USA > Massachusetts > Essex County > The story of Essex County, Volume II > Part 18
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9. "The Municipal History of Essex Co., Massachusetts," op. cit., Vol. II, p. 838.
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men in the province, possessing purity of heart and magnanimity of spirit," while Davis himself characterized him as "a narrow, bitter and unrelenting theologian to whom can be accorded only the justi- fication and defence which the inquisition of Spain might have claimed."10 In any event, Sewall felt called upon to make a public confession of wrongs committed as a member of the Court of Oyer and Terminer on a special fast day, January 14, 1697, in memory of the victims of the witchcraft prosecutions of 1692. An excerpt from Sewall's diary reads as follows :
"Copy of the Bill I put up on the Fast Day, giving it to Mr. Willard as he passed by, and standing up at the reading of it, and bowing when finished, in the afternoon.
"Samuel Sewall, sensible of the reiterated strokes of God upon himself and family; and being sensible, that as to the guilt contracted upon the opening of the late Commission of Oyer and Terminer, at Salem (to which the order of this day relates), he is, upon many accounts, more concerned than any that he knows of, desires to take the blame and shame of it; asking pardon of men, and especially desiring prayers that God, who has an unlimited authority, would pardon that sin, and all other sins, personal and relative; and according to his infinite benignity and sovereignty, not visit the sin of him, or of any other, upon himself or any of his, nor upon the land : but that he would powerfully defend him against all tempta- tions to sin, for the future; and vouchsafe him the efficacious, saving conduct of his work and spirit."11
Before tracing the growth of the Essex County bar, it is desir- able to set down, although necessarily rather briefly, the development of the court structure after 1685, in order that the conditions under which the bar developed may be understood, and the positions held by several outstanding Essex County judges may be recognized.
After the revocation of the colonial charter in 1684 and the arrival of Governor Andros late in 1686, the court structure, which had gone almost unchanged for over forty years, was subject to sev- eral sudden and confusing alterations. Indeed, it was not until 1699
10. "The History of the Judiciary of Massachusetts," William T. Davis, Boston Book Co., Boston, 1900, p. 61.
II. "The New England Historical and Genealogical Register " 1870, p. 413.
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that the courts achieved any permanent form. In May, 1684, the King appointed Joseph Dudley "President," and also appointed the members of the "Council," who took the place of the old assistants. The president and council had no legislative power, except the right to establish courts of justice, at the time acting themselves as trial court. They established a Superior Court, meeting three times yearly at Boston, and "Courts of Pleas and Sessions of the Peace" meeting at specified times in the several counties. The president himself assumed probate jurisdiction. On July 26, 1686, William Stoughton, to be assisted by John Richards and Simon Lynde, was appointed to preside over the County Courts of Essex, Middlesex and Suffolk. Appeals from the courts, ordinary and superior, could be taken to the president and council.
With the arrival of Governor Andros, on December 19, 1686, definite changes were made in the government of the Colony. His jurisdiction included the Plymouth Colony, as well as the rest of New England. He appointed his own council, of thirty-nine men, and, with that body, exercised complete judicial, legislative, and adminis- trative control, subject to royal approval. A "Quarterly Sessions Court" and an "Inferior Court of Common Pleas," to be held by the justices of each county, were provided. The jurisdiction of the latter included civil cases in which the amount involved was between ten pounds and forty shillings, cases involving less than the smaller amount being handled by justices of the peace. The "Superior Court of Judicature" had appellate jurisdiction from the courts mentioned above, and original jurisdiction in more important civil and criminal cases. The Superior Court of Judicature sat in Ipswich and Salem, as well as in ten other towns in New England.
After the "Glorious Revolution" and the fall of James II, in 1688, Andros was arrested and sent back to England, and a new gov- ernment was provided for by the charter of 1691, received in Boston early in 1692. By this charter, Plymouth Colony, Maine, and Nova Scotia were included in the Province of Massachusetts Bay, and the appointment by the King of a Governor, Deputy Governor, and a Secretary was provided for. The Assistants, or Councillors, were to be chosen by the General Court, and a House of Representatives was to be elected annually by the votes throughout the province. The General Court was authorized to create a court system, and the Gov-
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ernor and Council could appoint judges, sheriffs, and other court officers.
The actual setting up of a judiciary was fraught with difficulty, for the first two attempts were disallowed by the Privy Council, to which body all provincial acts of Legislature had to be submitted for final approval. The first act was passed by the General Court and approved by the Governor on November 25, 1692, and provided for Courts of Justices of the Peace, four Quarter Sessions of the Peace in each county, an Inferior Court of Common Pleas in each county, a High Court of Chancery for the whole province, and a Superior Court of Judicature, also for the province. At least some of these courts, although disallowed by the Privy Council, functioned until June, 1697, when a similar act was passed, continuing the Superior Court of Judicature and providing for county courts, which was dis- allowed in turn. One explanation that has been advanced for the disfavor of the Privy Council toward the act of 1692, and possibly the later one, was that the Crown was jealous of its jurisdiction in equity, which the proposed High Court of Chancery violated.
Finally, on June 26, 1699, legislation creating a system of courts which continued, with slight alterations, until after the Revolutionary War was passed by the General Court. Similar in many ways to the courts of the period preceding the loss of the colonial charter, and continuing some institutions which had been in existence since 1692, the structure was based primarily on the county courts. At the bot- tom, of course, the justices of the peace continued to handle small matters, such as civil cases involving less than forty shillings. Origi- nal jurisdiction in civil matters of forty shillings or more was placed in the hands of the Inferior Courts of Common Pleas, which were county courts held at specified places and times "by four substantial persons, to be appointed and commissioned as justices of the same court in each county, who shall have cognizance of all civil actions arising or happening within such county, provided that no action under the value of forty shillings shall be brought into any of the said Inferior Courts, unless where freehold is concerned or upon appeal from a justice of the peace." A Court of General Sessions of the Peace was also created by the Acts of 1699. This body was a county court having criminal jurisdiction, and held "by the justices of the peace of the same county, who are hereby empowered to hear and
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THE STORY OF ESSEX COUNTY
determine all matters relating to the conservation of the peace and punishment of offenders." The Superior Court of Judicature was continued, in personnel and function, under the Act of 1699. It was presided over by a chief justice assisted by four associates, appointed by the Governor and Council, and had appellate jurisdiction over cases from the Court of General Sessions of the Peace and the Inferior Court of Common Pleas. This body sat ten times yearly, at specified dates and places, its Essex County sessions being held at Salem on the second Tuesday in November, and at Ipswich on the third Tuesday in May. It was the court of last resort in the prov- ince, although petitions could be carried to the General Court by dissatisfied litigants.
The Acts of 1699 provided a complicated system of reviews, which made it possible to drag certain cases out over three years. The Privy Council, rightly enough, objected to this procedure, and the law was modified by the Acts of 1701. From this time to the Revolu- tion the court structure remained essentially the same.
With the creation of the Superior Court of Judicature and the institution of the new form of government headed by a royally appointed Governor, the Puritan theocracy began to be supplemented by a true government of laws. No longer were the Puritan clergy able to dictate to the legislative and judicial branches of the govern- ment. The governors whom the King sent to Massachusetts, though not necessarily hostile to the Puritans, were able to disregard the wishes of the clergy, unlike their predecessors of the Bay Colony. This factor, in conjunction with the loss of prestige suffered by the Puritan Church after the witchcraft prosecutions of 1692, resulted in the rapid decline of the power of the clergy. During most of the eighteenth century, and to an increasing extent as the century pro- gressed, the influence of the church in public affairs was negligible. As the power of the church declined, a government of laws developed, facilitated by the gradual rise of a trained bench and bar.
During the period extending from the establishment of Massa- chusetts as a royal province to the Revolution, court procedure developed along the lines practiced in the courts of England. Forms of procedure became fixed, and were so complex that an attorney not well versed in the law could not hold his own in court. Where legal technicalities were virtually unknown in the courts of the seventeenth
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century, by the Revolution court trials, in many instances, had come to be little more than quibbles over obscure points of law. This situ- ation continued for many years after the War of Independence, and has not been entirely remedied up to the present day. The following statement regarding court procedure in the Province is found in the "Municipal History of Essex County :
"for many years after the new organization of the gov- ernment [in 1692] the course of practice seems to have been extremely sharp and captious in the courts. What little of special pleading was known was turned into a mere tool of trick and artifice in the hands of pettifogging attorneys. Pleas in abatement were very frequent, and special demurrers for trifling errors and defects were in use in all the courts. Spe- cial pleading, however, was far from being understood as a system. Indeed, the profession, instead of regarding the law as a science, made use of it as a mere trade in which trick and cunning took the place of learning and fair dealing."12
The court structure and procedure which had developed under the government of the Province of Massachusetts Bay in New Eng- land continued practically unchanged for many years after the Revo- lution. In 1781 the Superior Court of Judicature became the Supreme Judicial Court, the functions and personnel of the older body being continued in the newer one. Indeed, this court, with a few changes and some broadening of function, still occupies the top of the judicial hierarchy of Massachusetts. Another change in nomencla- ture occurred in 1782, when the Inferior Court of Common Pleas became known as the Court of Common Pleas. This court now con- sisted of four justices, appointed from within the county.
During the period extending from 1807 to 1821 the county court structure was revised several times. In 1807 the county justices of the peace lost the right to sit on the bench of the Court of General Sessions of the Peace, and the appointment of one chief justice and several associates justices in the various counties was provided for. Two years later, in June, 1809, the Courts of General Sessions were abolished, and their jurisdiction taken over by the Court of Common Pleas. On June 21, ISII, the County Courts of Common Pleas were
12. "The Municipal History of Essex County, Massachusetts," op. cit., Vol. II, p. 864.
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replaced by Circuit Courts of Common Pleas. Six circuits were laid out, the counties of Essex, Suffolk and Middlesex becoming the "Mid- dle Circuit." The new courts followed the same schedule, as to time and place, as the old ones, and each consisted of a chief justice and two associates, with whom sat two sessions justices from the county in which a particular session of the court happened to be held. Four days later, June 25, 1811, the Courts of General Sessions of the Peace were revived and assumed their former jurisdiction until Feb- ruary 28, 1814, when they finally passed out of existence as courts of law, their functions being taken over by the Circuit Courts of Com- mon Pleas. In 1819 the Courts of Sessions were revived as adminis- trative bodies of the counties with authority over county highways, jails, and general county business, the Circuit Court of Common Pleas retaining the judicial functions that the former bodies had exercised previous to 1814. In 1821 the Circuit Court of Common Pleas was replaced as the law court of the county by a Court of Common Pleas consisting at first of a chief justice and two associates, and later being increased to a total membership of seven.
The next important addition to the court structure involved the creation of the District Police Courts, which inherited many of the functions of the justices of the peace and the selectmen's courts. These courts are localized each to a small, particular area, and have original jurisdiction in small criminal and civil matters. The first to be established in Essex County was in Newburyport, in 1833, fol- lowed by Salem, in 1838; Lawrence, in 1848; Lynn, in 1849; Haverhill, in 1854; and Gloucester, in 1858. There are now nine District Courts in the county. The Salem, or First Essex District, includes Salem, Beverly, Danvers, Hamilton, Manchester, Middleton, Topsfield, and Wenham. The Amesbury, or Second Essex District, includes Amesbury and Merrimac, and has concurrent jurisdiction in Salisbury. The Ipswich, or Third Essex District, is confined to the town itself. The Haverhill, or Northern Essex District, includes Haverhill, Groveland, Georgetown, and Boxford, and has concurrent jurisdiction in West Newbury. The Gloucester, or Eastern Essex District, includes Gloucester, Essex and Rockport. The Lynn, or Southern Essex District, includes, Lynn, Marblehead, Nahant, Sau- gus, and Swampscott. The Lawrence District includes Lawrence, Andover, North Andover, and Methuen. The Newburyport District
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includes Newburyport, Newbury, and Rowley, and has concurrent jurisdiction in Salisbury and West Newbury. The Peabody District includes Peabody and Lynnfield.
In 1859 the Superior Court replaced the Court of Common Pleas as the great trial court of Massachusetts, and the larger framework of the court structure as it stands today was completed. The Superior Court was at first comprised of ten justices, appointed by the Gov- ernor and Council, and has since been increased to twenty-nine jus- tices and a Chief Justice. The justices are appointed at large through- out the Commonwealth and are assigned each year, by the Chief Justice, to the various sessions. Though not a county court, its terms are held by counties. The shire towns of Essex County, where Supe- rior Court sessions are held, are Salem, Lawrence, and Newburyport.
The development and administration of probate affairs up until 1692 has already been discussed. Under the government of the Province of Massachusetts Bay the Governor and Council had the probate jurisdiction, but, claiming the right of substitution, let it be administered by Judges and Registers of Probate specially appointed for each county. In 1784, however, a system of county probate courts was instituted, and has continued with much the same jurisdic- tion since then, save that the office of Register of Probate became elective in 1856 and the same year a Court of Insolvency was created over which the Judge of Probate presided. Since the National Bank- ruptcy Act the Court of Insolvency has been discontinued.
In brief résumé, since 1859 the structure of the judiciary of Mas- sachusetts has virtually been unchanged. At the bottom of the hier- archy are the District Courts, above which is the Superior Court, while, as the court of last resort in Massachusetts, stands the Supreme Judicial Court. The probate courts of the counties, meanwhile, con- tinue to exercise their valuable functions. The fact that a Federal system of courts has been superimposed upon the State courts should not be forgotten, although their bearing on Essex County affairs has not been particularly important, since their jurisdiction is confined to Federal offenses and interstate claims.
The lack of provision for a proper jurisdiction in equity was long a handicap to justice in Massachusetts. Under the Superior Court of Judicature principles of equity were practically unknown. The jeal- ousy of the Crown had prevented the establishment of a Court of
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THE STORY OF ESSEX COUNTY
Chancery in the Province, and for many years after the Revolution no move was made to provide for one. Although previous to the Revolution an informal equity was sometimes administered, unknow- ingly, by the layman judges then sitting on the bench, and equitable decisions were sometimes obtained by special petition to the General Court, the bar was almost entirely ignorant of its principles. It has been only during the past fifty years that a definite jurisdiction in equity has been provided and placed in the hands of the Superior Court, although the Probate Courts have been given final jurisdic- tion in many cases of equity, to prevent delay and expense.
Closely related to the development of the structure, procedure, and jurisdiction of the courts is the growth of the bar. At the outset of the eighteenth century there was no organized, educated bar in the Province. The "common attorneys" were, as a group, completely untrained in the law, and the judges themselves, though representing a higher level in education and position than the lawyers, had no special legal training. The disadvantages of this situation have already been mentioned. In the course of the next seventy-five years, however, there developed a learned and highly-respected bar.
One of the first signs of a genuine and common appreciation of the need for an improved bar was a statute passed in 1701 confirming the practice of requiring "attorneys" to take an oath which amounted to an agreement to abide by a set code of ethics. From this time for- ward a gradual improvement in the legal profession can be seen. Indeed, eleven years later, in 1812, Benjamin Lynde, of Salem, a bar- rister specially trained in the law, was appointed to the bench of the Superior Court of Judicature, the first trained lawyer to hold an important judgeship in Massachusetts.
Benjamin Lynde, who was probably the first attorney with special legal training to practice in Essex County, was born in Salem, Sep- tember 22, 1666, and graduated from Harvard in 1686. He went to England in 1692 and studied law at the Middle Temple, in Lon- don. He returned to Massachusetts in 1697 as Advocate General of the Court of Admiralty for Massachusetts, Connecticut, and Rhode Island. Two years later he commenced the practice of law in Salem, where his skill in his profession soon won him recognition. During his service as a justice of the Superior Court of Judicature, after 1712, and as Chief Justice, after 1729, he contributed greatly to the
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improvement of the standards of the bench and the bar. Judge Lynde died January 28, 1749.
By 1768 there were twenty-five barristers in Massachusetts, of whom five, Daniel Farnham and John Lowell, of Newburyport; William Pynchon, of Salem; John Chipman, of Marblehead; and Nathaniel Peaslee Sargent, of Haverhill, comprised the bar of Essex County. At this time the prestige and learning of the bar had increased vastly, and all of these men were outstanding. Daniel Farnham was probably the greatest lawyer of Essex County prior to the Revolution, and Lowell and Sargent distinguished themselves at a later date. Nathaniel P. Sargent became a justice of the Superior Court of Judicature in 1775, and Chief Justice of the Supreme Judi- cial Court in 1790; John Lowell held several judgeships, among them being that of Chief Justice of the United States Circuit Court.
The barristers of this period were proud and jealous of their profession, as well they might be, when the stringency of the require- ments for admission to the bar is taken into consideration. In 1769 a meeting of the barristers and attorneys of Essex County made the following resolution :
"It is agreed that we will not take any of these young gentlemen to study with us without previously having the consent of the bar of this County; that we will not recom- mend any persons to be admitted to the Inferior Court as attorneys who have not studied with some barrister three years at least, nor as Attorneys to the Superior Court who have not studied as aforesaid and been admitted to the Inferior Court two years at least, nor recommend them as Barristers till they have been through the preceding degrees and been Attorneys at the Superior Court two years at least, except those gentlemen who are already admitted in this county as Attorneys at the Superior and Inferior Courts and that these must be subject to this rule so far as is yet to come."
At the same meeting it was voted "that the consent of the bar shall not be taken but at a general meeting of the bar for the County and shall not be given to any young gentleman who has not had an education at College or a liberal education equivalent in the judgement of the bar."13
13. "The Commonwealth History of Essex County, Massachusetts," op. cit .. Vol. II, PP. 174-75.
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Thus, the bar of Essex County consisted of liberally educated men, usually graduates of Harvard College, with years of special training and experience behind them. The division of the bar into the grades of barrister and attorney, following the English practice, was by this time firmly entrenched in Massachusetts, and continued to exist until 1836. Although there were but five barristers in Essex County in 1768, the legal profession, including the attorneys, prob- ably totaled several times that number.
During the eighteenth century, when the bar was developing to meet the increasing needs of the times, the caliber of the bench also rose, though to a lesser degree. Justice still was impaired for lack of the "legal habit of mind" on the part of many judges, but these men were more liberally educated, fully as intelligent, and much freer from those prejudices, vestiges of the Middle Ages, which had handi- capped justice in the days of the witchcraft prosecutions, than the judges of the late seventeenth century. In spite of the fact that only four barristers had sat on the bench of the Superior Court of Judica- ture before the Revolution, it would seem that, because of complexity of the court procedure, and the arguments of the learned barristers in court, every newly-appointed judge must have quickly acquired an excellent working knowledge of the law. A few months of hearing the pleas of such brilliant lawyers as Trowbridge, Gridley, Farnham, and Read must have constituted at least a fair legal training. There is no doubt but that the bench of Essex County for several decades before the Revolution was a competent and respected body, although somewhat inferior to the bar in legal learning.
The relations between the bench and bar, in Revolutionary times and for many years after, were not cordial. The barristers, proud of their own learning, were contemptuous of the more limited knowl- edge of the judges. In an address given in 1834, Abraham Holmes spoke of the relative prestige of the bench and bar about the time of the Revolution, saying: "According to the foibles of human nature, the gentlemen of the bar rather looked down on the bench, though they commonly, but not always, treated them with a distant, cool civility. They sometimes said that, with impunity, which would now deprive them of their right to practice."14
14. "The Commonwealth History of Massachusetts," op. cit., Vol. II, p. 185.
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Perhaps the most able of the barristers of Essex County whose most active practice came before the Revolution was Daniel Farn- ham. Born in York, Maine, in 1719, and fitted for college by Rev. Samuel Moody, he graduated at Harvard in 1739. He studied law in the office of Judge Trowbridge, in Cambridge. Having had the great advantage of training under Trowbridge, probably the most profound legal mind in Massachusetts before the Revolution, Farn- ham settled in the part of Newbury which later became Newbury- port and commenced the practice of law about 1742. Reputed to have been the first barrister ever to practice in Newbury and certainly being the only lawyer "east" of Salem, he was fortunate in selecting a town that was awakening from a century of slumber, and was to grow, in the next thirty years, to be one of the more important com- mercial centers of New England.
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