, 31, 56, 61, 72, 97, 151, 207, 222.
82 Rec. 191.
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INTRODUCTION
or more offenses and usually sentenced him to pay a fine or to be whipped a specified number of stripes. In some cases, as already in- dicated, the offender was given the alternative of paying a fine (dam- ages to the person injured in one case) or of receiving a whipping. In view of the small amounts of most fines imposed it was not the prac- tice to demand sureties or to order the prisoner to stand committed until the sentence was performed. As debits in his account books show, Pynchon in his capacity of moneylender sometimes paid to the county the fines he imposed in a judicial capacity. Imprisonment was rarely resorted to, nor was the practice of some of the county courts followed of having the offender stand in a public place wearing a placard setting forth his offense in capital letters. The laws passed after 1692 show a preference for setting in the cage or stocks, rather than whipping in case of corporal punishment, with greater resort to imprisonment for more serious offenses. Some provided that an ha- bitual offender might be bound with sureties for his good behavior. A thief, unable to make restitution or pay threefold damages, might be disposed of in service. In a scattering of cases only an admonition was restorted to. In the case of violations of town orders, not true criminal offenses, only fines were imposed. This pattern of punish- ment in general reflects the methods of punishment adopted by the colony or province laws.
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