USA > Massachusetts > Suffolk County > Professional and industrial history of Suffolk County, Massachusetts, Volume I > Part 7
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An act was also passed December 5, 1693, providing for a new estab- lishment and regulation of the chancery, but as this act was mainly amendatory of the act establishing judicatories, passed November 25, 1692, it was disallowed because that act had been.
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The next act passed concerning the courts was enacted February 15, 1693-4, and provided that the Superior Court should be held at differ- ent times from those specified in the original act, but did not affect Suffolk county, and another act of a similar character was passed March 2 in the same year.
Various other acts were passed at various times concerning modes of proceeding in the courts, and on the 3d of October, 1696, an act .was passed, of which the following are the preamble and first section : " Whereas, his majestie's pleasure hath been signified for the repealing and making void an act made and passed by the Great and General Court or assembly, anno one thousand six hundred ninety- two, in the fourth year of the reign of his present majesty, and the late Queen Mary, his royal consort of blessed memory, entitled 'An act for the es- tablishing of judicatories and courts of justice within this province,' also for the repealing and making void one other act, entitled ' An act for the establishing of precedents and forms of writs and processes, with the particular reasons of his majestie's disallowance of said acts, for the information and direction of the General Assembly and the amendments and considerations necessary for the supply thereof; and, whereas, it is absolutely necessary that speedy provision be made, that his majestie's subjects may not suffer for the want of due course of justice,
" Be it enacted, etc. :
"Sec. I. That the before mentioned act, entitled 'An act for the estab- lishing of judicatories and courts of justice within this province,' and all and singular the paragraphs, articles, clauses and sentences thereof (ex- cept the paragraph for constituting a Court of Chancery, and such other articles, clauses and sentences in said act as have been heretofore re- pealed, altered or otherwise provided for, in and by any other act or acts of the General Assembly of this province, or which in and by the present act shall be altered, otherwise provided for, or declared to be null and void), be and hereby are revived and continued, to abide and remain in full force and virtue until the end of the first session of the General Assembly, to be begun and held upon the last Wednesday of the month of May next, in the year of our Lord one thousand six hundred ninety-seven, and no longer; provided, nevertheless, that the words (and no other) in the section or paragraph of the said act providing for
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liberty of appeal unto his majesty or council, be and hereby are declared void and of no effect."
This act was also disallowed by the Privy Council on the 24th of No- vember, 1698, notwithstanding the objectionable part of the act, which had been previously disallowed, was removed, and no other reason was given for its disallowance, than the fact that the act which it revived had been disallowed. It, however, answered a purpose. The Superior Court of Judicature and the Inferior Court of Common Pleas had been established under the law which had been disallowed or repealed by order of the Privy Council, and judges of both courts had been ap- pointed. As soon as the knowledge of the disallowance came to the General Court the establishment of the courts and the commissions of the judges would be invalid, and consequently the passage of this act or some other was necessary to keep them alive. Before the disal- lowance of this revival act, which did not take place until November 24, 1698, another act was passed on the 19th of June for the establishment of courts very similar to the original act of 1692, with the name of the Quarter Sessions of the Peace changed to a Court of General Sessions of the Peace and the omission of the provision for the Chancery Court. This act was also disallowed November 24, 1698, because the provision " among other things that all matters and issues in fact shall be tried by a jury of twelve men was contrary to the intention of an act of parlia- ment entitled An act for preventing frauds and regulating abuses in the plantation trade by which it was provided that all causes relating to the breach of the acts of trade may, at the pleasure of the officer or informer, be tried in the Court of Admiralty, to be held in any of his Majesty's Plantations, respectively where such offence shall be com- mitted ; because the method of trial in such courts of Admiralty is not by juries of twelve men, as by the forementioned act for establishing of of courts is directed."
Finally, at the session of the General Court, which began on the 31st of May, 1699, three acts were passed establishing courts which were approved by the Privy Council, and were published on the 27th of June.
The first established a Court of General Sessions of the Peace, to be held by the justices of the peace in each county with a jurisdiction over
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matters relating to the conservation of the peace and the punishment of offenders. The court in Suffolk county was to be held in Boston on the first Tuesdays in July, October, January and April. At a convenient time before the sitting of the court the clerk of the peace in each county was required to issue warrants to the constables of the several towns, directing them to assemble the freemen to choose such a number of men for jurors as the warrants might specify. An appeal from this court might be taken to the Superior Court of Judicature.
The second act established an Inferior Court of Common Pleas to be held in each county by four persons to be appointed as justices of the court and who shall have cognizance of all civil actions within the county triable at common law. The court for Suffolk was to be held in Boston on the first Tuesdays in July, October, January and April. All processes and writs for any suit were to issue out of the office of the clerk of the court in his majesty's name, under the seal of the court and directed to the sheriff, or in cases involving a. sum less than ten pounds to a constable, and the jurors were to be summoned under the direction of the clerk of the court in the same manner as that described for jurors of the Court of General Sessions of the Peace.
The third court established was a Superior Court of Judicature, Court of Assize and General Gaol Delivery for the whole province, to be held at specified times and places by one chief justice and four associate jus- tices to be appointed for the same, any three of whom might be a quorum, with cognizance of all pleas, real, personal or mixed, as well all pleas of the crown and all matters relating to the conservation of the peace and punishment of offenders, as civil causes or actions, and also all mixed actions which concern both realty and personalty brought be- fore them by appeal, review, writ of error or otherwise ; and generally of all other matters as fully as the Court of King's Bench, Common Pleas and Exchequer ought to have. The court for the county of Suffolk was to be held at Boston on the first Tuesdays in November and May, and the jurors were to be summoned under the direction of the clerk in the manner already described.
An act was passed June 20, 1701-2, providing that attorneys prac- ticing in the courts shall be under oath administered by the clerk in open court as follows :
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"You shall do no falsehood, nor consent to any to be done in the court, and if you know of any to be done you shall give knowledge thereof to the justices of the court, or some of them, that it may be re- formed. You shall not wittingly and willingly promote, sue or procure to be sued any false or unlawful suit, nor give aid or consent to the same. You shall delay no man for lucre or malice, but you shall use yourself in the office of an attorney within the court to the best of your learning and discretion, and with all good fidelity as well to the courts as to your clients." The same act provided that the fee to be allowed for an attorney in the Superior Court of Judicature should be twelve shillings, and in the Inferior Court of Common Pleas ten shillings.
The judges of the Superior Court of Judicature, which continued during the whole of the provincial period and until February 20, 1781, were as follows :
Chief Justices. - William Stoughton, appointed 1692; Isaac Addington, appointed, 1703; Wait Winthrop, appointed 1708; Samuel Sewall, appointed 1718 ; Benjamin Lynde, appointed 1728; Panl Dudley, appointed 1745; Stephen Sewall, appointed 1752 ; Thomas Hutchinson, appointed 1760; Benjamin Lynde jr., appointed 1771; Peter Oliver, appointed 1772; John Adams, appointed 1776; William Cushing, ap- pointed 1777.
Associate Justices .- Thomas Danforth, appointed 1692; Wait Winthrop, appointed 1692; John Richards, appointed 1692; Samuel Sewall, appointed 1692; Elisha Cooke, appointed 1695; John Walley, appointed 1700; John Saffin, appointed 1701; Isaac Addington, appointed 1702; John Hathorne, appointed 1702; John Leverett, appointed 1702; Jonathan Curwin, appointed 1708; Benjamin Lynde, appointed 1712; Nathaniel Thomas, appointed 1712; Addington Davenport, appointed 1715 ; Edmund Quincy, appointed 1718; Paul Dudley, appointed 1718; John Cushing, appointed 1728; Jona- than Remington, appointed 1733; Richard Saltonstall, appointed 1736; Thomas Graves appointed 1738; Stephen Sewall, appointed 1739; Nathaniel Hubbard, appointed 1745; Benjamin Lynde, jr., appointed 1745; John Cushing, appointed 1747 ; Chambers Rus- sel, appointed 1752; Peter Oliver, appointed 1756; Thomas Hutchinson, appointed 1760; Edmund Trowbridge, appointed 1767 ; Foster Hutchinson, appointed 1771; Nathaniel Ropes, appointed 1772; William Brown, appointed 1774; William Cushing, appointed 1775 ; Nathaniel P. Sargeant, appointed 1775; William Reed, appointed 1775; James Warren, appointed 1776; Robert Treat Paine, appointed 1775; Jedediah Foster, appointed 1776; James Sullivan, appointed 1776; David Sewall, appointed 1777.
Of these, Stoughton, Winthrop, Richards, Samuel Sewall, Cooke, Saffin, Addington, Benjamin Lynde, Davenport, Quincy, Paul Dudley, Benjamin Lynde, jr., Thomas Hutchinson, and Foster Hutchinson were
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Suffolk county men at the time of their appointment, and Peter Oliver was a native of Boston, but at the time of his appointment a resident of Middleboro. It is not proposed herein to make special allusion to these or others of the bench and bar in this chapter, as all will have a place in the biographical register contained in this volume. Of the above list of judges John Adams and James Warren never took their seats.
The last session of the Superior Court under the charter was held in September, 1774. The first session under the Revolutionary regime was held in Essex county in June, 1776. While the British held Bos- ton the General Court passed an act in February, 1776, providing that Dedham should be the shire of Suffolk county, and that the courts for that county should be held in Dedham and Braintree. The first Suffolk county court under that act was held in Braintree in September, 1776, and the first court in Boston after the siege was held in February, 1777.
Besides the standing justices of the Superior Court of Judicature, special justices were appointed to act when the standing justices were parties in interest. The following list of special justices is presumed to be full and correct :
Penn Townsend, appointed October 24, 1712; Nathaniel Norden, appointed October 24, 1712 ; John Burrill, appointed October 24, 1712; Addington Davenport, appointed September 16, 1715; John Clark, appointed January 7, 1718; Thomas Fitch, appointed January 7, 1718 ; John Clark, appointed June 27, 1719 ; Thomas Fitch, appointed June 27, 1719; Jonah Wolcott, appointed December 15, 1720; John Cushing, appointed September 6, 1723; John Clark, September 6, 1723; Jonathan Remington, appointed September 6, 1723; Thomas Fitch, appointed December 10, 1725 ; Job Almy, appointed September 1, 1726 ; Elisha Cooke, appointed February 23, 1726-7 ; Jonathan Remington, appointed February 23, 1726-7; Isaac Winslow, appointed June 19, 1727; John Cush- ing, appointed June 19, 1727 ; Nathaniel Byfield, appointed June 27, 1727 ; Thomas Fitch, appointed June 27, 1727; Jonathan Remington, appointed June 27, 1727 ; Nathaniel Byfield, appointed December 12, 1728 ; Thomas Fitch, appointed December 12, 1728; Thomas Fitch, appointed December 12, 1728; Theophilus Burrill, appointed December 12, 1728; Jonathan Remington, appointed December 12, 1728; Nathaniel Byfield, appointed December 19, 1728; Adam Winthrop, appointed December 19, 1728 ; Nathaniel Byfield, appointed January 11, 1732-3 ; Adam Winthrop, appointed June 22, 1733 ; Thomas Cushing, appointed June 22, 1733; Ezekiel Lewis, appointed June 22, 1733 ; Theophilus Burrill, appointed April 19, 1735; Joseph Wilder, appointed April 19, 1735 ; Samuel Thaxter, appointed June 27, 1735 ; Thomas Berry, appointed June 27, 1735; Benjamin Prescott, appointed June 27, 1735; Thomas Greaves, appointed February 10, 1736-7 ; Job Almy, appointed October 25, 1737; Thomas Greaves, ap- pointed November 10, 1737 : Benjamin Prescott, appointed November 10, 1737; Seth
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Williams, appointed August 12, 1738 ; Benjamin Marston, appointed August 12, 1738; William Ward, appointed August 19, 1738; Seth Williams, appointed March 2 1738-9; William Ward, appointed March 2, 1738-9; Edward Hutchinson, appointed May 2, 1739; Joseph Wilder, appointed May 2, 1739 ; Stephen Sewall, appointed May 2, 1739; Ebenezer Burrill, appointed June 15, 1839 ; Thomas Berry, appointed January 24, 1739-40; Benjamin Marston, appointed Jannary 24, 1739-40; Edward Hutchinson, appointed April 18, 1743 ; Nathaniel Hubbard, appointed April 18, 1743 ; Edward Hutch- inson, appointed November 3, 1743; Nathaniel Hubbard, appointed November 3, 1743; John Cushing, appointed October 23, 1744 ; Sylvanus Bourne, appointed October 23, 1744; John Cushing, appointed August 19, 1747 ; Sylvanus Bourne, appointed August 19, 1747 ; Joseph Pynchon, appointed August 19, 1747 ; John Greenleaf, appointed April 6, 1748; Ezekiel Cheever, appointed January 11, 1748-9: Charles Russell, appointed January 11, 1748-9; John Jeffries, appointed March 2, 1748-9; William Brattle, appointed March 2, 1748-9; Thomas Hubbard, appointed March 2, 1748-9; Joseph Sawyer, ap- pointed June 19, 1749 ; Nathaniel Sparhawk, appointed June 19, 1749 ; Ezekiel Cheever, appointed August 12, 1749 : Joseph Richards, appointed August 12, 1749 ; Charles Russell, appointed February 23, 1749-50; Simon Frost, appointed February 23, 1749-50 ; Samuel Danforth, appointed August 24, 1753; Ezekiel Cheever, appointed August 24, 1753 ; Thomas Hutchinson, appointed September 20, 1754 ; Thomas Hutchin- son, appointed February 21, 1755; William Brattle, appointed June 26, 1755; Andrew Oliver, appointed February 13, 1756; William Brattle, appointed February 13, 1756; John Chandler, appointed February 20, 1756; Andrew Oliver, appointed February 20, 1756 ; Benjamin Lincoln, appointed August 1, 1758; Samuel White, appointed August 1, 1758; Timothy Ruggles, appointed February 23, 1762 ; Samuel Danforth, appointed Angust 19, 1762; Nathaniel Ropes, appointed September 7, 1762 ; Nathaniel Ropes, appointed August 30, 1770; Jedediah Foster, appointed September 17, 1770 ; Timothy Pain, appointed February 14, 1771; Joseph Lee, appointed February 17, 1773 ; Will- iam Browne, appointed February . 17, 1773; Joseph Lee, appointed March 4, 1773; William Browne, appointed March 4, 1773.
There were also commissioners of Oyer and Terminer appointed by the Governor and Council to try special cases in accordance with author- ity given in the province charter as follows : " And we do further grant and ordain that it shall and may be lawful for the said Governor with the advice and consent of the Council or Assistants from time to time to nominate and appoint Judges, Commissioners of Oyer and Terminer, Sheriffs, Provosts, Marshals, Justices of the Peace and other officers to our Council and Courts of Justice belonging."
It may be that Governor Phipps considered this authority sufficient for his appointment of the witchcraft court in 1692 and that the judges sitting in that court should be called Commissioners of Oyer and Term- iner. The following list will show who these commissioners were at
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different periods and the purpose for which they were appointed. The witchcraft judges are included in the list :
William Stoughton, John Richards, Wait Winthrop, Bartholomew Gedney, Samuel Sewall, Jonathan Curwin, Peter Sergeant ; appointed June 2, 1892, to take cognizance of all crimes in Suffolk, Essex and Middlesex (witchcraft).
Francis Hooke, Charles Frost, Samuel Wheelwright, Thomas Newton; appointed October 22, 1692, to try murderers in the county of York.
Thomas Danforth, Wait Winthrop, Elisha Cooke, Samnel Sewall; appointed Decem- ber 22, 1698, to try Jacob Smith.
John Hathorne, William Browne, Jonathan Curwin, Benjamin Browne, John Higgin- son ; appointed November 23, 1705, to try an Indian in Salem.
John Gardner, James Coffin, Thomas Mayhew, Benjamin Skiffe, William Gayer; ap- pointed June 15, 1704, to try an Indian in Nantucket.
Joseph Hammond, Ichabod Plaisted, John Plaisted, William Pepperell, John Wheel- wright, John Hill, Lewis Bane, or any four of them; appointed November 8, 1707, to try Joseph Gunnison for murder.
Wait Winthrop, Samuel Sewall, John Hathorne, Jonathan Curwin, Elisha Hutchin- son ; appointed March 7, 1711.
Nathaniel Thomas, John Otis, James Warren, John Gorham ; appointed June 5, 1713, to try two Indians for capital crimes.
Samuel Partridge, John Pynchon, John Parsons, John Stoddard; appointed Decem- ber 3, 1718, to try at Northampton Ovid Ruchbrock for counterfeiting bills of credit of the province.
John Cushing, Sylvanus Bourne, Zacheus Mayhew, Enoch Coffin, John Otis ; ap- pointed June 23, 1743, to try an Indian at Nantucket.
John Cushing, Sylvanus Bourne, Zacheus Mayhew, Enoch Coffin, John Otis; ap- pointed August 9, 1746, for a trial at Nantucket.
As the Supreme Judicial Court of Massachusetts is practically a con- tinuation of the Superior Court of Judicature of the province, it will be proper to explain its origin and follow its career to the present day. It has been stated that the last appointment to the Superior Court of Judi- cature was made in 1777. In that year the Council and House of Rep- resentatives met in convention and adopted a form of constitution "for the State of Massachusetts Bay," which was submitted to the people and rejected. On the 20th of February, 1779, the General Court passed a resolve calling on the qualified voters to give in their votes on the ques- tion : Whether they chose to have a new constitution made and whether they will empower their representatives to vote for calling a State con- vention for that purpose. Both of these questions having been carried in the affirmative, a constitutional convention was held in Cambridge
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on the Ist of September, 1779, in accordance with a resolve of the Gen- eneral Court passed on the 17th of June. This convention, of which James Bowdoin was president, and Samuel Barrett secretary, adjourned on the IIth of November to meet in Boston on the 5th of January, 1780. On the 2d of March a resolution was passed to submit the constitution, which had been framed, to the people, and the convention adjourned to meet in the Brattle Street Church in Boston on the 7th of June. At the adjourned meeting the votes were counted and on the 15th of June the convention resolved " That the people of the State of Massachusetts Bay have accepted the Constitution as it stands, in the printed form sub- mitted to their revision."
Article 9th of the constitution provided that " To the end there may be no failure of justice or danger arise to the Commonwealth from a change of the form of Government, all officers, civil and military, hold- ing commissions under the Government and people of Massachusetts Bay in New England, and all other officers of the said Government and people, at the time this constitution shall take effect, shall have, hold, use, exercise and enjoy all the powers and authority, to them granted or committed, until other persons shall be appointed in their stead ; and all courts of law shall proceed in the execution of the business in their respective departments ; and all the executive and legislative officers, bodies and powers shall continue in full force, in the enjoyment and exercise of all their trusts, employments and authority ; until the Gen- eneral Court and the supreme and executive officers under this consti- tution are designated and invested with their respective trusts, powers and authority."
In other parts of the constitution the court is made to assume its new name of Supreme Judicial Court, and thus the old court was perpetuated with a new title, but with the same jurisdiction, officers and authority. A confirmation of the continuance of the old court was declared in the following act passed by the General Court on the 20th of February, 1781, entitled : " An act empowering the Supreme Judicial Court to take cognizance of matters heretofore cognizable by the late Superior Court.
" Whereas by the laws heretofore made by the General Assembly of the late province, colony and State of Massachusetts Bay, a Superior
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Court of Judicature, Court of Assize, and General Gaol Delivery was constituted, and sundry powers and authorities are given to the same court by particular laws; And whereas by the constitution and frame of government of the Commonwealth of Massachusetts the style and title of the same court is now the Supreme Judicial Court of the Com- monwealth of Massachusetts ; And the constitution aforesaid having provided that the laws heretofore made and adopted, should continue and be in force until they shall be altered or repealed by the legislature ; whence some doubts may arise whether the Supreme Judicial Court shall have cognizance of those matters which by particular laws were expressly made cognizable by the Superior Court of Judicature, Court of Assize, and General Gaol Delivery :
"Sec. I. Be it therefore enacted by the Senate and House of Repre- sentatives in General Court assembled and by the authority of the same, that the court which hath been, or shall be hereafter appointed and commissioned according to the constitution as the Supreme Judicial Court of the Commonwealth, shall have cognizance of all such matters, as have heretofore happened, or that shall hereafter happen, as by par- ticular laws were made cognizable by the late Superior Court of Judica- ture, Court of Assize, and General Gaol Delivery, unless, where the constitution and frame of government hath provided otherwise."
On the 3d of July, 1782, an act was passed by the General Court entitled "An act establishing a Supreme Judicial Court within the Commonwealth," which provided that there should be one chief justice and four associates, the whole or any three of them to have cognizance of " pleas real, personal or mixed, and of all civil actions between party and party and between the Commonwealth and any of the subjects thereof, whether the same do concern the realty, and relate to right of freehold, inheritance or possession ; whether the same do concern the personalty and relate to any matter of debt, contract, damages or per- sonal injury ; and also mixed actions which do concern the realty and personalty brought legally before the same court by appeal, review, writ of error or otherwise ; and shall take cognizance of all capital and other offences and misdemeanors whatsoever of a public nature, tending either to a breach of the peace, or the oppression of the subject, or raising of faction, controversy or debate, to any manner of mis-
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government ; and of every crime whatsoever that is against the public good."
The act further gave the court power to establish such rules respect- ing the admission of attorneys and the creation of barristers-at-law as it thought expedient, and appoint a clerk or clerks to record its proceed- ings. A subsequent act, passed March 12, 1784, gave to the Supreme Judicial Court appellate jurisprudence in all matters determined by judges of probate in their respective counties, and an act passed March 16, 1786, conferred upon it jurisdiction in all questions of divorce and alimony. On the 27th of February, 1790, the salary of the chief jus- tice was fixed at £370 and that of the associates at $350, " without the addition of any fee or perquisite whatever." The number of asso- ciates was increased to six in the year 1800 and the State outside of Suffolk county was divided into two circuits, the east including Essex county and Maine, and the west including all the remainder. In 1805 the number of associates was reduced to four and so remained until 1852, when one was added. In 1873 the number was increased to six and has so remained up to the present time. The salaries of the court as fixed by chapter 104 of the laws of 1892 are $7,500 and $500 for travel for the chief justice, and $6,500 and 500 for travel for each asso- ciate.
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