History of Middlesex County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I, Part 5

Author: Hurd, D. Hamilton (Duane Hamilton), ed
Publication date: 1890
Publisher: Philadelphia, J. W. Lewis & co
Number of Pages: 1034

USA > Massachusetts > Middlesex County > History of Middlesex County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I > Part 5

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He appointed thirty-nine members of his Council, and he assumed for the Governor and Council the exclusive power of making and executing the laws, subject only to the royal approval. He gave to jus- tices of the peace civil jurisdiction in cases not affecting lands and not involving a sum exceeding forty shillings. He established the "Quarterly Sessions Court," held by the several justices in their respective counties, and " the Inferior Court of Com- mon Pleas," to be held in each county by a single judge assisted by two or more justices of the county. Their jurisdiction was limited to cases involving sums not exceeding ten pounds, and no question of free- hold except in Boston, where the limit was twenty pounds. He established, finally, a Superior Court of Judicature, in which no action could be begun in- volving less than ten pounds, unless it concerned a question of freehold, and this court was to be held in Boston, Cambridge, Charlestown, Plymouth, Bristol, Newport, Salem, Ipswich, Portsmouth, Falmouth (Portland), Northampton and Springfield. Joseph Dudley was appointed chief justice of this court.

The act establishing these courts was passed by the Governor and Council March 3, 1687. Thongh the judiciary system thus established was a complete re- versal of the old court system, it was a vast improve- ment on the old and became the model on which the judicial system under the Provincial charter was finally shaped. A Court of Chancery was also created with full equity powers, to be held by the Governor or by a chancellor of his appointment, to be assisted by five or more of the Council. Special Courts of Oyer and Terminer were also created for the trial of offenders. The Commissioners' Courts were retained. Appeals lay from the Quarter Sessions and the Court of Common Pleas to the Superior Court, from the Superior Court to the Governor and Council, and from the Governor and Council and the Court of Chancery to the King.

The Superior Court was organized with Joseph Ddley, chief justice, and William Stoughton and

Peter Bnlkley associates. At a later time Samuel Shrimpton, Simon Lynde and Charles Lidget are mentioned as having sat as associates. John Palmer sat as chief justice in 1688. The courts, however, during the administration of Andros were mere mockeries of justice. As the supple tool of a tyrant, his whole career while Governor served to exasperate the people and to lay one of the stones in the founda- tion of a structure which was destined, under the pressure of tyrannical hands, to become a free and in- dependent republic. When the news of the landing of the Prince of Orange in England reached Boston, a revolution broke ont on the 18th of April, 1689, and Andros was seized and imprisoned. In February, 1690, he was sent back to England, and in 1692 was appointed Governor of Maryland and Virginia. From this last position he was removed in 1698, and, return- ing home, died in 1714. After the overthrow of Andros and his government the old judiciary system which had existed under the charter was resumed, and continued in operation until the union of the Colonies, in 1692.

On the 7th of October, 1691, a new charter was issued, which embraced Massachusetts, Plymouth, Maine, Nova Scotia, with intervening territories, to- gether with Nantucket and Martha's Vineyard, which had previously belonged to New York, under the name of the " Province of the Massachusetts Bay in New England." This charter reached Boston on the 14th of May, 1692, and under its provisions the gov- ernment consisted of a Governor, Deputy-Governor and Secretary, appointed by the King and Councillors, chosen by the General Court, and a House of Repre- sentatives, chosen annually by the people. The Gov- ernor had the power of veto, and all acts and elec- tions by the General Court must, in order to be valid, receive the approval of the King. The General Court was authorized " to erect and constitute judica- tories and courts of records or other courts," and the Governor and Council could appoint judges, sheriffs, justices of the peace and other officers of the courts. The charter gave to the Governor and Council the control of probate matters, but this control was dele- gated by them in each county to judges of their ap- pointment. No judicial power remained in the hands of the General Court, as under the colonial charter. The first court organized under the new charter was a special Court of Oyer and Terminer, created by Wil- liam Phipps, the first Provincial Governor, for the purpose of trying persons charged with witchcraft. On the 2d of June, 1692, the Governor issued his commission appointing William Stoughton chief justice; Nathaniel Saltonstall, John Richards, Bar- tholomew Gedney, Wait Winthrop, Samuel Sewall and Peter Sergeant, associate justices ; Stephen Sew- all, clerk ; Thomas Newton, attorney-general, and George Corwen, sheriff. Nathaniel Saltonstall de- clined, and Jonathan Curwin was appointed in his place, and Thomas Newton was succeeded as attorney-

MIDDLESEX COUNTY.

general on the 22d of July by Anthony Checkley. Nathaniel Saltonstall seems to have been a man of sagacity and prudence. He had declined to serve as a member of Dudley's Council, and now evidently avoided the precarious complications of the prevai !- ing witchcraft mania. The first meeting of this court was at Salem, on the 2d of June, 1692. Its subsequent meetings were on the 28th of June, the 3d of August, and 9th and 17th of September, after which the court dissolved. During this period nineteen persons were tried, condemned and hung for witchcraft, and one was pressed to death. There is nothing in the history of New England so revolting as the record of this court. That men like Samuel Sewall, called by his eulogists a man of "learning, integrity and piety," should have been carried away by such an infatua- tion impresses us with the conviction that human na- ture, in all the centuries, is the same, and that what are called the barbarities of a dark age can be fully paralleled by the atrocities of an age of boasted civil- ization. If we seek an apology for the mania it is possible that we may find a shadow of one in the fact that our fathers believed in the verbal inspiration from God of the Scriptures which inculcated a belief in witchcraft, and which declared, in the 18th verse of the 22d chapter of Exodus: " Thou shalt not suffer a witch to live."

The first meeting of the General Court under the new charter was held on the 28th of June, 1692. Its first act was the following, continuing the local laws to stand in force till November the 10th, 1692 :

" Re it ordered and enacted by the Governor, Council and Representa- tives convened in General Assembly, and it is hereby ordered and en- acted by the authority of the same, that all the local laws respectively ordered and made by the late Governor and company of the Massachu- setts Bay and the late government of New Plymouth being not repug- Daot to the laws of England, uor inconsistent with the present consti- tution and settlement by their majesties royal charter, do remain and continue in fall force in the respective places for which they were made and used, until the tenth day of November next ; except in cases where other provision is or shall be made by this conrt or assembly.

" And all persons are required to conform themselves accordingly : and the several justices are hereby empowered to the execution of said laws as the magistrates formerly were."

A subsequent act was passed continuing the local laws in force until the General Assembly should otherwise order. On the 25th of November, 1692, an act was passed entitled " An Act for the Establishing of Judicatories and Courts of Justice within this Prov- ince," from which the following are extracts :

"SEC. 1. Be it enacted and ordained by his excellency, the Governor, council and representatives convened in General Assembly, and it is herely enacted and ardained by the authority of the same, that all man- Der of debta, trespasses and other matters not exceeding the value of forty sbillings, wherein the title of land is not concerned, shall and may be heard, tried, adjudged and determined by any of their majesties' justices of the peace of this Province within the respective counties where he resides ; who is hereby empowered, upon complaint made, to grant a warrant or suinmons against the party complained of seven days before the day of trial or hearing, etc.

" SEC. 2. Be it further enacted and ordained by the authority afore- said that there shall be held and kept lo each respective county within

this Province yearly, at the times and places hereafter named and ex- pressed four courts or quarter sessions of the peace by the justices of the peace of the same county, who are hereby empowered to hear and determine all matters relating to the conservation of the peace and pun- shment of offenders and whatsoever is by them cogoizable according to law, that is to say, For the county of Suffolk, at Boston, on the first Tuesdays in March, June, September and December : For the county of Plymonth, at Plymouth, on the third Tuesdaye in March, June, Septeor- ber and December: For the conaty of Essex, at Salem, on the last Tuesdays in June and December; at Ipswich on the last Tuesday in March ; and at Newbury on the last Tuesday in September : For the county of Middlesex, at Charlestown, on the second Tuesdays in March and December; at Cambridge on the second Tuesday in September and at Concord on the second Tuesday of June : For the county of Barn- stable, at Barnstable, on the first Tuesdays in April, July, October and January : at Bristol for the county of Bristol on the second Tuesdays in April, Inly, October and January : For the county of York, at York, on the first Tuesdays in April and July ; and at Wells on the first Tuesdays in October and January : And for the county of Hampshire, at North- amptou. on the first Tuesdays in March end June ; at Springfield on the last Tuesdays in September and December: And that there be a general sessions of the peace held and kept at Edgartown, npou the island of Capawock, alias Martha's Vineyard, and on the island of Nantucket respectively upon the last Tuesday in March and on the first Tuesday of October yearly, from time to time.

"SEC. 3. And it is further enacted by the authority aforesaid, That at the times 'and places above-mentioned there shall be held and kept in each respective county and islands before nemed within this Province an Inferior Court of Common Pleas, by four of the justices of, and residing within the same county and islands respectively to be appointed aod commissioned thereto ; any three of whom to be a quorum for the hearing and determining of all civil actions arising or happening with- in the same, triable at the common law, of what nature, kind or quality soever ; and upon judgment given therein to award execution, etc.

"SEC. 4. And it is further enacted by the authority aforesaid that there shall be a Superior Court of Judicature over this whole Province, to he held and kept annually at the respective times and places here- after mentioned by one Chief Justice and four other justices to be ap- pointed and commissionated for the same: three of whom to he a quorum, who shall have cognisance of all pleae, real, personal or mixt, as well in all pleas of the crowa and in all matters relating to the cou- servation of the peace and punishment of offendere, as in civil canses or actions between party and party and between their majestios and any of their subjects, whether the same do concern the realty and relate to any right of freehold and joheritance or whether the same do concern the personalty and relate to matter of debt, contract, damage or personal injury ; and also in all mixt actions which may concern both realty and personalty ; and after deliberate hearing to give judgment and award execution thereon. The said Superior Court to be held and kept .at the times and places within the respective counties following ; that is to say, Within the county of Suffolk, at Boston, on the last Tuesday's of April and October ; Within the county of Middlesex, at Charlestown, on the last Tuesdays of July and January ; Within the county of Essex, at Salem, on the second Tuesday of November ; and at Ipswich on the second Tuesday of May ; Within the countiee of Plymouth, Barastable and Bristol at Plymonth, ou the last Tuesday of February and at Bristol on the last Tuesday of August.

"SEC. 12. And it is hereby further enacted hy the authority aforeseid, that there be a High Court of Chancery within this Province, who shall have power and authority to hear and determine all mattere of equity of what nature, kind or quality soever, and all controversies, disputes and differences arising betwixt co-executors, and other matters proper and cognizable to said court not relievable by common law ; the said conrt to be holden and kept by the Governor or such others es he shall appoint to be Chancellor, assisted with eight or more of the Council, who may appoint all necessary officere to the said Council."

This act continued in force until advice of its dis- allowance or repeal by the Privy Council was re- ceived. The repeal was dated August 22, 1695, and its reasons were expressed in the following words : " Whereas, by the act, etc., divers courts being estab- lished by the said act, it is hereby further provided that if either party not being satisfied with ye judg-

xvi

HISTORY OF MIDDLESEX COUNTY, MASSACHUSETTS.

ment of any of ye said courts in personall actions not exceeding £300 (and no other), they may appeal to His Majesty in Councill, which proviso not being ac- cording to the words of the charter, and appeals to the King in Councill in reall actions, seeming thereby to be excluded, it hath been thought fit to repeal the said act."

On the 19th of June, 1697, another act was passed establishing courts, which was disallowed Nov. 24, 1698, because it provided, among other things, "that all matters and issues in fact shall be tried by a jury of twelve men," which proviso was looked upon as directly contrary to the intention of the Act of Parlia- ment entitled An Act for preventing frauds and regu- lating abus s in the plantation trade, by which it was provided that all causes relating to the breach of the Acts of Trade might, at the pleasure of the officer or informer, be tried in the Court of Admiralty in which court trials were not held with juries of twelve men.

On the 26th of June, 1699, three acts were passed establishing a Court of General Sessions of the Peace, and an Inferior Court of Common Pleas in each coun- ty and a Superior Court of Judicature for the Prov- ince. The Court of General Sessions of the Peace was req'''ed to be held in each county, yearly, at specified times and places by the justices of the peace of said county, who were empowered to hear and de- termine all matters relating to the conservation of the peace and punishment of offenders. The Inferior Court of Common Pleas was to be held in each coun- ty by four substantial persons to be commissioned as justices, any three of whom were to be a quorum who should have cognizance of all civil actions arising or happening within the county triable at common law, provided that no action under forty shillings be brought into said court unless where freehold was concerned, or upon appeal from a justice of the peace. The Superior Court of Judicature was to be held at specified times and places in the Province by one chief justice and four other justices, who should have cognizance of all pleas, real, personal or mixed, as well as all pleas of the crown and all matters relat- ing to the conservation of the peace and punishment of offenders. It was to be held at Boston for the county of Suffolk on the first Tuesdays of November and May ; for the county of Middlesex at Cambridge on the last Tuesday in July, and at Charlestown on the last Tuesday of January; for the county of Hampshire at Springfield on the second Tuesday of August ; for the county of York at Kittery on the Thursday before the Ipswich Court; for the counties of Plymouth, Barnstable and Dukes at Plymouth on the last Tuesday of March ; and for the county of Bristol at Bristol on the second Tuesday of September

The Court of Chancery established by the act of November 25, 1692, was re-established by a separate act in 1693, and Admiralty jurisdiction, as has been al- ready stated, was reserved for the King. Besides these courts, and completing the list of courts, was the Court

of Justices of the Peace. The disallowed act of 1692 gave the justices of the peace jurisdiction "in all manner of debts, trespasses and other matters not ex- ceeding forty shillings in value, wherein the title of land was not concerned." In 1697 a special act was passed re-enacting substantially the provisions of the act which had been disallowed, so far as the civil jur- isdiction of the justices was concerned. From time to time subsequently, the powers of justices, both in civil and criminal matters, were enlarged. But 'one other important court remains to be mentioned, but one established not by any law of the General Court, but by the Governor and Council under the charter. In probate matters jurisdiction had been exercised during the colonial period by the common law courts. During the administration of Andros it was assumed by the Governor, but by the charter it was conferred on the Governor and Council, who, claiming the power of substitution, delegated these powers to a judge of probate of their own appointment in each county, reserving to themselves appellate jurisdiction.

The Superior Court of Judicature, which was per- manently established June 20, 1699, continued until February 20, 1781, during which time the following appointments of justices were made :

1692, William Stonghton (chief justice), Thomas Danforth Waitstill Winthrop (chief justice 1708), John Richards, Samuel Sewall (chief jns- tice 1718) ; 1695, Elisha Cooke ; 1700, John Walley ; 1701, John Saffin ; 1702, Isaac Addington (chief justice 1703), John Ilathorne, John Lev- erett ; 1708, Jonathan Curwin ; 1712, Benjamin Lynde (chief justice 1728), Nathaniel Thomas ; 1715, Addington Davenport; 1718, Edward Quincy, Paul Dudley (chief justice 1745); 1728, John Cushing ; 1733, Jonathan Remington ; 1736, Richard Saltonstall ; 1738, Thomas Graves ; 1739, Stephen Sewall (chief justice 1752) ; 1745, Nathaniel Hubbard, Benjamin Lynde (chief justice 1771); 1747, John Cushing; 1752, Chambers Russell ; 1756, Peter Oliver (chief justice 1772) ; 1760, Thomas Hutchinson (chief justice 1760) ; 1767, Edmund Trowbridge ; 1771, Fos- ter Hutchinson ; 1772, Nathaniel Ropes; 1774, William Brown; 1775, William Cushing (chief justice 1777), John Adams (chief justice 1775), Nathaniel P. Sargeant, William Reed. Robert Treat Paine ; 1776, Jedi- diah Foster, James Sullivan ; 1777, David Sewall.

Of these, Thomas Danforth, Chambers Russell and Edmund Trowbridge may be said to have been Mid- dlesex County men.

On the 20th of February, 1781, an act was passed by the General Court of Massachusetts, establishing the Supreme Judicial Court as the successor of the Superior Court of Judicature. It was established with one chief justice and four associates. In the year 1800 the number of associates was increased to six and the State was divided into two circuits, the east including Essex County and Maine, and the west including the remainder of the State except Suffolk County. In 1805 the number of associates was re- duced to four, and in 1852 was increased to five. In 1873 the number of associates was increased to six, and the court has continued up to this time with one chief justice and six associates. The justices of this court have been :

Increase Sumner, 1782 to 1797 ; Francis Dana, 1785 to 1806 (chief justice 1791) ; 'Theophilus Parsons, 1806 to 1813 (chief justice 1806) ; Robert Treat Paine, 1790 to 1804; Nathan Cushing, 1790 to 1800;

MIDDLESEX COUNTY.

xvii

Thomas Dawes, 1792 to 1802; Theophilus Bradbury, 1797 to 1803; Samuel Sewall, 1800 to 1828 (chief justice 1814) ; Simeon Strong, 1801 to 1805; George Thacher, 1801 to 1824; Theodore Sedgwick, 1802 to 1813 ; Isaac Parker, 1806 to 1830 (chief justice 1814) ; Charles Jackson, 1813 to 1823 ; Daniel Dewey, 1814 to 1815; Samuel Putnam, 1814 to 1842 ; Samuel Sumner Wilde, 1815 to 1850 ; Levi Lincoln, 1824 to 1825 ; Mar- cus Morton, 1825 to 1840; Lemuel Shaw, 1830 to 1860 (chief justice 1830) ; Charles Augustus Dewey, 1837 to 1866; Samuel Hubbard, 1842 to 1847 ; Charles Edward Forbes, 1848 to 1848; Theron Metcalf, 1848 to 1865 ; Richard Fletcher, 1848 to 1853; George Tyler Bigelow, 1850 to 1868 (chief justice 1860) ; Calab Cushing, 1852 to 1853; Benj. Franklin Thomas, 1853 to 1859; Pliny Merrick, 1853 to 1864 ; Ebenezer Rockwood Hoar, 1859 to 1869; Reubeu Atwater Chapman, 1860 to 1873 (chief justice IS68) ; Horace Gray Jr., 1864 to 1882 (chief justice 1873) ; James Denison Colt, 1865 to 1866 ; Dwight Fester, 1866 to 1869 ; Jolm Welle, 1866 to 1875; James Denison Colt, 1868 to 1881 ; Seth Ames, 1869 to 1881 ; M. Morton, 1869 (chief justice 1882 to 1890) ; W. C. Endicott, 1873 to 1882; Charles Devets, Jr., 1873 to 1877 ; Otis Phillips Lord, 1875 to 1882 ; A. L. Soule, 1877 to ISSI; W. A. Field, 1881 (chief justice 1890) ; Charles Devens, 1881 ; William Alleu, 1881 ; Charles Allen, 1882 ; Walde Colburn, 1882 to 1885; Oliver Wendell Holmes, Jr., 1882 ; Wm. Sewall Gardner, 1885 to 1887; Marcus Perrin Kuowlton, 1887; James M. Morton, 1890.

Of these justices, Francis Dana, George Tyler Bigelow, Ebenezer Rockwood Hoar, Seth Ames and Charles Devens, Jr., were Middlesex men, and refer- ence to them will be made in the chapter on the Bench and Bar.

The judges of the Inferior Court of Common Pleas for the county of Middlesex were as follows :

John Phillips, December 7, 1692, to December 9, 1715 ; James Russell, December 7, 1602, to April 28, 1709 ; Joseph Lynde, December 7, 1692, to June 27, 1719 ; Samuel Ilayman, December 7, 1692, to June 29, 1702; Jonathan Tyng, June 29, 1702, to June 27, 1719 ; Francis Foxcroft, June 23. 1709, to June 27, 1719 ; Jonathan Remington, December 9, 1715, to June 22, 1733; Jonathan Dowse, June 27, 1719, to July 21, 1741 ; Charles Chambers, June 27, 1719, to December 21, 1739 ; Francis Fulbam, June 27, 1719, to Jnus 20, 1755 ; Thomas Greaves, June 22, 1733, to March 9, 1737-38 ; Francis Foxcroft, March 9, 1737-38, to March 7, 1764; Thomas Greaves, December 21, 1739, to August 19, 1747 ; Samuel Danforth, July 21, 1741 ; Chambers Russell, August 19, 1747, to April 7, 1752 ; Andrew Boardman, April 7, 1752, to May 20 1769 ; William Lawrence, June 26, 1755, to September 7, 1763; John Tyng, September 7, 1763 ; Richard Foster, Dlarch 7, 1764, to May 16, 1771; Joseph Lee, May 24, 1769; James Russell, May 16, 1771.

The special justices of this court were :

Elisha Hutchinson, appointed June 8, 1705, and February 25, 1708 ; John Foster, June 8, 1705, and February 25, 1708 ; Johu Higgin- son, June 8, 1705, and February 25, 1708; Penn Townsend, Febru- ary 25, 1708; Jonathan Tyng, February 25, 1708; Jonatban Dowse, December 3, 1718; Jonas Bond, December :; , 1718, and September 6, 1723 ; Nathaniel Carey, November 25, 1719 ; Spencer Phips, September, 6, 1723, July 18, 1726, and July 9, 1731 ; Thomas Greaves, November 25, 1719, and July 9, 1731 ; Henry Phillips, August 3, 1729 ; Francis Fox- croft, March 19, 1729-30, and July 9, 1731 ; Habijah Savage, December 15, 1732 ; Samuel Wells, December 15, 1732 ; Samuel Danforth, Decem- ber 15, 1732 ; Jacob Wendell, December 29, 1736; Benjamin Prescott, December 29, 1736; Simon Tufts, July 25, 1741 ; Ephraim Cortis, July 25, 1741 ; William Lawrence, August 12, 1749, and June 21, 1751 ; Jobn Tyng, July 19, 1762 ; Oliver Fletcher, July 29, 1762 ; Joseph Lee, March 7, 1764 ; Samuel Livermore, September 7, 1768 ; Charles Prescott, Sep- tember 7, 1768.

The last term of this court under the Province charter was held May 21, 1774. On the 2d of No- vember, 1775, commissions were issued to Jobn Tyng, Henry Gardner, John Remington and Samuel P. Savage, which superseded the old commissions held by John Tyng, Samuel Danforth, Joseph Lee and James Russell. The court continued in its old form until July 3, 1782, when the Court of Common Pleas

was established, to be held within each county at specified times and places, with four judges appointed by the Governor from within the county. The jus- tices of this court, which continued until June 21, 1811, were the following : John Tyng, Henry Gard- ner, John Remington, Samuel Phillips Savage, Abra- ham Fuller, James Prescott, Nathaniel Gorham, James Winthrop, William Hull and Ephraim Wood. The special justices were : Josiah Stone, Ebenezer Bridge, John Pitts, Eleazer Brooks, James Winthrop, William Hull, Ephraim Wood, Joseph [B. Varnum, Loammi Baldwin, Abiel Hayward, Phillips Payson, Joseph Cordes, Joseph Heald and Asahel Stearns. At the last-mentioned date an act was passed dividing the Commonwealth-except Nantucket and Dukes County-into six circuits, as follows : the Middle Cir- cuit, consisting of the counties of Suffolk, Essex and Middlesex; the Western Circuit, consisting of the counties of Worcester, Hampshire and Berkshire ; the Southern Circuit, consisting of the counties of Norfolk, Plymouth, Bristol and Barnstable: the Eastern Circuit, consisting of the counties of York, Cumberland and Oxford; the Second Eastern Cir- cuit, consisting of the counties of Lincoln, Kennebec and Somerset, and the Third Eastern Circuit, con- sisting of the counties of Hancock and Washington. The act provided that there should be held in the several counties, at the times and places appointed for holding the Courts of Common Pleas, a Circuit Court of Common Pleas, consisting of one chief justice and two associate justices, to whom were to be added two sessions justices from said county, to sit with the court in their county.

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History of Middlesex County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I, Part 5

Author: Hurd, D. Hamilton (Duane Hamilton), ed Publication date: 1890 Publisher: Philadelphia, J. W. Lewis & co Number of Pages: 1034

Author: Hurd, D. Hamilton (Duane Hamilton), ed
Publication date: 1890
Publisher: Philadelphia, J. W. Lewis & co
Number of Pages: 1034