USA > Massachusetts > Essex County > Municipal history of Essex County in Massachusetts, Volume II > Part 47
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These county courts or inferior quarter courts had jurisdiction in civil and criminal cases except that trials for life, limb or banishment were excluded and reserved for the Court of Assistants at Boston. They had the power to summon grand and petit jurors, to appoint their own clerks and other necessary officers, to lay out highways, license ordinaries, to see that a proper ministry was supplied, to prove wills, grant adminis- trations, and to have general control of matters in probate. In 1664 the germ of present naturalization power was added when they were author- ized to admit freemen. In general they had jurisdiction in all matters not reserved to the Court of Assistants, to which there was retained the right of appeal. The writs, declarations and other pleadings, complaints, indictments and course of proceedings in the courts, were simple, brief and informal. For the first twenty years the testimony in a trial was written down by the clerk of the court and became part of the records in the case, but in 1650, on account of "the inconvenience of takinge ver- ball testimonies in court by reason of many impertinencyes in theire re- lations so that the Clarke cannot well make a prfit record thereof," it was ordered that henceforth all testimony be given in writing to be at- tested in court if the witness lived within ten miles of it, and before a magistrate if the witness lived at a greater distance. These statements or depositions went to the jury, who returned them into court with their verdict.
An action involving one hundred pounds could be tried in these Quarter Courts or could be taken to Boston at the option of the plaintiff.
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In this Act, Salisbury and Hampton were added to the jurisdiction of the Ipswich Court. Though up to this period no division into counties had been made, the tendency thereto can clearly be discerned, and the first distinct judicature act of the colony was but the precursor of that step, inevitable and soon to be taken. County subdivision, both geo- graphical and governmental, was familiar to the colonial mind, and in 1643, only a little over a decade after the first clearing had been made in the untouched forests for the homes of the settlers, Essex County was set off to include Salem, Ipswich, Rowley, Gloucester, Enon (afterwards Wenham), Lynn, Newbury and Chochicawick (afterwards Andover). In- cluded in Norfolk were Salisbury and Haverhill, and it continued down the coast, covering Hampton, Exeter, Dover and Strawberry Bank (Ports- mouth), so far, even in such a short period of time, had the insatiable wanderlust of the newcomer carried him even to this very outpost of the possibilities for communal life.
The towns of Haverhill, Amesbury and Salisbury were in 1679 de- tached from Norfolk county, and made part of Essex, that being, as the Act reads, their former allegiance and the natural place where they should be for the sake of convenience of their people in attending the courts. Norfolk county ceased to exist as originally designed, and later the name was given to another part of the colony. It should not be confused with the present geographical limits of Norfolk county, as originally it com- prised the land lying north of the Merrimac river. With the formation of counties, the system of courts was not materially changed, though the Quarter Courts were afterwards called County, or Inferior Quarter Courts.
As early as 1634 provision had been made for a system of recording of the ownership of lands (even before it was in use in England) which in 1640 was perfected to include deeds and mortgages so that an ade- quate record could be kept of transfers and incumbrances. In the County Courts was lodged, in addition to their judicial powers, the recording of deeds, probate jurisdiction, and the laying out of highways, and included all the duties which we now find performed by the probate courts, the clerks of the courts, the registers of deeds and probate and the county commissioners. The clerk of the court was the recorder, and each town appointed a clerk of the writs whose duties were similar to those of town clerk. A return of his records of births and marriages and deaths was made by him to the clerk of the courts, in whose custody they were finally lodged. Probate business while originally performed by the Great and General Court, was after the forming of counties given to the Quarter Courts, but as a matter of fact most of it was done in Boston, especially during the administration of Governor Andros, that the business might be centralized so as to obtain the fees. But under the new charter, pro- bate courts were established in each county, and in 1692 Bartholemew Gedney was appointed the first judge of probate in Essex County. This
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court has continued substantially in like form down to the present time.
The early records kept by the clerks of the courts for Essex County are now preserved in that office, and while much is lacking so far as an unbroken record is concerned, it is remarkable that so much has sur- vived the lapse of time. A complete transcript is now being made of the early records through the joint efforts of the county and the Essex Institute of Salem, and issued from time to time in printed form. From them the writer has taken the liberty of copying herein freely.
Supplementing the record books kept by the clerk of the courts is a large collection of original papers consisting of presentments, depositions upon almost every conceivable subject, correspondence of greatly varied character, deeds, wills, inventories of estates, contracts, attested copies of records, papers connected with the witchcraft trials, apprentices' inden- tures, inquests, writs, executions, and papers of every kind connected with the various cases.
To the instinct of the early settlers for exactness we are today in- debted for the unexpected light which can be thrown upon the doings of that long-ago period, not long ago when one contemplates centuries of recorded human history, but set in the midst of a trackless wilderness with the hardships necessarily attendant on the work of keeping life in their hardy bodies, it is little to be expected that thought would be given to such a comparative luxury as orderly procedure in government, judica- ture and records, yet it was present in the minds of the fathers in old Essex from the very beginning. It was as though the magnificent con- ception of what it was to be, the mighty tree into which it was to grow, was discerned at the start, and the deliberate planting of the seed was with design and forethought planned to produce the growth of which today we have the fruition. And so as a result we in Essex have today in our Registry of Deeds the entire records dating back to 1638, less than ten years after the first heelprint on the sands of old Salem, and the pro- bate and court records go back to even an earlier date. Originally the Registry of Deeds was at Ipswich, but in 1651 it was transferred to Sa- lem, where it has been ever since for the entire county, except that in 1869 its geographical limits were divided and the registry at Lawrence was established covering the territory embraced in Lawrence, North An- dover, Andover and Methuen.
Recently we in our day have been turning our thoughts to a seeming- ly novel and untried experiment in judicature as we have struggled to de- vise methods of bringing evenhanded justice within the reach of all, rich and poor alike, and the small claims courts experiments have caught our imagination and appealed to our sense of fairness in the solving of a very apparent problem of jurisprudence, yet the breadth of vision of those ancients again forcibly strikes us as we discover that in 1638 provision was made "that for avoiding the countrys charge by bringing small causes to the Court of Assistants, that any magistrate (assistant) in the town
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where he may hear and determine by his discretion all causes where the debt or trespass or damage etc. doth not exceed twenty shillings, and in such town where no magistrate dwells, the General Court shall from time to time nominate three men, two whereof shall have like power to hear and determine all such actions under twenty shillings; and if any of the parties shall find themselves grieved with any such end or sentence, they may appeal to the next Quarter Court or Court of Assistants. And if any person shall bring any such action to the Court of Assistants be- fore he hath ended at home (as in this order is appointed) he shall lose his action and pay the defendant's costs."
A somewhat anomalous court was provided for June 6, 1639, which must be noticed in passing, though not strictly a part of Essex County judicature development. By that enactment, a Strangers' Court was established in the following language:
For the more speedy dispatch of all causes which shall concern strangers who cannot stay to attend the ordinary courts of justice, it is ordered that the Governor or Deputy, being assisted with any two of the magistrates (whom he may call to him to that end) shall have the power to hear and determine (by a jury of twelve men or otherwise as is used in other Courts) all causes which shall arise between such strangers, or wherein any such stranger shall be a party, and all records of such pro- ceedings shall be transmitted to the Secretary (except himself be one of said magistrates who shall assist in hearing such causes) to be entered as trials in other courts at the charge of the parties. This order to con- tinue till the General Court in the seventh month come twelve month and no longer.
I am not aware of any use having been made of this attempt to solve the early problem of advancement for speedy trial in our county. Per- haps we can see in this plan the germ of the present Municipal and Dis- trict Courts-in the Quarter Courts the present Superior Court, and in the Court of Assistants the present Supreme Judicial Court. If so, the conclusion is irresistible that the scheme of judicature in our county has little changed from that evolved out of their necessities and their inborn devotion to law and order by this race of pioneers which gave birth to a great Republic.
In addition to the local tribunals as illustrated by these small claims courts with limited jurisdiction (afterwards raised to forty shillings), a certain jurisdiction was given to the selectmen of towns to try viola- tions of their own bylaws or ordinances where the penalty did not ex- ceed twenty shillings (afterwards raised to forty), but not in the event that such violation involved anything of a criminal nature. This juris- diction of selectmen also included cases in which a magistrate or one or more of the commissioners were included as parties in interest.
Such was the original judicature of the Commonwealth, and it stood the test of the vicissitudes of clearing the wilderness for fifty years as new blood came in a constantly swelling stream, and settlement after
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settlement stretched forth its tentacles farther and farther from the par- ent community, deeper and deeper into outlying forests, in the insatiate acquisitiveness of the Anglo-Saxon for land and yet more land.
And so it stood in 1685 as a well defined and orderly judicial system. First, The General Court, a legislative body with certain jurisdiction on appeal from the Court of Assistants. Second, The Court of Assistants or Great Quarter Court, with exclusive criminal jurisdiction of greater degrees or crime, and appellate jurisdiction from county courts, with con- current jurisdiction in certain smaller matters of a civil nature. Third, County or Inferior Quarter Courts with jurisdiction of causes of lesser moment than the Great Quarter Courts, with a grand and petit jury sys- tem, and also certain administrative functions including probate matters and appellate jurisdiction from Commissioner's Courts. Fourth, Stran- ger's Courts, with powers similar to County Courts in causes where strangers, that is, non-residents, were parties. Fifth, Small Claims and Selectmen's Courts in the different towns.
As one glances through the pages of the early records, the impres- sion is forcibly made that our forbears were indeed a contentious, litiga- ting people, and that all, to state it mildly, were not walking the straight and narrow pathway of puritanical direction. Perhaps the fact that there were so many directors and directions may explain the multitudinous lapses from the multitude of limitations set to personal conduct. At any rate it is hard to see how the laymen judges could find time from their judicial duties to pay any attention to their ordinary business pursuits, so frequent must have been the calls upon them to mount the bench and dispense justice to the numerous suitors and trespassers of the laws and regulatory measures of the times.
But a change took place with the taking away of the old charter under which the original administration of justice had grown to such large proportions, and with the granting of the new charter and form of government in 1685 came also a new era with its closer foreign super- vision and control. The little noticed and neglected settlement in the New World had grown to such an extent that at last it became an object of interest to the Mother Country, and she could no longer allow it to go its own way and work out its own salvation unaided and uncontrolled by the land that claimed its allegiance. The independent life on the new land was surcharged with ideas and ideals which looked dangerous in their development to the ancient prerogatives of royalty, and the guiding, controlling hand of power was needed to curb the turbulence of the fast growing democratic spirit of this offspring of the effete civilization of the Old World. In 1684 the freedom of development along the lines of its own thought, drawn from the hard experience of growth and expansion, was arrested for a time; and New England became the ward, in fact, of its legal guardian. A president and council were appointed by the King to rule and govern the land. At first they possessed no legislative power,
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but had the right to establish a judiciary as well as certain judicial juris- diction in themselves. They established a Superior Court with three sessions a year at Boston, and "Courts of Pleas and Sessions of the Peace" in the several counties. William Stoughton was the presiding justice of the county courts which included Essex, and John Richards and Simon Lynde were his assistants. An appellate jurisdiction was given the Presi- dent and Council from these courts. This was done under the presidency of Joseph Dudley, and was of short duration, for he was supplanted by Governor Andros in 1686, under whose jurisdiction all New England was placed, including Plymouth. Under Andros, power was given the Coun- cil appointed by him to make laws, subject to the approval of the King. Justices of the peace were given certain small jurisdiction, and Quarterly Sessions Courts were established in the several counties, held by the sev- eral justices therein, and in each county an Inferior Court of Common Pleas to be held by a judge and two or more justices of the county.
In Salem and Ipswich and elsewhere in other counties was to be held the Superior Court of Judicature which was above all the other courts, and over which Joseph Dudley presided as chief justice.
Again in 1691 came a new charter and a new form of government uniting all the territory into the "Province of the Massachusetts Bay in New England." This radically changed the form of government and pro- vided for a Governor, Deputy Governor and Assistants or Councillors chosen by the General Court, and a House of Representatives elected each year by the people. A veto power was lodged in the Governor, and the further approval of the King was necessary to the validity of elections and legislation. The General Court from now on had no judicial power but could provide for courts and judicature. The Governor and Council retained jurisdiction in probate matters, although such were as a matter of fact delegated to judges of probate in the several counties.
At this time witchcraft hysteria was at its height, and the first action under its new power by. the new government was the establishing of a special court of Oyer and Terminer to take care of this historic de- lusion. We are particularly interested in this for the reason that the court's activities were largely confined to Essex County, where apparent- ly, for some unknown reason, the scourge raged more severely.
The makeup of the Court is significant: Anthony Checkly, the At- torney General, a merchant; William Stoughton, the Chief Justice, a clergyman; Samuel Sewall, a clergyman; Wait Winthrop, a physician; John Richards, a merchant; Jonathan Curwin, a merchant; Peter Sar- geant, a merchant; Nathaniel Saltonstall, who declined to serve, a mili- tary man; Bartholomew Gedney, a physician.
The Court met at Salem, June 2, 1692, and passed out of existence the following September 17. In all there were twenty convictions, each fol- lowed by the death penalty. Of the witchcraft trials by the Court of Oyer and Terminer, undoubtedly an unauthorized and invalid court, hav-
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ing been created by the Governor and not by the General Court, Wash- burn says:
For the credit of New England it would be well if oblivion could settle down over this period of her annals. But the history of the Court furnishes a lesson which ought not to be forgotten. It was a popular tribunal, there was not a lawyer concerned in its proceedings. Every rule of evidence by which the Courts of common law are governed was abrogated, and judges and jurors were left untrammelled by the "quib- bles of the law" to follow their own feelings and the popular will. Hu- man nature may have changed and a court equally popular and equally unacquainted with the rules which govern judicial proceedings might stand against a strong popular delusion or excitement, should such occa- sion again occur, but he must disregard the light of experience who could hope to be safe under its administration. Is it to be believed that abuses as monstrous as the whole proceedings of the court, in fact, were, could be tolerated, had there been an enlightened bar in Massachusetts whose services should have been exerted in favor of the accused? It was not for the want of learning or honesty on the part of those who were en- gaged in those trials that injustice was done. It was that their habits of thought, their entire ignorance of the salutary rules of law, and their want of familiarity with the process of investigating the merits of judicial controversies, unfitted them to hold the scales of justice with impartial hands, and to discriminate between the excited prejudices of the many and the truth or falsehood of the charges which they were called upon to examine."
His point is clear, and comment is unnecessary on the lesson he im- presses both for his own time and now. That they were honest in their convictions is clear, and that they themselves subsequently recognized the delusion is shown by Sewall's confession made in 1697 on the occasion of a public fast which was appointed by the General Court "that God would pardon all the errors of his servants and people in a late Tragedy, raised amongst us by Satan and his instruments." Washburn concludes with a warning also as appropriate now as in the days he wrote it and in the day of which he wrote: "If the popular cry is to be the standard of what is right, the security of property is at an end, personal liberty is no longer safe, and the blood of the innocent will often seal the triumph of a popular administration of justice, in the triumph of popular vengeance."
After several attempts at establishing a new judicature, there was finally at the close of the century, in 1699, evolved a system of courts and jurisdiction not dissimilar except in name to that which had been original- ly devised and developed and had brought the country through its forma- tive period.
The County system was again the foundation of the new judicature. It consisted of a Court of General Sessions of the Peace and an Inferior Court of Common Pleas in each county, and a Superior Court of Judica- ture for the Province. The Court of General Sessions of the Peace was composed of the justices of the peace of the county, and dealt as its name
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indicated with preservation of the peace. The Inferior Court of Common Pleas was a civil court, and was composed of four appointive justices. It had appellate jurisdiction from justice of the peace courts and original jurisdiction of matters involving more than forty shillings and of matters relating to freeholds. The Superior Court of Judicature was held for the province, and consisted of a Chief Justice and four assistants appointed thereto. Its jurisdiction, as may be inferred from the system described, was large and general. It sat at specified times in each of the counties, in Essex, at Salem, on the second Tuesday of November, and at Ipswich on the third Tuesday in May. The local annals tell us of the pomp and ceremony with which the court was received at the outskirts of the county seat on court days as the procession of judges traveling on circuit was met and escorted by the sheriff to their quarters.
The Inferior Court of Common Pleas continued substantially down to 1811 except that the name was in 1782 changed to Court of Common Pleas. The Judges of the Court were: Appointed December 7, 1692-Bar- tholomew Gedney, Samuel Appleton, John Hathorne, Jonathan Corwin; 1691-William Brown; 1698-Daniel Peirce; 1702-Nathaniel Salton- stall; 1704-John Appleton; 1707-Thomas Noyes; 1708-John Higgin- son, in place of Jonathan Corwin, appointed to the Superior Court; 1715 -Samuel Brown; 1720-John Burrill; 1721-22-Josiah Wolcott; 1729- Timothy Linall and John Wainwright; 1733-Theophilus Burrill and Thomas Berry; 1737-Benjamin Marston; 1739-Benjamin Lynde; 1745-46-John Choat, in place of Benjamin Lynde, transferred to the Superior Court; 1754-Henry Gibbs and John Trasker; 1756-Benjamin Pickman; 1759-Caleb Cushing; 1761-Stephen Higginson, Nathaniel Ropes and Andrew Oliver; 1766-William Bourn; 1770-William Browne; 1772-Peter Frye, in place of Nathaniel Ropes, transferred to the Superior Court; 1775-John Lowell, Caleb Cushing, Benjamin Green- leaf and Axor Orne; 1779-Caleb Cushing, Benjamin Greenleaf, John Pickering, Jr., Samuel Holten; 1782-Samuel Phillips; 1798-Ebenezer March; 1799-John Treadwell; 1808-Samuel Holten retired, and was appointed Chief Justice of the General Court of Sessions.
The Court of General Sessions of the Peace likewise remained un- changed down to 1807. Some changes in the courts were made at about this time. A Circuit Court of Common Pleas was provided for in place of the distinctly County Court, and Suffolk, Essex and Middlesex were placed in one circuit. This court consisted of Chief Justice and two Assistant Justices appointed thereto, and in addition two of the justices of the Courts of General Sessions from the county in which the court was held were to sit with them.
The Court of General Sessions now became the distinctive County Court, and consisted of one Chief Justice and such assistants as were appointed to the court by the Governor and Council. This enactment de- prived the justices of the peace of the county from constituting this
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court. For a period of two years the Court of General Sessions was merged in the Circuit Court of Common Pleas, after which it was again revived for a period of three years only, to again be merged in 1814 with the proviso that two session justices should be appointed by the Gover- nor and Council in each county, who were to sit with the Circuit Court of Common Pleas when holding court in their counties respectively, in connection with matters relating to the administering of the affairs of the county and in such other matters as the Court of General Sessions had jurisdiction.
A further divorce of county business from the courts was made in 1819, when the Court of General Sessions was revived for purely adminis- trative county matters, such as erection and repairs of jails and county buildings, constructing highways, bridges, taxation, licensing, etc. The court was to consist of one Chief Justice and two Associate Justices ap- pointed by the Governor with the approval of the Council. Thus may be seen the beginnings of what was to develope into the system as we know it of county administration by county commissioners. The transition was speedy, for beginning with 1826 the duties of the Court of Sessions relating to highways was taken from it and given to "Commissioners of Highways" appointed by the Governor and approved by the Council, and in 1828 the act creating the Court of Sessions was repealed and the duties transferred to a like appointed "Board of County Commissioners" for each county, and finally in 1835 the Board of County Commissioners were made elective. It has remained substantially the same down to the pres- ent day, with few changes except as to rotation in office and added ad- ministrative powers. In this Board is seen a survival of its ancient judicial powers in that it sits as a "Court" of County Commissioners with definite statutory terms, with the clerk of the courts ex officio its clerk, and its records kept and its doings recorded as are those of the courts.
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