USA > Massachusetts > Essex County > The story of Essex County, Volume II > Part 17
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5. "The Commonwealth History of Massachusetts," op. cit., Vol. II, pp. 159-60.
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authority consider it to be law. This code was known as the "Body of Liberties," and was completed and put into action in 1643. It con- sisted of one hundred laws, both civil and criminal, and narrowed greatly the scope of approved personal conduct.
In 1648, the General Court definitely enacted a code of laws which came to form the basis for all subsequent development of statute law. The civil war in England, and the attending success of the Puritan party, made the court feel safe in making definite legis- lation. This code is characterized in "The Commonwealth History" as "the first complete code of laws prepared for itself by any mod- ern community. . ... It is still law in Massachusetts, except in so far as its provisions have been repealed, superseded, or become obso- lete. This little known document not only reflects the local law, but contains provisions notably in advance of any other jurisdiction of that period."" A photostatic copy of the Code of 1648 is in the possession of the Massachusetts State Library, while an original copy is said to be in existence in California.
The preceding discussion of the law and government in the early days of the Massachusetts Bay Colony has necessarily been in general terms, applying to the Colony as a whole, but the obvious importance of these factors upon the legal and social development of Essex County explains their discussion in this volume. For similar reasons the following description of the development of the courts should properly be included here.
The first judicial body to sit in the Massachusetts Bay Colony was the General Court, consisting of the Governor, the assistants, and the freemen, which convened in Salem in 1628, under the author- ity of the charter granted March 4 of that year, which provided for the holding "upon every Ist Wednesday in Hillary, Easter, Trinity and Michalmas as termes respectivelie for ever, one greate, generall, and soleme assemblie, which four Generall Assemblies shall be stiled and called foure Greate and Generall Courts of the said Company." This body was designed to exercise all the functions of the domestic government-judicial, legislative, and administrative-and was ade- quate to care for the simple governmental problems of the struggling little settlement until the arrival of Governor Winthrop, with a large
6. "The Commonwealth History of Massachusetts," op. cit., Vol. II, p. 156.
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number of new settlers, and the removal of the seat of the govern. ment to Boston in 1630.
From 1630 to 1636 the democratic nature of the General Court was somewhat curtailed by the delegation of all the judicial, legisla- tive, and administrative powers to the Governor, Deputy Governor, and asistants, while the assistants themselves elected the Governor and Deputy Governor. During this period the only function of the freemen in the government was to elect the assistants. By 1636, how- ever, the desire of the freemen for more direct self-government had asserted itself, and the elective and legislative powers were returned to the people, the bulk of the judicial functions having been delegated to an organized judiciary.
With the rapid spreading of new settlements within the bounds of the Colony, the convening of the freemen four times yearly became an increasingly great hardship, and the size of the General Court itself made it an unwieldy body. It was provided in 1634 that the freemen of Hingham, Weymouth, Saugus, Salem, Ipswich, and New- bury should hold elections at home, and send deputies to the court, and the other towns eventually followed suit. The deputies from the towns sat in a single body with the assistants until 1644, when the two groups began to meet separately. Since that time the Massachu- setts General Court has continued to be a bicameral body, each cham- ber having the power to concur with or veto the decisions of the other.
Apparently the early settlers had no clear conception of the proper division of the functions of government, for there was no com- plete separation between the judicial and the legislative branches. Until the term of office of Governor Hutchinson the legislative branch could overrule decisions of the judiciary, and for many years the Court of Assistants had the final appellate jurisdiction in the Colony. There was, however, an effective separate judiciary, in structure if not in personnel, created by the General Court at an early date, which took care of most of the cases at law, or at least those not important enough to reach the Court of Assistants.
The first step in the creation of a system of courts was taken in 1636, when the General Court provided that "there shall be four courts kept every quarter-one at Ipswich, to which Newbury shall belong; two at Salem, to which Saugus shall belong; two at New- town, to which Charlton, Concord, Medford and Watertown shall
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belong; four at Boston, to which Roxbury, Dorchester, Weymouth, and Hingham shall belong.
These courts shall try all civil causes whereof the debt or damage shall not exceed ten pounds, and all crimi- nal causes not concerning life, member or banishment. And if any person shall find himself grieved with the sentence of the said courts, he may appeal to the next great Quarter Court, provided that he put in sufficient caution to present his appeal with effect, and to abide the sentence of the mag- istrate in the said great Quarter Court, who shall see that all such that shall bring any appeal without just cause be exem- plarily punished.
There shall be four great Quarter Courts kept yearly at Boston by the Governor and the rest of the magistrates; the first the first Tuesday in the fourth month, called June; the second the first Tuesday in September ; the third the first Tues- day in December; the fourth the first Tuesday in the first month, called March."
The courts were placed in charge of the assistants, otherwise known as "magistrates," the same body already having been men- tioned as a part of the General Court. The ordinary Quarter Courts were presided over by magistrates living in or near the towns where the sessions were held, or by other persons duly appointed by the General Court. The great Quarter Court, also known as the Court of Assistants, consisted of the Governor and the assistants sitting as a body. Thus it is seen that the assistants continued to serve in double capacity, legislative and judicial.
The first assignments and appointments made for the courts to be held in towns which later became part of Essex County included several names outstanding in colonial history. For Salem and Saugus, the magistrates were John Endicott and John Humphrey, the asso- ciates were Captain Nathaniel Turner, Mr. Thomas Scrugge, and Mr. Townsend Bishopp, and Ralf Fogg served as clerk. For Ipswich and Newbury, Thomas Dudley, Richard Dummer and Simon Bradstreet were the magistrates, Mr. Saltonstall and Mr. Spencer, associates, and Robert Lord, clerk.
Not long after the Quarter Court had been put into operation it was found that the quarterly meetings involved unnecessary incon-
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venience and delay in the settling of small claims, and in 1638 steps were taken to eradicate these difficulties. The General Court pro- vided that the assistants could hear and settle small claims, under twenty shillings, at any convenient time in their own towns, and three magistrates were appointed to care for the needs of communities hav- ing no resident magistrate. In this way a system of local courts, the ancestors of our modern district courts, was brought into being, and justice was greatly facilitated. Appeal from the judgment of these courts to the Quarter Courts, or even to the great Quarter Court, was allowed.
The next development in the court system was the "Stranger's Court," instituted June 6, 1639. It was provided that "for the more speedy dispatch of all causes, which shall concern strangers, who can- not stay to attend the ordinary courts of justice, it is ordered that the Governor or deputy, being assisted by any two of the magistrates (whom he may call to him to that end), shall have power to hear and determine (by a jury of twelve men or otherwise as is used in other courts) all causes which shall arise between such strangers, or wherein any such stranger shall be a party, and all records of such proceed- ings shall be transmitted to the Secretary (except himself be one of the said magistrates, who shall assist in hearing said causes) to be entered as trials in other courts at the charge of the parties. . ... "
The next year, 1640, probate jurisdiction was given to the Quar- ter Courts, and the system of recording the ownership of land was revised. Previous to this time the General Court had performed the probate business of the Colony. In 1634 provision had been made for recording the ownership of land, and in 1640 deeds and mort- gages were included. The Quarter Courts, and later the County Courts, continued to exercise probate jurisdiction until the appoint- ment of special judges of probate in 1692. The clerk of courts acted as recorder of probate, and each town appointed a clerk of writs with duties similar to those of a town clerk. After 1643 the County Courts, besides their civil and criminal jurisdiction, attended to many of the duties now performed by the probate courts, the clerk of the court, the registers of deeds and probate, and the county commissioners.
The continued growth of the population of the Colony of Mas- sachusetts Bay, and the increasing number of settlements had, by
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THE STORY OF ESSEX COUNTY
1641, made necessary another reorganization of the court system. The old Quarter Courts were revised on lines somewhat similar to those followed by the county subdivision, which occurred two years later. The territory later included in Essex County was assigned four courts, one meeting each quarter. These courts were to sit, on alter- nating quarters, twice yearly in Salem and twice in Ipswich. A grand jury was to sit once a year, and Salisbury and Hampton were added to the jurisdiction of the Ipswich and Salem courts, both towns being required to send one grand juryman each year. The magistrates of Ipswich and Salem, assisted by any other magistrates living within the jurisdiction of the courts or elsewhere, and by commissioners appointed by the General Courts, sat in judgment.
These courts had much the same power and authority possessed by old Quarter Courts. They had original jurisdiction in all cases not involving "life, limb or banishment," save that civil actions of above £100 might be taken directly to the Court of Assistants at the option of the plaintiff. Appeal in other cases to the Court of Assist- ants, upon good cause, was also permitted. The Quarter Courts, as revised in 1641, had civil, criminal, and probate jurisdiction, and pos- sessed the administrative powers, such as highway supervision, licens- ing ordinaries, and seeing that a proper ministry was supplied. In 1664 the power of these courts was extended to the admission of freemen.
The subdivision of the Bay Colony, in 1643, into the counties of Norfolk, Essex, Middlesex and Suffolk brought no fundamental changes in the court system of the territory included in Essex County, or its relation to the great Quarter Courts, save for the inclusion of the towns of Salisbury, Hampton and Haverhill, formerly under the jurisdiction of the Ipswich and Salem Courts, in Norfolk County. Salem, Lynn, Enon (afterwards Wenham), Ipswich, Cochichawick (afterwards Andover), Gloucester, Newbury, and Rowley, which together constituted Essex County, comprised the jurisdiction of the Quarter Courts of Salem and Ipswich, which came to be known as the County, or Inferior Quarter Courts. In Norfolk County, Salis- bury and Hampton were shire towns, and the records of the sessions of Norfolk County Court held in these towns are included in The Essex Institute's collection of the records of the Quarterly Courts of Essex County. In 1679, all Norfolk County, save for the three towns
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which skirted the north bank of the Merrimac River, became part of New Hampshire, and Salisbury, Amesbury, and Haverhill reverted to Essex County and the jurisdiction of the Essex County Courts. Old Norfolk County, which included the seacoast from Salisbury to Portsmouth, and the territory inland as far as Haverhill, Exeter, and Dover, should not be confused with the present Norfolk County, which was created principally out of a part of Suffolk County at a later date.
. .....
AMESBURY-NEW (2ND DISTRICT) COURTHOUSE Which also houses the police department
After the subdivision of the Colony into counties in 1643, the structure of the court system remained essentially unchanged until the revocation of the colonial charter in 1684. Various changes and improvements were made in court procedure and administration, but few were important enough to be discussed here. The administrative officers of the courts performed similar functions throughout this and later periods, being known as beadles in the earliest times, marshals from 1634 to 1692, and sheriffs thereafter. During this period the judicial hierarchy continued to consist of : first, the General Court; second, the Court of Assistants, or Great Quarter Court; third, the County Courts, or Inferior Quarter Courts; fourth, the Strangers' Courts; and, fifth, the Selectmen's, Magistrate's, or Petty Commis-
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THE STORY OF ESSEX COUNTY
sioner's Courts, all retaining the functions and jurisdiction, original and appellate, described above.
During the period extending from the subdivision of the Colony of Massachusetts Bay into counties to the revocation of the charter in 1684, any person accused of a criminal offense was accorded the option of trial by a jury of his peers. This right, a departure from the traditions of English common law, was affirmed by one of the "Liberties" of 1643, and was the subject of one of the first actions of the General Court under the Provincial Charter of 1692, as a part of the "Bill of Rights" which was disallowed, shortly after its pas- sage, by the Privy Council. Since that time trial by jury has been obli- gatory in criminal cases in Massachusetts. The option, which, when the defendant dispensed with jury trial, often resulted in a more clement and dispassionate execution of justice than a jury would be likely to administer, has been forgotten for over two hundred years. Even when the defendant chose to be accorded a trial by jury, the magistrates sometimes refused to concur with the jury's verdict of guilty or to give sentence, as in the trial of Ann Hibbins for witch- craft in 1656. Although the magistrates refused to acknowledge the verdict of the jury, in this case, the unfortunate Mrs. Hibbins was finally found guilty and executed by the order of the General Court. By 1673, however, a law was passed limiting the power of the mag- istrates in determining guilt, in a jury trial, to the explanation of the law in relation to the facts presented, as summed up in the final charge to the jury.
Court procedure during the seventeenth century was, as a rule, crude and unformed. The magistrates themselves were generally untrained in the law. Family position and personal prestige in the community were the bases of the selection of magistrates, and, although most of them were able and intelligent men, they were not equipped by training with the judicial turn of mind so valuable in the rendering of impartial justice. Common law rules of the admis- sability of evidence were therefore forgotten, especially as there were no trained lawyers in the Colony to bring them to the attention of the courts. For many years the parties to a case customarily pleaded their own causes in court, and the juries and magistrates administered a crude justice, probably based as much upon common sense as upon the rules of common law. The court procedure was, however, ade-
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quate in most cases rising out of the simple society of the early days, and it was only under such stresses as the witchcraft delusion and the gradual increase in the complexity of life during the eighteenth cen- tury that the need for improved procedure and legal training was strongly felt.
Although there was no trained bar in the early days, and the principals in cases at law at first pleaded their own causes, it was not long before the custom, sanctioned by the "Body of Liberties" of 1643, of employing "usual and common attorneys" to argue cases came into being. Men who did not feel capable of handling their own defense or cause became more and more accustomed to hire attor- neys, until by 1656 it became necessary to pass a law restricting the parties to a case to an argument of one hour each, a fine of twenty shillings being imposed for each hour above the time limit. These men, the common attorneys, were not trained in the law, but were familiar enough with court procedure to make their services worth while. The lawyers were bound by no oath, and were in no way responsible to the court until 1686, when an order was passed regu- lating lawyers' fees and requiring an oath.
Although great legal erudition was not considered necessary for the magistrates in those days, the dignity of the bench was carefully maintained, especially in the years following the establishment of the royal province. The judges wore wigs and robes, and, when traveling on circuit, were met at the borders of the shire towns by the sheriff and a military guard or a group of prominent citizens, and were escorted to their destination with great pomp and ceremony. Besides exercising the unusual powers in court already described, the magis- trates frequently were called upon by the litigants to advise them as to the most advantageous manner of handling their differences before their cases came up, the judges thus serving in the double capacity of magistrates and counselors-at-law.
There were other peculiarities of procedure in the days of the colonial charter. Cross-examination of witnesses was not practiced, and the principal duty of an attorney or a defendant acting as his own lawyer was to argue the case. Any juryman not certain of some point of law or fact could ask advice in open court. Although there were few, if any, set rules of conduct in court, any behavior considered by
Essex-4S
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THE STORY OF ESSEX COUNTY
the magistrates to be unseemly resulted in confinement in the stocks or public whipping.
The lack of a trained bench and bar was perpetuated far too long by an unreasonable prejudice against lawyers which grew up during the latter half of the seventeenth century. The beliefs that legal train- ing was not needed in judges and lawyers, and that any intelligent man was capable of the proper dispensation of justice were fine, demo- cratic notions, but they finally caused a great deal of political trouble and personal suffering, as will later be seen. A statement made by Edward Randolph, in 1685, aptly combines the sense of distrust toward lawyers prevalent in the Colony and an appreciation of the need for them. He said that there were only two attorneys in New England, and requested the Mother Country "to send some honest lawyers, if any such there be in nature."7 Even the "common attor- neys" apparently were in disrepute as they were disqualified for elec- tion to the General Court.
In "The Commonwealth History" the opinion is advanced that the fall of the Puritan Government, following the loss of the charter in 1684, and the beginning of the decline of the Puritan Church can largely be explained by the lack of a trained bench and bar.8 During the twenty years of controversy over the charter, from 1664 to 1684, and the subsequent uncertainty of land titles under the Andros régime, the lack of an adequate bar was seriously felt; but the most serious blow to Puritan prestige, and a factor intimately connected with the history of Essex County, was the inability of the Puritan courts, bench, and bar to deal sanely with the witchcraft delusion. The lack of a trained bar and adequate restrictions in such matters of court procedure as the admissability of evidence has been held responsible, in the opinion of many, for the existence of the delusion itself, for had the first cases been promptly thrown out of court, as they deserved to be, the widespread terror would doubtless have failed to develop.
At the height of the hysteria, by the first action of the provincial government under the charter of 1691, a special court of "Oyer and Terminer" was created to deal with witchcraft. This body first met at Salem, June 2, 1692, and its history is almost entirely identified
7. "The Municipal History of Essex County," Benjamin F. Arrington, Lewis Hist. Pub. Co., N. Y., 1922, Vol. II, p. 826.
8. "The Commonwealth History of Massachusetts," op. cit., Vol. II, p. 156.
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with that of Essex County, where the delusion was at its worst. The magistrates selected were a group of men of high standing in the province, but lacking in judicial training and habit of thought. They were : William Stoughton, Chief Justice, and Nathaniel Salton- stall, John Richards, Bartholomew Gedney, Wait Winthrop, Samuel Sewall, and Peter Sargent, Associate Justices. Mr. Saltonstall, dis- pleased with the procedure of the court, soon resigned, and Jonathan Corwin was appointed in his place. Of this group there were two clergymen, two physicians, three merchants, and one military officer; the lack of a single individual especially trained in the law is extremely significant.
The record of this court during the short period of its existence, from June 2, 1692, to the seventeenth of the following September, has been deplored many times. Nineteen convictions, each followed by the death penalty, and one fatality resulting from an attempt to extort a confession, comprise its grisly record. A statement written by Emory Washburn, and quoted in "The Municipal History of Essex County," explains clearly the relation between the lack of a trained bench and bar and the serious though unintentional malad- ministration of justice of which the Court of Oyer and Terminer of 1692 was guilty :
"For the credit of New England it would be well if oblivion could settle down over this period of her annals. But the history of the Court furnishes a lesson which ought not to be forgotten. It was a popular tribunal, there was not a law- yer concerned in its proceedings. Every rule of evidence by which the Courts of common law are governed was abrogated, and judges and jurors were left untrammelled by the "quibbles of the law" to follow their own feelings and the popular will. Human nature may have changed and a court equally popular and equally unacquainted with the rules which govern judi- cial proceedings might stand against a strong popular delu- sion or excitement, should such occasion again occur, but he must disregard the light of experience who could hope to be safe under its administration. Is it to be believed that abuses as monstrous as the whole proceedings of the court, in fact, were, could be tolerated, had there been an enlight-
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ened bar in Massachusetts whose services should have been exerted in favor of the accused ? It was not for want of learn- ing or honesty on the part of those who were engaged in those trials that injustice was done. It was that their habits of thought, their entire ignorance of the salutary rules of law, and their want of familiarity with the process of investigating the merits of judicial controversies, unfitted them to hold the scales of justice with impartial hands, and to discriminate between the excited prejudices of the many and the truth or falsehood of the charges which they were called upon to examine."?
After the witchcraft hysteria had become somewhat subdued, the decision of the Court of Oyer and Terminer fell into popular dis- repute, and the appalling injustices of the convictions came to be gen- erally appreciated. The prestige of the court was certainly not enhanced by the doubt as to its legality under the provincial charter arising from the fact that it had been created by Governor Phips, at the behest of the Mathers and others, apparently without legal authority, a few days before the first meeting of the General Court under the new charter. The Court of Oyer and Terminer was finally repudiated October 17, 1711, when the General Court passed an act reversing all the witchcraft convictions of 1692. The touching con- fession of Samuel Sewall, one of the magistrates, offers a concrete example of how an intelligent, well-meaning, and educated man, unaided by specific legal training and habit of mind, could fail utterly in the proper execution of justice.
Samuel Sewall was a member of a distinguished Newbury family, and was generally closely in touch with affairs in Essex County, though his residence for a good part of his life was in Boston. He came to the Colony with his father, Henry Sewall, in 1661, at the age of nine, and graduated from Harvard in 1671. He was a theo- logian, although he had no settlement, and held various public offices of importance. Historians do not agree as to the character of Sewall, although a reading of his personal diary, which has been published in the collections of the Massachusetts Historical Society, should give sufficient insight. Washburn, as quoted by William T. Davis, spoke of Sewall as "among the most learned, pious, and honest
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