History of Worcester County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I, Part 3

Author: Hurd, D. Hamilton (Duane Hamilton)
Publication date: 1889
Publisher: Philadelphia : J.W. Lewis & Co.
Number of Pages: 1576

USA > Massachusetts > Worcester County > History of Worcester County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I > Part 3

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On the 25th of November, 1692, an act was passed which provided, among other things, as follows :

SECT. 1. That all manner of debts, trespasses and other matters not exceeding the value of forty shillings (wherein the title of land is not concerned) shall and may be heard, tried, adjudged and determined by nny of their majesties, justices of the peace of this provinco within the respective connties where he resides. . . .

Srer. 4. That there shall be held and kept in cach respective county within this province, yearly at the times and places hereafter named and expressed, four courts or quarter sessions of the peace hy justices of the peace of the same county, who are hereby empowered to hear and determino all matters relating to the conservation of the peace and pun- ishment of offenders and whatsoever is by them cognizable according to law. . .

SECT. 6. That at the times and places before mentioned there shall

HISTORY OF WORCESTER COUNTY, MASSACHUSETTS.

be held and kept in each respective county and islands, before named, within this province an Inferior Court of Common Pleas by four of the Justices of and residing within the Fame county and islands respect. ively, to be appointed and commissioned thereto, aby three of whom to be a quorum, for the hearing and determining of all eivil actions arising or happening within the same, tryable at the common law of what na- ture, kind or quality soever. . . .

SECT. 6. That there sball be a Superior Court of Judicature over this whole province, to be held and kept annually at the respective times and places as hereafter mentioned, by one Chief Justice and four other jus- ticos, to be appointed and commissioned for the same, three of whom to be a quorum ; who shall bave cognizance of all pleas, real, personal or mixed, as well in all pleas of the crown and in all matters relating to the conservation of the peace and punishment of offenders as in civil canses or actions between party and jauty, and between their majesties and any of their subjects, whether the same do concern the realty and relate to any right of freehold and inheritance, or whether the same do concern the personalty and relate to matter of debt, contract, damage or personal injury, and also in all mixed actions which may concern both realty and personalty. . . .

SECT. 14. . . . that either party not resting satisfied with the judg- ment or sentence of any of the said judicatories or courts in personal actions wherein the matter in difference doth exceed the value of three hundred pounds sterling (and no other), may appeal unto their ninjes- ties in council, such appeal being made in time, and security given ac- cording to the directions in the charter in that behalf. . . .

This act was also disallowed by the Privy Council August 22, 1695, and it was stated by the Council that

Whereas by the Act divers courts being established by the said Act, it is hereby further provided that if either party not being satisfied with the judgment of any of the said courts in personal actions not exceed- ing three hundred pounds (and no other), they may appeal to llis Ma- jesty in Conneil, which proviso not being according to the words of the charter and appeals to the King in council in real 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 providing for a Court of General Sessions of the Peace, an Inferior Court of Common Pleas, and a Superior Court of Judicature, Court of Assize and General Gaol Delivery, the tenth section of which provided " that all matters and issues in fact arising or happening in any connty or place within this province shall be tried by twelve good and lawful men of the neighborhood, to be chosen in manner following. . . 77

This act was disallowed by the Privy Council November 24, 1698, for the reason that it provided for the trial of all matters and issues in fact by a jnry of twelve men, while the act of Parliament entitled " An Act for Preventing Frauds and Regulating Abuses in the Plantation Trade," provided that 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 to be held in any of His Majesty's plantations respectively where such offence shall be committed, in which court the method of procedure under the law is not by trial by jury.

On the 16th of June, 1699, still another act was passed establishing a Court of General Sessions of the Peace in each county, " to be held 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 hereby impowered to hear and determine all matters relating to the conservation of the peace and

punishment of offenders, and whatsoever is by them cognizable according to law and to give judgment and award execution thereon."

On the 15th of the same month an act was passed establishing an Inferior Court of Common Pleas, which " shall be held and kept in each respective county within this province and at the Island of Nan- tucket within the same, yearly and every year at the times and places in this Act hereafter mentioned, and expressed," " by four substantial persons to be ap- pointed and commissioned as justices of the same court in each county, any three of whom to be a quornmn for the holding of said court, who shall have cognisance of all civil actions arising or happening within such county tryable at the common law, of what nature, kind or quality soever."

On the 26th of the same month an act was passed, establishing a Superior Court of Judicature, Court of Assize and General Gaol Delivery over the province, " to be held and kept annually at the respective times and places mentioned in the act by one Chief Justice and four other Justices to be appointed and commis- sioned for the same, any three of them to be a quorum, who shall have cognizance of all pleas, real, personal or mixed, as well all pleas of the crown and all mat- ters relating to the conservation of the peace and punishment of offenders, as civil canses or actions be- tween party and party, and between his majesty and any of his subjects, whether the same do concern the realty and relate to any right of freehold and inheri- tance, or whether the same do concern the personalty and relate to matter of debt, contract, damage or per- sonal injury, and also all mixed actions which concern both realty and personalty, brought before them by appeal, review, writ of error or otherwise, as the law directs; and generally all other matters as fully and amply to all intents and purposes whatsoever as the conrts of king's bench, common pleas and exchequer within his majesty's kingdom of England have or ought to have."

These laws were substantially re-enactments of the laws passed in 1692, and disallowed by the Privy Council, and with amendments remained in force dur- ing the existence of the province. Either by the act establishing the General Sessions of the Peace or by special acts afterwards passed, the jurisdiction of this court took a wide range. Besides its criminal juris- diction 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 apportioned the same among the towns; it had charge of county property and expended its money ; it laid out highways ; it counted the votes for county. treasurer and audited his accounts ; it appointed mas- ters of the House of Correction and made rules for the government of the same; it ordered the erection and repair of prisons and other county buildings, and had the general care of county affairs.

vii

WORCESTER COUNTY.

These province laws concerning the judiciary were, by a gradual and natural process of evolution, the outgrowth of the early laws of the Massachusetts colony. At first the General Court, consisting, until 1634, of the Governor, the assistants and freemen and after that date of delegates instead of the whole body of freemen, was held monthly " for the handling, or- dering and despatching of all such business and occur- rences as should from time to time happen touchiog or concerning said company or plantation," "as well for settling the forms and ceremonies of government and magistracy and for naming and settling of all sorts of officers needful for the government and plan- tation," " as also for imposition of lawful fines, mulets, imprisonments or other lawful correction according to the course of other corporations in this our realm." Next to the General Court was the Court of Assist- ants, which, by a law passed in 1639, was to hold two terms in Boston, and composed of the Governor and Deputy-Governor and assistants, to hear and deter- mine all and only actions of appeal from the inferior courts, all causes of divorce, all capital and criminal causes extending to life, member or banishment. There were also established in 1639 County Courts, which had the same jurisdiction as that covered by the Courts of Common Pleas and Courts of Sessions at a later day. There were also Strangers' Courts established in 1639, or, as they were sometimes called, Merchants' Courts, designed to meet the wants of strangers who were unable to await the ordinary course of justice. In addition to these there were the Military Court, established in 1634; the Court of Chancery, established in 1685; and some lesser courts, such as those of the Magistrates', the Commissioners' of small causes, and the Selectmen's Court, from which appeals could be taken to the County Courts.

After the surrender of the charter and the appoint- ment of Joseph Dudley as President, the Governor and Council were made a Court of Record to try civil and criminal matters and authorized to appoint judges of such inferior courts as they might create. The judicial system under President Dudley consisted of a Superior Court and Courts of Pleas and Sessions of the Peace. Under his administration Judges of Probate were first appointed.

After the arrival of Andros as Governor of New England in 1686 the Governor and Council had full powers of making, interpreting and executing the laws subject to revision by the crown. He issued an order on the day after his arrival, December 20, 1686, continuing all officers then in power in their several places until further orders and directed the judges to administer justice according to the customs of the places in which their courts were held. On the 3d of March, 1687, an " Act for the establishing Courts of Judicature and Public Justice " was passed, under which a system was organized, which led to the judi- ciał system adopted under the charter of the United Colonies in 1692. Under this act the jurisdiction of

justices of the peace was fixed, quarterly sessions were established, the Inferior Court of Common Pleas and the Superior Court of Judicature were created. A Court of Chancery was provided for and a system perfected which was not overthrown on the accession of William and Mary in 1688 and on the deposition of Andros, and which was practically continued under the charter of the Province of Massachusetts Bay.

Of the judges of the Superior Court of Judicature, neither was a native of that part of the Province which was included within the limits of Worcester County. The first session of the Inferior Court of Common Pleas held in Worcester County was held at Worcester August 10, 1731, when Rev. John Pren- tice, of Lancaster, preached a sermon from 2 Chron. 19: 6-7 : " And said to the judges, Take heed what ye do : for ye judge not for man, but for the Lord, who is with you in the judgment. Wherefore now let the fear of the Lord be upon you ; take heed and do it : For there is no iniquity with the Lord our God, nor respect of persons, nor taking of gifts."

The court was composed of John Chandler, of Woodstock, chief justice, who remained in office until his death in 1743; Joseph Wilder, of Lancaster, who continued to serve until 1757; William Ward, of Southboro', who remained on the bench until 1745, and Win. Jennison, of Worcester, who died in 1743. Joseph Dwight served as the successor of John Chandler from 1743 to 1753, and Samuel Willard, of Lancaster, as the successor of Wm. Jennison from 1743 to 1753. Nahum Ward, of Shrewsbury, served as the successor of Win. Ward from 1745 to 1762, and Edward Hartwell, of Lunenburg, as the successor of Joseph Dwight from 1752 to 1762. Jonas Rice, of Worcester, served as the successor of Samuel Willard from 1753 to 1756, and John Chandler, of Worcester, son of the first Judge Chandler, and who had been from the beginning clerk of the court, from 1754 to 1762. Thomas Steele, of Leicester, served as the successor of Jonas Rice from 1756 to the Revolution, and Timothy Ruggles, of Hardwick, as the successor of Joseph Wilder from 1757 to the Revolution. Joseph Wilder, son of the first Judge Wilder, served as the successor of Edward Hartwell from 1762 until the Revolution, and Artemas Ward, of Shrewsbury, as the successor of John Chandler, who resigned in February, 1762. The judges appointed for this court after the beginning of the Revolution were Artemas Ward, of Shrewsbury; Jedediah Foster, of Brook- field ; Moses Gill, of Princeton, and Samuel Baker, of Berliu. They were commissioned October 17, 1775, and their first term was held December 5th of the same year. On the 19th of September, 1776, Joseph Dorr, of Ward (now Auburn), was appointed to succeed Jedediah Foster, who had been appointed to the bench of the Superior Court of Judicature, and as thus constituted the Inferior Court of Common Pleas continued until July 3, 1782, when the Court

viii

HISTORY OF WORCESTER COUNTY, MASSACHUSETTS.

of Common Pleas was established, to be held in each county at specified times and places, with four judges to be appointed by the Governor from within the county. This court was substantially the same as the Inferior Court of Common Pleas. The judges of the old court were appointed to the new, and no changes occurred until 1795, when Michael Gill, of Princeton, and Elijah Brigham, of Westboro', suc- ceeded Moses Gill, who was chosen Lieutenant-Gov- ernor, and Samuel Baker. In 1798 John Sprague, of Lancaster, succeeded Artemas Ward, who resigned, and in 1800 Dwight Foster, of Worcester, succeeded Michael Gill. In 1801 Jonathan Warner succeeded John Sprague, and at a later date Benjamin Hey- wood, of Worcester, was appointed, completing the list of judges of this court up to its abolishment, June 21, 1811.

At the above date an act was pissed providing that the Commonwealth, except Dukes County and the county of Nantucket, should be divided into six cir- cuits as follows : the Middle Circuit, consisting of the counties of Suffolk, Essex and Middlesex ; the West- ern 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, consist- ing of the counties of York, Cumberland and Ox- ford ; the Second Eastern Circuit, consisting of the counties of Lincoln, Kennebec and Somerset; and the Third Eastern Circuit, consisting of the counties of Hancock and Washington; and that there shall be held in the several counties, at the times and places now appointed for holding the Courts of Com- mon Pleas, a Circuit Court of Common Pleas, con- sisting of one chief justice and two associate justices, to whom were to be added two sessions justices from each county to sit with the conrt in their county.

This court was abolished on the 14th of February, 1820, and the Court of Common Pleas established with four justices, one of whom, it was provided by law, should be commissioned chief justice. On the Ist of March, 1843, the number of judges was in- creased to five; March 18, 1845, to six ; and May 24, 1851, to seven. On the 5th of April, 1859, the court was abolished, and the present Superior Court estab- lished, with ten judges, which number was increased May 19, 1875, to eleven, and to thirteen February 27, 1888.

The judges of the Common Pleas Court, founded in 1820 and terminating in 1859, were Artemas Ward, chief justice, commissioned 1820; John Mason Wil- liams, commissioned as judge in 1820, and chief justice in 1839; Solomon Strong, 1820 ; Samuel Howe, 1820; David Cummins, 1828; Charles Henry Warren, 1839; Charles Allen, 1842; Pliny Merrick, 1843; Joshua Holyoke Ward, 1844; Emory Washburn, 1844; Luther Stearns Cushing, 1844; Daniel Wells, chief justice, 1845 ; Harrison Gray Otis Colby, 1845; Charles Edward Forbes, 1847; Edward Mellen, 1847,

and chief justice, 1854; George Tyler Bigelow, 1848 ; Jonathan Coggswell Perkins, 1848; Horatio Bying- ton, 1848; Thomas Hopkinson, 1848; Ebenezer Rockwood Hoar, 1849; Pliny Merrick, 1850; Henry Walker Bi-hop, 1851; George Nixon Briggs, 1853; George Partridge Sanger, 1854; Henry Morris, 1855; and David Aikin, 1856,-the last five of whom, with Judges Mellen and Perkins, composed the bench at the time of the aholishment of the court.

The judges of the Superior Court, since its founda- tion, in 1859, have been Charles Allen, commissioned chief justice 1859 ; Julius Rockwell, commissioned 1859 ; Otis Phillips Lord, 1859; Marcus Morton, Jr., 1859; Seth Ames, 1859, chief justice, 1867; Ezra Wilkinson, 1859: Henry Vose, 1850; Thomas Rus- sell, 1859; John Phelps Putnam, 1859; Lincoln Flagg Brighanı, 1859, chief justice, 1869; Chester Isham Reed, 1867 ; Charles Devens, Jr., 1867; Henry Aus- tin Scudder, 1869; Francis Henshaw Dewey, 1869; Robert Carter Pitman, 1869; John William Bacon, 1871; William Allen, 1872; Peleg Emory Aldrich, 1873; Waldo Colburn, 1875; William Sewall Gard- ner, 1875; Hamilton Barclay Staples, 1881 ; Marcus Perrin Knowlton, 1881; Caleb Blodgett, 1882; Al- bert Mason, 1882; James Madison Barker, 1882; Charles Perkins Thompson, 1885; John Wilkes Hammond, 1886; Justin Dewey, 1886; Edgar Jay Sherman, 1887 ; John Lothrop, 1888; James R. Dun- bar, 1888 ; Robert R. Bishop, 1888.

The Circuit Court of Common Pleas, founded June 21, 1811, had a jurisdiction which was at various times extended and diminished. Its history was closely connected with that of the Court of General Sessions of the Peace. The latter court remained substantially the same during the life of the Prov- ince and up to June 19, 1807, when it was enacted that it should consist of one chief justice, or first justice, and a certain number of associate justices for the several counties, to be appointed by the Gov- ernor with the consent of the Council. These jus- tices were to act as the General Court of Sessions iu the place of the justices of the peace.

On the 19th of June, 1809, the powers and duties of the General Court of Sessions were transferred to the Court of Common Pleas, and on the 25th of June, 1811, it was enacted " that from and after the first day of December next, an act made and passed the 19th day of June, 1809, entitled ' An Act to transfer the 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, he and the same are hereby revived from and after the said first day of September next."

On the 28th of February, 1814, it was enacted that the act of June 25, 1811, " be repealed, except so far as it relates to the Counties of Suffolk, Nantucket and Dukes County, and that all petitions, recogni-

WORCESTER COUNTY.

zances, warrants, orders, certificates, reports and processes made to, taken for, or continued, or return- able to the Court of Sessions in the several counties, except as aforesaid, shall be returnable to, and pro- ceeded in, and determined by the respective Circuit Courts of Common Pleas, which was established June 21, 1811." It was further provided " that from and after the first 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." And it was further provided that the Governor, by and with the advice of the Council, be authorized to appoint two persons in each county who shall be session justices of the Circuit Court of Common Pleas, and sit with the justices of said Circuit Court in the administration of the affairs of their county and of all matters within said county of which the Courts of Sessions had cognizance. The affairs of the county were thus administered until February 20, 1819, when 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 Courts of Common Pleas, passed February 28, 1814, be hereby repealed," and it was further provided "that from and after the first day of June next the Courts of Sessions in the several counties shall be held by one chief justice and two associate justices, to be appointed by the Governor, with the adviee 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, relating to the erection and repair of jails and other connty buildings, the allowance and settlement of county accounts, the estimate, apportionment and issuing warrants for assessing 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 the Court of Sessions until March 4, 1826, when that part of its duties relating to highways was transferred to a new board of officers denominated "Commissioners of Highways." It was provided by law "that for each county in the Commonwealth, except the Counties of Suffolk and Nantucket, there shall be appointed and commissioned by His Excel- lency the Governor, by and with the advice and con- sent of the Council, to hold their offices for five years, unless removed by the Governor and Council, five commissioners of highways, except in the Coun- ties of Dukes and Barnstable, in which there shall be appointed only three, who shall be inhabitants of such county, one of whom shall be designated as Chairman by his commission." It was further pro- vided that the commissioners should report their doings to the Court of Sessions for record, and that

said court should draw their warrants on the county treasurer for the expenses incurred by the commis- sioners in constructing roads laid out by them.

On the 26th of February, 1828, the act establishing the Courts of Sessions, passed February 20, 1819, and the act in addition thereto, passed February 21, 1820, the act increasing the numbers and extending the powers of the justices of the Courts of Sessions, passed February 6, 1822, and the act in addition to an act directing the method of laying out highways passed March 4, 1826, were repealed. The repealing act provided that " there shall be appointed and com- missioned by His Excellency, the Governor, by aud with the advice and consent of the Council, four per- sons to be county commissioners for each of the connties of Essex, Middlesex, Norfolk and Worcester, and three persons to be county commissioners for each of the other counties of the Commonwealth, except the county of Suffolk," "that the clerks of the Courts of Common Pleas within the several counties shall be elerks of said county commissioners," and "that for each of the counties in the Commonwealth except the counties of Suffolk, Middlesex, Essex, Worce ter, Norfolk and Nantucket, there shall be appointed and commissioned two persons to aet as special conaty commissioners." Under this law Jared Weed, Aaron Tuft-, William Eaton and Edmund Cushing were appointed in 1828, and served until 1832, when James Draper succeeded Aaron Tufts. No further changes occurred in the board until 1835, when, on the 8th of April in that year, a law was passed providing that in every county, exerpt Suffolk and Nantucket, the judge of Probate, the register of probate and clerk of the Court of Common Pleas, should be a board of examiners, and that on the first Monday in May, in the year 1835, and on the first Monday in April in every third year thereafter, the people should cast their votes for three county com- missioners and two special commissioners. Under this law John W. Lincoln, William Crawford and Ebenezer D. Ammidown were chosen in 1835; William Crawford, Samuel Taylor and Ebenezer D. Ammi- down, in 1838; William Crawford, David Davenport and Charles Thurber, in 1841; William Crawford, Jerome Gardner and Joseph Bruce, in 1844; the same in 1847 ; Otis Adams, Bonnm Nye and Asaph Wood, in 1850, and the same in 1853. On the 11th of March, 1854, it was provided by law that the county com- missioners then in office in the several counties, except in Suffolk and Nantucket, shall be divided into three classes, those of the first class holding their offices until the day of the next annual election of Governor, those of the second class until 1855, and those of the third class until the election in 1856, the commis- sioners then in office determining by lot to which class each should belong, and that at each annual election thereafter one commissioner should be chosen for three years. Under the new law the office of commissioner has been filled by Otis Adams, Bonum

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History of Worcester County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I, Part 3

Author: Hurd, D. Hamilton (Duane Hamilton) Publication date: 1889 Publisher: Philadelphia : J.W. Lewis & Co. Number of Pages: 1576

Author: Hurd, D. Hamilton (Duane Hamilton)
Publication date: 1889
Publisher: Philadelphia : J.W. Lewis & Co.
Number of Pages: 1576