History of Plymouth county, Massachusetts, with biographical sketches of many of its pioneers and prominent men, Part 2

Author: Hurd, D. Hamilton (Duane Hamilton)
Publication date: 1884
Publisher: Philadelphia, J.W. Lewis & co.
Number of Pages: 1706

USA > Massachusetts > Plymouth County > History of Plymouth county, Massachusetts, with biographical sketches of many of its pioneers and prominent men > Part 2

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CHAPTER II. THE COURTS AND BAR.

BY WILLIAM T. DAVIS.

AFTER the incorporation of the county the first act of the General Court relating to county affairs was passed in 1685, which provided " that there be in the Colony three counties, and that in each county there shall be kept annually two county courts, which courts shall be kept by the magistrates living in the several counties, or by any other magistrate that can attend the same, or by such as the General Court shall appoint from time to time, and to make a Court there shall be present not less than three magistrates or Associates, and in no case shall judgment be given without there be two consenting, or the major part, if more than four judges ; and in the absence of the Governor or Deputy Governor, the eldest magistrate shall be President of the Court; which Court shall have, and hereby have, power to order the choice of Juries of Grand Inquest and trials in their several counties, and to constitute clerks and other needful officers ; the County Treasurer to be appointed and allowed by said Court annually." It was also pro- vided " that each County Court shall have, and hereby have, power to hear, try, and determine, according to law, all matters, actions, causes, and complaints, whether civil or criminal, in any case not extending to life, limb, or banishment, or matter of divorce ; that all deeds, bargains. mortgages for houses, rents, lands not already recorded in the public records, or that shall not be recorded before the first County Court of each county, shall or may be recorded in the county where they lic by the County Recorder; which shall from and after the first County Court that sits

in said County be accounted legal and sufficient record for the same, it having been acknowledged or duly proved before the recording; that such County Court shall have, and hereby have, power to scttle and dis- pose according to law the estate of any person that dies intestate within the county, and to grant letters of administration and make the probate of wills." It was further ordered " that County Courts have power to make effectual orders about county prisons, high- ways, and bridges, and when there is occasion, order rates to be made in the several towns and places of the county for defraying county charges; the raters of each town to rate the inhabitants or persons under their constablerick according to the proportion ordered by the County Court, and the Constable to gather such rates, and be accountable for the same to the County Treasurer; that the Town Clerk in each town annually return the names of such persons to the County Court as by the several towns are chosen to serve as constable, jurymen, surveyors of highways; that they may take their oaths and be established in their respective places, and the Selectmen to be re- turned to the court of election on penalty of twenty shillings fine for each neglect ; that the Clerk of the Court shall be the Recorder of the County, who shall record deeds and evidences for lands lying within the County, who shall be under oath for the faithful dis- charge of his place; said Clerk in open Court may administer oaths to witnesses, and in the name or order of Court to grant summons, attachments, war- rants, and to sign and give out executions for any judgment obtained in any of the County Courts, which shall not be till twelve hours after judgment, unless in any particular case the law hath otherwise provided ; not then if the Court, on any special cause, shall respite the same; that there be a County Mar- shall, who shall always attend said Courts, who are empowered to serve all warrants, attachments, or sum- mons that are directed to them, and to levy execu- tions, who may require aid in the execution of their office, which shall be yielded on the same penalty. that is, for any to refuse to assist a constable." It was further provided "that in all criminal cases or misdemeanors, besides their fines or punishments, persons convict shall pay cost and needful charges of prosecution."

It will be seen that under the provisions of the above enactment the clerk of the court or recorder was also register of decds and register of probate, while the court itself not only had cognizance of cer- tain matters both civil and criminal, but acted also as a Probate Court and as county commissioners. The magistrates first appointed, in 1685, werc Nathaniel

THE COURTS AND BAR.

Thomas, John Cushing, and Ephraim Morton, and Nathaniel Thomas, Jr., was clerk. In the same year it was ordered by the General Court that the county have the use of the lower rooms in the country house for the courts, and the use of the country's prison. The country house, as it was called, was the govern- ment house, and stood where the Plymouth town house now stands. The government land extended to Summer Street, the present High Street not hav- ing been laid out until more than a century after- wards, and the country prison stood on the land between the store of Everett W. Sherman, on the corner of Summer and Market Streets, and the house of Peter W. Smith. The prison land, as deseribed in the records, began at a point thirty-one feet east- erly of the corner of the house of Richard Cooper, now occupied by James Cox, on Summer Street, and nineteen feet westerly of the southwest corner of the jail-house, and extended from that point north eleven degrees west a little over fifty feet; thenee northeasterly sixty-six feet, and thenee south twenty and one-half degrees east to a point on Summer Street eighty feet from the point of starting. In 1778, after a new jail had been built in Court Square on land bought by the county in 1773 of the First Precinet, the old buildings and the land on which they stood were sold. The land bought in Court Square began at a point ninety feet easterly of the westerly boundary of the present House of Correction yard, and extended to a point a little in front of the present court-house, about fifteen feet west of the stone curbing across the inelosure. On this land the new jail and jail-house were built. After the union of the colonies, in 1692, and the extinction of the government of the Old Colony, the old country house in Town Square became the county house, and was occupied as a court-house until 1749, when it was taken down, and the building now owned by the town and occupied as a town house was ereeted. Towards the erection of this building, in 1749, the town eon- tributed one thousand pounds of old tenor money, on the condition, which was agreed to by the county, that it might be used for town purposes. It was designed by Peter Oliver, of Middleboro', then a judge of the Inferior Court of Common Pleas, and originally had its door on the easterly end, which was changed to its present position a little before the Revolution, to make room for a market-house. In 1819 the county bought of the town forty feet addi- tional on the west of their Court Square land, and built the stone jail now standing, at a cost of eleven thousand five hundred dollars, and the present keep- er's house, at a cost of about two thousand dollars.

In 1820, after the old jail had been removed, as well as the old keeper's house, the county built the present eourt-house, having enlarged their lot on the east by the purchase from the town, in 1785, of fifteen feet, extending as far as the eurbing above referred to. The cost of the court-house was twelve thousand dol- lars. In 1839 the county bought of the trustees of the Fuller Ministerial Fund fifty feet more of land on the westerly end of their lot, and in 1852 built the present House of Correction at a cost of sixteen thou- sand dollars. In 1857 the court-house was altered and enlarged, at a cost of twenty-four thousand dol- lars. In 1821, after the new eourt-house was erected, the old eourt-house in Town Square was sold to the town of Plymouth for two thousand dollars, and has since been used as a town house. During the present year, under authority received from the Legislature, the county commissioners are enlarging and remodel- ing the House of Correction, at a probable cost of thirty thousand dollars.

After the union of the colonies, in 1692, one of the first acts of the court of the province of Massa- chusetts Bay, of which Plymouth County had become a part, was to provide that the names and boundaries of all the counties should continue as they had been previous to the union. In the same year it was pro- vided by law " that on or before the last Tuesday of July next there be a general sessions of the peace held and kept in each respective county within this provinee by the justiees of the same county, or three of them at the least (the first justice of the quorum then present to preside), who are hereby empowered to hear and determine all matters relating to the conser- vation of the peace and whatever is by them eogniza- ble according to law, and to grant licenses to such persons within the same county, being first approved of by the seleetmen of each town where such persons dwell, whom they shall think fit to be employed as inn- holders or retailers of wines or strong liquors, and that a sessions of the peace be successively held and kept as aforesaid within the several counties at the same times and places as the county courts or inferior eourts of common pleas are hereinafter appointed to be kept."

And it was further enaeted " that the county eourts or inferior eourts of Common Pleas be held and kept in each respective county by the justices of the same county or three of them at the least (the first justice of the quorum then present to preside), at the same times and places they have been formerly kept aeeording to law for the hearing and determining of all eivil aetions arising or happening within the same, triable at the common law according to former usage; the justiees for holding and keeping of the said eourt within the

HISTORY OF PLYMOUTH COUNTY.

county of Suffolk to be particularly appointed and commissioned by the Governor, with the advice and consent of the council, and that all writs or attach- ments shall issue out of the clerks office of the said several courts, signed by the clerk of such court, di- rected unto the sheriff of the county, his under sheriff or deputy. The jurors to serve at said courts to be chosen according to former custom by and of the free- holders and other inhabitants qualified as is directed in their majesties royal charter."

This act was disallowed by the Privy Council on the ground that a distinction was made between the county of Suffolk and the other counties. On the 25th of November, 1692, it was enacted " that there shall be held and kept in each respective county within this province yearly, at the times and places hereafter named and expressed, four courts or quarter sessions of the peace by 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 punishment of offenders and whatso- ever is by them cognisable according to law, and that at the said times there shall be held and kept in each respective county an inferior court of Common Pleas by four of the justices of and residing within the same county respectively, to be appointed and commis- sioned thereto, and three of whom to be a quorum for the hearing and determining of all civil actions arising or happening within the same."

This act was also disallowed by the Privy Council in consequence of certain provisions not quoted above concerning the right of appeal. On the 19th of June, 1697, another act was passed providing among other things for a county court called the General Sessions of the Peace. This act was disallowed also by the Privy Council because it provided for a trial by jury in all cases, when, according to an act of Parliament, " all causes relating to the breach of the Acts of Trade may, at the pleasure of the officer or informer, be tried in the Court of Admiralty, and because the method of trial in such Courts of Admiralty was not by juries." On the 26th of June, 1699, it was en- acted "that there shall be held and kept in each respective county within this province yearly, and in every year at the times and places in this act here- after mentioned and expressed, a Court of General Sessions of the Peace by the justices of the peace of the same county, or so many of them as are or shall be limited in the commission of the peace, who are hercby cmpowered to hear and determine all matters relating to the conservation of the peace and punish- ment of offenders, and whatsoever is by tlicm cognis- able according to law and to give judgment and

award execution thereon." The same act provided that in convenient time, before the sitting of said court, the clerk shall issue warrants directed to the constables of the several towns within the county, re- quiring them to assemble the freeholders and other inhabitants of their town to choose as many men as the warrant shall direct to serve as jurors. On the same day another act was passed providing that in each county at specified times and places an Inferior Court of Common Pleas by four substantial persons to be appointed and commissioned as justices shall be held, which shall have cognizance of all civil actions within said county, and providing also for the choice of jurors in the same manner as that specified in the act relating to the Sessions of the Peace.

Either by the general act or by special acts a great variety of duties was imposed on the general sessions of the peace. Besides its criminal jurisdiction it granted licenses to innholders and retailers of liquor, it heard and determined complaints by the Indians, it provided at one time destitute towns with ministers, it determined the amount of county taxes and ap- portioned the same among the towns, it had charge of county property and expended its money, it laid out highways, it assorted and counted the votes for county treasurer and audited his accounts, it appointed masters of the House of Correction, and made rules for the government of the same, it ordered the erec- tion and repair of prisons and other county buildings, and had the general care of county affairs and its government.

The Court of General Sessions of the Peace re- mained substantially the same until June 19, 1807, when it was enacted that it should consist of one chief or first justice, and a specificd number of associate justices for the several counties, all to be designated by the Governor with the advice of the Council. These justices were to be commissioned and to act as the General Court of Sessions in the place of the. justices of the peace in each county as heretoforc. On the 19th of June, 1809, the powers and duties of the Court of General Sessions were transferred to the Court of Common Pleas. On the 25th of June, 1811, it was enacted " that from and after the first day of September next an act made and passed the nine- teenth day of June, 1809, entitled ' an act to transfer tlie powers and duties of the Courts of Sessions to the Courts of Common Pleas,' be and the same is hereby repealed, and that all acts and parts of acts relative to the Courts of Sessions which were in force at the time the act was in force, which is hereby repealed, be and the same are hereby revived from and after the said first day of September next."

THE COURTS AND BAR.

On the 28th of February, 1814, it was enacted that the last above-mentioned act, passed June 25, 1811, be repealed, except so far as it relates to the counties of Suffolk, Nantucket, and Dukes County, and that all petitions, recognizances, warrants, orders, certifi- cates, reports, and processes made to, taken for, or continned or returnable to the Courts of Sessions in the several counties, except as aforesaid, shall be re- turnable to and proceeded in and determined by the respective Circuit Courts of Common Pleas; that from and after the 1st day of June next the Circuit Courts of Common Pleas shall have, exercise, and perform all powers, authorities, and duties which the respective Courts of Sessions have before the passage of this act exercised and performed, except in the counties of Suffolk, Nantucket, and Dukes County as aforesaid. It was further enacted that the Gov- ernor. by and with the advice of the Council, be au- thorized to appoint two persons in each county, who shall be session justices of the Circuit Court of Com- mon Pleas in their respective counties, and sit with the justices of said Circuit Court in the administra- tion of the affairs of their county, and of all matters within said county of which the Courts of Sessions had cognizance.

The Circuit Court of Common Pleas was a court established June 21, 1811. The act passed at that date provided that the commonwealth, except Dukes County and the county of Nantucket, be divided into six circuits, as follows : The Middle Circuit, made up of the counties of Suffolk, Essex, and Middlesex ; the Western Circnit, made up of the counties of Worcester, Hampshire, and Berkshire; the Southern Circuit, made up of the counties of Norfolk, Plymouth, Bristol, and Barnstable ; the Eastern Circuit, made up of the coun- ties of York, Cumberland, and Oxford; the second Eastern Circuit, made up of the counties of Lincoln, Kennebeck, and Somerset; and the third Eastern Circuit, made up of the counties of Hancock and Washington. It further provided that there shall be held in the several counties, at the times and places now appointed for holding the Courts of Common Pleas a Circuit Court of Common Pleas, to consist of one chief justice and two associate justices. To these were added, as has been stated above, two ses- sions justices from each county to sit with the court in their county. The management of county affairs was in the hands of this court from 1814 until 1819, during which time Thomas B. Adams was chief jus- tice, Jairus Ware and Nahum Mitchell were associate justices, and Elisha Ruggles and John Thomas ses- sions justices, for Plymouth County. On the 20th of February, 1819, it was enacted "that from and

after the first day of June next an 'act to transfer the powers and duties of the Courts of Sessions to the Circuit Court of Common Pleas,' passed on the 28th day of February, 1814, be hereby repealed." It was further enacted that from and after the 1st day of June next the Court of Sessions in the several coun- ties shall be held by one chief justice and two asso- ciate justices, to be appointed by the Governor, by and with the advice and consent of the Council, who shall have all the powers, rights, and privileges, and be subject to all the duties, which are now vested in the Circuit Courts of Common Pleas, relative to the erection and repair of jails and other county buildings, the allowance and settlement of county accounts, the estimate, apportionment, and issuing warrants for as- sessing county taxes, granting licenses, laying out, altering, and discontinuing highways, and appointing committees, and ordering juries for that purpose.

The management of county affairs remained in the hands of this court until March 4, 1826, when that part of their duties relating to highways was trans- ferred to a new board of officers called " commission- `ers of highways," consisting of five members, appointed by the Governor, and their chairman appointed by him also. On the 26th of February, 1828, a law was passed providing for the appointment of three county commissioners for three years, one of whom should be chosen chairman by the board and two special commis- sioners, and the acts providing for a Court of Sessions and a Board of Commissioners of Highways was re- pealed. On the 8th of April, 1835, it was provided by law that the three commissioners and two special com- missioners should be chosen by the people in the month of April, and that, in case of a failure to elect, meetings should be held until the board was filled. On the 17th of March, 1841, it was further provided by law that, in case of a failure to choose, report should be made to the Governor, and that he should fill the vacancies. It will be remembered that these acts were passed when a majority of votes were required to clect, and that in consequence failures to elect were frequent. On the 11th of March, 1854, a law was passed pro- viding for a division by lot of the board into three classes, one to hold office for one year, one for two, and one for three, and for the election of one commis- sioner yearly at the annual November election, and of two special commissioners every three years, beginning with 1856. It was also provided that a plurality of votes should elect.

The following is a list of county officers, as com- plete as available accurate data will permit :

Marshal .- William Bassett, 1686.

Sheriffs .- John Bradford, 1692; James Warren, 1699; Seth

HISTORY OF PLYMOUTH COUNTY.

Arnold, 1700; Nathaniel Warren, 1701; Isaac Lothrop, 1706; Thomas Barker, 1721; John Holmes, 1731; James Warren, Sr., 1733; James Warren, Jr., 1762; George Part- ridge, 1779; Albert Smith, 1812; George Partridge, 1813; Nathan Hayward, 1814; Branch Harlow, 1845; William Thomas, 1852; Branch Harlow, 1854; Daniel Phillips, 1855; John Perkins, 1856; Daniel Phillips, 1857; James Bates, 1860; Alpheus K. Harmon, 1875.

Registers of Probate .- Nathaniel Thomas, Sr., 1686; Samuel Sprague, 1693; Nathaniel Thomas, Jr., 1702; Josiah Cot- ton, 1729; Edward Winslow, 1756; Isaac Lothrop, 1776; Beza Hayward, 1810; Jacob H. Loud, 1831; Moses Bates, 1852; Joseph S. Beal, 1853; Samuel H. Doten, 1857; Daniel E. Damon, 1859; Edward E. Hobart, 1884.

Judges of Probate. - William Bradford, 1693; Nathaniel Thomas, Sr., 1702; Isaac Winslow, 1718; John Cushing, 1738 ; William Sever, 1775 ; Joseph Cushing, 1778; Joshua Thomas, 1793; Wilkes Wood, 1822; Aaron Hobart, 1844; William H. Wood, 1858; Jesse E. Keith, 1884.

Clerks of the Courts .- Nathaniel Thomas, 1686; Samuel Sprague, 1692; Thomas Little, 1702; William Little, 1714; Josiah Cotton, 1713; John Winslow, 1715; Edward Win- slow, 1762; John Cotton, 1775; Josiah Cotton, 1781 ; Her- cules Cushman, 1795; John B. Thomas, 1811; William H. Whitman, 1851.

County Treasurers .- Samuel Sprague, 1693; Josiah Cotton, 1713 ; John Cotton, 1756; Rossiter Cotton, 1789; William R. Sever, 1838; John Morissey, 1877.

Registers of Deeds .- Nathaniel Thomas, 1685; Samuel Sprague, 1693; Josiah Cotton, 1713; John Cotton, 1756; Rossiter Cotton, 1789 ; Roland E. Cotton, 1837; William S. Russell, 1846; William S. Danforth, 1863.

County Commissioners .- 1829-33, Thomas Weston, of Middle- boro'; Jared Whitman, of Bridgewater; John Collamore, of Scituate; 1834, Bartholomew Brown, of East Bridge- water; Jared Whitman, of Bridgewater; John Collamore, of Scituate; 1835-43, Isaac Alden, of Middleboro'; John B. Turner, of Scituate; Thomas Savery, of Wareham; 1844-46, John B. Turner, of Scituate; Thomas Savery, of Wareham; Joshua Smith, of Hanson; 1847-52, Joshua Smith, of Hanson; John Ford, of Marshfield; Ebenezer Pickens, of Middleboro'; 1853-54, Ebenezer Pickens, of Middleboro'; Isaac Hersey, of Abington; John Ford, of Marshfield ; 1855, Ebenezer Pickens, of Middleboro'; Martin Bryant, of Pembroke; Isaac Hersey, of Abington ; 1856, Isaac Hersey, of Abington ; Martin Bryant, of Pem- broke; William H. Cooper, of North Bridgewater; 1857, Martin Bryant, of Pembroke ; William II. Cooper, of North Bridgewater; James Bates, of East Bridgowator; 1858, William II. Cooper, of North Bridgewater; Thomas South- worth, of Carver; James Bates, of East Bridgewater ; 1859, James Bates, of East Bridgewater; Thomas Southworth, of Carver; Caleb W. Prouty, of Scituate; 1860, Thomas Southworth, of Carvor; Caleb W. Prouty, of Scituate; Charles H. Paino, of Halifax ; 1861, Caleb W. Prouty, of Scituate ; Charles H. Paine, of Halifax ; James Ruggles, of Rochester; 1862-63, Charles H. Paine, of Halifax ; James Ruggles, of Rochestor; William P. Corthell, of Abington ; 1864-72, Charles H. Paino, of Halifax; William P. Cor- thell, of Abington ; Harrison Staples, of Lakevillo; 1873- 76, Charles H. Paine, of Halifax ; William P. Corthell, of Abington ; Joseph T. Wood, of Middleboro'; 1877-81, Charles H. Paino, of Halifax ; Joseph T. Wood, of Middle- boro'; Jedediah Dwolley, of Hanover; 1882-84, Charlos H. Paino, of Halifax; Jedediah Dwolloy, of Hanover; Walter II. Faunce, of Kingston.

The county commissioners have charge of all the county property, the court-house and jail, and House of Correction, and provide for their crection and repair. They are exempted from service on the jury ; arc required to examine the votes for county treasurer and register of deeds, and notify them of their election ; must provide fire-proof offices for county officers ; cause county maps to be corrected from time to time ; must examine the accounts of the county treasurer and pass on the same; make out annually an estimate for a county tax, and send the same to the secretary of state, with a statement of the money borrowed by the county ; apportion taxes among the towns according to the last State valua- tion ; have jurisdiction of the laying out of high ways, and appellate jurisdiction of townways, when the selectmen of towns refuse to lay them out on pe- tition ; of the laying out of railroads, and the assess- ment of damages for the same; and of the crossing of ways by railroads, and of a variety of other matters of perhaps less importance.

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History of Plymouth county, Massachusetts, with biographical sketches of many of its pioneers and prominent men, Part 2

Author: Hurd, D. Hamilton (Duane Hamilton) Publication date: 1884 Publisher: Philadelphia, J.W. Lewis & co. Number of Pages: 1706

Author: Hurd, D. Hamilton (Duane Hamilton)
Publication date: 1884
Publisher: Philadelphia, J.W. Lewis & co.
Number of Pages: 1706