USA > Massachusetts > Suffolk County > Professional and industrial history of Suffolk County, Massachusetts, Volume I > Part 4
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Thus an end came to the controversy, and Winthrop, in his history of New England, says under date of 1639 : "We were much afraid this year of a stop in England by reason of the complaints which had been sent against us, and the great displeasure which the archbishops and others, the commissioners for plantations, had conceived and uttered against us, both for these complaints, and also for our not sending home our patent. But the Lord wrought for us beyond our expectations ; for the petition, which we returned in answer of the order sent for our patent, was read before the Lords and well accepted, as is before ex-
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pressed ; and ships came to us from England and divers others ports with great store of people and provisions of all sorts." The patent never was returned, and may be seen to-day well preserved in the office of the secretary of the Commonwealth in the State House in Boston
It is not proposed to follow further the general history of the Massa - chusetts colony It was provided in the charter that the officers of the company or colony should consist of a governor, deputy governor, and eighteen assistants to be chosen annually by a General Court, consist- ing of said officers and all the freemen of the colony on the last Wednes- day in Easter term. Besides the General Court there were to be three others in each year on the last Wednesday in Hilary, Trinity and " Michas." In addition to the above, monthly courts were to be held by the governor, deputy governor and assistants " for the better order- ing and directing of their affairs." At the first meeting of the General Court held in Boston on the 19th of October, 1630, for " the establish- inge of the Govmt, It was ppounded if it were not the best course that the ffreemen should have the power of chuseing assistants when these are to be chosen & the assistants from amongst themselves to chuse a Govn' & Deputy Govn" whoe wth the assistants should have the power of makeing lawes & chuseing officers to execute the same. This was fully assented unto by the genall vote of the people & ereccon of hands." This abrogation of a provision of the charter which made the election of these officers a popular one to the extent that all the freemen had a vote, looks at first like a surrender of popular rights and a trans- formation of the pure democracy contemplated in the patent into a gov- ernment possessing a taint of exclusiveness and of a disregard of the people's will. It is probable that at this meeting the few who had been admitted as freemen were outnumbered by the officers and really had no voice in making the change. The limitation of the power of the free- men did not continue long. At a General Court held on the 9th of May, 1632, after the representation of freemen was more numerous, "It was genally agreed upon by ereccon of hands, that the Govn", Deputy Govn" & Assistants should be chosen by the whole Court of Govn", Deputy Govn", Assistants & freemen, and that the Govn" shall alwaies be chosen out of the Assistants." At a General Court held on the 14th of May, 1634, the records state, " further it is agreed that none but the.
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Genall Court hath power to chuse and admit freemen .- That none but the Genall Court hath power to make and establishe lawes, nor to elect and appoynct officers as Govn", Deputy Govn", Assistants, Tresurer, Secretary, Capt., Leiutents, Ensigns, or any of like moment, or to re- move such upon misdemeanor, as also to sett out the dutyes and powers of the said officers .- That none but the Genall Court hath power to rayse monyes and taxes, and to dispose of lands, vis., to give and con- firme pprietyes."
At the same court it was also ordered " that it shalbe lawfull for the ffreemen of evy plantacon to chuse two or three of each towne before evy Genall Court, to conferre of & ppare such publ busines as by them shalbe thought fitt to consider of att the next Genall Court, & that such psons as shalbe hereafter soe deputed by the freemen of [the] sevall plantacons, to deale in their behalfe, in ye publique affayres of the com - onwealth, shall have the full power & voyces of all the said ffreemen, deryved to them for the makeing & establishing of lawes, graunting of landes, &c., & to deale in all other affaires of the comonwealth wherein the ffreemen have to doe, the matter of eleccon of magistrates & other officers onely excepted, wherein evy freeman is to gyve his own voyce." Thus a general court composed of deputies was authorized for all pur- poses except the election of officers. For this election the votes of the freemen were required. A method approaching to a general election of freeman in their respective towns became desirable as towns increased in number, and it became inconvenient to attend the General Court for the purpose merely of casting a vote. At a General Court held on the 3d of March, 1635-6, it was consequently ordered "that the Genall Court to be holden in May nexte for eleccon of magistrates, &c., shalbe holden att Boston & that the townes of Ipswch, Newebury, Salem, Saugus, Waymothe & Hingham shall have libertie to stay soe many of their ffreemen att home, for the safety of their towne as they judge needfull, & that the saide ffreemen that are appoyncted by the towne to stay at home shall have liberty for this Court to send their voices by pxy."
This partial order seemed to open the way for the enactment of a general election law which was passed on the 9th day of March 1636-7- The record states that "This Court takeing into serious consideration
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the greate danger and damage that may accrue to the state by all the freemens leaveing their plantations to come to the place of elections, have therefore ordered it that it shalbe free and lawfull for all freemen to send their votes for elections by proxie the next Generall Court in May & so for hereafter wch shallbe done in this manner ; The deputies wch shallbee chosen shall cause the freemen of their towns to bee assembled & then to take such freemen's votes as please to send by pxie for every magis- trate & seale them up, severally subscribing the magistrates name on the backside & soe to bring them to the Courte sealed with an open roule of the names of the freemen that so send by pxie." Thus a House of Delegates was established by these several laws and orders, after which the House of Representatives of our day is modeled, and a method of conducting elections and making returns thereof was adopted less com- plicated than our own, but perhaps as effective and exact.
As early as 1634 legislation was had concerning judicial proceedings. Up to that time the General Court had taken cognizance of offences against the laws and ordered the infliction of punishment. As early as the autumn of 1630 in cases of capital crimes, juries were impaneled, and on the 9th of November in that year at a Court of Assistants consisting of the governor, deputy governor, Sir Richard Saltonstall, Mr. Ludlowe, Capt. Endicott, Mr. Coddington, Mr. Pinchon and Mr. Bradstreet, Walter Palmer, who had been indicted for manslaughter was tried before a jury consisting of Mr. Edmond Lockwood, William Rockwell, Chris- topher Conant, William Phelps, William Gallard, John Hoskins, Richard Morris, William Balston, William Cheesborough, John Page, John Balsh and Lawrence Leach and acquitted.
In 1634 it was enacted " that the General Court, consisting of magis- tates and deputies, is the chief civil power of the Commonwealth ; which only hath power to raise money and taxes upon the whole country and dispose of lands viz., to give and confirm proprieties appertaining to and immediately derived from the country ; and may act in all affairs of this Commonwealth according to such power, both in matters of counsel, making the laws and matters of judicature, by impeaching and sentenc- ing any person or persons according to law, and by serving and hear- ing any complaints orderly presented against any person or court ; and it is agreed that this court will not proceed to judgment in any cause,
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civil or criminal, before the deputies have taken thisoath following : 'I do swear by the most great and dreadful name of the ever living God, that in all cases wherein I am to deliver my vote or sentence, against any criminal offence or between parties in any civil case, I will deal up- rightly and justly, according to my judgment and conscience; and I will according to my skill and ability assist in all other publick affairs of this court faithfully and truly according to the duty of my place, when I shall be present to attend the service.' "
Without attempting to present a list of crimes and offences of which the courts were required at various times in the history of the colony to take cognizance, it may be interesting to learn what were punishable by death. They were Idolatry in obedience to the passage of Scripture, Exodus 22:20, Deuteronomy 13:6, 10, and 17:2, 6; Witchcraft, Exodus 22:18, Leviticus 20:27, Deuteronomy 18:10, II ; Blasphemy, Leviticus 24:15, 16; Murder, Exodus 21:12, 13, Numbers 35:31 ; Man Slaughter , Leviticus 24:17, Numbers 35:20, 21 ; Poisoning, Exodus 21:14; Bestiality, Leviticus 20:15, 16; Sodomy, Leviticus 20:13 ; Adultery, Leviticus 20:19 and 18:20, Deuteronomy 22:23, 27 ; Man Stealing, Exodus 21:16 ; ' False Witness, Deuteronomy 19: 16 and 18:16; Rebellion, Numbers 16, Second Samuel 3, same 18, same 20; Cursing and Smiting of Parents by children above sixteen years of age, Exodus 21:17, Leviticus 20:9, Exodus 21:15 ; Stub- bornness of children above sixteen years, Deuteronomy 22:20, 21 ; Rape ; Arson.
: On the 3d of March, 1635-6, the jurisdiction of the General Court was restricted by an enactment concerning inferior courts and courts of assistants after which the General Court was chiefly if not solely a court of appeal. This enactment provided : "That there shalbe ffoure Courts kept evy quarter 1 att Ipsweh, to which Newberry shall belonge: 2 att Salem to wch Saugus shall belonge ; 3 att New Towne to weh Charlton [Charlestown], Concord, Meadford & Waterton shall belonge; 4th att Boston to wch Rocksbury Dorchester Weymothe & Hingham shall belonge," and that "evy of theis Courts shalbe kept by such magis- trates as shalbe dwelling in or neere the saide townes & by such other psons of wourth as shall from tyme to tyme be appoynncted by the Genall Court soe as noe Court shalbe kept without one magistrate
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att the least, & that none of the magistrates be excluded whoe can and will attend the same: yet the Genall Court shall appoynct wch of the magistrates shall specially belonge to evy of the saide Courts. Such psons as shalbe joyned as assotiates to the magistrates in the said Court shalbe chosen by the Genall Court, out of a greater number of such as the sevall townes shall nominate to them, soe as there may be in evy of the said Courts so many as (with the magistrates) may make fyve in all. Theis Courts shall trie all civell causes whereof the debt or dam- age shall not exceede £10 & all criminall causes not concerneing life member or banishmt. And if any pson shall finde himselfe greived with the sentence of any of the said Courts, he may appeale to the nexte greate quarter Court, pvided that hee putt in sufficient caucon to psent his appeale with effect & to abide the sentence of the magistrates in the said greate quarter Court, whoe shall see that all such that shall bringe any appeale without just cause be exemplaryly punished."
These were called Inferior Courts and the first was to be held the last Tuesday in June and the others on the last Tuesday in September,{ De- cember and March respectively.
The Great Quarter Courts referred to above were established at the same timeby an enactment that " there shalbe foure greate quarter Courts kept yearely att Boston by the Govn' & the rest of the magistrates ; the first, the first Tuesday in the 4th moneth called June ; the second, the first Tuesday in Septemb"; the third the first Tuesday in Decem"; the fourthe the first Tuesday in the Ith monethe called Marche."
It was further enacted that "all accons shalbe tryed att that Court to wel ye Deft belongs " and that " all offenders which shalbe in the prison att Boston att the tyme of any Court there holden, shalbe tryed att that Court, except in the wart of his comitmt hee be reserved to the greate quarter Court. And it shalbe lawfull for the Govn' or Deputy Govn", or any two magistrates (upon speciall & urgent occacon) to appoyncte Courts to be kept upon other dayes than in this order are ap- poyncted."
The judicial system of the colony for the time being was completed by a further enactment at the same time as follows: " And whereas the most waightie affaires of this body are nowe, by this present order & others formerly made, brought into such a way & methode as there will
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not henceforthe be neede of soe many Genall Courts to be kept as formerly it is therefore ordered that hereafter there shalbe onely two Genall Courts kept in a yeare vis. that in the third moneth called May for eleccons, and other affaires & the other the first Wednesday in October for makeing lawes & other publique occacons of the comonwealthe pro- vided that the Govn" may upon urgent occacon call a Genall Courte att any other tyme besides the two Courts before menconed. And whereas it may fall out that in some of theis Genall Courts to be holden by the magistrates and deputies there may arise some difference of judgment in doubtfull cases, it is therefore ordered, that noe lawe order or sen- tence shall passe as an act of the Court without the consent of the greatâ„¢ pte of the magistrates on the one pte and the great number of the deputyes on the other pte; and fore want of such accorde the cause or order shalbe suspended & if either ptee thinke it soe materiall, there shall be forthwith a comitte chosen, the one halfe by the magistrates & the other halfe by the Deputyes & the comittee soe chosen to elect an umpire, whoe together shall have power to heare & determine the cause in question."
The last provision concerning the requisite assent to any act of the General Court of a majority of the magistrates, by which term was meant the governor, deputy governor and assistants, was a step towards an enactment passed in 1644, that the deputies or representatives should form one branch of the General Court and the magistrates another, each sitting apart and having a negative on the other. Under this arrangement the governor presided over the assistants, and the office of speaker was established as the presiding officer in the House of Dep- uties.
The judicial system of the colony remained as above described until 1639, with the following divisions : First, the General Court, composed of the governor, deputy governor, assistants and deputies, sitting twice in each year ; second, the Court of Assistants, or Great Quarter Courts, composed of the governor, deputy governor and assistants, sitting at Boston four times in the year; and third, the Inferior Courts, kept by magistrates, with associates appointed by the General Court, with the right of appeal from Inferior Courts to the Courts of Assistants, and last appeal to the General Court. The magistrates and associates
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appointed by the General Court to hold the Inferior Courts were as follows : For Salem and Saugus, John Humphrey and John Endicott, magistrates or assistants, with Captain Turner, Mr. Scruggs and Town- send Bishopp, associates; for Ipswich and Newbury, Thomas Dudley, Richard Dummer and Simon Bradstreet, magistrates, with Mr. Salton- stall and Mr. Spencer, associates ; for Newtown, Charlestown, Medford and Concord, John Haynes, Roger Harlakenden and Increase Nowell, magistrates, with Mr. Beecher and Mr. Peakes, associates; for Boston, Roxbury, Dorchester, Weymouth and Hingham, Richard Bellingham and William Coddington, magistrates, with Israel Stoughton, William Hutchinson and William Heath, associates.
In 1639 the law establishing the Courts of Assistants, or Great Quar- ter Courts, was amended, and it was ordered " that there be two Courts of Assistants yearly kept in Boston by the governor or deputy gov- ernor and the rest of the magistrates, on the first Tuesday of the first month and on the first Tuesday of the seventh month (March and Sep- tember), to hear and determine all and only actions of appeal from inferior courts, all causes of divorce, all capital and criminal causes extending to life, member or banishment. And that justice be not deferred, nor the country needlessly charged, it shall be lawful for the governor, or in his absence the deputy governor (as they shall judge necessary), to call a Court of Assistants for trial of any malefactor in capital causes."
At the same time, what were called County Courts were established, though no counties had at that time been incorporated or organized. They were merely the old Inferior Courts with a new name and powers more clearly defined. The law concerning them provided that "there shall be County Courts held in the several counties by the magistrates. living in the respective counties, or any other magistrate that can attend the same, or by such magistrates as the General Court shall appoint from time to time, together with such persons of worth, where there shall be need, as shall from time to time be appointed by the General Court (at the nomination of the freemen of the county), to be joined in commission with the magistrates so that they may be five in all, three whereof may keep a court, provided there be one magistrate ; every of which courts shall have full power to hear and determine all causes,.
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civil and criminal, not extending to life, member or banishment (which, with causes of divorce, are reserved to the Court of Assistants), and to make and constitute clerks and other needful officers, and to summon juries of inquest and trials out of the towns of the county ; provided no jurors shall be warned from Salem to Ipswich, nor from Ipswich to Salem."
It was at the same time ordered " that the governor or deputy gov- ernor, with any two magistrates, or when the governor and deputy governor cannot attend it, that any three magistrates shall have power upon the request of any stranger, to call a special court to hear and determine all causes, civil and criminal (triable in any County Court according to the manner of proceeding in County Courts), which shall arise between such strangers, or wherein any such stranger shall be party ; and all records of such proceedings shall be transmitted to the records of the Court of Assistants to be entered as trials in other courts, which shall be at the charge of the party, or condemned, in the case."
With regard to the powers and jurisdiction of the County Courts it was ordered by the General Court on the 13th of November, 1644, "yt ye County Courts in ye jurisdiction shall take care yt ye Indians residg in ye sevrall sheires shalbe civilized, & they shall have powr to take ordr from time to time to have them instructed in ye knowledge of God."
In addition to the courts already mentioned, a military commission, or, as it has been called by Washburn in his judicial history, and others, a Military Court was established by the General Court on the 4th of March, 1634-5, by an order which provided " that the present governor (Thomas Dudley), deputy governor (Roger Ludlow), John Winthrop, John Humphrey, John Haynes, John Endicott, William Coddington, William Pinchon, Increase Nowell, Richard Bellingham and Simon Bradstreet, or the major part of them, who are deputed by this court to dispose of all military affairs whatsoever, shall have full power and authority to see all former laws concerneing all military men & muni- cons executed, & also shall have full power to ordeyne or remove all military officers, & to make and tender to them an oath suitable to their places, to dispose of all companyes, to make orders for them & to make and tender to them and to see that strickt dissipline and traineing be
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observed, and to comand them forth upon any occacon they thinke meete, to make either offensive or defensive warr as also to doe what- soever may be further behoofefull, for the good of this plantacon, in case of any warr that may befall us and also that the aforesaid comis- sioners or the major pte of them shall have power to imprison or con- fine any that they shall judge to be enemyes to the comonwealth & such as will not come under comand or restrainte, as they shalbe re- quired, & shalbe lawfull for the sd comissioners to putt such persons. to death. This order to continue till the end of the nexte Generall Court."
It cannot be denied that the appointment of this commission or court was an extraordinary one, and transcended the powers conferred by the charter. That instrument gave the company the power to carry on a defensive, but not an offensive war, and if this was one of the acts reported to the home government as usurpations of power, no other conclusion can be reached than that the accusation was well founded. The commission or court was extended from time to time, but was finally allowed to die.
Before taking up the organization of Suffolk county, to which what has been thus far presented to the reader has been somewhat intro- ductory, it will be well to furnish a list of those who at various times occupied positions which may be considered judicial in their character, in connection with the Court of Assistants, from the earliest period of the colony to the erection of the Province of Massachusetts Bay in 1 692.
The governors were John Endicott, 1629, 1644, 1649, 1651 to 1653, 1655 to 1664; John Winthrop, 1630 to 1633, 1637 to 1639, 1642 to 1643, 1646 to 1648; Thomas Dudley, 1634, 1640, 1645, 1650; John Haynes, 1635 ; Henry Vane, 1636; Richard Bellingham, 1641, 1654, 1665 to 1671; John Leverett, 1672 to 1678 ; Simon Bradstreet, 1679 to 1686, 1689 to 1692. From 1686 to 1689 Joseph Dudley and Ed- mund Andros had jurisdiction over New England by royal appoint- ment.
The deputy governors were : Thomas Dudley, 1629 to 1633, 1637 to 1639, 1646 to 1649, 1651, 1652; Roger Ludlow, 1634; Richard Bellingham, 1635, 1640, 1653, 1655 to 1664; John Winthrop, 1636,
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1644, 1645; John Endicott, 1641 to 1643, 1650, 1654; Francis Wil- loughby, 1665 to 1670; John Leverett, 1671, 1672 ; Samuel Symonds, 1673 to 1677 ; Simon Bradstreet, 1678; Thomas Danforth, 1679 to 1686, 1689 to 1692. During the administrations of Joseph Dudley and Edmund Andros there was no deputy.
The assistants at various times were as follows: John Winthrop 1634; Thomas Dudley, 1635-36, 1641-42-43-44-45 ; Increase Now- ell, 1630 to 1655 ; Simon Bradstreet, 1630 to 1675 ; William Pinchon, 1630 to 1636, 1646 to 1650; John Endicott, 1630 to 1634, 1636 to 1640, 1645 to 1648: William Coddington, 1630 to 1636; Roger Lud- low, 1630 to 1633 ; Richard Saltonstall, 1630 to 1633 ; Isaac Johnson, 1630 ; Thomas Sharp, 1630 ; William Vassall, 1630; Edward Rossiter, 1630; John Winthrop, jr., 1632 to 1639, 1640 to 1649; John Hum- phrey, 1632 to 1639-40-41 ; John Haynes, 1634 to 1636; Richard Bellingham, 1636 to 1639, 1642 to 1652; Richard Dummer, 1635-36; Atherton Hough, 1635; Roger Harlakenden, 1636 to 1638; Israel Stoughton, 1637 to 1643 ; Richard Saltonstall, jr., 1637 to 1649; Thomas Flint, 1642 to 1651, 1653 ; Samuel Symonds, 1643 to 1672; William Hibbens, 1643 to 1654; William Pinchon, 1642 to 1650 ; Herbert Pelham, 1645 to 1649; Robert Bridges, 1647 to 1656; Fran- cis Willoughby, 1650-51; Edward Gibbons, 1650-51; Thomas Wig- gin, 1650 to 1664; John Glover, 1652-53 ; Daniel Gookin, 1652 to 1675; Daniel Denison, 1653 to 1682 ; Simon Willard, 1654 to 1675 ; Humphrey Atherton, 1654 to 1661 ; Richard Russell, 1659 to 1676; Thomas Danforth, 1659 to 1678 ; William Hawthorne, 1662 to 1679; Eleazer Lusher, 1662 to 1672; John Leverett, 1665 to 1670; John Pinchon, 1665 to 1686; Edward Tyng, 1668 to 1680; William Stoughton, 1671 to 1686; Thomas Clarke, 1673 to 1677 ; Joseph Dud- ley, 1676 to 1683. 1685 ; Peter Bulkley, 1677 to 1684; Nathaniel Sal- tonstall, 1679 to 1686; Humphrey Davey, 1679 to 1686 ; James Rus- sell, 1680 to 1686; Samuel Nowell, 1680 to 1686; Peter Tilton, 1680 to 1686; John Richards, 1680 to 1686; John Hall, 1680 to 1683 ; Bartholomew Gedney, 1680 to 1683 : Thomas Savage, 1680-81 ; Will- iam Browne, 1680 to 1683; Samuel Appleton, 1681 to 1686; Robert Pike, 1682 to 1686; Daniel Fisher, 1684; John Woodbridge, 1683-84; Elisha Cooke, 1684 to 1686; William Johnson, 1684 to 1686; John 6
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Hawthorne, 1684 to 1686; Elisha Hutchinson, 1684 to 1686 ; Sam- uel Sewall, 1684 to 1686; Isaac Addington, 1686; John Smith, 1686; Oliver Purchase, chosen in 1685 and declined. The charter required the annual election of eighteen assistants, but in violation of its provis- ions the number varied from seven to twelve until, in consequence of a letter from the king of July 24, 1678, the number prescribed in the charter was thereafter chosen.
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