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 18
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In only a few cases were other punishments imposed. A person adjudged father of a bastard was ordered to make payments toward maintenance of the child. An offender who confessed to swearing was to pay a fine of twelve pence to the poor or sit in the stocks three hours. Some persons "in drink" at an unseasonable hour were to pay a fine of five shillings or sit in the stocks one hour.85 Goods stolen were ordered returned to their owners; in one case an Indian offender posted security for such return. The fruits of trespass upon town lands were ordered forfeited in part. A scold was sentenced to be gagged or to be set in a ducking stool and dipped in the water.86 In one defamation case, quasi-criminal in nature, the offender was or- dered to make open and public acknowledgment of his faults.87 The owner of a sheep-killing dog had to hang the animal. An "order of re- straint" prohibited selling wine or strong waters to Indians without a license. A runaway servant was ordered returned to his master.88 Treble damages were adjudged in cases of theft.89 In a few cases fines which had been imposed were abated or abatement, being sought,
85 Rec. 14, 63, 210.
86 Rec. 141, 148, 156, 186-187, 192, 196- 197.
87 Rec. 78. Cf. the use of public ac- knowledgment as an alternative to pay-
ment of damages in a civil action. Ibid. 196.
88 Rec. 70, 150, 179.
89 Rec. 212.
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was referred to the County Court.90 In one instance sentence was in effect suspended. In a few cases offenders were discharged or dis- missed by the court. However, no use was made of discharge by proc- lamation, although recognized by order of the General Court and used in other courts of the colony.91
An October 1668 law provided that warrants for execution in both civil and criminal causes were to be signed by the clerk of the court. This was one of several enactments which somewhat vaguely assumed the existence of a clerk of the court in the case of a mag- istrate. Perhaps the clerk of the writs of the magistrate's town could be regarded as a clerk of his court but the Record is unrevealing. An October 1678 law indicates that the clerk of the writs signed war- rants in the form of "AB, per curia, for the towne of C." This prac- tice is confirmed by the calendared file papers of the County Court for Essex.92
Little use of recognizances appears in the Record except in those cases in which offenders were bound over to appear at the County Court or the Court of General Sessions of the Peace. However, such an offender would also, presumably, be required to give bond, with two sureties perhaps, for his good behavior in the meantime.98 Such bonds might specify good behavior toward particular persons, such as the complainant, and perhaps, as found in some cases in Essex County involving sexual offenses, enjoin frequenting the company of a co- offender. Binding to good behavior, which imposed stricter limita- tions upon an offender or suspected offender than binding to the peace, was not usually granted by a single justice of the peace in England.
The justices' manuals in England devoted much space to binding offenders to the peace. Little use is found of this device in Hampshire or elsewhere in Massachusetts Bay. However, the Record shows that one culprit in 1686 chose to pay a five-shilling fine for breaking the peace rather than be bound to the peace.94 At the 1658 examination of Thomas Miller and John Henryson the commissioners noted that both deserved to be bound to the peace, but bond was not required since the quarrel was not recent and the participants had become reconciled.95 In only one instance, in 1679, did a complainant "swear the peace" against an offender; Pynchon ordered the offender bound in the sum of ten pounds for his appearance at the County Court
90 Rec. 141, 162, 169, 251.
91 Rec. 71, 216, 225, 239, 244. For the General Court order see 1 Rec. Mass. Bay
92 4 Rec. Mass. Bay (Part II) 394; 5 ibid. 194.
93 See, however, Rec. 192.
94 Rec. 199. See also Rec. 2.
95 Rec. 83.
12.
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INTRODUCTION
and in the meantime to keep the peace.96 This action was apparently based upon English practice as it was not specifically provided for in the commonwealth laws. The form of bond employed is not known but it may have been adapted from the statutory form in civil cases.
While most of the entries in criminal causes appearing in the Record make no mention of any imposition of costs of court or charges upon the offender, there are scattered cases in which such imposition appears. Several offenders were ordered to pay witnesses either one or two shillings apiece; in a case in which witnesses as- sisted the constable in the detention of a prisoner they were allowed five shillings each in charges. Presumably this was pursuant to a pro- vision in the laws that in all criminal cases charges of witnesses were to be borne by the delinquent party.97 In others, offenders were or- dered to pay the constable's charges or "the charge of their appre- hending." 98 In a 1690 entry a fine of five shillings was to include costs of court, that is, twelve pence to the constable. In 1697 one offender had to pay all charges occasioned by his crime; another was to pay "the charges summons serving it and attendance al being about .4S." 99 In two later cases defendants were ordered to pay all charges of pros- ecution. In a 1701/2 defamation case, where defendant was con- victed, "though somewhat Barely," complainant and defendant were ordered "each to beare their owne Charges in the Case." 100 In the case of an unjust complaint the person complained of probably would be allowed costs. In those instances in which criminal and civil matters were intermingled costs of court were usually awarded in connection with the civil action.101
In most cases in which a complaint combined civil and criminal aspects the judgment in the civil cause was segregated from the crim- inal sentence. In other cases criminal sentences specifically left com- plainants to their remedies at law for damages suffered as a result of the offender's misconduct. However, in one case in which the of- fender was sentenced to answer for whatever damage was done to complainant's property, it is uncertain whether this policy of segre- gation was maintained.102
In two instances the court sought assistance in sentencing. In a 1650 case William Pynchon noted that the Reverend Moxon and four others were present at his hearing of a case between Thomas Miller and an Indian and "with their advise" he sentenced Miller to
96 Rec. 170-171.
97 Rec. 135, 165, 172, 192. For the law see Col. Laws Mass., 1672 159.
98 Rec. 152, 165, 210.
99 Rec. 208, 230-231, 233.
100 Rec. 236B, 242, 253.
101 Rec. 169, 232. No evidence appears
that the statutory fee for entry of an ac- tion was part of costs of court in a crimi- nal cause but see such imposition in March 1671 by the County Court, 1 Hamp. Cty. Probate Ct. Rec. 128,
102 Rec. 151, 166, 242.
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fifteen lashes. In 1686 when some Windsor inhabitants were brought in for gathering candlewood within the bounds of Enfield, John Pynchon advised with the committee for Enfield before sentence.103
BINDING OVER
A 1641 order of the General Court provided that "no Mans Per- son shall be Restrained or Imprisoned by any Authority whatsoever, before the Law hath Sentenced him thereto, if he can put in sufficient Security, Baile or Mainprize, for his appearance and good Behaviour in the mean time." 104 It was presumably pursuant to this law that, in a number of cases involving more serious crimes, the accused, fol- lowing examination, was bound over for his appearance at the County Court. Included in this category were cases involving forni- cation and other sexual offenses, "notorious" lying, theft, burglary, breach of the peace, contempt of authority, illegal trading with the Indians, strained marital relations, riotous behavior, causing a dis- turbance at a town meeting, killing another's steer, and arson. The amount of the recognizance or surety demanded varied; bonds in the amount of ten or twenty pounds were commonly used. In one case involving a charge of arson the amount was thirty pounds. Failure to provide bond in the requisite amount would probably result in commitment of the accused. Under the Second Charter there were only three cases in which offenders were bound over to the Court of General Sessions of the Peace. One involved defamatory statements; the others, sale of strong liquor without a license.
In cases where the accused was examined and then bound over to appear and answer at the County Court or quarter sessions, the examination was usually taken down in writing, and, probably along with depositions under oath of complainant and other witnesses, laid before such court. Such procedure, in some cases at least, left little scope for trial at the higher level-particularly if the examination included a confession by the accused. Some flexibility in binding over is indicated in a 1697 case in which Pynchon saw no need to bind the offender over to the quarter sessions since he had com- pounded with the injured party and engaged good carriage for the future.105 Similarly, in the case of an offender presented at the County Court, where trial was referred to Pynchon, the witnesses might give their testimony under oath at such court to be transmitted to Pynchon.
In several instances in which offenders were bound over to the
103 Rec. 39, 197.
104 Col. Laws Mass., 1672 74.
105 Rec. 233. In the 1671 case of Zeba-
diah Williams three witnesses at the
County Court took their oath "as touch- ing what they observed of his ill de- meanour." 1 Hamp. Cty. Probate Ct. Rec. 127.
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INTRODUCTION
County Court or to the Court of General Sessions of the Peace, the complainant was required to give bond to prosecute at the next such court. Whether it was the practice to bind witnesses, other than the complainant, to appear at the County Court or quarter sessions to give evidence against the offender is not clear. Evidence of such practice has been found in Essex County. In general the practice fol- lowed that of an English justice of the peace in certifying examina- tions, informations, recognizances, and bailment to quarter sessions or the next general gaol delivery. However, as distinguished from English practice, the material certified was not used to secure a pre- sentment by the grand jury. The court, in most cases, arrived at sen- tence without a grand or petty jury.106
Dalton stated that it seemed "just and right" that a justice of the peace upon examination should take and certify such information, proof, and evidence as went to acquitting or clearing the prisoner, as well as such as was against the prisoner. However, he doubted whether such proof against the King should be taken on oath. What practice generally prevailed in this respect in Hampshire and in Massachusetts Bay is not clear.
APPEAL
The 1641 commission to William Pynchon and several succeed- ing commissions made provision for appeals to the Court of Assist- ants. The May 1658 commission for Springfield and Northampton provided for an appeal to the County Court at Boston. After the es- tablishment of a County Court for Hampshire, presumably this court constituted the appellate body for the commissioners for Springfield. From the court established in May 1659 with the powers of a "County Court," appeal was presumably to the Court of Assistants, as provided in the law entitled "Appeal" in the 1648 and 1660 printed laws.
The Laws and Liberties of 1648 and subsequent commonwealth laws provided for an appeal from the sentence of one magistrate or "other persons deputed to hear and determine small causes" to the County Court of the jurisdiction in which the cause was deter- mined.107 Appellant was required to tender his appeal and to put in security to prosecute it to effect, to satisfy all damages and for his good behavior and appearance at the County Court. The provision
106 Rec. 155, 200, 212, 236A. For exam- ples of the material certified to the County Court of Essex by an examining magistrate see 2 Rec. and Files Quart.
Cts. Essex Cty. Mass. 155, 235-236; 5 ibid. 400-404, 411-413.
107 Laws and Liberties Mass. 2.
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that execution should not be granted until twelve hours after judg- ment, unless by special order of the court, presumably was con- cerned with civil causes. Undoubtedly execution of sentence in crim- inal causes was respited pending the outcome of the appeal, although not specifically provided by law.
Such laws also provided that all appeals with the security as afore- said were to be recorded at the charge of the party appealing and certified to the court to which made. The further provision, added in 1651, and later modified, that the party appealing should briefly in writing "without reflecting on Court or Parties, by provoking Language" give in to the clerk of the court from which he appealed the grounds and reasons of appeal six days before the beginning of the court to which the appeal was made, was seemingly designed for civil causes, since defendant, if desired, was to be allowed a copy of the grounds and reasons filed. The right of the court to impose charges and fines upon appellant contained in the laws of 1648, ap- parently intended for civil causes, was omitted in later laws.108 The 1651 provision that whoever should appeal from the sentence of any court and not prosecute the same to effect, according to law, should, besides his bond to the party, forfeit forty shillings to the county may also have been designed primarily for civil causes.109
An early law which gave magistrates jurisdiction over small thefts and other offenses of a criminal nature where the damage or fine did not exceed forty shillings specifically provided that it might be law- ful for either party to appeal to the next court held in the jurisdic- tion, giving sufficient caution to prosecute the same to effect at such court.110 Whether this provision was designed to carve an exception from the above general, more stringent, procedural requirements is not clear.
Under the Second Charter a June 1696 act made it lawful for any person sentenced for any criminal offense by one or more justices of the peace out of sessions to appeal from such sentence to the next Court of General Sessions of the Peace held in the county. Appellant was required to enter into a recognizance, not exceeding five pounds, with two sufficient sureties for his appearance at the appellate court, for his prosecution with effect of his appeal, and to abide the sen- tence of the court appealed to, which was to be final, and in the meantime to be of good behavior. No appeal was to be granted un- less claimed at the time of the declaring of sentence and security given as directed within the space of two hours thereafter, the appel-
108 Col. Laws Mass., 1660 122; Col. 109 Col. Laws Mass., 1660 122.
Laws Mass., 1672 4; Laws and Liberties Mass. 2.
110 Col. Laws Mass., 1672 13.
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INTRODUCTION
lant remaining in the custody of an officer until such security was entered. Every such appellant was to file reasons of appeal in the clerk's office of the court appealed to seven days before the court sat and, at his own cost, to take out and present to the court an attested copy of the sentence and copies of all evidences upon which it was grounded. The fee for entering the appeal was the same as for entry of an action in civil causes, ten shillings. Although this act was dis- allowed by the King in Council on November 24, 1698, no law was passed in place of the disallowed act during the period covered by the Record.111
An examination of the Record discloses that the only appeals in criminal causes during the period were taken in 1698 to the Court of General Sessions of the Peace. However, in each case the appeal was later withdrawn and not prosecuted. One appeal was taken from a fine of ten shillings, plus fourteen shillings costs of prosecution, in a defamation case. In the other cases, former constables of Springfield appealed from forfeitures of forty shillings apiece for neglect to col- lect certain town rates.112
FINAL PROCEEDINGS
The laws under the First Charter provided that every offender fined for breach of any penal law was to pay his fine or penalty forth- with, or give security speedily to do it, or be imprisoned or kept to work until it be paid-unless the court or judge imposing the fine saw cause to respite the same. It was also provided that, when any magistrate or commissioner assessed a fine, he was to send a transcript or note of the fine within fourteen days to the treasurer of the colony or the county to whom it belonged who was forthwith to give war- rant to the marshal to collect and levy the same. If no goods could be found to satisfy the fine, the marshal was to attach the body of such person and imprison him until satisfaction was made, provided that the Court of Assistants or any County Court might discharge from imprisonment any such person who was unable to make satis- faction.113
Under the Second Charter some laws specifically empowered a justice to retain or commit an offender until the fine imposed was satisfied (and perhaps sureties for good behavior found) or to cause the fine to be levied by distress and sale of the offender's goods by warrant directed to the constable. In other cases, only warrant by distress on the delinquent's goods was authorized. An offender un-
111 1 Acts and Res. Prov. Mass. Bay 217.
112 Rec. 236B-240.
113 Col. Laws Mass., 1672 51.
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able to make restitution or pay threefold damages in theft cases might be disposed in service.114
To the question as to whether or not procedure in criminal causes, as revealed in the Record, differed substantially from proce- dure in such causes in the more settled portions of Massachusetts Bay, the answer, based on the available evidence, is that it did not. This conclusion has been arrived at with an awareness that no file papers for the courts covered by the Record have survived (excluding the proceedings in the Hugh Parsons witchcraft case) , that only fragmen- tary records of comparable courts on the lower jurisdictional levels in the Bay have been found, and that, in part, this conclusion rests upon indirect evidence from the records of county courts for Hamp- shire, Suffolk, Essex, Norfolk, Middlesex, and York. In large part the procedure clearly stemmed from the laws of the commonwealth. While no models of statutory draftsmanship, these laws provided a frame of reference that was not substantially warped by either the stresses of a "frontier" society or the vagaries of judicial personnel.
There is no reflection in the Record of the "individualistic and democratic tendencies" or the "innovating" tendency noted by Tur- ner in his well-known essay on the Massachusetts Bay frontier in the late seventeenth century.115 It is very doubtful that a curbing of such tendencies in the field of law enforcement could be ascribed solely to the dominant position in the judicial establishment of a conservative, wealthy trader and landowner such as John Pynchon with his many political, cultural, and economic ties with the Bay, with neighboring colonies, and with England. The conditions which shaped and influenced law enforcement were not sufficiently differ- ent in western Massachusetts during the seventeenth century to vary in a substantial manner the development of criminal procedure on the lower jurisdictional levels or, for that matter, on the county level.
What does the Record disclose of the influence of the laws of England on law enforcement in western Massachusetts? William Pyn- chon had some familiarity with Fortescue's work, On the Laws of England, and Dalton's The Country Justice. There is some ground for belief that John Pynchon also had available some English law books. In the inventory of John Pynchon, Jr.'s estate, taken in May 1721,116 the following works are listed:
114 1 Acts and Res. Prov. Mass. Bay 51- 53, 57-58, 65-66, 70, 136, 154.
115 F. J. Turner, The Frontier in American History (1920) 65.
116 The inventory is found in the Hampshire County Probate Court Rec- ords.
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INTRODUCTION
Fortaques on the Laws law Dictionary
Finches laws
Magna Charta
A New England Law Book
Daltons Statutes
Cook upon Littleton
Dalton on the Laws of England
Some of these books probably belonged originally to John Pyn- chon or even to William Pynchon-the presence of Fortescue is con- vincing evidence. However, there is no reference to any of these volumes in the Record or, for that matter, to any English authority, either text or case, to any Biblical authority, or to any case decided by the General Court, the Court of Assistants, or any other court of Massachusetts Bay. However, in view of the general paucity of cita- tion of authority in seventeenth-century Massachusetts judicial rec- ords, the state of the Record comes as no surprise.117 File papers, if preserved, would probably have shown, as in other parts of the col- ony, greater recourse to Biblical authority by offenders and litigants. If any of the above books belonged to John Pynchon, they were owned in the capacity of judge, legislator, administrator, soldier, and merchant, not that of a bibliophile. Unfortunately, the uses to which they were put and the degree of influence exerted upon the admin- istration of justice in western Massachusetts is beyond present recon- struction. In conclusion, in those areas not specifically covered by the laws of the colony, the procedure found in the Record was probably as consistent with the laws of England as that found in the more set- tled parts of the colony.
117 The records of the County Court for Hampshire differ little from the Rec- ord. One case made reference to Biblical authorities. 1 Hamp. Cty. Probate Ct.
Rec. 161. Another contained the state- ment that "the complaint falls of its own accord: for Ubi lex nullus etc." Ibid. 153.
IX. Civil Jurisdiction
C IVIL jurisdiction in Massachusetts, in contrast to crim- inal jurisdiction, was usually conferred in general terms. William Pyn- chon's first appointment as magistrate by the inhabitants of Agawam in February 1638/9 conferred jurisdiction over actions for debt or trespass, apparently without any limitation in amount. However, the fact that use of a jury of six persons was limited to such actions un- der the sum of ten pounds imposed a practical limitation-at least in cases tried by a jury. In the 1641 General Court commission to William Pynchon jurisdiction was broadened to all civil causes with- out any limitation of amount; this same jurisdiction obtained in the subsequent commissions until May 1658 when jurisdiction may have been limited to civil actions not exceeding twenty-pound damages. In any event, the May 1659 commission again granted jurisdiction to the Springfield commissioners in all civil causes without limitation of amount although the relation of this grant to the powers of a "County Court" and to the jurisdiction to be exercised out of court is far from clear.
From May 1665 to May 1686 John Pynchon, as magistrate, exer- cised jurisdiction over all causes arising in the county not exceeding forty shillings. During Dudley's period of office, Pynchon, as a mem- ber of the council, had jurisdiction of small causes where the damage besides costs did not exceed forty shillings. During the Andros re- gime Pynchon, presumably as justice of the peace, had jurisdiction over all manner of debts, trespasses, and other matters not exceeding the value of forty shillings wherein the title to land was not con- cerned. For the period during which Pynchon exercised magistratical powers (1689-92) he again exercised jurisdiction over all causes arising in the county not exceeding forty shillings. As justice of the peace under the Second Charter Pynchon had, in general, the same jurisdiction as that exercised under Governor Andros.
Most significant is that for most of the period until May 1665 the several courts held at Springfield possessed unlimited jurisdiction in civil matters. After that date, John Pynchon's jurisdiction in various
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INTRODUCTION
capacities at Springfield was limited to causes not exceeding forty shillings, but two years earlier the establishment of the County Court for Hampshire had served to divert from the Springfield commis- sioners jurisdiction in the more important causes.
Prior to May 1686 there was no specific limitation of jurisdiction to actions wherein title to land was not concerned. However, except for a few causes jurisdiction as evidenced by the Record was con- fined to personal actions, both ex contractu and ex delicto, with the latter category predominating. After May 1686 jurisdiction was lim- ited, with the exception of the years 1689-1692, to actions wherein title to land was not concerned. However, statutory provision was made in 1698 for transfer to the Inferior Court of Common Pleas of trespass actions in which title to land was pleaded.
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