USA > Massachusetts > Suffolk County > Professional and industrial history of Suffolk County, Massachusetts, Volume I > Part 6
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The administration of Dudley was so brief that it is unnecessary to say more of its judicial features. Edmund Andros was commissioned governor of New England and arrived in Boston on the 19th of Decem- ber, 1686. His commission embraced the whole of New England and included, what the commission of Dudley did not, the Plymouth as well as the Massachusetts Colony. He appointed thirty nine council- lors, whose names have already been given, and delegated the powers of making and executing the laws to the Governor and Council, subject to the approval of the crown. He declared all public lands vested in the king, and required grantees to prove their title. The Governor and Council were made a Court of Record, and jurisdiction in cases concern- ing lands and not involving a sum of forty shillings was given to justices of the peace. He also established a "Quarterly Sessions Court," held
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by the several justices in their respective counties, and an "Inferior Court of Common Pleas," to be held in each county by a judge assisted by two or more justices of the county, with a limitation of jurisdiction in Boston to twenty pounds, where the court was to sit once in two months, and in other counties to ten pounds, where it was to sit an- nually. In addition to these the "Superior Court of Judicature " was established, with jurisdiction over all civil and criminal matters in the colony and in which no action could be begun for the recovery of less than ten pounds, unless a question of freehold was involved. This court was to be held in Boston, Cambridge, Charlestown, Plymouth, Bristol, Newport, Salem, Ipswich, Portsmouth, Falmouth (Portland), Northampton and Springfield, and Joseph Dudley was appointed its chief justice. Besides a Court of Chancery special courts of Oyer and Terminer were appointed at various times. Under Andros marshals became sheriffs. The Superior Court of Judicature had three judges, and with Joseph Dudley, the chief justice, were associated William Stoughton and Peter Bulkley, and afterwards at various times, Samuel Shrimpton, Simon Lynde, Charles Lidget, John West and John Usher. George Farwell was made attorney-general and clerk of the Supreme Court, succeeding Benjamin Bullivant, the incumbent under Dudley, and James Graham succeeded Farwell. James Sherlock was made sheriff.
When the news of the English revolution reached New England and of the accession of William and Mary, Simon Bradstreet, the last gov- ernor before the administration of Dudley, resumed his office on the 18th day of April, 1689, a new house of deputies was chosen and the administration of affairs was conducted as before the revocation of the charter. The Court of Assistants resumed its sessions in December and the County Court in Suffolk in July, 1689. Anthony Checkley was chosen attorney-general and John Greene marshal- general of the colony. No further changes occurred under the colonial charter. A new charter, embracing Massachusetts, Plymouth, Maine, Nova Scotia, and the intervening territory in one government, by the name of the "Province of the Massachusetts Bay in New England," passed the seals on the 7th of March, 1691, and reached Boston May 14, 1692.
The new charter provided that the governor and lieutenant-gover- nor and secretary should be appointed by the king, that a board of
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twenty-eight councillors should be chosen by the General Court, and a House of Representatives should be chosen annually by the people.
Limited space forbids the recital of the full text of the charter, but reference to some of its provisions will enable the reader to better un- derstand subsequent legislation concerning the judicial affairs of the province. Its opening paragraphs rehearse the charter issued by James the First to the " Northern Virginia Company," or, as it was afterwards called, " the council established at Plymouth, in the county of Devon," on the 3d of November, 1606, and the grant or patent of said council to the Massachusetts Company on the 19th of March, 1627-8; together with the charter issued by Charles the First to said company on the 4th of March, 1628-9, and the revocation and vacation of said charter in the term of Holy Trinity in the thirty-sixth year of the reign of Charles the · Second. It then declares that in conformity with the wishes of the agents of the Massachusetts Company, and for the purpose of bringing the colony of New Plymouth under such a form of government as may put them in a better condition for defence, the colony of "the Massachusetts Bay, the colony of New Plymouth, the province of Maine, the territory called Acadia, or Nova Scotia," and all the territory between Nova Scotia and Maine, are incorporated into one province by the name of the "Prov- ince of the Massachusetts Bay in New England." To the inhabitants of the said province was given all that part of New England extending from three miles north of the Merrimac River on the north part, to the Atlantic, or Western sea, on the south part, and westward as far as the colonies of Rhode Island, Connecticut, and the Narragansett country. "And, also, all that part and portion of mainland beginning at the entrance of Piscataway harbor, and so to pass up the same into the river of Newich- wannock, and through the same into the furthest head thereof, and from thence northwestward, till one hundred and twenty miles be finished, and from Piscataway harbor mouth aforesaid northeastward, along the sea coast to Sagadehock, and from the period of one hundred and twen- ty miles aforesaid to cross overland to the one hundred and twenty miles before reckoned up into the land of Piscataway harbor, through Newichwannock river, and also the north half of the Isles of Shoals, to- gether with the Isles of Capawock and Nantucket."
It was provided that all estates " which any person, or persons, or body politic or corporate, towns, villages, colleges or schools," hold un-
Lowand Rang V
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der grants from any General Court, shall continue to be enjoyed by them under their grants.
So far as the government of the province was concerned, it declared that there should be one governor, one lieutenant-governor, and one secretary to be appointed by the crown, and twenty-eight assistants, or councillors, to be chosen by the General Court annually. Isaac Ad- dington was declared the first secretary, and a provisional board of councillors was appointed, consisting of Simon Bradstreet, John Rich- ards, Nathaniel Saltonstall, Wait Winthrop, John Phillips, James Bur- rell, Samuel Sewall, Samuel Appleton, Bartholomew Gedney, John Hathorne, Elisha Hutchinson, Robert Pike, Jonathan Corwin, John Joliffe, Adam Winthrop, Richard Middlecot, John Foster, Peter Ser- geant, John Lynde, Samuel Heyman, Stephen Mason, Thomas Hinck- ley, William Bradford, John Walley, Barnabas Lathrop, Job Alcot, Samuel Daniel and Sylvanus Davis.
It was provided that the governor, and at least seven of the coun- cillors, should meet from time to time "for the ordering and directing the affairs" of the province, and a General Assembly should be chosen consisting of two representatives, and no more, from each town. To the governor was given the power to adjourn, prorogue and dissolve the General Assembly whenever he might judge it necessary. At least eighteen of the councillors must be inhabitants of the territory of the old Massachusetts colony, four of the New Plymouth colony, three of the province of Maine, and one an inhabitant of the territory lying between the Sagadehock River and Nova Scotia.
Authority was given to the governor, with the advice and consent of of the council from time to time, to nominate and appoint, " Judges, Commissioners of Oyer and Terminer, Sheriffs, Provosts, Marshals, Jus- tices of the Peace, and other officers, to our Council and Courts of Jus- tice belonging."
It was also declared, "for the greater care and encouragement of our loving subjects inhabiting our said province or territory of the Massa- chusetts Bay, and of such as shall come to inhabit there, we do by these presents, for us, our heirs and successors, grant, establish, and ordain, that for ever hereafter there shall be a liberty of conscience allowed in the worship of God to all Christians (except papists) inhabiting, or which shall inhabit or be resident within our said province or territory."
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To the General Court was given the power to erect and establish judicatories and courts of record, or other courts, for the hearing, try- ing and determining " all manner of crimes, offences, pleas, processes, plaints, actions, matters, causes and things whatsoever, arising or hap- pening within the province," and to the Governor and Council "the power to execute or perform all that is necessary for the probate of wills and granting administrations."
An appeal could be had from the judgment or sentence of any court to the Privy Council within fourteen days, provided the amount in- volved exceeded three hundred pounds sterling. The General Court was authorized to make all manner of reasonable laws, either with pen- alties or without, both for the good order of the province and for its support and defence, but the veto power in elections, as well as in the enactment of laws, was conferred on the governor; and it was further provided, that all orders, laws, statutes, and ordinances, should be trans- mitted to the crown for approval, and that in case any of them were rejected by the Privy Council within three years, they should become void. A further provision was added, that "the exercise of any Ad- miral Court jurisdiction power or authority is reserved, to be from time to time erected, granted and exercised by virtue of commissions under the great seal of England, or under the seal of the high admiral, or the commissioners for executing the office of high admiral of England."
The charter was dated October 7, 1691, and, as has been stated, reached Boston May 14, 1692, when William Phipps, the first royal governor, assumed the reins of power, with William Stoughton as lieu- tenant -governor. An explanatory charter, chiefly relating to the elec- tion of a speaker of the House of Assembly was granted by King George, dated August 26, 1726, which contains no reference to the administra- tion of justice. On the 8th of June, 1692, the first General Court con- vened, but such was the popular excitement concerning the witchcraft delusion, that Governor Phipps, without any authority conferred by the charter, issued commissions bearing date of June 2, 1692, to a Special Court of Oyer and Terminer, consisting of William Stoughton, chief justice, and Nathaniel Saltonstall, John Richards, Bartholomew Gedney, Wait Winthrop, Samuel Sewall and Peter Sergeant, associate judges, to take cognizance of crimes in Suffolk, Essex and Middlesex. Mr. Sal-
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tonstall declined the position, and Jonathan Corwin was appointed in his place. Stephen Sewall was made clerk of the court ; Thomas New- ton, their majesties' attorney ; Anthony Checkley, attorney-general ; and George Corwin, sheriff. Washburn states that the commission to Checkley informed him that he was to act in the court "assigned to inquire of, hear and determine for this time, all and all manner of fel- onies, witchcraft, crimes and offences how, or by whomsoever done, committed or perpetrated within the several counties of Suffolk, Essex and Middlesex." This court sat at various times between the 2d of June and the 17th of September, and condemned nineteen persons to be hung and one to be pressed to death. As the trials were outside of the courts of Suffolk county, their history does not come within the scope of this narrative. It is interesting, however, to note that no lawyer was connected with the court. Stoughton and Sewall were clergymen, Win- throp and Gedney were physicians, Sergeant a gentleman, probably without a profession, and Richards, and Corwin, and Checkley, the at- torney-general, were merchants. It may not, however, be improper to interpose some defence of a court upon which so much obloquy has been cast, as if they were specially infected by a delusion, which seems to us in later times so unreasonable and abhorrent The fact is, that a be- lief in witchcraft was as universal as the belief that the Bible was the in- spired word of God. Theologians, especially, were convinced of its existence, and it is possible that to Stoughton and Sewall, the clergy- men on the bench, the convictions and punishments were due. In the 18th verse of the 22d chapter of Exodus we find the command " Thou shalt not suffer a witch to live." In the 27th verse of the 20th chapter of Leviticus are these words: " A man also, or a woman, that hath a familiar spirit, or that is a wizard, shall surely be put to death ; they shall stone him with stones; their blood shall be upon them ;" and in the 18th chapter of Deuteronomy, 10th, 11th, and 12th verses, it is written : " There shall not be found among you any one that maketh his son or his daughter to pass through the fire, or that useth divination, or an observer of times, as an enchanter or a witch ; or a charmer, or a consulter with familiar spirits, or a wizard, or a necromancer, for all that do these things are an abomination unto the Lord ; and because of these abominations the Lord thy God doth drive them out from before
8
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thee." It is not improbable that the victims of delusion were as firm in their belief as any, and accepted their punishment with a conviction of the righteousness of its infliction.
The first act relating to the courts was passed by the General Court June 28, and published on the 2d of July. It was as follows :
" An act for the holding of Courts of Justice.
" Forasmuch as the orderly regulation and well establishment of Courts of Justice is of great concernment, and the public occasions with reference to the war, and otherwise being so pressing at this season that this Court cannot now conveniently set longer to advise upon and fully settle the same, but to the intent that justice be not obstructed or delayed,
" Be it ordained and enacted, by the Governor, Council and Rep- resentatives, convened in general assembly, and it is ordained by authority of the same,
" Sec. I. That on or before the last Tuesday of July next there be a general sessions of the peace held and kept in each respective county within this province, by the justices of the same county, or three of them at least (the first justice of the quorum then present to preside), who are hereby empowered to hear and determine all matters relating to the conservation of the peace, and whatsoever is by them cognizable ac- cording to law, and to grant licenses to such persons within the same county, being first approved of by the selectmen of each town where such persons dwell, whom they shall think fit to be employed as inn- holders or retailers of wines or strong liquors, and that sessions of the peace be successively held, and kept as aforesaid within the several coun . ties at the same times and places as the County Courts or inferior courts of common pleas are hereafter appointed to be kept.
" And it is further enacted by the authority aforesaid,
"Sec. 2. That the County Courts, or inferior courts of common pleas, and kept in each respective county by the justices of the same county, or three of them at least (the first justice of the quorum then present to preside), at the same times and places they have been formerly kept ac- cording to law, for the hearing and determining of all civil actions arising or happening within the same, triable at the common law accord- ing to former usage; the justices for holding and keeping of the said
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Court within the county of Suffolk to be particularly appointed and commissionated by the Governor, with the advice, and consent of the Council. And that all writs or attachments shall issue out of the clerk's office of the said several courts, signed by the clerk of such court, directed unto the sheriff of the county, his under sheriff or deputy. The jurors to serve at said courts to be chosen according to former custom, by and of the freeholders and other inhabitants, qualified as is directed in their majesties' royal charter. This act to continue until other provision be made by the General Court or Assembly."
Prior to the passage of the above act it was ordered that all the local laws made by the Governor and Company of the Massachusetts Bay, and the government of New Plymouth, not repugnant to the laws of Eng- land, " nor inconsistent with the present constitution and settlement by their majesties' royal charter, do remain and continue in full force in the respective places for which they were made and used, until the 10th day of November next, except in cases where other provision is or shall be made by this Court or Assembly ; and all persons are required to conform themselves accordingly ; and the several justices are hereby empowered to the execution of said laws as the the magistrates formerly were."
The act for the holding of courts of justice was disallowed by the Privy Council on the 22d of August, 1695, because a distinction was made in the manner of appointing justices for the county of Suffolk and other counties.
On the 25th of November, 1692, at the second session of the General Court, an act was passed for the establishing of judicatories and courts of justice within the province. It provided,
" Sec. I. 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 any of their majesties' justices of the peace of this province, with- in the respective counties where he resides ; who is hereby empow- ered upon complaint made, to grant a warrant or summons against the party complained of seven days before the day of trial or hearing, thereby requiring him or them to appear and answer the said complaint, and in case of non-appearance to issue out a warrant of contempt directed to the constable or other officers, to bring the contemner before
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him, as well to answer the said contempt, as the plaintiff's action, and if he sees cause, to fine the said contemner ;
" Be it further enacted and ordained by the authority aforesaid,
" Sec. 4. That there shall be held and kept in each respective county within the province, yearly, at the times and places hereafter named and expressed, four courts or quarter sessions of the peace, by justices of peace of the same county, who are hereby empowered to hear and de- termine all matters relating to the conservation of the peace, and pun- ishment of offenders, and whatsoever is by them cognizable according to law ; that is to say, for the county of Suffolk at Boston on the first Tuesdays in March, June, September and December; for the county of Plymouth at Plymouth on the third Tuesdays in March, June, Septem- ber and December; for the county of Essex, at Salem, on the last Tuesdays in June and December; at Ipswich on the last Tuesday in . March, and at Newbury on the last Tuesday in September; for the county of Middlesex, at Charlestown on the second Tuesdays in March and December, at Cambridge on the second Tuesday in September, and at Concord on the second Tuesday of June ; for the county of Barn- stable, at Barnstable on the first Tuesdays in April, July, October and January ; at Bristol for the county of Bristol on the second Tuesdays in April, July, October and January ; for the county of York on the first Tuesday in April and July, and at Wells on the first Tuesdays in October and January ; and for the county of Hampshire, at Northamp- ton on the first Tuesdays in March and June ; at Springfield on the last Tuesdays in September and December ; and that there be a general ses- sions of the peace held and kept at Edgartown upon the Island of Cap- awack alias Martha's Vineyard, and on the Island of Nantucket re- spectively, upon the last Tuesday in March and on the first Tuesday of October yearly from time to time.
" And it is further enacted by the authority aforesaid,
" Sec. 5. That at the times and places before mentioned there shall be held and kept in each respective county and islands before named within the province, an inferior court of common pleas, by four of the justices of and residing within the same county and islands respectively, to be appointed and commissionated thereto, any three of whom to be a quorum, for the hearing and determining of all civil actions arising or
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John's Real
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happening within the same, triable at the common law of what nature, kind or quality soever.
" And it is further enacted by the authority aforesaid,
"Sec. 6. That there shall be a Superior Court of Judicature over the whole province, to be held and kept annually at the respective times and places hereafter mentioned, by one chief justice and four other justices, to be appointed and commissionated for the same, three of whom to be a quorum, who shall have cognizance of all pleas, real, per- sonal or mixt, as well in all pleas of the crown and in all matters relat- ing to the conservation of the peace and punishment of offenders, as in civil causes or actions between party and party, 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, con - tract, damage or personal injury, and also in all mixt actions which may concern both realty and personalty ; and after deliberate hearing to give judgment and award execution thereon. The said Superior Court to be held and kept at the times and places within the respective counties following ; that is to say, within the county of Suffolk at Bos- ton on the last Tuesdays of April and October ; within the county of Middlesex at Charlestown on the last Tuesdays of July and January ; within the county of Essex at Salem on the second Tuesday of Novem- ber, and at Ipswich on the second Tuesday of May; within the counties of Plymouth, Barnstable and Bristol at Plymouth on the last Tuesday of February, and at Bristol on the last Tuesday of August.
"Sec. 7. That the trial of all .civil causes by appeal or writ of error, from any of the Inferior Courts within the respective counties of York or Hampshire, the Islands of Capawock alias Martha's Vineyard and Nan- tucket shall be in the Superior Court to be held at Boston or Charles- town.
" And it is hereby further enacted by the authority aforesaid,
"Sec. 14. That there be a high Court of Chancery within the province, who shall have power and authority to hear and determine all matters of equity, of what nature, kind or quality soever, and all controversies, disputes and differences arising betwixt co- executors, and other matters proper and cognizable to said court, not relievable by common law ; the
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said court to be holden and kept by the governor, or such other as he shall appoint to be chancellor, assisted with eight or more of the council, who may appoint all necessary officers to the said court ; which said court shall sit, and be held at such times and places as the gover- nor or chancellor for the time being shall from time to time appoint ; provided nevertheless, that the justices in any of the courts aforesaid, where the forfeiture of any penal bond is found, shall be and hereby are empowered to chancer the same unto the just debt and damages."
This act also was disallowed by the Privy Council on the 22d of Aug- ust, 1695, because the provision of the act that either party not being satisfied with the judgment of any of the courts in personal actions not exceeding £300 may appeal to His Majesty in council, seemed to ex- clude the right of appeal in real actions.
On the 9th of November, 1692, an act was passed providing " whereas at the session of this court in June last, an act was passed entitled ' an act for continuing the local laws, to stand in force till Nov- ember the 10th, 1692, it is ordained and enacted.' That the said act and every part of it be and hereby is revived and continued in full force, to all intents and purposes from and after the said tenth day of No- vember, and shall so continue until the General Assembly shall take further order."
On the 11th of December, 1693, an act was passed in addition to the "Act for establishing of Judicatories and Courts of Justice within the province, which, among other things pertaining to forms and rules of courts changed the time for holding the court of quarter sessions, and the Inferior Court of Common Pleas in Boston to the first Tuesdays in July, October, January and April, and provided that there be a Court of Judi- cature, Court of Assize and general gaol delivery held at Kittery in the County of York, on Wednesday before the second Tuesday in May, and at Springfield on the last Tuesday in June. This act was also dis- allowed by the Privy Council on the 10th of December, 1696, because the act to which it was in addition had been disallowed.
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