USA > Massachusetts > Suffolk County > Professional and industrial history of Suffolk County, Massachusetts, Volume I > Part 5
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Under Joseph Dudley, who assumed by royal appointment in 1686 the office of president of New England, with William Stoughton as deputy president, the office of assistant was suspended and the follow- ing councillors were appointed, viz .: Robert Mason, Fitz John Win- throp, John Pinchon, Peter Bulkley, Edward Randolph, Wait Still Win throp, Richard Wharton, John Usher, Bartholomew Gedney, Jonathan Tyng, John Hinckes, Edward Tyng, Nathaniel Saltonstall, Simon Brad- street, Dudley Bradstreet, and Francis Champenon. Under Edmund Andros the above persons were reappointed to the council, and the follow- ing additional persons : Thomas Hinckley, Barnabas Lathrop, William Bradford, Daniel Smith, John Walley, Nathaniel Clarke, John Cogge- shall, Walter Clark, Walter Newberry, John Sanford, John Greene, Richard Arnold, John Albro, Francis Nicholson, Robert Treat, John Allyn, Samuel Shrimpton, William Browne, Richard Smith, Simon Lynde, Anthony Brockholst, Frederick Phillips, Jarvis Baxter, Stephen Van Courtlandt, John Young, Nicholas Bayard, John Palmer, and John Sprague. Of the above Nathaniel Saltonstall, Simon Bradstreet, Dud- ley Bradstreet and Francis Champenon did not accept their appoint- ments.
Thus far no reference has been made to enactments concerning the courts and judiciary after the organization of Suffolk county in 1643 There only remains to complete the record of the earlier period some account of lesser local courts, and of the legislation concerning wills and the settlement of estates of persons deceased. It was first provided by an order of the General Court, passed on the 9th of September, 1639, " That there bee records kept of all wills, administrations & in- ventories ; as also the dayes of every marriage, birth and death of every pson within this jurisdiction." These records were evidently intended to be kept by the clerks of the courts, as the preamble to the above
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order says, " Whereas, many judgments have been given in our Courts whereof one hundred and ten records are kept of the evidence and reasons whereupon the verdict and judgment did pass, the records whereof being duly entered and kept, would be of good use for prece- dent to posterity, and a relief to such as shall have just cause to have their causes reheard and reviewed ; It is therefore by this Court ordered and declared that henceforth every judgment with all the evidence be recorded in a book to be kept to posterity." Immediately following this preamble as an item is the provision concerning wills above quo- ted. No further legislation was had before the incorporation of the county.
With regard to the lesser local courts it was ordered at a General Court held on the 6th of September, 1638, " that any magistrate [as- sistant] in the towne where hee dwells may heare and determine by his discretion all causes whearin the debt, or trespas, or damage, etc., doth not exceede 20 s ; & in such towne where no magistrate dwells the Gen- erall Court shall from time to time nominate 3 men two whereof shall have like power to heare & determine all such actions under 20 s; & if any of the pties shall find themselves greived with any such end or sentence, they may appeale to the next quarter Courte or Courte of Assistants, etc. And if any pson shall bring any such action to the Court of Assistants before hee hath endeavored to have it ended at home (as in this order is appointed) hee shall lose his action & pay the defendant costs. If no appeale bee put in the day of the sentence upon such small actions the magistrate or the said 2 chosen men shall grant execution."
Such, then, was the judicial system at the time of the incorporation of Suffolk county in 1643. First, the General Court, with appellate ju- risdiction from the Court of Assistants ; second, the Court of Assistants, with appellate jurisdiction from the lower courts; third, the County Courts, with the probate of wills included in their jurisdiction ; fourth, Stranger's Court, and fifth, Magistrate's Court. After the incorporation of the county laws were passed, during the colonial life of Massachu- setts, concerning these courts and establishing others, to which reference will be hereafter made.
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At a meeting of the General Court held in Boston on the 10th of May, 1643, it was ordered " that the whole plantation within this jurisdiction be divided into four sheires to wit :
Essex-Salem, Lynn, Enon (Wenham), Ipswich, Rowley, Newbury, Gloucester and Chochicawick (Andover.)
Middlesex .- Charleston, Cambridge, Watertown, Sudbury, Concord, Woburn, Medford, Linn Village (Reading).
Suffolk .- Boston, Roxbury, Dorchester, Dedham, Braintree, Wey- mouth, Hingham, Nantasket (Hull).
Norfolk .- Salisbury, Hampton, Haverhill, Exeter, Dover, Strawberry Bank (Portsmouth).
These were the first counties incorporated in Massachusetts, and in the order establishing them, were called "Sheires," or Shires. When what were called the County Courts were established in 1639 the word "County" bore a different meaning from that which afterwards and now prevails. It meant merely, in the language of Worcester's dictionary, " a civil division of a State for political or judicial purposes." In the application of the word to courts, it merely denominated courts to be held and to hold jurisdiction in limited and defined districts.
Of the towns included in Suffolk shire the incorporation (settlement) of Boston is reckoned on the 7th of September, 1630 (old style). It was incorporated as a city February 23, 1822. Roxbury was incorporated as a town September 28, 1630; as a city, March 12, 1846, and annexed to Boston June 1, 1867; Dorchester as a town, September 7, 1630, and annexed to Boston June 4, 1869 ; Dedham as a town, September 8, 1636 ; Braintree as a town, May 13, 1640 ; Weymouth as a town, Sep- tember 2, 1635 ; Hingham as a town, September 2, 1635, and Nan- tasket May 29, 1644, and its name changed to Hull on or before May 26, 1647.
It is proper to state that the Norfolk shire, or county, above men- tioned, included some towns within the limits of New Hampshire when that territory became a royal province, and that by an act of the Gen- eral Court, passed February 4, 1679-80, the county was extinguished and the Massachusetts towns within its bounds were annexed to Essex county.
With regard to Suffolk county, it is not proposed to state the various changes which have taken place in its territorial limits, as no detailed
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general history of the county would be properly within the scope of this narrative. It is only necessary to say that it now includes Boston, incorporated, or settled, as above stated, with its various additions and losses of territory ; Chelsea, set off from Boston and incorporated as a town January 10, 1739, and as a city March 13, 1857 ; Revere, set off from Chelsea and incorporated as North Chelsea March 10, 1846, and its name changed to Revere March 24, 1871 ; and Winthrop, set off from North Chelsea and incorporated as a town March 27, 1852.
When the present Norfolk county was incorporated on the 26th of March, 1793, all the towns in Suffolk county, except Boston and Chelsea, were placed in that county. Thus Hingham, and Hull, and Cohasset, which last had been set off from Hingham and incorporated as a town April 26, 1770, became parts of Norfolk county. Hingham and Hull being dissatisfied with their new connection, were, at the same session of the General Court, exempted from the act of incorporation, and were finally annexed to Plymouth county. Such is the explanation of the mystery, so puzzling to many, that Cohasset should be surrounded by Plymouth county towns, and yet be a part of Norfolk county.
In 1647 and 1649, after the incorporation of Suffolk county, an act was passed defining and enlarging the jurisdiction of the petty or magis- trate's court, and providing that "any magistrate in the town where he dwells may hear and determine by his discretion (not by jury), accord- ing to the laws here established, all cases arising in that county wherein the debt, trespass, or damage doth not exceed forty shillings, who may send for parties and witnesses by summons or attachment directed to the marshal or constable, who shall faithfully execute the same.
" And it is further ordered, that in such towns where no magistrate dwells, the Court of Assistants, or County Courts, may, from time to time, upon request of the said towns, signified under the hand of the constable, appoint three of the freemen as commissioners in such cases, any two whereof shall have like power to hear and determine all such causes, wherein either party is an inhabitant of that town, who have hereby power to send for parties and witnesses, by summons or attach- ment directed to the constable, as also to adminster oaths to witnesses and to give time to the defendant to answer if they see cause; and if the party summoned refuse to give in his bond or appearance, or
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sentenced refuse to give satisfaction where no goods appear in the same town where the party dwells, they may charge the consta- ble with the party, to carry him before a magistrate, or Shire Court (if then sitting), to be further proceeded with according to law; but the said commissioners may not commit to prison in any case And where the parties live in several towns, the defendant shall be liable to be sued in either town, at the liberty of the plaintiff." It was also ordered " that in all small causes as aforesaid, where only one magistrate dwells in the town, and the cause concerns himself, as also in such towns where no magistrate is, and the cause concerns any of the three commissioners, that in such cases the selectmen of the town shall have power to hear and determine the same, and also to grant execution for the levying and gathering up such damages for the use of the person damnified, as one magistrate or three commissioners may do. And no debt or action proper to the cognizance of one magistrate, or the three commissioners as aforesaid, shall be received into any County Court, but by appeal from such magistrate or commissioners, except in cases of defamation and battery."
In 1651 it was provided by law " that there be seven freemen resi- dent in Boston annually chosen by the freemen of the said town and presented to the Court of Assistants, who hereby have power to author- ize the seven freemen to be commissioners of the said town, to act in things committed to their trust, as is hereafter expressed ; who shall from time to time be sworn before the said court, or the Governor, Deputy Governor or any two magistrates. And this court doth hereby give and grant commission and authority unto the said seven men, or any five of them, or any three of them with one magistrate, to hear and deter- mine all civil actions which shall be brought before them not exceeding the sum of ten pounds, arising within the neck of land on which the town is situate, as also on Noddles Island, or betwixt any persons where both parties shall be inhabitants or residents within the said Neck or Noddles Island aforesaid, or where either party shall be an inhabitant or resident aforesaid ; provided they keep a book of records for the en- try of all causes, evidences, testimonies, sentences and judgments as the law provides in like cases; which said commissioners are authorized an- nually to appoint a clerk of their court and to demand and receive of
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every plaintiff in all cases or actions not exceeding forty shillings the sum of three shillings four pence; and for all other actions the sum of ten shillings ; and for all other things the accustomed fees; and the said commissioners shall from time to time publish their court days, as the three commissioners in towns are bound to. And for the discov- ery, prevention and punishment of misdemeanors in the town of Boston : Power and authority is hereby given and granted to the said commis- sioners, and every of them, by warrant under their or his hand, to con- vent before them, or any of them, all such persons as shall be complained of for such offences or otherwise brought to their cognizance, and to hear and determine the same according to the laws here established, as any magistrate may do, provided the fines imposed by them do not ex- ceed forty shillings for one offence." It was further provided, in order that breaches of the peace might be more effectually suppressed, that all " marshals and constables, and other inhabitants should aid and as- sist the commissioners" in the performance of their duty, and that none should be appointed commissioner " but such whose conversation is in- offensive and whose fidelity to the country is sufficiently known and ap- proved of by the County Court of the shire." This court was created for one year, and, as Hutchinson says, in consequence of a growing jeal- ousy of Boston, was not renewed. The selectmen of towns were also authorized to try offences against their own by-laws where the penalty did not exceed twenty shillings, provided the offence was not a crimi- nal one.
In May, 1685, a Court of Chancery was established by law. It was provided as follows : "Whereas it is found by experience that in many cases and controversies betwixt parties, wherein there is matter of ap- parent equity, there hath been no way provided for relief against the rigour of the common law, but by application to the General Court ; where by reason of the weighty affairs of the country of more public concernment, particular persons have been delayed to their no small trouble and charge; and also great expense occasioned to the public by the long attendance of so many persons as that court consists of, to hear and determine personal causes brought before them. For ease and redress whereof it is ordered and enacted by this court, that the magis- trates of each County Court within this jurisdiction, being annually
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chosen by the freemen, be and hereby are authorized and empowered as a Court of Chancery, upon bill of complaint or information exhibited to them, containing matter of apparent equity, to grant summons or pro- cess as in other cases is usual, briefly specifying the matter of complaint, to require the defendant's appearance at a day and place assigned by the court to make answer thereunto; and also to grant summons for witnesses in behalf of either party, to examine parties and witnesses by interro- gations upon oath, proper to the case if the judges see cause to require it ; and if any party being legally summoned shall refuse or neglect to make his appearance and answer, the case shall proceed to hearing and issue as is provided in cases at common law ; and upon a full hearing and consideration of what shall be pleaded and presented as evidence in any such case, the court to make their decree and determination according to the rule of equity, secundum equum et bonum, and to grant execu- tion thereon; provided always that either party, plaintiff or defendant, who shall find himself aggrieved at the determination of the said County Court, shall have liberty to make his appeal to the magistrates of the next Court of Assistants, giving in security for prosecution and the reason of his appeal to the officers of the said County Court, as the law provides in other cases ; where the judges of the former court may have liberty to allege and show the grounds and reasons of their determina- tion, but shall not vote nor judge in the said Court of Assistants; and the judgment or decree of the said Court of Assistants shall be a full and final issue and determination of all such cases, without any after re- view or appeal ; unless upon application made by either party to the General Court, the said court shall see meet to order a second hearing of the case at the County Court with liberty of appeal as aforesaid, or in any arduous and difficult cases to admit a hearing and determination by the General Court ; and that a suitable oath be drawn up and agreed upon to be administered to those who shall be judges ; and in all cases of this nature brought to the County Court, the party complaining be- fore his bill be filed and process granted shall give sufficient security to the clerk of the court to defray the necessary charge and attendance of the court."
Though juries were in use as early September, 1630, the first legis- lation concerning them appears to have been in 1634, when it was
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ordered " that the secretary or clerk of every court shall in convenient time before the sitting of the court send warrants to the constables of the several towns of the jurisdiction of the court for jurymen propor- tionable to the inhabitants of each town; and the constable, on the receipt of such warrant, shall give timely notice to the freemen of their respective towns, to choose so many able, discreet men as the warrant shall require, which men, so chosen, he shall warn to attend the court whereto they are appointed, and shall make return of the warrant unto the clerk aforesaid." Jurymen were allowed four shillings per day, and all jurors serving at the Court of Assistants at Boston were to be summoned out of the counties of Suffolk and Middlesex. On the 4th of March, 1634-5, it was ordered that two grand juries be summoned annually, "the one to informe the Courts in March, and the other to informe the court in September yearely, of the breaches of any order or other misdemeanor that they shall know or heare to be comitted by any person or persons within this jurisdiction, or to doe any other service of the comon- wealth that they shalbe enjoyned."
It was required by an order passed on the 10th of December, 1641, that in every town a clerk of the writs should be chosen, approved by County Courts, authorized "to grant summons and attachments in civil actions and summons for witnesses, to grant replevins and to take bonds with sufficient security to the party to prosecute the suit." They were also required to record all births and deaths of persons in their towns and for every birth and death they so record they shall be allowed three pence; and they shall yearly deliver in to the recorder of the court of the jurisdiction where they live a true transcript thereof, to- gether with so many pence as there are births and deaths to be recorded. It was required also that "every new married man shall likewise bring a certificate under the hand of the magistrate who married him unto the clerk of the writs, to be by him recorded, who shall be allowed three pence for the same ; and the said clerk shall deliver as aforesaid unto the recorder a certificate with a penny a name for recording the said marriage."
So far as probate matters are concerned there was no change in the jurisdiction of the County Court over them during the colonial period, except during the presidency of Joseph Dudley and the administration
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of Andros. Dudley personally assumed probate jurisdiction, but dele- gated it in some counties to probate judges of his own appointment. Andros personally directed the settlement of estates exceeding fifty pounds and delegated others to judges appointed by him. After the deposition of Andrews the old probate methods were resumed and con- tinued until the union of the colonies in 1692.
The executive officer of the court was at first called beadle and after- wards during the colonial period marshal. Those who held the office were James Penn, appointed by the court September 25, 1634; Edward Michelson, who is mentioned in the records of the court May 27, 1660, as having occupied the office many years; John Greene, chosen May 27, 1681, and Samuel Gookin, appointed in 1691.
In 1642 it was ordered "that all causes between party and party shall first be tried in some inferior court ; and that if the party against whom the judgment shall pass shall have any new evidence, or other new matter to plead, he may desire a new trial in the same court upon a bill of review, and if justice shall not be done him upon that trial, he may then come to the General Court for relief." In the pre- vious year it was ordered that " in all actions of law it shall be the lib - erty of the plaintiff and defendant by mutual consent to choose whether they will be tried by the bench, or by the bench and jury, unless it be where the law upon just reason hath otherwise determined; the like liberty shall be granted to all persons in any criminal case. And it shall be in the liberty of both plaintiff and defendant, and likewise of every delinquent to be judged by a jury, to challenge any of the jurors, and if the challenge be found just and reasonable by the bench or the rest of the jury, as the challenger shall choose, it shall be allowed him, and tales de circumstantibus empaneled in their room."
With regard to witnesses it was enacted in May, 1647, "that no man shall be put to death without the testimony of two or three witnesses or that which is equivalent thereto," and " that any one magistrate or com- missioner authorized thereunto by the General Court may take the testi- mony of any person of fourteen years of age, or above, of sound under- standing and reputation, in any case, civil or criminal, and shall keep the same in his own hands till the court, or deliver it to the recorder (clerk), public notary or clerk of the writs, to be recorded, that so nothing may
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be altered in it. Provided that when any such witness shall have his abode within ten miles of the court, and there living and not disen- abled by sickness or other infirmity, the said testimony so taken out of court shall not be received or made use of in the court, except the witnesses be also present to be further examined upon it, and provided also that in all capital cases all witnesses shall be present wheresoever they dwell." And it was further ordered " that any person summoned to appear as a witness in any civil court between party and party, shall not be compelled to travel to any court or place where he is to give his testimony, except he who shall so summon him shall lay down or give him satisfaction for his travel and expenses outward and homeward ; and for such time as he shall spend in attendance in such case, when he is at such court or place, the court shall award due recompense. And it is ordered that two shillings a day shall be accounted due satis- faction to any witness for travel and expenses ; and that when the wit- ness dwelleth within three miles, and is not at charge to pass over any other ferry than betwixt Boston and Charlestown, then one shilling and sixpence per diem shall be accounted sufficient; and if any witness, after such payment or satisfaction, shall fail to appear to give his testimony he shall be liable to pay the parties damages upon an action of the case. And all witnesses in criminal cases shall have suitable satisfaction paid by the treasurer, upon warrant from the court or judge before whom
the case is tried. And the charges of witnesses in all cases shall be borne by the parties delinquent and shall be added to the fines imposed, that so the treasurer having, upon warrant from the court or other judge, satisfied such witnesses, it may be repaid him with the fine, that so the witness may be timely satisfied, and the country not damnified."
Washburn says that "verdicts were sometimes rendered that there were strong grounds of suspicion, but not sufficient evidence to convict, and upon such verdicts the court gave sentence for what appeared to them, on the trial, the defendant had been guilty of, although neither charged in the indictment nor found by the jury. This may have led to the adoption of that part of the oath administered to jurors in crimi- nal cases, that if they find the defendant not guilty, they are to say so and no more."
It is unnecessary to go further in explaining the condition of judicial affairs in the colony before the assumption of office by Joseph Dudley
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as president of Massachusetts Bay, New Hampshire, Maine and the Narragansett country or the King's Province. The colony charter was vacated on the 18th of June, 1684, and Dudley received his commission May 15, 1686. He was a member of the colony and an assistant at the time of his appointment. William Stoughton, also an assistant, was commissioned deputy president, and fifteen persons, whose names have already been given in this narrative, were appointed councillors. The Governor and Council were made a Court of Record for the trial of civil and criminal matters, and had the authority to establish courts and ap- point judges to preside over them. They set up a Superior Court, composed of a majority of the councillors, to sit three times a year at Boston and "Courts of Pleas and Sessions of the Peace" in the several counties. William Stoughton was appointed to preside in the County Courts of Suffolk, Middlesex and Essex, with John Richards and Simon Lynde as assistants. These courts were established July 26, 1686, and at the same time the admission of attorneys was regulated and a form of oatlı prescribed to be taken by them. Benjamin Bullivant, a physi- cian and apothecary, was appointed attorney-general and Giles Masters, Anthony Checkley, Mr. John Watson, Capt. Nathanial Thomas and Mr. Christopher Webb were admitted and sworn as attorneys. Bullivant was also appointed, November 2, 1686, clerk of the Superior Court, Daniel Allen and Thomas Dudley clerks of Suffolk, and John Winch- comb and Nathaniel Page marshals.
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