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 22
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As in the earlier period, the Record contains scant detail as to trial procedure although there is a tendency to describe the evidence in cases involving "debt by book." For part of the period the taking of testimony was governed by a May 1686 law that no affidavit or testimony in any civil case was to be taken out of the court where the trial was held-except where the witness was a great distance from court, incapable of attending, or bound to sea before the trial -and then it was to be taken before a member of the Council and, if possible, in the presence of the opposite party upon reasonable notice.61 While one plaintiff appeared by an attorney in fact, no
56 For service of attachments by the marshal see Rec. 201, 205. By law a con- stable might serve original writs and writs of execution in small causes. 1 Laws N.H. 104, 137.
57 Ibid. 107.
58 Rec. 199, 201, 205, 213, 215.
59 1 Laws N.H. 194-195.
60 Rec. 207.
1 Laws N.H. 105.
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parties were represented by counsel. There is no indication that written pleadings were in use. In one case judgment was given for plaintiff unless defendant could prove certain facts. In another, exe- cution was respited to give defendant an opportunity to satisfy the judgment. Presumably the form of a writ of execution followed that current under the First Charter.62
A 1686 law which provided for costs in the trial of small causes included the following: for attachment or summons, one shilling; subpoena to summon witness, threepence; entry of action, three shillings, fourpence; judgment, sixpence; execution, two shillings; an affidavit out of court, two shillings.63 Entries of costs in the Record are consistent with this scale for the most part, although other items of costs appear which were not covered by the statutory schedule such as constable's fees, witness fees and charges to the parties.
While the laws provided for an appeal to the County Courts from the judgments of John Pynchon as councilor, none was taken.
1692-1702. THE SECOND CHARTER
One of the first acts passed under the Second Charter established the civil jurisdiction of justices of the peace in causes not exceeding forty shillings and defined the procedure to be employed in such causes. Each justice of the peace was empowered to grant a warrant or summons against a party complained of seven days before the day of trial or hearing, requiring defendant to appear and answer the complaint. If defendant failed to appear, the justice was to sue out a warrant of contempt directed to the constable or other officer to bring the contemner before the justice, as well to answer the con- tempt as the plaintiff's action. If he saw cause, the justice might also fine the contemner, provided the fine did not exceed twenty shil- lings.64
In either case, after judgment was given, the justice might grant warrants of distress directed to the constable or other officer to levy the fine, debt, or damage with charges upon defendant's goods and chattels, returning to him the surplus, if any, after sale. For want of such distress the constable or other officer was to take the body of de- fendant into custody and convey him to the common jail of the county or precinct, there to remain until he had satisfied the fine, debt or damage with charges. In case complainant or plaintiff was non-suited or judgment given against him, the justice was empow- ered to assess reasonable costs.
62 Rec. 201, 206, 211.
63 Laws N.H. 107.
64 1 Acts and Res. Prov. Mass. Bay 72.
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INTRODUCTION
It was also provided by law that replevins, summonses, and at- tachments for any matter or cause triable before one justice of the peace and summonses for witnesses in civil causes generally might be granted by the town clerk and directed to the constable or to the party to be summoned as a witness. Another section of the laws pro- vided that every justice of the peace might grant summons, capias, or attachment in all civil actions triable by him. The form of summons, warrant for contempt, attachment, and execution were all set forth in the laws; the form for a writ of replevin was not contained in the laws until 1698. Provision was also made that, if a summons was served and affidavit thereof made and defendant did not appear, judgment by default might be taken against him.65
A statutory schedule of fees for justices of the peace included such items as: attachment and summons, sixpence; subpoena for witness, twopence; entry of action, three shillings; and execution, two shillings. The constable's fees included: service of summons for trial, one shilling; service of capias or attachment, two shillings; if service required a journey of over a mile, threepence per mile.66 Wit- nesses were entitled to a per diem allowance of two shillings for travel and expenses if they resided within three miles of a court and, when not required to cross any ferry, the allowance was one shilling, sixpence. A later law provided that the fee for a writ in any case before a justice of the peace should not exceed one shilling and the fee for service thereof, one shilling, any law, usage, or custom to the contrary. A plaintiff who was not a freeholder or settled inhabitant was required to put up security in double the amount sued for to cover costs before process was granted.67
The oath of a justice of the peace set forth in An Act for the Es- tablishing of Forms of Oaths, published December 9, 1692, which drew heavily upon the English form, read as follows:
You, A B, [do] swear, that as justice of the peace in the county of S, according to the commission given you, you shall dispense justice equally and impartially in all cases, and do equal right to the poor and to the rich after your cunning, wit and power, and according to law; and you shall not be of council in any quarrel that shall come before you. You shall not let for gift or other cause, but well and truly you shall do your office of justice of the peace in that behalf, taking only appointed fees; and you shall not direct or cause to be directed any warrant (by you to be made) to the parties, but you shall direct your warrant to the sheriff, his under- sheriff or deputy [constables] tythingmen, or other officers proper for the execution of the same in the county. And this you shall do without favor or respect of persons. So help you God.68
65 Ibid. 76, 78, 81, 316-317, 319-320.
67 Ibid. 76, 185, 222-223.
66 Ibid. 84-85, 87.
68 Ibid. 78.
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Each justice of the peace was required to keep a record of all proceedings. The party cast was at liberty to appeal to the next In- ferior Court of Common Pleas of the county upon entering into a recognizance with one sufficient surety in double the value of the debt or damage sued for and sufficient to answer all costs, to prose- cute the appeal with effect, and to abide the order of the court to which the appeal was taken. Appellant was to bring copies of the whole case to the Inferior Court of Common Pleas and each party was to be allowed the benefit of any further plea or evidence. If upon any such new plea or evidence, judgment was reversed, appellant was to have no costs granted for the first trial. Probably appellant was also required to give to the justice a declaration setting forth briefly the reasons for his appeal fourteen days before the sitting of the Inferior Court appealed to.69
A June 1697 law, entitled An Act Impowring Justices of the Peace to Decide Differences Not Exceeding Forty Shillings, recapitu- lated the procedure in civil cases before a justice of the peace, making a few changes from the earlier laws. Process was to be directed to the sheriff or marshal of the county or to the deputy of either or to the constable of the town where the parties lived. The limit on fines for contempt of a summons duly served was reduced to ten shillings.
The time within which an appellant was required to give in the rea- sons for his appeal was reduced to seven days before the sitting of the Inferior Court. A March 1700/1 act tightened up procedure in cases where an appellant neglected to prosecute his appeal.70
The June 1698 Act for Preventing of Trespasses provided that when, in an action of trespass brought before a justice of the peace, the defendant should justify and demur upon plea of title, a record should be made thereof and the matter of fact be taken pro con- fesso: The party making such plea should become bound with one or more sureties by way of recognizance unto the adverse party in a reasonable sum not exceeding twenty pounds, conditioned upon pursuing the plea and bringing forward a suit for trial of title at the next Inferior Court of Common Pleas held for the county in which the trespass was allegedly committed and upon paying and satisfying all such damages and costs as should be awarded. The jus- tice was to certify the process and record of such plea together with the recognizance to the Inferior Court.71
If the recognizor neglected to bring forward the suit at the Infe- rior Court according to the tenor of the recognizance, the default was to be recorded and a writ of scire facias to issue from the clerk's of-
69 Ibid. 72-73.
70 Ibid. 282-283, 446.
71 Ibid. 324-325.
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fice. If, upon trial at the Inferior Court, the recognizor did not make out title to the land or tenement paramount to the possession or other title of the adverse party, judgment was to be rendered for the party trespassed upon with treble damages and costs of suit. However, if a defendant, justifying on plea of title, refused or neg- lected to become bound, his plea was to abate, the justice was to proceed to try the cause, and, upon due proof of the trespass, award damages and cost of suit.
The entries in the Record during the Second Charter, although reflecting the various new enactments governing the jurisdiction of justices of the peace, also evidence continuity with the past in the administration of justice. In most cases the action was still com- menced by the service of a summons by the constable, although in an increasing number of cases attachment was resorted to. No evidence appears of the use of a "warrant" or of capias as initial process. In a few instances process was served by the marshal or the sheriff's dep- uty rather than by the constable. The Record does not indicate whether process was issued by Pynchon or by the town clerk; re- cently published court records for York County indicate that at this time most process was drawn up by the justices or members of their families serving as clerks.72
The only form of return of a summons found in the Record ap- pears at a March 1, 1693/4 hearing at which the constable made his return of service as follows:
This summons was served on Zachariah Booth and he warned to at- tend the same this 22th of February, 1693/94.73
In the case of attachments the return continued to note that de- fendant had notice of the attachment by a writing left at his place of usual abode.74 Several entries state that this notice was given "ac- cording to law"; however, such a requirement was first contained in a law passed in March 1700/1. In most cases personalty was attached; in a few cases, real property.75
Judging from the schedule of fees of a justice of the peace, a plaintiff was still required to enter his action. (There was no provi- sion in the laws for regular sittings by a single justice of the peace.) On the return date the summons or the attachment and the return thereof was read. If both parties were present, the justice proceeded
72 Rec. 221, 241, 243; 4 Prov. and Ct. Rec. Me. xix.
73 Rec. 220. See also the reference to the return in Philips v. Adams. Ibid.
74 Rec. 215, 221, 229.
75 See Rec. 233, 236, 252 for instances
of attachment of lands. For the act, which does not specifically refer to justices of the peace, see 1 Acts and Res. Prov. Mass. Bay 448. For the form of summons to be used in case of attachment by a justice of the peace, see ibid. 463.
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to consider the pleas and evidence. If defendant did not appear, he was then called three times by the constable, as was the earlier prac- tice. The same procedure might be followed if plaintiff failed to ap- pear. In one rather puzzling entry plaintiff did not appear, "not being summoned," and no proceeding was had. In a case in which neither party appeared on the return of the attachment, Pynchon en- tered "so it drops and wholy Fals." 76
If a return was made by the constable or other officer that de- fendant had been summoned and defendant failed to appear, Pyn- chon might, as authorized by the laws, issue a warrant of contempt to the constable to take defendant's body and have him before the court on a date specified, as well to answer the action as for his con- tempt. The contempt might "issue" if defendant showed good rea- son for his failure to appear. If plaintiff were willing, the proceeding might be adjourned to a later date on the supposition that defend- ant, having notice, would agree and issue with plaintiff at that time. Or Pynchon might defer the issuance of a warrant of contempt un- til another time.77 In a 1699 action of debt when defendant failed to appear and proof of service was made, Pynchon entered the default and upon plaintiff producing his evidence proceeded to judgment. However, Pynchon presently made the judgment "void and nul" because by law a writ of contempt should have gone out.78 How- ever, in the case of attachments where defendant failed to appear, Pynchon, consistent with earlier practice, usually proceeded to judg- ment upon presentation of plaintiff's evidence. In one case a war- rant of contempt issued. A 1701 law specifically provided that if a defendant in any suit was duly served with a capias or attachment and did not appear on the return thereof, judgment was to be en- tered up against him by default.79 However, in general, Pynchon ex- hibited considerable patience in waiting beyond the appointed time for parties to appear.
While no written pleadings are set forth verbatim in the Record, notation that pleas were "read" indicates that written pleadings were used in some cases. In others, where Pynchon noted that pleas were "heard," it seems likely that the pleadings were oral. The schedule of fees of a justice of the peace did not contemplate a written dec- laration.80 As in the earlier period, there was no reference to recog- nized forms of pleadings or use of the formalized entries associated with such pleadings. All the actions entered in the Record under the Second Charter were heard by Pynchon without a jury. While
76 Rec. 217, 224, 225, 246.
77 Rec. 220, 231, 234, 252.
78 Rec. 170-171, 243.
79 Rec. 234. See 1 Acts and Res. Prov. Mass. Bay 464.
80 Ibid. 86.
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the laws provided that all matters and issues in fact arising or hap- pening within the province were to be tried by twelve good and lawful men of the neighborhood, this provision apparently was not considered as extending to trials before a justice of the peace.81
Little appears of trial procedure in the Record but no marked deviation from the commonwealth period is evident. In some cases it is clear that witnesses appeared in person before Pynchon and gave testimony under oath. In other cases, where reference is made to "testimoneys" being read or "evidences" being on file, it may be that testimony of witnesses was taken down in writing out of court, although not specifically authorized by statute. None of these file papers has survived. Whether the disputed requirement of two wit- nesses carried over beyond 1692 is thus difficult of ascertainment. In a number of cases the evidence consisted largely of entries in books of account to which plaintiff or defendant, as the case might be, made oath. Strangely, the several acts of this period establishing forms of oaths made no provision for an oath for witnesses, nor was there any form of summons or subpoena provided for a witness in civil actions triable by a justice of the peace. Further the forty-shil- ling fine for witnesses failing to appear according to the tenor of process served upon them, without reasonable excuse, was limited to courts of record.82
In several instances plaintiff's case sounding in debt rested upon a bill under defendant's hand. In one case the hearing was adjourned for several days to give both parties an opportunity to present fur- ther evidence. In a dispute over the division of some hay Pynchon appointed two persons to view and judge who brought in their deter- mination in writing.83 In a few cases defendants confessed judgment so presentation of evidence was unnecessary.84 A substantial number of cases were settled by the parties before or during trial.85
Under the laws each party had the liberty of pleading and de- fending his own cause in person or with the assistance of such other person as he should procure, such other person not being scandalous or otherwise offensive to the court. While some attempt was made to discourage use of attorneys in actions heard by justices of the peace by providing that there should be no allowance for fees for attorneys in such cases, scattered use of attorneys-presumably attorneys in fact rather than counsel-is found in the Record.86
For the most part no reference is made to the issuance of execu-
81 Ibid. 74, 286.
82 Ibid. 76, 78-79, 287, 374, 465.
83 Rec. 223, 227, 240-241. See also the adjournment when plaintiff's witnesses failed to appear. Rec. 221.
84 Rec. 227, 230, 233.
85 Rec. 224-227, 231-232, 235A, 236- 237, 243.
86 1 Acts and Res. Prov. Mass. Bay 75, 287; Rec. 217, 220, 232, 240-241, 246, 253.
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tion. However, in a few cases marginal notations appear that execu- tion issued the same day as judgment was rendered or that it would issue if defendant did not satisfy the judgment in money or in kind. A December 1696 entry contains the only reference to a return by the constable of a writ of execution. Whether the writ was in the form provided by law does not appear.87
Many of the entries refer to "costs of Court as per bil allowed"; in some cases costs were substantial considering the amount involved. For the most part the individual items of costs are not listed but, to the extent they are set forth, they are consistent with the statutory schedule. Costs in some cases included an allowance to plaintiff for his attendance (usually two shillings per day) or for "coming for a summons.' 88
No reviews are found in the Record for the period of the Second Charter, not being provided for in the laws. In several trespass ac- tions in which defendant pleaded title, the case was transferred to the Inferior Court of Common Pleas in accordance with the law re- ferred to above upon defendant's posting the requisite security. In one case of this nature in which defendant refused to become bound, Pynchon proceeded to give judgment for plaintiff.89 In a case of this nature which arose in 1693, prior to the passage of the above act, Pynchon rendered judgment conditioned upon decision as to title to the land.90 Presumably such title would have to be determined by the Inferior Court of Common Pleas.
Appeals were taken to the Inferior Court of Common Pleas for Hampshire from seven judgments rendered by Pynchon, one being later withdrawn. The bonds given were in the amount of either four pounds or forty shillings; in most cases there were two sureties.91 These probably did not differ substantially from those used in the commonwealth period on appeals to the county courts. The number of appeals taken in a relatively short period indicates that appellate review played a greater role on the lower jurisdictional levels under the Second Charter.
As to whether the procedure found in the Record under the Sec- ond Charter differed greatly from that employed by justices of the peace in other parts of the province is difficult to determine due to the lack of records for comparison. A justice of the peace, unnurtured in procedure as a magistrate under the commonwealth, might ad- here more closely to or construe differently the province laws than
87 Rec. 229. See 1 Acts and Res. Prov. 90 Rec. 219.
Mass. Bay 81, 317, 463.
88 Rec. 16-219, 226.
89 Rec. 245-246.
91 Rec. 219, 222, 225, 235A, 245, 247, 252.
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John Pynchon. Perhaps for such a justice resort to contemporary English texts and manuals as an aid in administering the laws would be more natural. It is difficult to believe that Pynchon, in his de- clining years and with forty years of judicial experience behind him, made any greater adjustment to the new laws than was necessary. The Record appears to confirm this belief.
X I. Conclusion
N the Epistle to the Laws and Liberties of 1648 reference is made to an "old and true proverb" that "the execution of the law is the life of the law." In the pages of the Record the "life of the law" in western Massachusetts Bay may be studied at close range for much of the seventeenth century. Many of the people prominent in the early days of Springfield appear in the capacity of judges, law en- forcement agents, criminal offenders, litigants, or witnesses. A wide variety of offenses and of civil actions are handled by a succession of courts on the lower jurisdictional levels.
The Record abundantly reveals the significant roles played by William Pynchon and John Pynchon and, to a lesser extent, Elizur Holyoke and Samuel Chapin, in the administration of justice in early western Massachusetts. Most court records are impersonal; the Rec- ord is unique in its reflection of the personal element in judicial ad- ministration, particularly as regards continuity, and, of the integra- tion of such administration, through the court personnel, into the broader frame of local government in the Connecticut Valley. Through supplemental biographical data on the Pynchons, Holyoke, and Chapin a more rounded portrait of the judicial personnel has been obtained, as well as the economic, social, and political back- ground necessary to full comprehension and evaluation of the en- tries in the Record.
While none of the four magistrates or commissioners was a trained lawyer, it is believed that the standards of judicial admin- istration displayed in the Record compare favorably with that found in courts on the lower jurisdictional levels of the Bay. The few ap- peals taken and contempts of court recorded indicate that these standards were generally acceptable to offenders and litigants coming before the successive courts. John Pynchon with his diverse activi- ties may have found it difficult to steer an impartial course at all times, but his detractors have limited their strictures to his conduct on the County Court. Certainly Pynchon did not fit into any of the categories of justices of the peace condemned by the Webbs-the Trading Justice, the Sycophant Justice, or the Rural Tyrant. His
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INTRODUCTION
selection as head of a court of oyer and terminer in 1696 to try some New York Indians charged with murder indicates confidence in his judicial abilities on the part of the Bay authorities.
The Record affords substantial evidence that the administration of justice in western Massachusetts was based in great part on the laws and orders of the General Court. Any direct influence of Bibli- cal laws, ecclesiastical laws, or the substantive laws of England is dif- ficult to detect. Most of the offenses punished were violations of laws of the General Court. In the case of other offenses, seemingly not covered by express prohibitions, the precedents of the Court of As- sistants appear to have been followed.
The Record shows no significant mutations or deviations, sub- stantively or procedurally, attributable to so-called "frontier" influ- ences. Ironically, the institutions of the petty jury and the grand jury did not flourish in a society which has been traditionally re- garded as a forcing ground for democratic concepts. While the loss of records makes for uncertainty, perhaps the lack of widespread church discipline supplementing the sanctions imposed by the secu- lar courts may be attributed to the weakness of the ministry on the frontier.
In those areas not specifically covered by the laws of the General Court, largely matters of procedure, the Record does not differ sub- stantially from what appears in the records of the courts in the more settled portions of the colony and was probably as consistent with the laws of England.
In characterizing the jurisdiction exercised by the various courts at Springfield facile English analogies are of scant help. Leet jurisdic- tion in England in the seventeenth century differed greatly in its main outlines from the criminal jurisdiction and procedures found in the Record. The jurisdiction of a single justice of the peace in England likewise differed substantially, but from the standpoint of procedure, particularly in binding over offenders, the New Eng- land borrowing is apparent. The true answer is that in shaping the jurisdiction of the lower levels of the judicial hierarchy the General Court followed an eclectic policy grounded on expediency and prag- matism.
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