SKETCHES
OF THE
JUDICIAL HISTORY
OF
MASSACHUSETTS
FROM 1630 TO THE REVOLUTION IN 1776
BY EMORY WASHBUEN
- " Copy fair what time hath blurred,
Redeem truth from his jaws." Herbert.
BOSTON:
CHARLES C. I^ITTLE AND JAMES BROWN.
1840.
Entered according to Act of Congress, in the year 1840,
BY EMORY WASHBURN,
In the Clerk's Office of the District Court of Massachusetts.
608950
tr. S~. s~
SPOONER & ROWLAND, Printers, Worcester.
TO THE
LEGAL PROFESSION
IN MASSACHUSETTS,
This work, designed, among other things, to illustrate the de-
pendence of a free People, for an impartial administration of jus-
tice and the security of personal rights, upon the labors of an hon-
orable, enlightened and independent BAR is respectfully in-
scribed by their humble associate,
THE AUTHOR.
PREFACE
The design, of the following work, may be very briefly ex-
plained. Neither the hope of fame nor expectation of profit en-
tered into the considerations which have induced to its prepara-
tion or publication.
When entering upon the study of the profession, with the pur-
suit of which my success in life was to be identified, a curiosity
was awakened to learn something of its history in our own Com-
monwealth. But to inquiries upon the subject, I found little that
was satisfactory. The ordinary sources of historical information
furnished little from which the systems of judicature or the forms
and changes of judicial process in Massachusetts, could be learn-
ed ; and while the actors in the events of its political, ecclesias-
tical and military history had been remembered, comparatively
most of those who had taken part in the administration of jus-
tice had been forgotten.
So obscure was this department of our history found to be, that
nothing but an elaborate research seemed adequate to a satisfac-
tory development of its details.
With a view of discovering these, and without the remotest
idea of preparing a work for publication, I entered upon the in-
vestigation of the early judicial history of Massachusetts, and of
6 PREFACE.
the names and characters of those who had been connected with
the administration of justice here.
These were sought, among other sources, in the general and
local histories which had been published, the compilations of bio-
graphical notices, the records of courts and the state archives, and
the reminiscences and collected facts which were furnished by
individuals whose aid had been solicited in the enterprise.
These investigations however, were chiefly confined to Massa-
chusetts, independent of the colony of Plymouth before its union
with Massachusetts Bay. Nor can this be regarded as an omis-
sion of any importance, since the work of Mr. Baylies so fully
supplies the history of the former colony.
The work now dedicated to the profession, is the result of
these investigations.
If the facts which are here collected, shall hereafter be wrought,
by other hands, into a form which shall give to the legal and judi-
cial history of this Commonwealth an interest, in the public
mind, proportionate to its importance, the purposes of this publi-
cation will have been answered.
Candor however requires, that the general reader should be
apprised that he will find little to interest him in the following
pages.
The field, it is true, was almost untrodden, but little has been
gathered from it with which to gratify taste or give pleasure to
the man of letters.
If in endeavoring to snatch from oblivion, the names of some
of the early Judges and Lawyers of Massachusetts Bay, I have
not been actuated by as high purposes as OLD MORTALITY, in
chiseling out the inscriptions upon the monuments of the slaugh-
tered Presbyterians of Scotland, I have found many of them no
Jess obscured from the eye of the inquirer, than the moss-covered
PREFACE. 7
memorials of those whose deeds and whose virtues that devoted
antiquary was seeking to restore.
I claim nothing for these Sketches, but a diligent endeavor to
collect facts, and a faithful exhibition of what seemed to be histor-
ical truths.
Although few of the authorities which have been consulted are
cited in the work, nothing has been meant to be stated that is not
fully sustained by satisfactory evidence of its truth.
To those who know the labor of such researches, I need not
to others, I could not explain the difficulties which are insepara-
ble from such an undertaking.
Such as it is, I offer the work for the use of those whose curi-
osity may lead them to inquire into the facts of which it pur-
ports to treat, in the hope that the labors of others or my own
leisure may hereafter correct its inaccuracies and supply its
defects.
WORCESTER, 1840.
CONTENTS.
CHAPTER I. The Legislative and Executive Departments of the
Colonial Government from 1630 to 1684. 9
CHAPTER II. The Judicial Department of the Colonial Government
from 1630 to 1686, with its officers and forms of proceedings. 26
CHAPTER III. Forms of Judicial proceedings. 42
CHAPTER IV. Personal notices of the Colonial Governors, &c. 71
CHAPTER V. The Colony during the administration of President
Dudley. 85
CHAPTER VI. The Colony during the administration of Governor
Andros. 94
CHAPTER VII. The Colony from the Revolution till the arrival of
the Charter of 1691. 132
CHAPTER VIII. From the arrival of the Charter in 1692 to the es-
tablishment of courts of Justice, including the trials for witch-
craft. 137
CHAPTER IX. The Constitution and powers of the courts under
the Province Charter, with individual notices of some of their
officers. 151
CHAPTER X. Civil and Criminal process in the Province State of
the Courts and Bar before the Revolution. 188
CHAPTER XT. Personal notices of the Attorneys General, Solici-
tors General, and some of the Barristers who practised in the
courts under the Provincial Government. 203
CHAPTER XII. Personal notices of the Judges of the Superior
Court, from 1692 to 1775. 241
CHAPTER XIII. Personal notices of the Judges of the Courts of
Common Pleas during the continuance of the Province Char-
ter. 318
SKETCHES
OF THE
JUDICIAL HISTORY OF MASSACHUSETTS.
CHAPTER I.
*
The Legislative and Executive Departments of the Colonial
Government from 1630 to 1684.
The Colony of Massachusetts, like that of Plymouth,
owed its final success to the untiring religious zeal and
unconquerable love of freedom of those who planted it.
But its' origin may be traced to a design of establishing in
the new world a trading community upon a plan similar
to that of the East India Company, for which a patent
had been previously granted.
The plan as devised, regarded only the management of
the business of a limited corporation, but it assumed, the
moment it was carried into effect, the character of a civil,
religious and political community.
The colonists derived the right of domain over the soil
from the crown of England, through one of the two compa-
nies, to whom, with a sweeping grant, the continent of Ame-
rica between the latitudesof 34 and 45, had been divided by
a royal charter. The southern portion of this territory was
2
10 JUDICIAL HISTORY. [Ch. 1.
appropriated to the London Company, as they were called,
while the northern part of it was assigned to the other,
called the Plymouth Company. These grants were made
in 1606 by James I., who then occupied the throne of
England.
In 1628 the council of the latter company, which had
been created into a new corporation in 1620 by a pa-
tent from the king, conveyed to Sir Henry Roswell and
five associates who resided in the vicinity of Dorchester
in England, the territory extending from three miles north
of the Merrimac to three miles south of the Charles riv-
er, and the tenure by which it was to be held (for nothing
but a title to the soil passed by the grant,) was that of
" free and common socage as of the manor of East Green-
wich in Kent."
This was not done, however, till the original company,
having become discouraged by their abortive attempts to
plant colonies within its territory, had abandoned their
original design.
The associates of Sir Heury Roswell in this purchase
were Sir John Young, Thomas Southcote, John Hum-
phrey, John Endicott and Simon Whitcornb. It was, how-
ever, through the influence of the Puritans in England
that the colony of Massachusetts Bay was at last settled.
The persecutions which English nonconformists had been
suffering through the two previous reigns of Elizabeth and
James, and which, under Laud, had become more intoler-
able than ever, led them to look for some refuge from the
pitiless storm to which they were exposed at home. Mr.
White, a nonconformist minister of Dorchester, engaged
actively in accomplishing this object, and his attention was
turned towards New England as a place of retreat and safe-
ty. Through his influence, the patentees of Massachusetts
became acquainted with several leading men among the
Ch. 1.] THE COLONY. 11
dissenters in and near London, and an association was
formed whereby three of the original patentees sold their
interest in the patent to five other associates who be-
came its proprietors in connexion with the remaining origi-
nal patentees. The names of these associates were John
Winthrop, Isaac Johnson, Matthew Cradock, Thomas
Goff and Sir Richard Saltonstall. (1 Holm. 193.) Others,
however, were immediately associated in the enterprise,
for at the first election of officers of the company, a Gov-
ernor, Deputy Governor and eighteen Assistants were
chosen.
Roswell, Young and Southcote withdrew from the com-
pany, and in the summer of 1628 Endicott was sent over
with a small colony and began a plantation at Salem.
As the Patent from the Plymouth Company only con-
ferred a right to the soil of the territory, it became neces-
sary, to govern the affairs of any colonies which the pa-
tentees and their associates might establish, that they
should have a royal charter of incorporation. With an
inconsistency not easily accounted for, Charles I. conferred
upon the company a charter very liberal in its terms, and
seems to have forgotten, for a moment, the hostility which
he had hitherto manifested towards this persecuted sect of
Christians. The charter thus granted bears date March
4, 1628, corresponding to the 15th of March 1628 in the
computation of time under the " new style," adopted in
1752.
By this charter a corporation was created by the name
of " the Governor and Company of the Massachusetts Bay
in New England," and twenty-six persons were named in
it as the patentees to whom it was granted.
As this charter was the basis upon which the govern-
ment of Massachusetts rested for more than half a centu-
ry, it becomes necessary to analyse the powers it conferred
12 JUDICIAL HISTORY. [Ch. 1.
upon the corporation, in order to see how far the legisla-
tive and judicial branches of the colonial government, as
afterwards established, conformed to the provisions which
it contained.
In the first place, the officers of the corporation were to
consist of a Governor, Deputy Governor and eighteen Assis-
tants, and these were to be chosen by the freemen annu-
ally, at the General Court which was to be holden on the
last Wednesday in Easter Term. The General Courts
were to consist of the Governor, Assistants and Freemen,
and were to be holden four times in each year, at which
freemen were to be admitted, officers chosen, and laws
and ordinances enacted.
Besides these General Courts, there were to be monthly
courts, held by the Governor, or, in his absence, the Depu-
ty Governor and at least seven Assistants, " for the hand-
ling, ordering and dispatching of all such businesses and
occurrences as should from time to time happen touch-
ing or concerning said company or plantation." The
nature and extent of the power of legislating for the com-
pany which was delegated to the General Court by the
charter, were to establish all manner of wholesome orders,
laws, statutes and ordinances, " as well for settling the
forms and ceremonies of government and magistracy,"
" and for naming arid settling of all sorts of officers needful
for the government and plantation," as also for " imposi-
tion of lawful fines, mulcts, imprisonments or other lawful
correction, according to the course of other corporations
in this our realm."
The Governor and, in his absence, the Deputy Govern-
or was authorized to call all meetings of the company, and
either the Governor or Deputy Governor was to be pres-
ent at the General and Monthly Courts.
From this abstract of the charter it will be seen, in the
Ch. 1.] THE COLONY. 13
limited and undefined powers that it conferred upon the
company, how little the king or the company anticipated
the springing up of a republic in this western wilderness
whose civil and social relations should become as complex
and wide-spread as those of the colony of Massachusetts
were found to be within a few years after it was planted.
The powers and privileges of the charter were conferred,
as stated by that instrument, in order that "the inhabi-
tants there may be so religiously, peaceably and civilly
governed, as their good life and orderly conversation may
win and incite the natives of the country to the knowl-
edge and obedience of the only true God and Savior of
mankind, and the Christian faith which, in our royal inten-
tion and the adventurers free profession, is the principal
end of this plantation."
It was, in fact, designed that the corporation should
exist in England, and that colonies should be sent out
like that at Salem, while the officers of the company
should continue to be elected and to reside in England.
Nothing is directly said in the charter in regard to estab-
lishing Judicatories, nor does it recognize a judicial sys-
tem of any kind beyond the mention that is made of
Magistrates. It never could have been anticipated by the
framers of that instrument, that within a few years a
complete system of judicial and executive powers would
have sprung up in the colony, independent, in effect, of
the mother country, and which though assuming a novel
form, was yet well adapted to the primitive wants, and
condition of a prosperous and enterprizing community.
At the first meeting of the corporation which was held
in London, Matthew Cradock who had been named by the
king in the charter as Governor, was elected to that office
by the company. But in the latter part of the year 1629,
several persons in England "of figure and estate," pro-
14 JUDICIAL HISTORY. [Ch. 1.
posed to remove to Massachusetts Bay, if they could be
permitted to take with them the charter and to exercise
its corporate powers in the colony. ]
An arrangement was, at length, made, whereby this
proposition was to be carried into effect, and such of the
company as remained in England, were to share in the
profits of the trading stock of the corporation for a certain
number of years, while the control of its concerns was
committed to those who chose to emigrate thither.
Pursuant to this arrangement, a new election of officers
took place, and John Winthrop was chosen Governor and
John Humphrey Deputy Governor. " This," says Chal-
mers, (p. 142 and 151) " was the first instance on record of
a corporate body that ever sold itself," and he contends,
that the first meeting at which Cradock was chosen Gov-
ernor, was the only one that was held in conformity to
the charter or the principles of the English law.
Winthrop left England in April 1630 with about 1500
colonists, bringing the charter with him, and arrived in
the Massachusetts Bay on the 12th (old style) of the
following June.
The first Monthly Court, or Court of Assistants as it
was called, was holden on board the Governor's ship, the
Arbela, in Charlestown harbor, Aug. 23, 1630, ( 1 Holmes
255,) and the first General Court was held at Boston, Oct.
19th of the same year. The first meeting of the latter
1 An undue regard seems to have been had to the possession of the instru-
ment by which their corporate powers were created. It was deemed neces-
sary to take this with them in emigrating to Massachusetts, in order to exercise
the powers it conferred within the limits of the colony to be formed there. The
same idea seems to have prevailed at a later period, not only in Massachusetts
but in the neighboring colonies. The secreting of the charter of Connecticut
when about to be seized by Andros, will occur as an instance in point, to the
recollection of those who remember the history of the " Charter Oak" of
Hartford.
Ch. 1.] THE COLONY. 15
body for the election of officers was held on the last Wed-
nesday of May 1630, which continued to be the day of
the annual meeting of the General Court, until the com-
mencement of the political year was changed by an amend-
ment of the Constitution of the Commonwealth in 1831,
at which time were completed two centuries of the history
of this government.
The government of the company, as established by
charter, was a pure democracy. But at the very first
meeting of the General Court, the freemen gave up so much
of their participation in the administration of public affairs
that after choosing Assistants, they delegated to these the
election of the Governor and Deputy Governor from their
own number, and authorized the Governor, his Deputy and
the Assistants to make the laws and appoint the officers of
the colony. (Chalm. 153.) In May following, however,
a law was passed requiring a General Court to be holden
at least once in each year, at which " the commons may
have liberty to propound the persons whom they should
prefer for Assistants, and to exercise a similar right in their
removal for misconduct or incompetency." At the char-
ter election which took place soon after, the freemen
resumed their original powers, and chose the Governor,
Deputy Governor and Assistants. (1 Holmes 258.) At the
same time, to guard against the influence of improper men
in the colony, a law was made prohibiting any but free-
men from voting at elections, or being eligible to office, or
to act as Jurors, and limiting the right to be freemen to
members of churches, whereby heretics and irreligious
persons were excluded from all participation in the affairs
of the government. This intimate connexion between
church and state continued till near the close of the exis-
tence of the charter, and led to that direct interference
of the clergy in the legislation of the colony, to which
**
16 JUDICIAL HISTORY. [Ch. 1.
there will be occasion hereafter to refer. (Chalm. 153. 1
Hutch. 30.)
As no provision was made in the law of 1631 how
often the Governor and other officers should be chosen,
the freemen in 1632 caused a law to be passed that they
should be elected annually. (1 Bancroft 370.) So jealous
had they then become of an encroachment upon their
powers, although the charter expressly required the election
of their officers to be annually made.
The whole history of the colony under its first charter,
shows that the people paid very little regard to its provis-
ions or limitations, so far as the general management of their
government or their own internal policy was concerned,
and that it was chiefly used as a shield against the com-
plaints and encroachments of the crown, when the extent
to which the powers of the colonial government had been
carried, became the subject of investigation.
Notwithstanding the apparently controling power of the
Freemen in the affairs of the government, in consequence
of their forming an essential part of the General Court,
the actual power was exercised and enjoyed by the Gov-
ernor and Assistants. This arose from the manner in
which elections of officers were made. From the Gover-
nor, downward, all officers were chosen by nomination, and
" calling for a show of hands," when a majority thus man-
ifested decided the election. The last incumbent howev-
er was always the first to be nominated, and the elections
consequently, generally, resulted in continuing the former
officers from year to year. (1 Wint. 71.)
In 1634 a practical change in the government took place
which superceded the entirely popular character which it
had hitherto sustained. The charter was again transcend-
ed to suit the exigencies of the occasion, and, as it was
the act of the people, none saw fit to complain. The idea
Ch. 1.] THE COLONY. 17
of a representation of the freemen by means of delegates
chosen to act in the place of the whole body, is nowhere
recognized in the charter. But the number of freemen
had become so great, and their plantations so scattered,
and some of these were so remote, that it became incon-
venient and dangerous for them to attend the Courts as
they had been hitherto held. The consequence was that
the freemen delegated to a body of men chosen from
among themselves, the power of doing all things, except
electing their officers, which their whole body could other-
wise have done.
The process by which this change took place, is not
easy to be traced, nor how a uniform system of represen-
tation should have been simultaneously adopted by the
several towns without any precedent, unless it was that
of Virginia, to guide them. It seems that in 1632 a dis-
satisfaction, having arisen in regard to taxation, the several
towns chose two persons each, to attend at the next Court
of Assistants to advise with the Governor and Assistants
about the raising of money, and delegates from eight
towns were present on the occasion. This led to the se-
lection of a certain number of delegates from the several
towns, to meet previous to the meetings of the General
Court to prepare the business to be transacted when it
should be convened. An order was passed in 1634 by
which the body of the freemen were to meet at one of the
i
General Courts, while the others should be held by the
Deputies of the towns who now assumed to do whatever
the freemen themselves might do except, as already stated,
the electing of their officers. 1 The first meeting of the
1 The general officers who were to be chosen by the assembled freemen anna-
ally, were the Governor, Deputy Governor, Assistants, Treasurer, Major Gen-
eral, Admiral at sea. Commissioners of the United Colonies, and Secretary of the
General Court. (Col. L. 107.)
3
18 JUDICIAL HISTORY. [Ch. 1.
General Court of Delegates was held May 14, 1634, when
eight towns were represented, each by three deputies. 1
These were Newtown, afterwards Cambridge, Watertown,
Charlestown, Boston, Roxbury, Dorchester, Saugus, after-
wards Lynn, and Salem. (1 Wint. Sav. note 129.)
This was the second representative legislative assembly
which convened in America, and, if we mistake not, the
second that had ever convened, in which a direct and
equal representation of the people was admitted. Virginia
had adopted a somewhat similar system in 1620.
The authority which was thus construed to be delegat-
ed to the representatives of the people, was perpetuated
by their own acts of legislation, and thence-forward the
government was made up of the Governor, Assistants and
Deputies. (1 Hutch. 39.) These all sat together as one
body till 1644, although, as events will show, jealousies
were soon excited in regard to the power of negative,
which one branch possessed over the other. The Gover-
nor, if present, presided at their meetings, but had no nega-
tive upon their proceedings. He sometimes refused to put
questions when they were opposed to his own views, but
the Deputy Governor or some Assistant in such case, was
competent to put the motion, and the vote thereon was
equally valid as if put by the presiding officer. (1 Wint.
320. 1 Doug. 432. 1 Hutch. 61.)
The first disagreement between the branches of the
government arose in relation to the removal of the Rev.
i The Deputies were to be chosen " by papers," and in making such selec-
tion the freemen were not confined to the inhabitants of their own towns : res-
idence within a town which a Deputy was to represent, was not a requisite
qualification for the office. (Col. Laws, ed. 1660. 24.)
But no man, though a freeman, could be accepted as a Deputy who was
" unsound in judgment concerning the main points of Christian religion, as
they have been held forth and acknowledged by the generality of the Protes-
tant and Orthodox writers." (Ib.)
Ch. 1.] THE COLONY. 19
Mr. Hooker to Hartford in 1635. The subject came be-
fore the General Court, and the Assistants were of one opin-
ion, while the Deputies were of another. The Governor
and Deputy Governor were also divided in sentiment.
The dispute ran high, and much ill blood was excited,
when the usual remedy of the day for moral and political
evils, was resorted to. A day of Fasting and Humiliation
was appointed. Mr, Cotton was directed by the General
Court to preach on the occasion, and the result of the con-
troversy was that the Deputies agreed to the principle that
a major part of each branch should concur in order to the
passage of any act. (1 Hutch. 47.) l
A more singular departure from the letter and spirit of
the charter, than any that has thus far been mentioned,
was made in 1636. The colonists were desirous of induc-
ing some of the leading men in England to emigrate to
America, and for that purpose, a law was passed in that
year, providing for the election of a certain number of the
Assistants to hold their office during life, and three, viz.
Winthrop, Vane, and Dudley, were actually chosen under
this law. As might have been expected, however, a jeal-
ousy of an aristocracy was soon excited, and at the end of
three years, annual elections of all their officers were again
resumed. (1 Wint. 184. Felt. Sal. 97 and 121.) ':
Another important change took place in 1636 in regard
to the mode of electing their officers. As has been re-
marked, after the establishment of a system of represen-
tation, it was still required that the body of the freemen
should attend at Boston once a year, for the election of
their officers. This meeting was held in " the meeting
house at Boston." (1 Wint. 132.) But it was soon found
1 The text of the preacher on this occasion may be found in Haggai ii. 4,
but its applicability to the matter in controversy is not altogether obvious to
common minds.
20 JUDICIAL HISTORY. [Ch. 1.
inconvenient for the freemen to attend, and another imped-
iment arose in the way of their assembling, and that was
the scarcity of food in Boston. It was therefore arranged
that Salem, Ipswich, Newbury, Saugus, Weymouth and
Hingham might retain as many of their freemen at home
at the annual election as the safety of the towns required,
and that these might send their votes by proxy. (Felt.
Sal. 96.) A general law in regard to all the towns, au-
thorising the freemen to send their votes by proxy, was
passed in December of the same year, (An. Ch. 42.) which
seems to have been the origin of the mode of electing
Governor and other public officers which has ever since
prevailed in the Commonwealth.
The Governor continued to be chosen by nomination
and raising of hands, till 1634, when Dudley was " chosen
by papers," as they are called in Winthrop's Journal, and
in 1635, as appears from the same authority, (p. 159) the
mode of election was as follows " the Governor and De-
puty were elected by papers, wherein their names were
written, but the Assistants were chosen by papers without
names, viz. the Governor propounded one to the people,
then all went out and came in at one door, and every man
delivered a paper into a hat, such as gave their vote for
the party named, gave in a paper with some figures or
scroll in it, others gave in a blank." l
In 1643 corn and beans were substituted for " papers"
1 As the law required that the magistrates of the preceding year should first
be nominated, the result was that in most cases the same board of Assistants
was continued from year to year as long as they chose to serve. (Col. L. 107.)
In 1649 a method was devised, by law, to have the freemen of the colony
nominate the candidates for Assistants. They were to come together in April
and vote for fourteen whom they wished to have chosen as Assistants. Their
votes were returned to Boston and the fourteen who had the highest number of
votes were " nominated at the Court of Election," &c. (Col. L. Ed. 1660.
27.
Ch. 1.] T H E C O L O N Y . 21
in the election of the Assistants, the corn being the affir-
mative and the beans the negative. (Col. L. 105.) 1
Johnson in his "Wonder-working Providence," (2 Hist.
Col. iv. 22) thus describes the government of Massachu-
setts in 1637. " The Chief Court or supreme power of
this little commonwealth, consists of a mixed company,
part aristocracy and part democracy of magistrates that
are chosen annually by the major\part of the whole body
of the freemen throughout the country, and Deputies
chosen by the several towns. They have hitherto had
about twelve or thirteen magistrates in the colony. They
have hitherto been volunteers, governing without pay from
the people, only the Governor hath some years 100 al-
lowed him and some years less."
An allusion has been made to the direct influence of the
clergy in the affairs of the government, and it may here
be remarked that it continued to be exercised by a formal
appeal to them for advice, until 1682, when, for the last
time, they were consulted in relation to the surrender of
the charter. (1 Hutch. 303, n.) Among the instances
of their participation in the civil power, it is related that
at the election in 1637, Vane and Winthrop were rival
candidates for the office of Governor. One party endea-
vored to delay, while the other pressed the election, and
it was doubtful what would be the result, when Mr. Wil-
son, one of the ministers of Boston, got upon the bough
of a tree and addressed the people in favor of proceeding
with the election, and thereby so roused them that the
i In 1647 a law regulating the sending of votes by proxy was passed provid-
ing among other things that the Governor, Deputy Governor, Major Gene-
ral, Treasurer, Secretary and Commissioners of united colonies were to be
chosen " by writing the names of the persons elected in papers open or once
folded, not twisted nor rolled up that they may be the sooner perused." The
Assistants were still chosen by Indian corn and beans. (Col. L. 106.)
22 JUDICIAL HISTORY. [Ch. 1.
measure was carried. (1 Hutch. 62, n.) This might
seem to be a personal anecdote if it was not consistent
with the usual course pursued by the clergy. They made
the measures of government the subjects of their sermons,
and when in 1639, it was thought advisable to prepare a
body of laws for the regulation of the colony, a commis-
sion consisting of the Rev. Mr. Cotton of Boston and the
Rev. Mr. Ward of Agawam or Ipswich were appointed for
the purpose. Their labors resulted in producing one hun-
dred laws, called " the body of liberties," all of which
were fully sustained by marginal scripture references, and
were adopted by the people in 1641. (2 Wint. 55.)
To show, however, how little the politics of the clergy
comported with the democratic form of the government, it
is stated that when the expediency of adopting the plan of
having permanent Assistants was under discussion, Mr.
Cotton maintained that God never ordained a democracy
as a fit form of government for either church or state ;
that monarchy and aristocracy were both approved of in
scriptures, but his opinion was that a theocracy was the
best system for both church and commonwealth. (1
Wint. 135.)
The separation of the assistants and deputies into two
houses which took place in 1644, grew out of a dispute
in relation to a pig which was claimed by a poor woman
against a man of considerable wealth and influence, which
came before the court for decision. The deputies again in-
sisted that a major vote of the whole assembly should de-
termine the question, while the other party, especially Mr.
Winthrop, strenuously opposed this controling power of a
mere majority. At last it was agreed that the two houses
should sit apart, and that each should have a negative
upon the other, except in judicial matters, where a major
vote of the two houses was still to decide questions that
Ch. 1.] T H E C O L O N Y . 23
should be brought before them. (1 Hutch. 135. Chaltn.
166. Felt. Sal. 162. 2 Wiut. 69. Col. Laws of 1660, 22.)
One consequence of this separation was that while the
Governor, or the Deputy in his absence, continued to pre-
side at the board of Assistants, a new presiding officer be-
came necessary in the House of Deputies, and the title of
Speaker, which was then adopted, has ever since been
retained. The first incumbent who held this office, was
William Hawthorn of Salem, a man of great influence in
the colony. He was afterwards often called to the
speaker's chair, but never in any two successive years.
From the rapid sketch that has been given of the con-
stitution of the government under the first charter, it has
already appeared that little regard was paid to separating
the legislative from the executive branches of it, and there
will be occasion to show that quite as little effort was
made to keep them distinct from the judiciary as from
each other. The executive power was chiefly in the
hands of the Governor, Deputy Governor and Assistants.
(Chal. 137.) The General Court assumed the right to
inflict capital punishments, although no such authority
was delegated in the charter. The power of pardoning
was retained by that body, but the Governor and Assist-
ants had a right to reprieve from the execution of a sen-
tence of death until the next meeting of the General Court.
The warrants for capital punishment were signed by the
Colonial Secretary in the presence of the General Court
and during its sessions.
Randolph states, in 1676, that the Executive Council or
Assistants met twice every week, and as often besides, as
the Governor convened them, and at these meetings he
had a right to the casting vote ; and these seem to have
been the extent of his official powers.
The Governors, however 3 for some years, at least, sus-
24 JUDICIAL HISTORY. [Ch. 1.
tained a pomp and state that comported with a higher de-
gree of authority than they, in fact, possessed. They were
attended by four sergeants with their halberds, every
Sunday, to church, and on all other public occasions.
(1 Wint. 220.) But on the occasion of Winthrop being
chosen over Yane in 1637, the sergeants laid down their
halberds, and the Governor was obliged to call upon his
own servants to bear them before him on his way to
church.
If the design of this work admitted of pursuing the in-
quiry, it would be interesting to follow the various steps
through which the legislature of the colony passed in or-
der to rear upon so slender a basis as the charter of a trad-
ing corporation, a system of laws and institutions designed
for a state practically independent, and possessing all the
wants and capacities of an intelligent and enterprising
commonwealth. Chalmers has preserved a great number
of acts and instances which indicated an intention in the
minds of the colonists to be in reality independent, many
years before the seizure of their franchise in 1 684. The
limits of these sketches, however, do not admit of going
into this inquiry, though it may be remarked as a sam-
ple of their disregard for the crown in matters of form, that
the enacting clause of the acts of the General Court was
simply " It is ordered by this Court and the authority
thereof." (1 Doug. 431.) 1
1 Sundry regulations were made by the English commissioners who visited
New England in 1665, in regard to " the Book of the General Laws and Lib-
erties concerning the inhabitants of Massachusetts," among which were 1. That
the title page should declare the king to be the fountain from which the colony
derived their laws and liberties. 2. That all legal processes should be in his
majesty's name. 3. That his majesty's arms should be set up in every court
of justice, and 4. That the expression " commonwealth" used in these laws
should be expunged and the word "colony" substituted. (2 Hist. Col.
viii. 84.)
Ch. 1.] THE COLONY. 25
No particular change, having a bearing upon the judi-
cial history of the colony, took place until the dissolution,
of the charter. It is therefore proposed to examine more
in detail the course of administering justice during this pe-
riod, and the propriety of these inquiries into the general
and political history of the colony will be seen when it is
understood that the Judiciary was identical with the other
branches of the government, and that whatever illustrates
the mode of proceeding in the one, exhibits what might
be called the course of practice in the other. And if any
of the details which are here collected shall at first seem
trifling, and unimportant, it should be recollected that they
often serve to illustrate the genius of a people, and their
institutions, better than the more serious measures of go-
vernment which usually form the subjects of history.
CHAPTER II.
The Judicial Department of the Colonial Government from 1630
to 1686, with its officers and forms of proceedings.
The power of establishing courts of justice was assumed
by the colonists without any grant of authority in their
charter. (1 Pitkin 42. White's Prob. 9.) But the ne-
cessity of such tribunals must have been so obvious, after
the separation of the company and its government from
England, that it seems to have been acquiesced in, even
by the crown, without any serious objection to the juris-
diction which they assumed, so long as it was confined to
their own citizens and to their own affairs. It was not un-
til several years after the establishment of the colony that
a regular system of courts of justice was settled, and even
then the powers and jurisdiction of some of them were
left vague and indefinite.
The principal of these were the General Court, the
Court of Assistants, County Courts, Strangers' Courts, In-
ferior or Magistrates' Courts, Military Courts and the
Courts of Chancery.
The highest in dignity and power, of these tribunals,
was the GENERAL COURT, in which judicial matters were
heard and decided, like other questions that came before
it, by the votes of majorities. Until the year 1639
this court seems to have exercised the whole power, both
legislative and judicial, of the colony, and to have held
Ch. 2.] THE COLONY. 27
jurisdiction both in civil and criminal matters. 1 But in
1639 a new organization of the judicial power was made,
whereby several of the courts above mentioned, were cre-
ated and the principal judicial powers of the General
Court were transferred to the Assistants.
By the law of 1634, the General Court was declared
" the chief civil power of this Commonwealth," and might
act according to such powers " in matters of counsel, mak-
ing of laws and matters of judicature." (Col. L. 88.)
Upon the establishment of courts of inferior jurisdic-
tion, the General Court retained appellate power in some
cases, and for some time after that, a party was admitted
to prosecute his claims originally before this court in the
form of a petition. To prevent this, a law was passed in
1641 inflicting a penalty upon any party who should bring
any cause before this court, either by petition or review,
(the latter being the mode of bringing up causes from the
Court of Assistants,) where it should appear that he had
no cause for such proceeding. (Col. L. 45.)
The next year a law was passed limiting the original
jurisdiction of this court still further, by requiring that no
cause should be commenced there nor tried by the court
until the party bringing up the case had had one trial and
a review in an inferior court, and was dissatisfied with
the judgment. (Ib. 199.) Where the Jury and the Assist-
ants differed in opinion in the trial of a cause, before the
latter, the action was carried to the General Court to be
determined as the last resort.
In all cases appealed to this or the Court of Assistants,
1 It was early required that before the court should " proceed to judgment in
any cause, civil or criminal," the Deputies should take an oath that " in all
cases where I am to deliver my vote or sentence against any criminal offence
or between parties in any civil case, I will deal uprightly and justly according
to my judgment and conscience." &c. (Col. Laws, ed. 1660, p. 22.)
28 JUDICIAL HISTORY. [Ch. 2.
the trial was had according to the former evidence, and
none other was admitted before them. (Ib. 47.) And in
1654 it was provided that if a court having cognizance of a
case, had difficulty in determining the same, it might pre-
sent the cause without the parties' names, to the General
Court for their adjudication, and the judgment of this
court was entered in the inferior court as the final judg-
ment in the action, (Ib.)
In criminal matters the General Court had jurisdiction
by appeal, when there was a division of three out of five
or four out of seven, and in that proportion, among the
magistrates who originally tried the case. (1 Hutch.
397, 8, 9. Dane c. 187, art. 9. Col. Laws, ed. 1660, p. 2.)
This court moreover sustained a kind of original chan-
cery and supervising power which was continued until
1685, when a system of chancery, subordinate to that of
the General Court, was established.
Lechford in his " Plain Dealing" written about 1640,
says that " in the General Court are tried all actions and
causes, civil and criminal, and also ecclesiastical, especial-
ly touching non-members, and they say that in the Gen-
eral and Quarterly Courts, they have the power of Parlia-
ment, King's Bench, Common Pleas, Chancery, High
Commission and Star Chamber, and all other courts of
England." u They have put to death, banished, fined men,
cut off men's ears, whipt, imprisoned men, and all these
for ecclesiastical and civil offences, and without sufficient
record." He states that appeals lay to the General Court,
and makes no qualification of the extent of this right,
but probably after 1654, appeals to the General Court, ex-
cept where the Assistants and Jurors disagreed, were com-
paratively limited and unfrequent.
This power of revising the decisions of subordinate
Ch. 2.] THE COLONY. 29
courts was exercised by the General Court as long as the
charter was in force.
There will be occasion to refer again to the appellate
power of this court, as well as to its forms of process
and course of practice. But it may be observed, that the
very general nature of its powers renders it impossible to
define them with the degree of accuracy that might oth-
erwise be desirable.
The next court in point of dignity, importance and
power, was that of the ASSISTANTS, who derived their ju-
dicial authority from legislative enactment. 1
By the law of 1639, there were to be two terms of this
Court held " by the Governor and Deputy Governor and
the rest of the Magistrates," in Boston, " to hear and de-
termine all, and only actions of appeal from the inferior
Courts, all causes of Divorce, all capital and criminal causes
extending to life, member or banishment." (Col. L. 90.)
And the Governor was authorised to call special meetings
of this Court for the trial of capital offences. This is call-
ed by Lechford the " Great Quarter Court," and when
he wrote, (1641) as he states, it held four meetings in a
year, one of them being at Salem, one at Ipswich, and
the other two in the meeting house in Boston. 2
The right of appeal from the inferior Courts to that of
the Assistants, was, by its terms, unlimited, but the same
rule as in the General Court was in force, that the Court
upon such appeals " judged the case according to the former
1 Upon a question propounded to the Elders by the General Court in 1644,
it was determined that the Assistants had no power "to act in judicature"
without some law of the General Court granting the authority. (Col L. 733.)
2 The Law constituting the Assistants a Court of Justice provided but for
two terms of it, and those to be held in Boston, and Hubbard's account of the
Court corresponds with this. I am therefore Jed to believe Lechford has led his
readers into an error, by the loose manner in which he describes the colony
courts, although himself a lawyer.
30 JUDICIAL HISTORY. [Ch. 2.
evidence and none other." 1 The jurisdiction therefore of
this Court in judicial matters, was as extensive as that of
the General Court, and it seems originally to have -been
intended to supercede, in a great measure, the necessity of
the General Court's acting upon any thing but the public
business. 2 Lechford therefore, when speaking of the juris-
diction of the General and Quarter Courts, regards it
as the same, and says that they claimed to exercise the
power of the King's Bench, Common Pleas and all other
Courts of England. This Court also exercised Admiralty
jurisdiction, and in 1673 was authorised to act without a
jury, which seems to have been an innovation upon the
former course of proceedings, as well as contrary to the
genius of the Courts of the colony, in which, according to
Lechford " matters of debt, trespass and upon the case, and
equity, yea, and of heresy also, were tried by a jury."
It had also appellate jurisdiction in matters of Probate
which had been determined in the County Courts.
Another class of Courts established in 1639 were COUNTY
COURTS, which embraced the powers of the Courts of Com-
mon Pleas and Sessions, as they were subsequently es-
tablished. (17M. R, 339.)
These courts were held by one or more of the Assist-
1 There was an exception to this rule in case there was a difference between
the Judges and jury about their verdict, so that either of them could not " pro-
ceed with peace of conscience." In such cases the action was " continued to
the Court of Assistants." And the trial was had not only upon the evidence
adduced in the County Court, but either party might introduce new evidence.
(Col. L. ed. 1660, p. 48.)
2 The act constituting the Assistants a Court for the trial of causes is in the
following words. It is ordered, &c. , " that there be Courts of Assistants yearly
kept at Boston by the Governor, Deputy Governor and the rest of the Magis-
trates on the first Tuesday of the first month and on the first Tuesday of the
eventh month to hear and determine all and only actions of appeal from In-
ferior Courts. All causes of divorce, all capital and criminal causes extending
to life, member or banishment. " (Col. Laws, ed. 1660, p. 23.)
Ch. 2.] THECOLONY. 31
ants or " Magistrates," as they were more commonly called,
who resided in the county where the court was to sit, or
by Magistrates appointed from time to time for that pur-
pose by the General Court, aided by Commissioners who
were nominated by the Freemen of the county and ap-
pointed by the General Court. The Commissioners and
Magistrates together were to be five in number, but three
of them, one being a Magistrate, were competent to hold
a court. 1
The jurisdiction of the County Courts extended to all
causes, civil and criminal, except cases of divorce and
crimes, the punishment whereof extended to life, limb or
banishment. They were authorised, for this purpose, to
summon grand and petit Jurors within their respective
counties, and to appoint their own clerks and other neces-
sary officers.
Their criminal jurisdiction was analogous to that of the
Quarter Sessions in England. (17M. R. 339.) And
Randolph says that they also summoned Juries of inquest.
1 The act creating County Courts is as follows: " Also there shall be County
Courts held in the several Counties, by Magistrates living in the respective
Counties, or any other Magistrate that can attend the same, or by such Magis-
trates as the General Court shall appoint from time to time, together with such
persons of worth where there shall be need, as shall from time to time be ap-
pointed by the General Court (at the nomination of the Freemen of the Coun-
ty) to be joined in commission with the Magistrates, so that they may be five
in all, three whereof may keep a court, provided there be one Magistrate.
Every of which Courts shall have full power to hear and determine all causes,
civil and criminal net extending to life, member or banishment, &c." (Col. L.
ed. 1660, p. 23.)
No mode of making * l the nomination of the Freemen" is pointed out in the
statute.
The "associates" of the magistrates who were " chosen" to constitute the
County Courts were required to take an oath of office " that they would do
equal right and justice in all cases that should come before them after their beat
skill and knowledge according to the laws here established." (Col. L. ed.
1660, p. 86.)
32 JUDICIAL HISTORY. [Ch. 2.
As a Court of Sessions, they laid out highways, and
licensed houses of entertainment, and among other duties,
were charged to see that there was an able ministry, and
that it was well supported. (Felt's Sal. 206.) They were
authorised by a law of 1641 to admit persons as freemen
of the colony.
They had also probate jurisdiction, and as such, proved
wills, granted administration and the like. Appeals in
such cases lying from their decisions to the Court of As-
sistants. (White's Prob. 9.)
This exercise of probate jurisdiction continued as long
as the old charter was in force. The clerks of the courts
were, ex officio, recorders, and in the intervals of the
court, the recorder and two of the magistrates were au-
thorised to grant letters of administration and probate of
wills. (Ib.) 1
These courts, as Randolph says, always met upon es-
tablished days, and always begun their sessions upon
Tuesday.
Appeals lay from the judgments of the County Courts
to the Courts of Assistants, and they in turn had appel-
late jurisdiction over causes which were tried before sin-
gle magistrates or commissioners of small causes. (Col.
L. 46 and 67.) By a law of 1649, the original jurisdic-
tion of the County Courts over causes not exceeding for-
ty shillings, was taken away, and by a law of the follow-
ing year, if a plaintiff failed to recover over that amount
in an action of trespass commenced in a County Court, he
failed in his action and was obliged to pay the adverse
1 In addition to their other powers, these courts were authorised to " ques-
tion and censure every person that should publish and maintain any heterodox
or erroneous doctrine, according to the merit of his offence." (Col. Laws,
ed. 1672, p, 61.)
Ch. 2.] THE COLONY. 33
party's costs, even though the damages claimed were
sufficient to give the court jurisdiction. (Col. L. 45.)
Special orders were passed by the General Court from
time to time, relative to these courts, which varied their
powers and form of organization in some respects, but the
description which is here given, presents a view of them,
substantially as they existed while the old charter was in
being.
STRANGERS', or as they were sometimes called, MER-
CHANTS' COURTS, were also established in 1639. These
were designed to accommodate strangers who might visit
the colony for trade or other purposes, and were unable
to remain in the colony to await the ordinary course of
justice.
They might be called, upon the request of such stran-
ger, at any time, by the Governor or Deputy Governor
and two Magistrates, or in the absence of the Governor
and Deputy, by three Magistrates. The jurisdiction of
the court was the same as that of the County Courts, and
the mode of proceeding was the same. Their records,
when made up, were transmitted to the Court of Assist-
ants, to be entered there as the records of other trials.
(Col. L. 91.) But no right of appeal seems to have been
reserved, and as the object of establishing the court was
to promote speedy justice, it is presumed no appeal was
to be had from their decisions.
In 1650, strangers were permitted to enter actions in
any court in the colony, notwithstanding the restrictions
that then existed as to the venue of actions between resi-
dent citizens of the colony. (Ib.)
In 16S2, strangers were restricted from suing other
strangers in any of the colony courts, without first giving
security for the payment of costs. (Ib. 192.)
With these and perhaps some other limitations, " Mer-
5
34 JUDICIAL HISTORY. [Ch. 2.
chant Courts were continued until the dissolution of the
old charier, but were never revived after the change that
then took place. (I Doug. 434.)
COURTS OF CHANCERY were established in 1685, just be-
fore the dissolution of the Charter Government. Until that
time, the General Court had exercised original chancery
jurisdiction, but their business had become so great, that
it was necessary to create another court to relieve them
of a part of their duty. They accordingly constituted the
Magistrates of the County Courts, chosen by the Free-
men, a Court of Chancery, to grant summons and hear
and determine causes upon a Bill of information exhibited
to them "containing matters of apparent equity." They
were authorised to examine the parties to the suit, as well
as witnesses, upon interrogatories, under oath, and might
decree " secundum aequum et bonum," and grant execu-
tion thereon.
Appeals lay from their decision to the Assistants, where
the Magistrates who had heard and determined the cause,
might state the reasons of their judgment, but were not
permitted to vote upon the question of affirming their de-
cision. The judgment of the Assistants was conclusive,
unles the General Court, upon application, saw fit to order
a re-hearing before the Magistrates of the County Court,
with liberty again to appeal as at first, or, " in arduous
and difficult cases," chose to admit a hearing of the par-
ties at their own bar. (Col. L. 93.)
It will be perceived that the erection of a chancery ju-
risdiction was little more than enlarging the powers of the
County Courts, but it has been presented in this distinct
form, because the exercise of this power Avas, in fact, dis-
tinct from that of the other powers of the court, and serves
to exhibit the notions of the people under the first charter
in relation to this, so often contested, branch of the judi-
Ch. 2.] THE COLONY. 35
cial system of Massachusetts. It was the last judicial
tribunal created by the legislature under the first charter,
and, as will appear, not only was there a court with chan-
cery powers established under the administration of An-
dros, but a court with similar powers was one of the first
to be created by the General Court under the new char-
ter. And it was by the arbitrary power of the crown
alone that it was at last suppressed.
A MILITARY COURT, or Commission was established in
1634 to manage the military affairs of the colony. The
Commissioners were the Governor, Deputy Governor and
nine other persons named in the commission, and new
members were added from time to time while the court
continued to exist. Its powers were exceedingly broad.
A majority of those named in the commission might make
offensive and defensive wars, confine or imprison any
whom they might judge enemies to the Commonwealth,
and put to death such as would not come under command
or restraint as they should be required.
The Commission, at first, was to extend only till the
meeting of the next General Court, but it was extended
from Court to Court several times, though it is not easy to
ascertain how long it remained in force. (1 Wint. 156 n.)
In enumerating the tribunals of justice established from
time to time, in the colony, it is proper to mention the
Commissioners of Oyer and Terminer, who were appointed
by the government in England in 1664 to visit the colonies
and hear and determine all matters of complaint, and to
settle the peace of the County.
The commission consisted of Col. Richard Nichols, Sir
Robert Carr, George Cartwright, and Samuel Maverick,
any two or three of whom might form a quorum for the.
36 JUDICIAL HISTORY. [Ch. 2.
transaction of business. 1 They arrived in Boston in July
1664, but their authority was resolutely resisted, and after
a violent controversy, the attempt to establish their juris-
diction as a Court of justice was defeated, and they were
never recognized as such in Massachusetts, although they
partially succeeded in the exercise of their powers in some
of the neighboring colonies. (1 Hutch. 211, 255.)
Besides the Courts already mentioned, there was a class
of Inferior Courts for the trial of small causes, and offences
of inconsiderable importance, whose powers were not only
various but were changed from time to time as the condi-
tion and wants of the people required.
It is stated by Mr. Dane, (6 Abr. 399,) that it does not
satisfactorily appear when these Inferior Courts were first
established. Mr. Stearns (R. Actions 506) states that
jurisdiction in civil actions under forty shillings was con-
ferred upon Magistrates by a law of 1644, and that this was
the origin of the civil jurisdiction of Justices of the Peace
in Massachusetts. Judge Parsons (in 4 M. R. 515) says
that Justices of the Peace were not known as officers
under the first charter, and this may be correct so far as
the mere name is concerned by which they were known
in law. But Randolph says that every Magistrate was a
Justice of the Peace, that they could try causes under forty
shillings, commit to prison and punish offenders for breaches
of the laws, and impose fines at discretion.
By refering to the Court and colony records, it will ap-
pear that the existence of the judicial power of single Mag-
i Nichols was the first English Governor of New York and left that Govern-
ment in 1667. Carr was concerned with Nichols in the conquest of New York
from the Dutch. He returned to England and died there in 1667. Cartwright
returned to England in 1665 and on his voyage was captured by the Dutch.
Maverick was the son of Mr. Maverick, who was residing on Noddle's Island
when Governor Winthrop landed at Boston. (Allen, Elliot.)
Ch. 2.] T H E c o L o N Y . 37
istrates, and of " Commissioners of small causes" is often
recognized, though I have not been able to trace the
original grant of this power.
The first of these in importance were the MAGISTRATES.
This was the title applied for many years, to the Assist-
ants, who by the charter were to be eighteen in number.
By an early law however, the number was limited to four-
teen and was not restored to the original number till 1661.
By the provisions of the colony laws which stand over
the dates of 1647 and 49, Magistrates within the towns in
which they resided, might hear and determine without a
Jury, all causes arising within their respective Counties,
where the debt, trespass, or damage did not exceed forty
shillings, and might issue writs and other process for the
purpose.
They were moreover empowered to hear and try " small
thefts " and other small offences, when the damage or fine
did not exceed forty shillings, and where the offender was
unable to satisfy such fine, the magistrate might punish
by stocks, or whipping not exceeding ten stripes.
Among other powers conferred by law upon the magis-
trates was that of solemnizing marriages, and for many
years none but civil officers were authorized to join per-
sons in marriage.
" COMMISSIONERS OF SMALL CAUSES ' were empowered
to act in all causes within the jurisdiction of a magistrate,
and were approved by the Court of Assistants or County
Courts, upon the request of any town where there was no
resident Magistrate. They were three in number in each
of such towns, and were chosen by the people two of
them forming a quorum for the transaction of business.
Their jurisdiction was confined to their own particular
towns, except that where the parties lived in different
38 JUDICIAL HISTORY. [Ctl. 2.
i
towns, the plaintiff had a right of election in which to
commence his action.
These commissioners had the power of trying civil cau-
ses, but. they could not enforce any judgment by impris-
oning a party, and they could only remit the cause to a
Magistrate or County Court to have execution granted,
where the party refused to give satisfaction and had no
goods in the town where he dwelt which could be reached
for this purpose.
The criminal jurisdiction of these commissioners was
confined to issuing warrants to make searches and appre-
hend offenders, when no Court nor Magistrate was at hand
to issue such order.
They were moreover empowered by an act of 1663, to
take the testimony of witnesses in civil and criminal mat-
ters, and to exercise the authority previously given to the
associates of the County Court, to administer oaths and
take the acknowledgments of deeds " and of surrender of
the right of dowry at any time out of court." (Col. Rec.)
The authority here referred to as given to the Magistrates
was under the act of 1641 relative to dower, (CoL L. 99)
which, it is supposed, may have been the origin of the
mode of releasing rights of dower in use in Massachusetts,
by married women joining with their husbands in deeds
of their estates.
In addition to Magistrates and Commissioners of small
causes, there were cases where the SELECTMEN of towns
were made competent to try civil causes which were with-
in the jurisdiction of a Magistrate. These cases were
where only one Magistrate dwelt in a town, and he was
interested in the cause to be tried, and where there was
no Magistrate and the cause concerned one or more of the
Commissioners. In such cases the Selectmen were au-
Ch. 2.] T H E c o L o N Y . 39
thorized to hear and determine causes and to issue execu-
tions to enforce their judgment. (Col. L. 67.)
Selectmen of towns were moreover authorized to try
offences against the by-laws of such towns, where the
penalty did not exceed twenty shillings, but the by-laws
could not extend to any thing criminal. (1 Hutch.
39799.)
In 1651 a Court peculiar to Boston was created, which
partook partly of the nature of that of Commissioners and
partly of the County Courts. The reason given for its es-
tablishment was the concourse of people and increase of
trade in the town, and that many crimes were committed
there by strangers and others who often escaped unpun-
ished. This Court was to consist of seven Commissioners
to be chosen by the freemen of the town, and approved of
by the Assistants, any five of whom, or three if a Magis-
trate was present, could hear and determine all civil actions
not exceeding ten pounds, arising within certain limits,
including some of the islands in the harbor, and extending
to the neck of land that separates Boston from Roxbury.
They had also jurisdiction in criminal matters where the
penalty did not exceed twenty shillings. They received
their commissions from the Secretary, arid had the power
of appointing their own clerk. Appeals lay from their de-
cisions directly to the Assistants, and so far as their juris-
diction extended, that of the County Court was superceded.
(Col. L. 67, 68.)
This Court was created only for a single year, and as
appears from Hutchinson (i. 162) a jealousy arose against
the apparent independence which Boston was acquiring,
and the law creating it was not renewed.
It was however customary, as appears from the colony
records, to make appointments of special Commissioners
with more or less extended powers, as the occasions of
40 JUDICIAL HISTORY. [Ch. 2.
particular parts of the country required. Thus in 1658,
there being no Magistrate in Salem or Charlestown, Mr.
Hawthorne was appointed for the former, and Richard
Russel for the latter, to act in criminal matters, marriages,
giving oaths in civil cases, &c. "as any one Magistrate
might do by law," (Col. Rec.) In 1661 two of the Com-
missioners in Lynn were authorized to marry, administer
oaths, &c. in the same manner as one Magistrate might
do.
There was also in every town a " Clerk of the writs '
chosen by the town and approved of by the County
Courts who was authorized "to grant summons and at-
tachments in civil actions," and " summons for witnesses,"
" to grant replevins and to take bonds with sufficient se-
curity to the party to prosecute the suit." (Col. L. ed.
1660, p. 18.)
Appeals lay from the judgments of single Magistrates,
Commissioners of Small Causes and Selectmen, to the
County Courts, and the party making it was obliged to file
the reasons of his appeal in writing " without reflecting
on Court or parties by provoking language." (Col. L. 47.)
To guard against prejudice in the minds of the judges
no man who had set as judge of the Inferior Court could
vote in the trial of any cause in the Superior Court which
had once come before him. (Ib.)
Although this description of the Courts of Justice under
the old charter has been necessarily brief and perhaps im-
perfect, and although the names, by which our Judicial
Courts have since been known, differ from those of the
Colony, the Constitution, powers and forms of proceedings
of the latter often serve to throw light upon our present
system, and may help to explain the forms of practice which
prevail at this day.
Under the new charter, the General and Assistants Court
Ch. 2.] THE COLONY. 41
were embodied in the Superior Court, the County Courts
assumed the form of Courts of Common Pleas and Quar-
ter Sessions, while Regular Probate Courts exercised a
part of the former powers of the County Courts, and the
jurisdiction of Magistrates and Commissioners of small
causes came to be exercised by Justices of the Peace in
the same manner, it will be shown, as was done when
the colony charter was vacated in 1686.
During the period thus far spoken of, although the
Courts of Justice were in theory of as popular a character
as could well be imagined, great care was taken that their
administration should be pure, and that the judges should
be as free from any undue bias as the nature of things
would admit. It has already been stated that no judge was
permitted to sit in a Superior Court in the trial of a case
upon which he had passed in an inferior one. In addition
to this, it was provided by law in 1649 that no one should
ask counsel of a Magistrate or Commissioner in any case
where he should afterwards be plaintiff or defendant, and
the following year, a law was passed rendering a judge in-
competent to vote in cases when either of the parties stood
to him in the relation of father, or son, or brother, or uncle,
or nephew, or landlord, or tenant, although he might
"give reasonable advice in the case." (Col. L. 91.)
CHAPTER III.
Forms of Judicial Proceedings.
The Assistants, though nominally annual officers,
were in fact, from the course adopted in their election, all
but permanent in their places ; and, as a principal part of
their business must have been to administer justice, they
may be regarded, as a tribunal in a good measure indepen-
dent. Besides, from their familiar acquaintance with their
own modes of business, one might naturally expect that
something like an uniform system would have been adop-
ted by them in their forms of practice and the princi-
ples of their decisions. And such, to a certain extent, was
the case. But the public mind was too much engrossed
by personal wants and dangers, or by the religious contro-
versies in which all were embroiled, to admit of their at-
tending to any thing like jurisprudence in an enlarged sense.
And in the total absence of learned professional lawyers
as well as of judges whose minds had been disciplined by
the study of the law, as a science, we shall look in vain
for much improvement or advance in the character of the
Judiciary during the existence of the colony charter.
It is proposed to present, so far as has been found prac-
ticable, an outline of the course of practice in the Colony
Courts. But in so doing, it will be necessary to offer
details that to some may seem unnecessarily prolix and
unreasonably minute and uninteresting.
The Executive officer of the Courts, was at first called
the " Beadle of the Society," but was afterwards, called
Ch. 3.] THE COLONY. 43
the " Marshal," which appellation was retained during
the existence of the first charter. There were also, from
an early period, Constables elected in the several towns,
who were authorized to serve writs of attachment, and to
perform a great variety of duties connected with the domes-
tic police of the colony. By the law of 1675 Marshals and
Constables were to make their returns " upon the backside
of the attachment," and to deliver the same to the plain-
tiff in the action, instead of returning them to Court as.
they had hitherto done. And this usage as to the endorse-
ment of returns has been continued down to the present
day.
Writs were not required to be in the king's name until
1662, when a law to that effect was passed by the General
Court.
Previous to 1639, judicial proceedings were very irregu-
larly preserved. But in that year a law was passed requir-
ing Courts, Magistrates, and Commissioners to record their
judgments, with all the evidence in each case, in Books,
" to bo kept to posterity," and whoever has had occasion
to examine the records of these Courts, for many years
after this period, has seen with what fidelity this order
was obeyed. 1 The testimony of the witnesses was given
in open court, and written down by the clerk in form of
depositions, and formed a part of the record of the case.
Many of these, extending through a great number of pages,
are preserved in the early volumes of the Court Records.
Juries were early employed in. the trial of causes, but
the precise period when they were first used does not ap-
pear. They were in use as early as 1633, but Hutchin-
1 The improvement in their judicial proceedings by having them recorded
may, I believe, be ascribed to Lechford, for we find this measure among his
" propositions made to the General Court upon request, 8th June, 1639.*'
44 JUDICIAL HISTORY. [Oh. 3.
son says he had found only one case, except capital ones,
previous to that time, in which the trial was by Jury.
In 1634, a law was passed requiring all trials for life or
death to be by Juries chosen by the freemen.
It is stated by Hutchinson, upon the authority of Win-
throp and Hubbard, that Grand Juries were first established
by law, in 1635, but in the case of Capt. Stone who was
charged with a variety of offences, it is stated by Winthrop,
under date of 1633, that "at the Court his indictment was
framed for Adultery, but found ' ignoramus ' by the Great
Jury"
After 1635, criminal prosecutions were by inquest of a
Grand, and trial by a Petit Jury.
Both Grand and Petit Juries were summoned in the
same manner.
In 1633, the process by which traverse Juries were
summoned was by a warrant from the Secretary to the
Beadle, directing him to warn twenty four Jurors, to be
named by the Secretary, and they were to be summoned
fourteen days before the Court, at which they were to
serve.
By a law of the following year, the mode of summoning
Juries was changed. The Secretary or the Clerks of the
Courts, sent their warrants to the Constables of the several
towns for a certain number of Jurors, and the Constables,
thereupon, convened the freemen of their respective towns,
who chose the requisite number. There were two Grand
Juries summoned for the Court of Assistants in each year,
one in March, and the other in September, whose duty it
was, " to inform the Court in respect, to offences which
should come to their knowledge." (Felt's Sal. 95. Hub.
159.) Lechford says there were also two Grand Juries
summoned each year to attend upon the General Court.
The Jury of trials were made judges of law and fact,
Ch. 3.] THE COLONY. 45
although an attempt was made in 1642, to have Juries
find matters of fact with damages and costs, and leave the
Court to declare sentence upon it. But the law was a
temporary one, and Juries very seldom found special ver-
dicts. They were however at liberty to find, as much as
they could, " if they could not find the main issue in
matter of fact," and when they were not clear in their
" judgments and consciences ' concerning any case, they
were at liberty " in open Court, to advise with any man
they should think fit, to resolve or direct them, before they
gave their verdict." 1 (Col. L. ed. 1660, p. 47 and 48.)
Verdicts were sometimes rendered that there were strong
grounds of suspicion, but not sufficient evidence to con-
vict, and upon such verdicts, the Court gave sentence for
what appeared to them on the trial, the defendant had
been guilty of, although neither charged in the indictment
nor found by the Jury. (1 Hutch. 401.) This may have
led to the adoption of that part of the oath now adminis-
tered to Jurors in criminal cases, that if they find the de-
fendant not guilty " they are to say so and no more."
It frequently happened that Courts and Juries differed
in opinion, and it was very common for the Court in such
cases to refuse to accept the verdict. The consequence of
this was, the cause was carried to the next Court of As-
sistants, or to the General Court, as the case might be.
A memorable instance of such a controversy between
the Bench and the Jury, arose upon the trial of Anne
Hibbins for witchcraft in 1656. The Jury found her
guilty, but the Magistrates refused to accept the verdict,
and the case was carried to the General Court where the
1 In 1665, probably to correct a different practice that had grown up in the
Courts, parties were required " to present the whole plea and evidence before
the case was committed to the Jury , and no after plea or evidence was to be
admitted to any person."
46 JUDICIAL HISTORY. [Ch. 3.
popular clamor prevailed, and she was convicted and exe-
cuted. (1 Hutch. 173.)
In order to put an end to the inconveniences arising
from such disagreements between Courts and Juries, a law
was made in 1672, that after the Court had explained the
law to the Jury, and "compared the matter of fact proved
therewith," the verdict should be accepted and judgment
rendered thereon. The remedy for " the party cast,"
however, was by attainting the Jury, in open Court, for
error or corruption, and upon his giving bond to prosecute
the Jury, at the next Court of Assistants, in an action of
attaint, execution was to be staid. The Clerk thereup-
on summoned twenty four men as a Jury to try the matter
of attaint, and if upon this trial, manifest error or mistake
were found in the original verdict, the party was restored
to his rights, and if the Jury found corruption in the for-
mer Jury, they were fined or imprisoned. (Col. L. 146.) 1
This right of attainting Juries was found liable to such
abuses, that in 1684, a law was passed requiring a party to
specify the grounds of his attaint in writing, and if he
failed in his action of attaint, he was fined ten pounds,
and was obliged to pay forty shillings to each Juror, and
was moreover subject to actions of slander by the Jurors
who should be charged with corruption. (Ib. 147.)
It was usual for Juries to find by their verdict, which
of the parties should be charged with costs, instead of the
costs following the judgment as a matter of course, and
this may probably be traced to an ordinance of 1641, that
the plaintiif or defendant should pay costs according as
1 The power now exercised by the Courts to set aside verdicts of Juries as
being against the weight of evidence, cannot be traced to this power of attaint,
for that could not be exercised by less than twice the number of the original
Jury, whereas a bare majority of the judges of the Court are now competent
to reverse the decisions of Juries, upon pure matters of fact.
Ch. 3.] THE COLONY. 47
he should be in fault, leaving the question of fault to be
settled like other matters of fact. (Felt's Sal. 153.)
Although Juries were thus early employed, in trials, it
is said by Wirithrop (111,) that it was often left to the
prisoner to be tried by the Bench or a Jury, 1 but the at-
tachment to trials by Jury was justly prevalent and strong
throughout the history of the colony.
In regard to matters of costs, there are a great many
early colonial ordinances, the object of which seemed to
be to deter litigation, and to relieve the people from the
burden of supporting the government.
The fees paid for the entry of actions varied from ten
groats to ten shillings, according to the magnitude of the
demand sued, and pretty severe penalties were imposed,
in some cases, upon the party who should prosecute a
groundless action or appeal.
In order to compare the amount recovered by a prevail-
ing party then, in the form of costs, with what he would
now recover, the following has been transcribed from the
records of 1654 : " A bill of costs for the widow Blaisdell
in her complaint against Edward Colcord to the General
Court. For attendance at the first session, 10 days, 1.
For attendance at the next session, 10 days, 1. We ap-
prehend this bill to be 10 shillings overcharged, arid do
allow the widow the sum of 1 10s." "A bill of costs
for Thomas Morton. For 10 days at the first session of
this court, 1. Myself and wife attendance at Hampton
court 6 days, 12s. Attendance at this court, 1 12s.
An attorney to follow the case two sessions of the General
Court 18 days, 1 16s. 5 total.^' These were causes
which were determined in the General Court, and attend-
i A law of 1641 authorized parties by mutual consent, to have their causes
tried by the Bench without a Jury in civil and criminal matters. (Col. Laws,
ed. 1660, p. 77.)
48 JUDICIAL HISTORY. [Ch. 3.
ed with much delay, but most cases were heard and de-
termined at the term of the court in which they were
commenced, and justice was as prompt as it was sum-
mary.
Oaths were administered by holding up the hand, as it
was regarded idolatrous to swear by the Bible, although
such had been the form to which they had been accus-
tomed in England. (1 Hutch. 401.)
The forms of judicial proceedings under the colony were
exceedingly simple. Writs were very concise, and until
1662, were not even in the king's name. These writs
were in form, both capias and attachment, and were re-
quired to be served at least five days before court. Jus-
tice moreover was summary, for, as stated by Lechford,
f
11 most matters are presently heard and ended the same
court." A statute of jeofails was early passed, 1 and the
courts rarely troubled themselves with pleas in abate-
ment. 2 (1 Hutch. 400.) Little regard was paid to the
forms of action, as there will be occasion hereafter to
show. They had actions of Replevin, Debt and Tres-
pass, and sometimes adopted a proper form of process to
recover possession of real estate. But the most common
form of action, as well to recover lands, as damages for
direct and immediate injuries, was that of Case. Exam-
ples of which will be offered in the course of this part of
these Sketches.
1 Col. Law, ed. 1660, p. 4.
2 Among the improvements proposed by Lechford in 1639, to be made in
the proceedings of their courts, was " that every action be declared in writing,
and the defendant's answer, general or special, as the case shall require, be
put in writing by the public notary, before the court sits." My inference
is that up to this time there had been no pleadings in writing, nor could
there well be any formal pleadings for many years afterwards, since each
party seems to have been left to frame his own declaration to suit his own no-
tions of propriety.
Ch. 3.] T H E c o L o N Y . 49
The form of criminal proceedings, as has been before
observed, was by indictment, presented to the Grand Jury,
upon which they endorsed " ignoramus " or " a true bill.' 3
Sometimes however, they endorsed upon bills presented to
them, that " they had strong ground for suspicion, but not
sufficient to put the party upon trial." Instances are
mentioned by Hutchinson, of members of the court ris-
ing in their places and charging the prisoner with crimes,
after he had been tried and acquitted of the offences origi-
nally charged against him, and of his being tried upon
the charges thus made against him. (i. 401.)
Bills of indictment were riot very formal, as will be
shown, nor was there any stated Attorney General under
the colony laws, to prosecute offenders.
The reason for the informality of these proceedings per-
haps may be found in the account given by Chalmers of
the want of regard entertained by the colony for the laws
of England. " The laws of England, they considered as
not binding on them, because inapplicable to so godly a
people, and the Jewish system of laws they almost liter-
ally adopted. When the customs of the Commonwealth
were found defective, it was provided that the crime
should be decided according to the word of God." (p. 144,
166 and 168.) Some allowance however should be made
for the splenetic temper of this writer towards New Eng-
land and especially Massachusetts.
In 1642 authority was given to the courts to admit par-
ties to sue " in forma pauperis," and this was occasionally
done, as appears by a reference to the records, though I
believe this extended only to the remission of court fees.
A case of this kind was Tyler vs. Chandler in 1667. It
had been tried at the County Court and appealed to the
Court of Assistants, where the Court and Jury disagreed,
"and so it falls to the General Court." There " the Mag-
50 JUDICIAL HISTORY. [Ch. 3.
istrates judge it meete to order Job Tyler's case against
Thomas Chandler be heard sub forma pauperis, their
brethren the Deputies hereto assenting," which assent was
given as appears by the record, and the judgment of the
County Court was affirmed. (Col. Rec.)
It was many years after the settlement of the colony,
before any thing like a distinct class of Attorneys at Law,
were known. And it is doubtful if there were any regu-
larly educated Attorneys who practised in the courts of
the colony at any time during its existence. Lechford, it
is true, was here a few years, but he was soon silenced,
and left the country. Several of the Magistrates had also
been educated as lawyers at home, among whom were
Winthrop, Bellingham, Humfrey and probably Pelham and
Bradstreet. But these were almost constantly in the Mag-
istracy, nor do we hear of their ever being engaged in the
management of causes. If they made use of their legal
acquirements, it was in aid of the great object which they
had so much at heart, the establishment of a religious
Commonwealth, in which the laws of Moses were much
more regarded as precedents than the decisions of West-
minster Hall, or the pages of the few elementary writers
upon the common law which were then cited in the Eng-
lish courts.
It was therefore, that the clergy were admitted to such
a direct participation in the affairs of the government, and
that to two of their number was committed the duty of
codifying the laws, by which the Commonwealth was to
be thereafter governed.
There were attorneys it is true, and there were lawsuits
and all the concomitant evils growing out of the bad pas-
sions involved in litigation, and there was a law against
barratry, passed in 1641, because, even then, there was
barratry practised in the courts. And the profession seems
Ch. 3.] THE COLONY. 51
to have won but little favor in the public mind, although
for the first ten years of the government, there were no fees
allowed to the " patrons," as they were called, who defend-
ed or aided parties in their suits. The first practising At-
torney in the colony did little to conciliate the public
mind in favor of the profession, and those who pleaded
in the courts after his time, had little personal character to
bring to the employment. I have been indebted, among
other sources, to Mr. Willard's Address before the Worces-
ter Bar in 1829, for the names and employments of seve-
ral who acted as Attorneys under the old charter. Among
these were JOHN COGGAN, who was a merchant, and AMOS
RICHARDSON, who was a tailor, WATSON was once a mer-
chant in London, and BULLIVANT was a physician and
apothecary. CHECKLY was a merchant, and some others
might be named, but these will serve to show how little
claim the profession of law then had to being a liberal one.
A law, in fact, was passed in 1663 excluding " usual arid
common Attorneys," from a seat in the General Court.
The reason of this was partly the existing prejudice
against this class of men, as they were then known, and
partly because appeals lay from the inferior courts to the
General Court, and it was apprehended that the lawyer
might not lay aside his former prepossessions in favor of
his client when acting in the capacity of a Judge. (3
Hutch.)
The want of suitable persons to present the claims of
suitors before the courts led to a practice which had
grown to be so general, that in 1641 the Rev. Mr, Ward
made it the subject of severe animadversion in his elec-
tion sermon of that year. The custom was for suitors to
apply privately to the Magistrates who were to try their
causes, and by an exparte statement, forestall the favor-
able opinion of their Judges. In consequence of the ser-
52 JUDICIAL HISTORY. [Ch. 3.
mon of Mr. Ward, an attempt was made to introduce a
law restraining Magistrates from holding such intercourse
with suitors, but it was resisted on the ground that it
would render it necessary to employ lawyers to present the
causes of parties before the court. (2 Wint. 36.)
This practice of exparte hearings was as has been before
stated, at last prevented by a statute passed some years
after public attention had thus been called to the evil.
With all the guards, however, which the jealousy of
the colonists devised against the legal profession, they nev-
er seem to have accomplished the purpose which they had
at heart, that of making litigation cheap, and, at the same
time, the administration of justice summary. If the first
was accomplished, it was found that the law would have
delays ; suitors, if they could not find Attorneys to present
their causes, would present them as they could, themselves,
and in so doing the time of the courts must be absorbed,
and the patience of the Judges tried by the statements
and arguments of the parties or their " patrons." And the
very cheapness with which suits might be carried on,
multiplied the business of the courts and extended the
evils of litigation.
This state of things led to the enactment of a law in
1656, in the following terms. " This court, taking into
consideration the great charge resting upon the colony,
by reason of the many and tedious discourses and plead-
ings in courts, both of plaintiff and defendant, as also the
readiness of many to prosecute suits in law for small mat-
ters. It is therefore ordered, by this court and the author-
ity thereof, that when any plaintiff or defendant shall
plead, by himself or his Attorney, for a longer time than one
hour, the party that is sentenced or condemned shall pay
twenty shillings for every hour so pleading more than the
common fees appointed by the court for the entrance of
Ch. 3.] THE COLONY. 53
actions, to be added to the execution for the use of the
country." (Col. Rec.)
In this connexion also reference may be made to an or-
der passed in 1650 in relation to preserving order in courts,
&c. If any person should disorderly speak privately dur-
ing the sitting of the court, with his neighbor, or two of
them together, he was subject to a penalty of twelve pence
if the court thought proper to impose it.
It was further ordered that if any member of the court
should reveal any secret which he had been enjoined to
keep, or make known what any member of the court should
speak concerning any person or business in court, he should
forfeit ten pounds, and be otherwise dealt with at the dis-
cretion of the court (Col. Rec.)
As has already been observed, there does not appear to
have been a class either of learned lawyers or men exclu-
sively devoted to that profession at any time during the
colony charter. Of those whose names are most often
found in the judicial records of this interval, the history
belongs rather to a subsequent period, although their busi-
ness in the courts was merely subsidiary to the other busi-
ness in which they were engaged. But there was one
who has already been referred to, whose name is identified
with the earliest judicial history of the colony, and who
ought not to be passed over without being further noticed.
THOMAS LECHFORD, was regularly educated to the bar
in England, and came to Massachusetts in 1637, to seek
his fortune in the practice of his profession. He remained
here till 1641, when he returned to England and became
a member of Clements Inn.
Whatever may have been his success in the colony, at
first, he soon managed in such a manner as to be deprived
of his means of livelihood. At a Quarter Court held in
September 1639, the following order was passed : " Mr.
54 JUDICIAL HISTORY. [Ch. 3.
Thomas Lechford for going to the Jewry and pleading
with them out of Court, is debarred from pleading any
man's cause hereafter, unless his own, and admonished
not to presume to meddle beyond what he shall be called
by the Court."
As he probably found little profit in pleading " his own"
causes, it would seem by another order of the court in
December 1640, that he had ventured to violate its former
order, for it is recorded that " Mr. Lechford acknowledging
he had overshot himself and is sorry for it, promising to
attend to his calling and not to meddle with controversies,
was dismissed."
The "calling" to which the unfortunate lawyer had
alone a right to attend, was that of a scrivener, which he
found so little profitable that in the following year he re-
turned to England where he published " Plain Dealing or
News from New England," in 1642. This singular pro-
duction in which the writer occasionally exhibits his feel-
ings of disappointment in no measured terms, is among the
most authentic sources from which a knowledge of the
civil and ecclesiastical policy of the colony is to be derived,
and has been recently republished by the Massachusetts
Historical Society. I have already made frequent reference
to this work, and regret that our knowledge of the life of
the author is so extremely limited. I should have been
happy to have traced his history after leaving the land of
his adoption. But beyond his fame as an author, oblivion
has settled down over his name, and the few years that he
flourished as the whole profession the embodied Bar of
Massachusetts Bay were probably the only period of his
life which gave immortality to his memory. (3 Hist. Col.
3dSer. 2 Wint. 36.)
There was one lawyer in the colony as early as 1625,
who though he never attempted to pursue his profession
Ch. 3.] T H E c o L o N Y . 55
here, acquired no very enviable notoriety. It was THOMAS
MORTON, who was master of the revels at Merry Mount in
what is now Q,uincy. His graceless conduct and scan-
dalous " rhymes and verses ' gave such offence to the
staid and sober fathers of the colony that they caused
him to be taken and sent back to England in 1628, after
having been " set in the bilbows." In a work which he
published about the colony in 1637, he styled himself " of
Clifford's Inn Gentleman." But the Memorialist of Ply-
mouth calls him " a pettifogger at Fernival's Inn." It
was Morton who first invented the story so ludicrously
told by Hudibras, of the Colonists hanging a bed-rid old
weaver to appease the Indians for a murder committed by
a very useful cobbler. He returned into the colony in 1643,
where he was arrested, thrown into prison and tried for
his misconduct towards the colonists, and after having
been detained in prison about a year, he was fined 1 00
and set at liberty. The reason given for setting him at
liberty was that he was old and crazy, and they chose to
give him a chance to go out of the jurisdiction for " he
was a charge to the country."
He availed himself of the opportunity to depart, and
went to " Acomenticus," (York) "and living there, poor
and despised he died within two years after."
Before proceeding to illustrate this period by a reference
to the particular cases which have been selected for that
purpose, it is proper to remark that the courts of the col-
ony seem to have paid little regard to the ordinary rules of
evidence, while some customs, supposed to be somewhat
peculiar to New England, may be traced to the positive
enactment of its early legislatures.
When, for instance, the custom of using books of account
with the supplementary oaths of plaintiffs, in actions for
the recovery of debts of that character began, it does not
56 JUDICIAL HISTORY. [Ch. 3.
appear. But in 1654 the court, " taking notice of the
imperfect matters that are tendered many times for evi-
dence before the judges with reference to shop books,
and writings of like nature," passed an order requiring
books to be kept in a particular form in order to be admis-
sible as evidence. And " for any wares sold," the judges
would not be willing to take the oath of the plaintiff in
his own case, unless it be " to the truth of the whole
book," except under certain limitations specified in the or-
der. 1
The cases which have been selected as illustrative of
the course of criminal proceedings under the colony, will,
at the same time, serve to throw light upon the prevailing
notions of the people during this period. Many of the
offences of which the courts held cognizance, could only
have been violations of those strict rules of propriety and
decorum which had their origin in the religious austerity
by which the habits and feelings of the people were chas-
tened and controled. Men often smile at the nature of
these offences and the punishments which were inflicted
upon the delinquents, because they judge of things by
their own notions of propriety, and forget the mixture of
civil and ecclesiastical police, by which the codes of law
and morals in the colony were distinguished.
Many of the following cases have often been referred to
by historians, but it seems none the less proper that they
should be repeated in this connexion.
In 1631, the Court of Assistants ordered Philip Radcliff
to be whipped, to have his ears cropped, and to be ban-
ished, for reproaches against the Government, and the
1 The term of three years was the period of limitation of suits on Book debts
by the law of 1669, but was extended to six years by the act of 1672. (Col.
L. ed. 16T2, p. 4.)
Ch. 3.] THE COLONY. 57
church at Salem, and the sentence was executed accord-
ingly. (Felt's Salern, 54.)
The same year, for some offence, not mentioned, the
court ordered Thomas Graves' house at Marble Harbor to
be torn down, and that no Englishman should give him
entertainment, (Ib. 56,) thus making him in fact an outlaw
beyond relief.
Among other instances of punishment the precise date
of which does not appear, were the following. Josias
Plastow for stealing four baskets of corn from the Indians,
was ordered to return them eight baskets, to pay a fine of
five pounds, and to be called by the name of Josias and
not " Mr." as he had before been called.
Edward Palmer for his extortion in taking two pounds
thirteen shillings and four pence for the wood work of
the Boston stocks, was fined five pounds, and was ordered
to be set one hour in the stocks of his own handi-work.
Thomas Petit, " for suspicion of slander, idleness and
stubborness, was ordered to be severely whipped and to
be kept in hold."
John Wedgewood, for being in the company of drunk-
ards, was sentenced to be set in the stocks*
In 1638, the wife of Thomas Oliver of Salem, was pun-
ished for slandering the elders of the church, by wearing
a cleft stick upon her tongue for half an hour. (Felt's Sa-
lem, 118.) :, ,V*i : ;' :: :> '.-.': VKv. ltt '$. mrf
In 1644, at the Quarter Court at Essex, William
Hawes and John, his son, were presented for deriding
such as sing in the congregation, terming them fools.
Also William Hawes, for charging Mr. Cobbit with false-
hood in his doctrine. Hawes and his son were ordered to
pay fifty shillings each, and to make a humble confession
at Lynn, at a public meeting. (Lewis's Hist. Lynn, 83.)
The following year, Samuel Bennet was presented at
8
58 JUDICIAL HISTORY. [Ch. 3.
the same court for saying in a scornful manner he neither
cared for the town nor any order the town could make.
(Ib. 87.)
In 1652, the Quarterly Court of Essex, presented
Esther, the wife of Joseph Jynks, Jr. " for wearing silver
lace," and Robert Burgess " for bad corn grinding," and
others were presented for wearing great boots and silk
hose. (Ib. 99.)
In 1630, the Court of Assistants sentenced Henry Ste-
vens, to be a servant to Mr. Humfrey, for twenty one years,
for burning his bam. (Ib. 73.)
And at a court in Salem in 1643 Roger Scott was pre-
sented "for common sleeping at the public exercise upon
the Lord's day and for striking him that waked him."
And in December following not having amended his
conduct, he was sentenced " to be severely whipped."
(Ib. 81.)
The delusion in regard to witchcraft was early felt in
New England, and the first victim to the forms of justice
for this offence, was Margaret Jones of Charlestown who
was executed 1648. (2 Wint. 326.) Anne Hibbins
suffered death for the same offence in 1656.
In 1686 among the last causes which came before the
Court of Assistants under the colony, Col. Shrimpton was
indicted " for that he at the County Court sitting in Bos-
ton on the 22d of March last, in a tumultuous violent and
seditious manner, and with a loud voice and in open court
did say that he was brought there by Mr. Sargents' 1 order,
and not by the court, and that he denied any such thing
in being, as governor and company of this colony and that
1 Mr. Sargent was afterwards one of the Judges of the Special Court of
Oyerand Terminer for the trial of the witches in 1692, in connexion with
which he is mentioned in this work.
Col. Shrimpton is also further noticed jn another part of this work.
Ch. 3.] THE COLONY. 59
he stood there to testify it and denied their power, and
they might send him to prison if they pleased, which
words, in the same manner, he repeated and sundry other
seditious words and expressions as by the evidence will
and may appear, thereby defaming the General Court and
the County Court, and caused such a turmoil in the court
as evidently tended to the high breach of his Majesty's
government, &c."
It will be recollected that this was a time of great polit-
ical excitement, and that Col. Shrimpton was among the
leaders of one of the political parties. He was arrested
upon this indictment, but from the changes that soon took
place in the organization of the government or from some
other cause that does not now appear; no final hearing was
ever had of the case.
A case prior to this in time, is referred to in this con-
nexion as showing the nature of what was punished, and
the modes of punishment adopted under the colony laws.
"At the court held at Hampton 1661, upon the complaint
preferred against Edward Colcord at the General Court, re-
ferred to this court to hear and determine, this court hav-
ing found him guilty of many misdemeanors and crimes,
some against authority and some against persons in author-
ity, some in cheating men in their estates, some in caus-
ing needless arid vexatious suits in law, and other distur-
bances among the people, he is sentenced as followeth, viz.
1st, to pay a fine of five pounds to the treasurer of this
county. 2d. To be committed to the house of correction at
Boston nor there to be discharged unless there be a bond
taken to the value of with sufficient sureties for his
good behavior, and in particular that he sue no man at
any time hereafter without putting in good security to sat-
isfy the party sued what shall be recovered of him by au-
thority from time to time, and costs."
60 JUDICIAL HISTORY. [Ch. 3.
This Edward Colcord seems to have been particularly
obnoxious because of his litigious habits. He was sent
for by the General Court to Hampton and was shut up in
the house of correction in Boston, after having been sent
to prison by the same court which had tried him as above
stated, for refusing to acknowledge a deed of mortgage
which he had executed. (Col. Rec.)
If my limits permitted, the instances that might be ad-
duced from the records of the courts during this period,
would show that, no scruple was felt as to the power of
hearing and determining upon all matters whatever, as
well capital as inferior offences, and that the government
at no time hesitated in carrying the sentences of the courts
into effect.
Indeed if I were to attempt to do any thing like justice
to this part of our subject, I should transcribe the provi-
sions of those laws which, based upon the Mosaic code,
bear the impress of cruelty, according to modern notions
of a wise government, and should moreover transcribe,
more at length than I have done, the multiplied forms of
indictments which were framed from time to time to suit
the real or fancied necessities of the body politic, in cases
where the utmost latitude in construing indifferent acts
into crimes was adopted by the courts.
But I pass to the less inviting field of the civil adminis-
tration of justice in which, from the nature of the sub-
ject, the indulgence of the reader must be liberally taxed.
The cases which have been selected to illustrate the
forms of judicial proceedings at different periods, will not
be found curious or rare, nor have they been chosen on
account of any peculiarity of interest which they were
supposed to possess ; and they are to be regarded rather as
examples of forms, than as an exhibition of the judicial
Ch. 3.]
THE COLONY.
61
learning or legal skill of the Bench or Bar at the times
when the cases arose.
It may be observed, in passing, that in 1647 a question
of jurisdiction having arisen in the case of an assault
which took place in England, it was determined that in
all personal actions, such as trespass, assault and battery
and the like, where the cause of action arose in England
and the parties removed into the colony, the courts here
had jurisdiction. (Col. Rec.) 1
Actions for the recovery of land, were generally " in
case," though occasionally, towards the latter part of the
time of which I am speaking, proceedings in ejectment
were adopted.
Mr. Stearns has collected several of these actions in his
treatise on Real Actions, (p. 491,) and I shall only insert
one or two which are found in the Colony Records.
"Tucker and wife vs. Otis and Mansfield," (1658.)
" In an action of the case for making use and withhold-
ing a certain piece of meadow which was part of the
meadow given to William Norton, deceased, formerly the
husband of said Anne Tucker, which meadow was given
the said Norton by the town of Hingham." (Col. Rec.)
" John White, sen. of Hartford in the colony of Con-
necticut, administrator to the estate of Stephen Taylor,
deceased, plaintiff, per contra, Samuel Partrige of Hadley,
defendant. In an action of the case for unjustly detaining
a certain mansion with the house lot, formerly in tenure
of the said Taylor and by the court disposed, as security
/
1 In 1647 a law was passed authorizing the assignment of any *' bill or other
specialty," if made ** upon the back side of the bill or specialty," and mak-
ing it lawful for the assignee to sue for and recover the debt ** as fully as the
original creditor might have done." (Col. Laws, ed. 1660, p. 5.) Is not
this the origin of our common law as to the negotiability of bills of exchange
and promissory notes, rather than the adoption of the statute of Anne ?
62 JUDICIAL HISTORY. [Ch. 3.
of the heirs portion, to a surrender of the said house and
land with just damages. The testimonies and evidence
in the case being produced and read in court, were trans-
ferred to the jury, who brought in their verdict that they
found for the plaintiff the tenement he here sues for, now
in the tenure of Samuel Partrige." (Bliss' Address.)
Debt and case were convertible forms of action for the
recovery of moneys due as well upon simple contracts, as
bonds and other specialties. So case for trespass was sus-
tained, and case upon mortgages was a form adopted and
in use as early as 1649.
"Mr. George Keith, merchant, plaintiff, per contra,
Edward Church, defendant, in an action of the case for
detaining a just debt due from said Church by book to the
said Keith, for merchandize delivered by the said Keith
to his servant T. B. at his order. The sum due is 2
16s. with all just damages, according to attachment. In
the action depending in the court between Mr. George
Keith, plaintiff, and Edward Church, defendant, the tes-
timony and evidences in the case being produced and read
in court were transferred to the jury, who brought in their
verdict that they found for the defendant costs of court."
(Bliss 5 Address.)
" The worshipful Maj. Pynchon, plaintiff, contra the
estate of Florence Driscoll in an action of debt due by
book with damages to the value of eight pounds, ac-
cording to attachment."
The jury found for the plaintiff, damages and costs. (Ib.)
" At a Court holden at Springfield, Sept. 27, 1659 Sam-
uel Allen of Northampton, plaintiff vs. John Bliss of the
same town defendant, in an action of the case for unjustly
stealing away the affections of Hannah Woodford, his es-
poused wife, damnifying the said Samuel to the value of
50. In this cause the plaintiff withdrew his action be-
Ch. 3.] T H E c o L o N Y . 63
fore the case was tried for that he found himself defective
in his testimony." (Ib.)
So case instead of covenant broken was adopted for the
recovery of damages by reason of a breach of the cove-
nants in a deed, as in the case of Ela vs. Clement, Essex
Co. March 1686.
It was ' case ' and the declaration after reciting the
covenant proceeds " but the said Clement hath not made
good to the said Ela the land specified in said deed, nor
secured him from the heirs of Mr. Robert Clement de-
ceased as specified in said deed more largely, but hath
suffered the said Ela to be molested and interrupted in the
peaceable and quiet possession and improvement of said
land, as will appear by testimony, whereby the plaintiff
has been damnified about seven or eight pounds in silver,
besides the disparagement of his title to his land bo't
of the above said Clement and loss of paid of the land &c."
Replevin was in use as early, certainly, as 1654, for I
find among the colony records of that year the following
writ. " To the Marshall of the County of Yorkshire or
his Deputy. You are requested to replevy the goods of
Mr. Shapleigh attached by Mr. Gunnison or any other, to
the value of one hundred and twenty pounds, provided
that Mr. Shapleigh give bond to the value of two hundred
pounds, with sufficient surety or sureties to prosecute his
replevy at the next court holden in arid for the county of
York, and from court to court till the case is ended, and to
pay such costs and damages as the said Gunnison, by law,
shall recover against him."
The return on the writ gives the name and number of
the articles replevied, and the persons by whom appraised,
and the prices at which they were appraised by these per-
sons under oath.
1 transcribe, somewhat at length, the record of a single
case in order to show among other things, the manner in
64 JUDICIAL HISTORY. [Ch. 3.
which the testimony was taken and preserved as was then
required to be done. The case here selected is one of the
shortest that has fallen under my observation. The case
is Johnson vs. Viall. The writ was, " To the Marshall of
the County of Suffolk or his Deputy. You are requested to
attach the goods, and for want thereof the body of John
Viall and take bond of him to the value of thirty pounds,
with sufficient security, for his appearance at the next
County Court to be holden at Charlestown, to answer the
complaint of John Johnson in an action of the case, for
over-reaching him in a bargain in building him the frame
of a dwelling house, and due damages, and so make a true
return hereof under your hand dated llth 10th mo. 1657.
By the court, Jona. Negus.
At a County Court held at Charlestown December 29,
1656, John Johnson, plaintiff against John Viall, defendant,
in an action of the case for over-reaching him in a bargain
for building him a frame of a dwelling house and due dam-
ages. The Jury having heard the pleas and evidences
presented by both parties, which are on file with the
records of this court, they find for the defendant costs of
court eight shillings and one penny.
The Magistrates judge not meet to accept of the Jury's
verdict."
Then follows a copy of the agreement declared on, and
next in order was the evidence in the following form.
" This is to certify the honored court that we whose
m
names are underwritten were requested and warned to ap-
pear at the court to testify the Court what such of the
frame as goodman Viall had of goodman Johnson, what
it was worth, because goodman Johnson did offer good
man Viall to take seven pounds less than two sufficient
workmen did appraise the frame at. Now we having taken
Ch. 3.] T H E c o L o N Y . 65
views of this frame, we find it to be little worth than six
and twenty pounds and unto this we put out hands.
ISAAC CULLEMORE.
WM. SIMMONS his Mark.
Sworn in court by Isaac Cullemore and Wm. Simmons
the 29th of December, 1657.
THOMAS DANFORTH, Recorder.
Esdras Head about 57 years of age testifieth that he be-
ing with John Johnson and John Viall to speak with John
Viali about a frame of a house that the said John Johnson
built for John Viall, the said Esdras heard John Johnson
offer John Viali that they would take two men to prize
the frame and what they should judge it worth, that he
would take seven pounds less than they should judge it to
be worth.
Sworn in court by Esdras Head the 29th 10th mo. 1657,
Thos. Danforth, Recorder.
Wm. Locke aged 28 years or thereabout, testifieth that
about the 28th of the 9th mo., he being in company with
goodman Viall and John Johnson he did hear John
Johnson tender the said Viall, that if he would take two
sufficient workmen and prize the house that is now in con-
troversy, what they should prize it at, that said Johnson
would take seven pounds less and further saith not.
Sworn in Court by Wm. Locke the 29th of the 10th
mo. 1657, as attest, Thomas Danforth Recorder."
Indorsed on the backside of the attachment " I have
attached the body of John Viall the 22 10th mo. and have
taken bond of him, to the value of thirty pounds pr me,
Ri. Wayte Marshall."
Then follows the bond which is made to the Marshall,
conditioned to appear at Court and answer to the complaint
of the plaintiff and the bond was given without sureties.
Following these copies of the record of the Inferior
9
66 JUDICIAL HISTORY. [Ch. 3.
Court, is the record of the proceedings before the General
Court to which the case was carried, as the Magistrates
and Jury disagreed.
" The Deputies think meet to hear this case the next
fifth day by eight of the clock in the morning if the Hon.
Magistrates consent thereto."
28358 Wm. Torrey Clerk.
" Consented to by the Magistrates,
Edward Rawson Secy."
" In the case John Johnson plaintiff and John Viall de-
fendant, the Magistrates having heard the evidences in
the case, as a final issue agree, they find for the defendant
costs of court if their brethren the Deputies consent here-
unto June 16 58. Edward Rawson.
Consented to by the Deputies.
Wm. Torrey Clerk."
The foregoing record will serve also to explain the mode
of bringing causes into the Assistant's or General Court
from an inferior tribunal and of trying the cause there. A
few examples of the form of these proceedings are subjoined
for the purposes of explanation, although perhaps they
have already been extended to an unreasonable length.
1673. "Anthony Checkley attorney to Theodore At-
kinson senr., in behalf of his daughter Abigail Atkinson
plaintiff vs. John Williams defendant, in an action of appeal
from the judgment of the last County Court in &c. After
the attachment, court's Judgment, reasons of appeal and
evidence in the case presented, were read, committed to
the Jury and remained on file with the records of this
court, the Jury brought in their verdict. They found a
special verdict i. e. that in case this deed of gift from Theo-
dore Atkinson Senr. to his children be good in law, then
we find for plaintiff, but if not then we find for defen-
Ch. 3.] THE COLONY. 67
dant costs of court. The Magistrates find for defendant
costs of court &c. five shillings."
1674. "Lattimer vs. James After the attachment,
Court's Judgment, reasons of appeal, evidences in the case
produced, were read, committed to the Jury, entered on
file of the records of this court, the Jury brought in their
verdict, they found for the plaintiff reversion of the former
judgment and costs of court."
" This case was thereupon, by consent of parties, re-
ferred to the hearing and determination of the Selectmen
of Salem with Mr. Thomas Laighton of Lynn 1 , and for
that end Major Hathorn is to appoint time and place of
meeting, and all parties concerned are to attend the meet-
ing and give in their pleas accordingly, and that their de-
termination be returned under at least the major part of
their hands into the next General Court for their settle-
ment thereof."
1680. "Launeelot Lake, Master of Arts, student in
Physic plaintiff, contra George Penney Commander of
the Unity of London defendant, in an action of the case
for that the aforesaid Penney did after an inhuman man-
ner vilify and abuse him the said Lake by slandering of
him, saying that he was a witch and a wizard etcetera ac-
cording to attachment. The attachment and evidence in
the case produced, being read and committed to the Jury,
which are on file, the Jury brought in their verdict.
They found for the plaintiff forty pounds damage or that
the defendant make an acknowledgment in open court, to
the satisfaction of the court, and the costs of court allowed
at fifty shillings and four pence." (Suff. Rec.)
It has already been remarked that the Court of Assis-
1 Laughton commonly called Laighton was many years a representative from
Lynn in the General Court. He died in 1697.
Maj. Hathorn will be more fully noticed in another part of this work.
68 JUDICIAL HISTORY. [Ch. 3.
tarits held admiralty jurisdiction and among other things
had cognizance of the crime of piracy.
The mode of calling the court together for admiralty
purposes seems to have been somewhat peculiar. Thus
in 1686, " at a Court of Assistants or admiralty held at
Boston on the 15th April. The court met at the time, at
the request of Mr. William Woodrow of the Island of St.
Christopher, now resident of Boston. A Court of Admi-
ralty is granted him against Mr. John Keith of Boston.
Court to be holden on the 22d instant, he, the said Wood-
row giving in his libel caution, seasonably &c." (Suff.
Rec.)
A trial which excited great interest at the time of its
being had (1644,) will also serve to show how little the
courts regarded the distinction between admiralty and
common law proceedings in determining questions that
came before them. The case was that wherein the chiv-
alrous Lady La Tour wife of the Governor of Nova Scotia,
was plaintiff and Bayley and Berkley were defendants,
the one being the master and the other the consignee of a
vessel which she had chartered in London to carry her to
the River St. John's where her husband had a Fort.
The ground of the action was a breach of the charter
party, arising from the great delay of the master in com-
pleting his voyage, having spent six months after leaving
London, before he reached Boston.
The case was tried at a special Court of Assistants be-
fore a jury who gave the Lady 2000 damages. An ex-
ecution issued upon, this judgment under which the cargo
of the vessel was seized. The master claimed to hold the
goods for the payment of freight and seamen's wages, and
this question was submitted to a jury and decided against
him.
The defendants then appealed to the General Court
Ch. 3.] T H E c o L o N Y . 69
where the right of the master to retain the goods was
again considered, and the two branches divided in opinion,
the Deputies and Deputy Governor being in favor of the
master and the major part of the Magistrates against his
claim.
The result of the suit was, that Madame La Tour pre-
vailed and carried off the goods to Nova Scotia in vessels
that she chartered for the purpose in Boston.
2 Wint. Jour. 198200201.
The custom of confessing judgment for the purpose of
preventing suits was in use under the colony charter, and
seems to have been somewhat peculiar in its forms and its
effects. Thus in 1680, u Joseph Lawrence of Boston per-
sonally appearing before the Hon. Simon Bradstreet Esq.
Governor, and William Stoughton Esq. Assistant, Jany.
1680, confessed judgment against his estate and person
unto John Saffin of said Boston, for 15 in money in full
of a bill of 90 18s, and all accounts between them.
Attest Isaac Addington Clerk.
Execution issued pro. June 1681." (Suf. Rec.)
Another custom, still retained by our courts, may be
traced to an early statute that of calling plaintiff or de-
fendant three times before entering a nonsuit or default in
an action.
The necessity of some law on the subject arose from a
custom that had become prevalent, of the parties waiting
until sent for specially by the court, before being ready
for trial which occasioned great delay ; a law was thereup-
on passed, that if the plaintiff did not appear and prose-
cute his action immediately after he had been " three times
called in court by name, after the first forenoon of the
court," he should be nonsuited, &c. with a provision for
costs in favor of the party that appeared, against the one
who failed to answer the call. If the party delinquent
,'0 .1 II |i I ( I A I. II I S T () U v . f(/M. -
upon such c:ill li:ul IMM-II Miinnioncd ;uul m;i<lr <lrf;iull in
a criminal prooeit, li- tfll i.o bo "]u-or<T.l<;d against <>r
rnnlriiipl.." (< Jol. I.. I'M. H'.r.H p. 48.)
If any ono has followed theM illustrations thus far Aviih
any other view than to trace to ;iuili< niic sources, the dry
and uninteresting forms of business as iin-v <>IH > <M-\ISI< <i, in-
must havo boon wearied with the extent to which the
ses cited from the colony and court records, havo rea< -In <!.
The apology for this, if any is duo, must be that a work
professing to treat of the judicial history of the Common-
wealth would obviously have been incomplete without
some such detail as I havo ventured hero to offer to the
reader.
CHAPTER IV.
Personal Notices of the Colonial Governors, fyc.
As it was the original purpose of this work not only to
enumerate the changes through which the jurisprudence
of Massachusetts had passed, hut to notice those who had
been instrumental in working out those changes, I have
thought this period of these sketches could not be com-
pleted without giving more at length than I have hitherto
done, an account of those who, as Governors of the colo-
ny, took a leading part in its judicial as well as legislative
and executive concerns.
The Governor, for the time being, was accustomed to
sit with the Assistants while acting as a Court of Justice,
and although it does not appear that he had any peculiar
power or duty as a member of this tribunal, it is easy to
conceive that from a regard to the dignity of his office,
the influence of his opinion in judicial matters must have
been felt and acknowledged to no inconsiderable extent.
The first of these, in order, was JOHN WINTHROP, who
has properly been styled the " Father of the Colony."
Of him it is not proposed to speak farther than the no-
tices extend which are accessible to every reader.
He was born at Grotori, Eng. Jany. 12, 1587, and was
educated for the Bar. He possessed a fine estate which
he converted into money in order to remove to America.
He came to New England as has already been stated,
with the colony, in 1630 having been chosen its Governor,
before he left England. At this time he was forty three
72 JUDICIAL HISTORY. [Ch. 4.
years of age. As a Magistrate he was firm, upright, wise
and prudent. He was distinguished for his piety, and
yielding to the spirit of the age and of those around him,
towards the latter part of his administration, became less
tolerant in his feelings than when he left England.
Though he was a strenuous supporter of what he believed
to be true civil liberty, his opinions underwent a great
change in regard to a popular government, and adverse to
the claims of a Democracy.
In private life he was frugal, benevolent and kind. He
devoted himself so assiduously to the affairs of the colony,
that his own were sacrificed, and his large estate thereby
became wholly wasted. He left a faithful journal of the
events that occurred in the colony during his life which,
with the additions made to it by the faithful and indefati-
gable labors of its distinguished editor, furnishes a rich store
house of facts " illustrative of the early history of the Com-
monwealth." No one can read the journal of Gov. Win-
throp without admiring the meekness, candor and forbear-
ance with which he met the frequent reverses of popular
favor, as well as the pious resignation with which he bore
his own domestic afflictions.
He experienced the fickleness of a people's friendship,
but he never shrunk from his duty to the colony, nor re-
laxed in his zeal for her prosperity. He died March 26,
1649, in the sixty third year of his age, worn out by toils
and depressed by afflictions. He had been Governor of the
colony from the year 1630 to 1634 and during the years
1637, 1638, 1639, 1642, 1643, 1646, 1647, and 1648.
His son John Winthrop was Governor of Connecticut.
His grandson Wait Winthrop, son of the governor of Con-
necticut, was Chief Justice of the Superior Court of Mas-
sachusetts. Another grandson, Fitz John, was also Gover-
nor of Connecticut. And his descendants have been
Ch. 4.] T H E c o L o N Y . 73
among the most distinguished of the men of New Eng-
land.
THOMAS DUDLEY was the next Governor, in order of
time. He was born at Northampton, Eng. 1576. He
was bred to the arrny, and in 1597 was a captain at the
seige of Amiens. For two years he was the steward of the
Earl of Lincoln. He became a non-conformist under the
preaching of Dodd and other puritan Divines, and came to
New England with Winthrop in 1630. Mr. Humfrey
who had been chosen Deputy Governor, declined embark-
ing and Dudley was chosen in his place. He was then
54 years of age but of vigorous body and well fitted to
encounter hardships and fatigue. In 1634 he was chosen
Governor of the colony. In character and learning there
was a marked difference between Dudley and Winthrop.
He was upright and honest in his purposes, but blunt and
severe in his manners. In profession and practice he was
opposed to any thing like toleration, never yielding his
own opinion or submitting to that of others. He took a
warm and decided part in the Antinomian controversy, so
famous in his day, against Mrs. Hutchinson and her fol-
lowers.
In 1644 the office of Major-General of the colonial
troops was created and Dudley was appointed to fill it.
He was Governor during the years of 1634, 1640, 1645
and 1650, and was constantly in the Magistracy either as
Governor, Deputy Governor or Assistant from his arrival
in the colony till his death, which took place July 31,
1653 at the age of 77. He left the following metrical
lines which are said to have described his character with
great accuracy.
" Let men of God in Courts and Churches watch
O'er such as do a Toleration hatch,
Lest that ill egg bring forth a cockatrice
10
74 JUDICIAL HISTORY. [Ch. 4.
To poison all with heresy and vice.
If men be left or otherwise combine,
My Epitaph 's, I die no libertine."
His residence was in Roxbury. His family and de-
scendants were long distinguished in Massachusetts. His
son Joseph was Chief Justice and afterwards Governor of
the Province. His daughter Anne was distinguished in
her day as a poetess, and married Gov. Bradstreet. His
grandson Paul Dudley was Attorney General and after-
wards Chief Justice of the Province, and another grandson
Col. William Dudley was a leading man in the Province,
and sustained many important offices in the government.
JOHN HAYNES was the third Governor in order of time.
He came into the colony with the Rev. Mr. Hooker, and
settled at Newtown, now Cambridge, in 1633. He was
bom in Essex, Eng. The next year after his arrival he
was chosen one of the Assistants, and in 1635 was elected
Governor. The following year he removed with the Rev.
Mr. Hooker to Connecticut and became the first Gover-
nor of that colony. He was re-elected to that office as
often as he was eligible by the charter of the colony until
his death in 1654. He was deservedly extremely popular
while in Massachusetts, which is said to have been one
reason why the General Court consented to his and Mr.
Hooker's removal with his congregation to Hartford.
" He was fortunate, says Mr. Savage, in being Governor
of Massachusetts, but more fortunate in removing after his
first year of office, thereby avoiding our bitter contentions,
to become the father of the new colony of Connecticut. 7 '
He was distinguished for his abilities, prudence and
piety, and was ranked as an equal of Gov. Winthrop. He
left a son who was a minister in Hartford, but the family
is now said to be extinct.
Next to Gov. Haynes in point of time was HENRY VANE,
Ch. 4.]
THE COLONY.
75
a man that filled a much larger space in the old world than
in the annals of the new. His fame has been recently re-
deemed from partial oblivion by the labors of the Rev. Mr.
Upham, from whose life of him I have borrowed my dates,
and to which I would refer every one who may desire to
know more fully the history of this remarkable man.
He was the son of Sir Henry Vane who was a member of
the King's privy council. He was educated at Cambridge,
Eng. and afterwards went to Geneva, where he became
a non-conformist and of course a republican. On his re-
turn to London he became dissatisfied with the state of
things which he found there, and obtained leave to visit
New England. He arrived here in company with Gov.
Winthrop's son, in the early part of 1635. At that time
he was 23 years of age, and in March of the same year
was admitted as a freeman of the colony. He early took a
decided stand in favor of Mr. Wheelwright in the famous
Antinomian controversy in which the people of the colony
were engaged, and commended himself to the people by
his serious deportment and professions. So great was his
popularity, that at the election in 1636 he was chosen Gov-
ernor although then but 24 years of age. His adminis-
tration was, however, unquiet, and his popularity greatly
impaired. The next year, Gov. Winthrop was re-chosen,
and Vane was elected a Deputy from Boston, but soon re-
turned to England to take a leading part in the events
that were about to distinguish the political history of that
government.
In 1640 he was returned to Parliament from Kingston
upon Hull, and soon became one of the leaders in that
body. He belonged to the party that opposed the King,
although he was opposed to the execution of Charles, and
resisted the usurpation of Cromwell, upon whose acces-
sion to power he retired to private life at his seat at Raby
JTD1CIAI UISTORT. 'h. 4.
Castle. After the death of Cromwell lu again elected
to Parliament tYom Kingston upon Hull, but was not ad-
mitted to his seat He was also elected from Hristol, but
was refused his seat, and a i la>: was returned tVom >Miite-
church in Hampshire. In this Parliament he opposed the
succession of Richard as Protector, and defeated it. lie
was then made one of the council of state to whom the ex-
ecutive power was delegated until the i ition of
Charles, In 1662 he was arraigned for high treason and
of course was convicted. He was executed June 14, 1662
at the age of 50,
Uc .-.'.ways retained a Mron^ regard lor the colony, al-
though he ceased to have any immediate connexion with
it after leaving New England in 1637.
Few men have WeNJd HMNN iVom the injustice of his-
tory than Sir Henry Vane, and few were ever placed in
situations more trying to character than those in which
he performed a leading part in the great events of his day.
Hume, though opposed to the principles and opinions of
Vane, has done justice to his conduct in the last hours of his
life. " His courage deserted him not. In all his behavior
there appeared a firm and animated intrepidity, and he
considered death but as a passage to that eternal felicity
which he believed to be prepared for him.' '
RICHARD BELLINGHAM was first chose vernor in 1641.
He was one of the original Patentees, and belonged to a
good family in England. He was educated to the Bar,
and ranked high among the learned men of the colony.
He was eminent for piety and incorruptible integrity.
In politics he belonged to the liberal party, and although
severe towards the Quakers and Baptists, he seems to
have been as liberal as the age in which he lived allowed
him to be. He first came into the colony in 1634, and
was made Deputy Governor the following year. In 1654
Ch. 4.] TiiEfJOLOfrf. 77
be was chosen Governor a second time, and m 1664 was
made Major General of the colonial troop* In ir>fi5 IK:
was again chosen Gorernor and waf it-elected from yc;ir
to year until his death in 1 672, at t fie age of 80 yean.
He was the last iOfTiTor of the origin;).! Patentees named
in the colony ch If': IKK! been lhirteeu fears hepu-
ty Governor and t ;ars Governor oi the eolony. II';
was the brother of Ann': Ifihhins, who r.uH"':rf:/J for witch-
r:r;i.ft in li."J<i Gov, Winthrop relates a fingular story of
Gov. ffcllmgnam'f second marriage which took place in
II.
The y woman who became hi wife waa about to
be married to -,\. friend of his who lodved at his house,
when suddenly, " the Governor treated with her and oh-
t;uried her for himself." A courtship thust began waj eon-
fmnmated by the Ciovcrnor's marrying himself, without
tot publishing the banns as required by law. For this
he was presented by the grand jury. The Secretary
called on him " to answer the prosecution " but the Gov-
ernor being disinclined to be tried, declined leaving the
bench, and as there were but few of the magistrate! pre~
ent, it seems that he escaped both trial arid punishment.
Mr. Savage ays " it is out of rny power to ;i;-;certam the
name of the young gentlewoman who jilted the friend of
the Governor to obtain a rnor: dignified establishment."
Although educated as a lawyer, he made his own will
so defectively that it wa set aside by the General Court,
and his large estate was distributed by law.
Gov. Bellmgharn was buried in the Granary (Jurying
ground in Boston, and upon his tomb is this just eulogium.
" Virtoe'f fart friend whhin thin tomb doth lie,
A foe to bribe*, btrt rich in charity."
JOHW EWDICOTT was first chosen Governor in 1644. He
was born in Dorchester, (Eng,) and became one of the
78 JUDICIAL HISTORY. [CH. 4.
original purchasers of Massachusetts Bay from the Ply-
mouth Company. He was sent over in 1628 with a small
colony to settle Salem, and was considered as its Governor.
He resided there till near his death when he removed to
Boston. He was a man of great courage and firmness, with
an ardent temperament, but bigoted in his religious opin-
ions, and rigid, in the extreme, in enforcing his own pe-
culiar sentiments. He persecuted the Quakers and Bap-
tists, and made bitter war against long hair and wigs, and
especially against women going to church unveiled.
Among other instances of his bigotry was the cutting
out of the Cross from the Royal Standard, because it sa-
vored ? of Popish superstition. For this act he was sus-
pended from the Magistracy for the term of one year. At
one time he commanded a company of men in the war
with the Pequods, but with no great credit or success.
Although opposed to Gov. Winthrop he had a good share
of popularity with the freemen. 1641 he was elected
Deputy Governor, and in 1645 was made Major General
of the troops, in place of Dudley who was then chosen.
Governor.
In 1649, he was again elected Governor over Dudley
who was the opposing candidate, and from 1651 to 1654
was annually chosen. From 1655 till his death he was
elected every year to that office, making in the whole six-
teen years that he held the office of governor, being a
longer term than any other person held it under the old
charter.
He died March 15, 1665 at the age of 75 years leaving
two sons.
Although not so learned as Winthrop or Bellingham, he
was not deficient in practical knowledge, and great allow-
ances should be made for the embarrassing circumstances in
which he was placed. He was never a favorite of the King,
Ch. 4.]
THE COLONY.
79
and had many bitter and powerful enemies in the colony.
The spirit of persecution and intolerance was ripe in the
colony, and it is unfortunate for the fame of Endicott that
four victims of this spirit were put to death during his ad-
ministration in 1649, for the crime of heresy.
JOHN LEVERETT was first chosen Governor in 1673. He
arrived in the colony from Boston, England, with his father,
Elder Thomas Leverett, in 1633. He was employed by
the colony in a military capacity, and signalized himself
by his bravery. In 1642 he was a commissioner to visit
the Narraganset Indians, and in 1653 received a commis-
sion from Cromwell to raise troops to march against the
Dutch at Manhadoes. In 1663 he was speaker of the
House of Deputies, and in 1664 was chosen Major Gen-
eral of the colony troops. The next year he was chosen
an Assistant, and in 1671 was made Deputy Governor.
On the death of Gov. Bellingham he was chosen in his
place, and was annually re-elected till 1678 when he was
succeeded by Governor Bradstreet. He was consequently
Governor during that most perilous period of New Eng-
land's history, Philip's War, and his military talents and
experience fitted him to sustain the place with honor and
distinguished success. He was so much respected in his
office, and so popular as a man, that his election was never
contested. But this popularity seems to have been im-
paired among our democratic ancestors, by the circum-
stance that in 1676 he received the distinction of Knight-
hood from the King, for, the next year after this was
known, Gov. Bradstreet was chosen in his place. He was
the first Governor of Massachusetts who had received this
mark of distinction from the King*
He died March 16, 1679, leaving a son, Hudson Lever-
ett, who maintained but an indifferent character. His
grandson John, son of Hudson, however, became one of
80 JUDICIAL HISTORY. [Ch. 4.
the most distinguished men in New England, and for six-
teen years held the office of President of Harvard College
with eminent ability and honor.
SIMON BRADSTREET was the last of the Governors under
the old charter. He was bom in Horbling, Lincolnshire,
Eng. in 1603, and was the son of a clergyman. He was
for one year a member of Emanuel College in Cambridge,
and seems to have been in part educated for the Bar. He
was the successor of Dudley as Steward of the Earl of
Lincoln. In 1630 he came to New England as one of the
Assistants, and was continued in the Magistracy until he
was elected Deputy Governor in May 1673. He was cho-
sen Governor in 1679, when he was 76 years of age.
His first wife was the daughter of Gov. Dudley whom
he married before leaving England. She was the earliest
poet in New England, and a volume of her poems, printed
in 1642 was the first book of poetry published in America.
His second wife was the daughter of Emanuel Downing,
and sister of Sir George Downing so distinguished in Eng-
lish history.
He resided in Ipswich and in Andover awhile, but after-
wards removed to Boston, where he lived till 1692 when
he removed to Salem.
From 1630 to 1643 he was Secretary of the colony.
In 1662 he was sent with Mr. Norton to England as colo-
nial agent, and to congratulate King Charles 2d upon his
restoration. They performed their trust with fidelity, but
lost much of their popularity by yielding to the royal de-
mand, that church membership should no longer be a nec-
essary qualification towards becoming a freeman, and that
the people should have a right to make use of the liturgy.
In 1673, he was chosen Deputy Governor and held that
place till his election as Governor in 1679, when he was
succeeded in the former office by Thomas Danforth.
Ch. 4] THE COLONY. 81
At this time a great excitement prevailed in the colony
in relation to the measures which the crown was taking to
rescind its charter and curtail the rights which the colo-
nists had enjoyed under it. . Danforth led the popular
party, while Bradstreet was more moderate in his politics.
The popular leaders were for holding on upon the charter
at all hazards, while the royalist party, at the head of
which were Dudley and Stoughton, were for yielding to
the demands of the crown. Gookin and Cooke acted with
Danforth, while Bradstreet took a middle course, although
he thought it best for the colony to surrender their charter.
In 1685 and 1686 he was re-elected Governor, but by
a very diminished vote, Danforth having almost as many
votes as himself. He consequently was in the office of
chief magistrate when Dudley's commission as President
arrived, May 15, 1686.
Bradstreet was named as one of Dudley's council, but
declined serving, and retired from all participation in the
government.
At the breaking out of the Revolution in 1689, he was
placed by the people, at the head of the committee of
safety which consisted among others, of the magistrates
who had been displaced on the arrival of Dudley's com-
mission. The old charter was thereupon formally resumed,
and Bradstreet was chosen Governor again, by the people.
He was continued in office till the arrival of Gov. Phipps,
who had been appointed under the new charter, in 1692.
He then retired from public life and died at Salem in 1697,
at the age of 94.
Although not distinguished for talents, he was an up-
right magistrate and an estimable man. He was intoler-
ant towards the Quakers and Baptists, but was liberal in
his political principles, and had sense and magnanimity
enough to oppose the popular and all pervading delusion
11
82 JUDICIAL HISTORY. [Ch. 4.
in regard to witchcraft which produced such disastrous
consequences under Gov. Phipps' administration. The
following extract from his epitaph unlike most epitaphs,
may be regarded as a faithful picture of his character,
" He was a man of deep discernment, whom neither wealth
nor honor could allure from duty. He poised with an
equal balance the authority of the King and the liberty
of the people. Sincere in his religion, and pure in his life,
he overcame and left the world."
I have thus briefly enumerated the several persons who
performed the multifarious duties of Governor of the Mas-
sachusetts colony under the old charter, but I cannot dis-
miss this part of my subject without noticing those whose
names as Secretaries of the colony, are so often met with
in making researches among the records of its judicial pro-
ceedings.
The first Secretary of the Company was John Wash-
burn, but as he never came to New England we have
little to do with his history.
At the election in 1628, he was succeeded by Wm.
Burgess. But the first colonial Secretary whom there is
any occasion to mention, was Simon Bradstreet who as al-
ready stated held the office from 1630 to 1643.
He was succeeded by Increase Nowell who held the
office till 1649. He was originally one of the assistants
and a man of very considerable consequence in the colony.
He came to New England with Gov. Winthrop, and was
made a ruling elder of the church in Charlestown, but
gave up the office as being inconsistent with his holding
civil office. In 1649 he joined an association consisting
of Endicott, Bradstreet and others for the purpose of sup-
pressing the wearing of long hair, because of its corrupting
tendency upon society. He continued to be an assistant
till his death which occurred Nov. 1, 1655.
Ch. 4.] THE COLONY. 83
Edward Rawson succeeded Nowell as Secretary, and
held the office by successive annual elections till the dis-
solution of the government under the old charter. Though
not distinguished for talents, the fact of his having been
so long retained in this office by annual elections, shows
that he was held in high estimation both by the people
and the government. He was born in Gillingham, Dor-
setshire, about 1615, and came to New England in 1637,
when he settled in Newbury. He removed to Boston in
1650, but the time of his death I have not ascertained.
It is neither within the limits nor the original design of
this work, to give the history of those measures which re-
sulted in wresting from the colony her cherished charter.
Where a government like that of England, as it then was,
finds it for its interest to accomplish any purpose, it is easy
to find or make pretences for undertaking the work. In
the case of the English colonies, especially that of Massa-
chusetts Bay, it was not difficult to discover grounds upon
which to rest charges which would serve as an apology
for seizing their franchises and rendering them subservient
to the crown. Massachusetts had grown under the neg-
lect of the mother country, to be an object of cupidity to
the crown, and the very degree of freedom and indepen-
dence which she enjoyed, rendered it expedient, to say
the least, that these should be reduced more nearly to the
scale of royal prerogative than could meet the approbation
of the colonists. They acknowledged no standard but
their own charter, and to this they clung as to the very
ark of their liberties. But with a prerogative in the
crown well nigh unlimited, with a judiciary subservient
to the will of that crown, and with the supple and obse-
quious tools of power which such a government can al-
ways command, it was not difficult to devise means of
robbing a feeble colony of whatever stood in the way of
84 JUDICIAL HISTORY. [Ch. 4.
royalty. The result was that under the forms of legal
process, but at the sacrifice of all pretence of equity or fair
dealing, this charter was declared to be forfeited, and the
fabric of government which had been reared upon it was
prostrated.
Although in tracing that branch of the government
which was connected with the administration of justice,
and in confining myself to this department, I have been
excluded from the most interesting incidents of our early
history, I would still hope that the facts and illustrations
which have been thus gleaned, will not be without their
use, even to the general reader.
Posterity may derive wisdom from the experience of
the early colonists, but so far as a judicial system is con-
cerned, it must rather be from what they had not, than
from the perfection of any thing they had. Their whole
system was in its infancy, and the result of experiment
rather than any wisdom or forecast in those who framed
it. Ingenuous minds, will never cease to admire the
character of the Puritan Fathers of New England, but it
was in other spheres than that of jurisprudence that their
virtues and their sagacity shone pre-eminent. The spirit
which they infused into all their institutions, it is true,
was a seed which though crushed for a while under the
weight of the royal prerogative, sprung up at last in the
fair and beautiful proportions which civil liberty has as-
sumed in the land of the Pilgrims ; but so far as the ad-
ministration of justice was concerned, it was the reflected
rather than the direct influence of this spirit which, in the
absence of all settled rules of law, guarded the rights of
the citizen, and spread its protecting shield over the inter-
ests of the body politic.
CHAPTER V.
The Colony during the Administration of President Dudley.
The judgment vacating the colony charter was en-
tered up in Chancery, on the 18th of June 1684, and a
copy of it was received by the Colony Secretary, Edward
Rawson, on the 2d July, 1685. The King thereupon
assumed the right of appointing a Governor for the prov-
ince, and a commission was granted to Joseph Dudley to
act as President, not only of Massachusetts Bay, but of
New Hampshire, Maine and the Narraganset country, or
King's Province. William Stoughton was commissioned
as Deputy President, and fifteen persons were named as
Councillors, to act with and advise the President, in mat-
ters of government.
The President's commission was received by the Rose
Frigate, May 15, 1686. , , ', /
It is said that this commission was procured by the in-
terposition of "one Randall," [2 Ser. Hist. Col. 2, p. 106.]
but the manner of his agency is not explained.
The Council named were Simon Bradstreet, Robert Ma-
son, John Fitz Winthrop, John Pynchon, Peter Bulkley,
Edward Randolph, Wait Winthrop, Richard Wharton,
John Usher, Nathaniel Saltonstal, Bartholomew Gidney,
Jonathan Tyng, Dudley Bradstreet, John Hicks and Ed-
ward Tyng. Of these, Saltonstal and the two Bradstreets
declined serving under this appointment. The establish-
86 JUDICIAL HISTORY. [Ch. 5.
ment of the government of the colony under this form,
was understood to be merely temporary, until a more perma-
nent system should be devised. The Governor and Coun-
cil had, properly, no legislative power, beyond, perhaps, es-
tablishing necessary courts of justice. They were made a
Court of Record for the trial of civil and criminal matters,
and had authority to appoint judges of such inferior courts
as they might create, as well as other officers of those
courts, and were moreover clothed with the executive
powers of the government. (Chalm. 417.)
The judicial system under Dudley, consisted of a Supe-
rior Court, comprising the majority of the Council, and
" Courts of Pleas and Sessions of the Peace," in the seve-
ral counties.
The Territory was divided into four counties, viz. Suf-
folk, Essex, Hampshire and Middlesex, and three Provin-
ces, viz. New Hampshire, Maine and the King's Province.
(1 Belk. 118, 1 Hutch. 31516.)
The former laws and customs as to judicial proceedings
were continued, and all matters as well of admiralty as of
common law were determined by jury. The mode of
returning jurors was somewhat changed from the former
system. They were now selected by the Marshal and
one Justice of the county, pricking their names upon a
list returned to them by the Selectmen of the several
towns.
The Superior Court held three sessions in a year, and
sat only in Boston. (1 Williamson's Maine, 587.)
The President took upon himself the Probate jurisdic-
tion as Supreme Ordinary, but to save the trouble of par-
ties attending at Boston, he appointed Judges of Probate
and clerks in the remote counties, to act in his stead.
I have not ascertained the precise time when the judi-
cial system went into operation under President Dudley.
Ch. 5.]
PRESIDENT DUDLEY.
87
The County Courts were not established until the 26th
July 1686. Previous to that, however, an Attorney Gen-
eral had been created, and from a communication made
by him to the President and Council, it would seem that
inconveniences had already arisen in the mode of admin-
istering justice then in use.
The President and Council seem to have acted some-
what under the direction of Bullivant in the orders they
passed relative to the court. His suggestions were
that they should publish all the names of the persons
whom they might appoint to act as Attorneys of the
courts, and what their fees might be. In the next place
that they should determine whether any but such Attor-
neys should practice in the courts, " albeit by law any are
admitted to plead their own case." In the third place, that
no information should be received by the court where the
King was the principal party, unless it was drawn or signed
by the King's Attorney. That they should settle the fees of
the Attorney General, and by whom they should be paid,
" for drawing, signing and pleading ' such informations.
That the fees of the Register of the Court of Admiralty
should be determined and that Jurors should be summoned
by the Marshals. (St, Rec.)
On the 26th July the following order was passed.
" The President and Council of his Majesty's Territory
and dominion of New England having considered the ne-
cessity of appointing a particular person to preside as Judge
in the several County Courts, that may be certainly pres-
ent for the direction of the court, and performing the nec-
essary service proper for a Judge of the court, William
Stoughton, Esq., Deputy President, is hereby intreated
and empowered to take charge and care of the several
courts of the Counties of Suffolk, Middlesex and Essex for
88 JUDICIAL HISTORY. [Ch. 5.
which service the President and Council will seasonably
take care that there be a reward assigned." (Suff. Rec.)
It was further " ordered that John Richards and Simon
Lynde, upon taking the oath appointed by the President
and Council, be Assistants to William Stoughton, Esq.
Judge, the next Court of Pleas and Sessions of the peace
to be holden at Boston, July 27, 1686."
The system so far as County Courts were concerned,
seems to have been based upon the constitution of those
courts, as it had existed under the colony charter, for we
find the Magistrates or Councillors sitting in those courts
as they had heretofore done, notwithstanding the appoint-
ment of a presiding and assistant Judges. Thus, the first
court of " Pleas and Sessions' after the foregoing order,
and the first that I have ascertained, which was held under
Dudley's administration, convened on the 27th July, 1686,
and consisted of William Stoughton, "Judge " John Pyn-
chon,Wait Winthrop, Edward Randolph, Richard Wharton,
John Usher, Esquire, and John Richards and Simon Lynde
" Assistants."
At subsequent terms of these courts sometimes two and
sometimes three of the Council sat with the Judee. and the
x- /
Assistants. The last term in Suffolk being held Oct. 26th,
1686.
Appeals lay from the County Courts to the President
and Council, and in certain cases from their decision to
the King in Council.
The admission of Attorneys was regulated by an order
passed on the 26th July, 1686 and a form of oath prescribed
to be taken by them before entering upon their profession.
Bullivant was again appointed Attorney General and
Giles Masters, Anthony Checkley, Mr. John Watson, Capt.
Nathaniel Thomas and Mr. Christopher Webb were admit-
ted and sworn as Attorneys, The oath was in most re-
Oil. 5.] PRESIDENT DUDLEY. 89
spects similar to that subsequently adopted in 1701, and,
until recently, administered to all Attorneys on their ad-
mission, with the exception of one clause which was
probably called for by the recent adoption of a fee table
and was as follows, " you shall increase no fees but be
contented with such fees as are by order of Council or of
the Judge of this court (the Superior Court,) allowed you
in time to come. You shall plead no plea, nor sue any
suits unlawfully, to hurt any man, but such as shall stand
with the order of the law and your own conscience." 1
Randolph had received the appointment of Secretary in
Sept. 1685, and there does not appear to have been any dis-
tinct clerk of the Superior Court until Nov. 2, 1686, when
Bullivant was appointed and took the oath of that office
which is regularly entered upon the records of the court.
The executive officer of the court was called the Pro-
vost Marshal, which name after the arrival of Andros was
changed to Sheriff.
Besides the regular terms of the Superior Court, sitting
as " a court of appeals, grand assize and general jail deliv-
ery," there were from time to time special terms of Oyer
and Terminer held by the President, Deputy President
and members of the Council. And the various courts and
officers just enumerated constituted, I believe, the judi-
cial system of the colony so long as Dudley remained in
power.
I have looked into most of the few records that remain
of the judicial proceedings of that period, and by a refer-
ence to these it will be perceived that more systematic
forms of proceeding had begun to be adopted, although
1 1 find under this date in Judge Sewall's Journal " Mr. Stoughton prays ex-
cellently and make^ a notable speech at the opening of the court. Foreman
of the Grand Jury sworn laying hand on the Bible. Others sworn by lifting up
hands. Attorneys sworn and none must plead as Attorneys but they."
12
90 JUDICIAL HISTORY. [Ch. 5.
they were probably deficient in technical accuracy. I
cannot however discover that there was any one connected
with the court, who had been educated as a lawyer. The
case of Cook vs. Paige which was determined at the Nov.
term of the Superior Court. 1686, having been brought
there by appeal from the County Court, presents a more
correct form of proceedings for the recovery of land than
any one I have found previous to that time. The whole
record is to be found in the appendix to Prof. Stearns'
Treatise on Real Actions. The form of the verdict in the
Superior Court was " a confirmation of the verdict of the
former jury" and an appeal was claimed to the King in
Council, the appellant recognizing for its prosecution in
the sum of 500 sterling.
Another case, determined at the same court, was " John
Nelson as assignee of John Watkins and Co. of London.
Contra Richard Brooks defendant, in an action of trover
or conversion, removed by Habeas Corpus into this court
from the last Court of Pleas for Suffolk. It is considered
by the court that the writ shall abate and that the defen-
dant shall have costs of court 2 3s. 2d."
There is an application on record by John Gifibrd which,
from the manner in which it was made, seems to contem-
plate an acquaintance with the course of practice in the
English Courts. It is addressed to the President and
Council in July 1686, and relates to an execution irregu-
larly recovered against him in which he represents that
having been reduced in his estate "he begs the favor of
Your Honors for this action that he may be admitted to
sue in forma pauperis."
In regard to crimes, the rules of law do not seem to
have been very well defined if one is at liberty to judge
from an indictment against John Gould of Topsfield in
Aug. 1686, for seditious words spoken by him as Lieuten-
Ch. 5.] PRESIDENT DUDLEY. 91
ant of a company of Militia. The words set forth in the
indictment were "if the country was of his mind they
would keep Salem court with the former Magistrates, and
if the country would go the round, he would make the
first and go and keep Salem court, and have his company
down and do it." Also " that he was under another gov-
ernment and did not know this government," To the in-
dictment are appended the names of the witnesses. A
warrant or capias was issued upon it by the Secretary and
Gould was arrested, tried and fined.
The court seem to have partaken somewhat of the spirit
that prevailed at that time in the English courts, to pun-
ish every thing that looked like an impeachment of the
government prerogative. It might moreover have yielded
to the influence of Randolph who was a fit instrument of
tyranny, and towards the old charter as well as any who
wished to preserve it, entertained a most remorseless ha-
tred. The whole offence of Lieut. Gould must have con-
sisted in his attachment to the institutions which had
grown up under the old charter, and at this day it seems
impossible to torture the expression of an opinion in favor
of the old court into an indictable offence punishable by fine
and imprisonment.
Bills of cost which had been very light under the char-
ter now began to be burdensome, l arid continued to be
more and more so until they became excessively oppres-
sive and extortionate under the President's successor.
Indeed the whole movements of the government under
Dudley were but a preparatory step to the introduction of
that which followed under Andros.
1 The amount of costs against Gould was 10 Is., among the items of which
were the Judge's fee 1, " the Attorney General's fee for pleading on the In-
dictment," 1 10s. Drawing indictment, 2s. 6d. Filing indictment, Is. (St.
Rec.)
92 JUDICIAL HISTORY. [Ch. 5-
i
The period of Dudley's administration was short, An-
dros arriving here with a commission as Governor of New
England, on the 19th Dec. 1686, seven months and four
days from the time of Dudley's receiving his commission
as President.
As most of the persons who took a leading part in the
government under Dudley were also prominent men under
his successor or subsequent to the revolution, I shall omit
a particular notice of them in this place. Of those who
were practising Attorneys, however, during this period, I
may add that Checkley was a merchant; and will again
be noticed hereafter. Thomas was afterwards a Judge of
the Superior Court under the new charter, and will be
mentioned in that connexion. Watson had been a mer-
chant in London, " but not thriving there, he left the Ex-
change for Westminster Hall, and in Boston had become
as dexterous at splitting of causes as if he had been bred
to it. He was full of fancy and knew the quirks of the
law : but to do him justice he proved as honest as the best
lawyer of them all." Of Masters and Webb I have
learned nothing, except that both continued to practice in
the courts under Gov. Andros, and the former, especially,
appears to have been frequently employed in the manage-
ment of causes, and died about March in the year 1688.
Bullivant was an apothecary and a physician in Boston,
where he was engaged in the same business, many years
after the time of which I have been speaking. Dunton
in his " life and errors " from which I have already quoted,
in describing Bullivant says " his knowledge of the laws
fitted him for the office of Attorney General. And while
he held his place he was so far from pushing things to that
extremity, as some hot spirits would have had him, that
he was for accommodating things and making peace. His
eloquence is admirable. He never speaks but it is a sen-
Ch. 5.] PRESIDENTDUDLEY. 93
tence, and no man ever clothed his thoughts in better
words." (2d Ser. Hist. Col. 2d vol.)
He was a distinguished wit withal, and notwithstanding
his being an Episcopalian, seems to have been popular in
his day, although he became one of the associates of Andros.
He practised medicine as well as compounded it, and with
great success, and thus combined the many qualities of a
witty apothecary, a medical lawyer, and an honest politi-
cian. When Andros was imprisoned, Bnllivant was also
arrested and sent to the castle, but he addressed the Coun-
cil of safety, telling them he knew of no cause for impris-
oning him, and was admitted to bail. He was in business
as an apothecary and physician as late as 1699 after which
we lose sight of his history. (2 Hutch. 107. n.) Among
the anecdotes that are preserved of his ready wit, is one
which is given as illustrating the character of the parties
concerned. Lord Bellamont, while Governor, took great
pains to ingratiate himself with the people, and although an
Episcopalian, always attended the weekly lecture in Bos-
ton. On one of these occasions, Bullivant was standing
in his shop door as the Governor was returning surrounded
by a great crowd. The Governor addressing himself to
Bullivant said, " You have lost a precious sermon to-day
Doctor !" The latter whispered to one near him, " If I
could have got as much by being there as his Lordship
will, I would have been there too."
CHAPTER VI.
The Colony during the Administration of Governor Andros.
Sir Edmund Andros arrived at Boston in the King Fish-
er Frigate, on the 19th Dec. 1686. His commission as
Governor, embraced the whole of New England, and thus,
for the first time, Plymouth and Massachusetts became
united. Two years after that, he received a new commis-
sion embracing New York also in his government.
A large number of persons, thirty-nine in the whole,
were commissioned with him to act as his Council, five of
whom might form a quorum. And to the Governor and
Council was delegated full powers of making, interpreting
and executing the laws, subject to revision by the crown.
His commission was published on the 20th December, and
on the same day he issued an order continuing all officers
then in power in their several places, until further orders
should be given. 1
His commission constituted the Governor and Council
a court of record, with full power to hold pleas, civil and
criminal, and both real and personal, and gave them author-
1 The first council meeting was held Dec. 30, 1686, at which seventeen were
present, eleven of whom took the oaths of allegiance and of office by standing
up and holding up their hands* Two of the number were permitted to
make affirmation under the penalties of perjury instead of taking an oath in the
usual form, (2d Ser. Hist. Col. viii. 182.)
Ch. 6.] GOVERNOR ANDBOS. 95
ity to establish such tribunals of justice as they should
deem necessary. 1
On his first arrival he directed the Judges to administer
justice according to the customs of the places in which
their courts were held, -and began with high professions of
regard for the public good.
He assumed to be the Supreme Ordinary, and though
it became extremely oppressive for all persons having any
business of this kind, to come to Boston as by his orders
they were compelled to do, arid although the fees to be paid
by the parties were greatly increased, yet it ought to be ac-
knowledged that he did much to introduce a regular sys-
tem of forms in the proceedings in Probate Courts, which
before that had been loose and uncertain. He personally
attended to the administration of estates exceeding 50,
and the ordinary fee for the probate of a will was 50s.
The people were the more easily reconciled to the change
in their government although they were deprived of any
share in it, on account of being relieved from the dread
they had felt of having the bloody Col. Kirk, as their Gov-
ernor, 2 and seem to have submitted to being deprived of
their House of Deputies and to the appointment of Andros
with no great reluctance. Indeed, there was no want of
capacity on the part of their Governor to administer the
government, and his professions on entering upon its du-
ties were flattering to their hopes.
Of his administration of the political and fiscal affairs of
the colony it is not proposed to speak any farther than
1 The Commission of Gov. Andros may be found in the 7th Vol. of the 3d
Series of Mass. Hist. Col. 139, but is too long to insert here.
a Kirk had actually been commissioned as Governor and was about sailing
when the death of Charles interposed and saved the Colonies from the control
of a man " than whom it would not be easy in the whole records of human cru-
elty and wickedness to point out a man who has excited to a greater degree
the abhorrence and indignation of his fellow creatures.'" (1 Graham His. 429.)
96 JUDICIAL HISTORY. [Ch. 6.
they were connected with the judicial institutions of the
day, and I shall therefore confine myself to the few relics
that are left of the several courts, and gather from these
as well as may be the records of the system of adminis-
tering justice which he adopted. Almost the entire records
of the period during which Andros was Governor, were
sent by him to England and have never been regained. l
No important change seems to have been made in the
courts for several months after his arrival. He was slow
in unmasking himself, till he had so far put the public ap-
prehensions at rest, and had so managed with his council
that he had acquired all but absolute power. He knew
his men and never was a man more fortunate in finding
congenial spirits to associate with, than he. Randolph
was a willing and never-tiring tool of a tyrant. West
was little better than a harpy in his office, and the little
cabal whom Andros had art enough to separate from his
council as his confidential advisers, served only to keep
him and each other in countenance in the inroads which
were being made upon the liberties of the people.
On the 3d of March 1687, " an act for the establishing
Courts of Judicature and Public Justice " was passed " by
the Governor, by and with the advice and consent of the
Council." And although the administration of justice
was wholly perverted under the application of this sys-
tem, it will be obvious to any one, that, as a system, if
proper Judges could have been commissioned, it was a
decided improvement upon that adopted under the charter.
It, in fact, furnished the outline of the system which was
afterwards established under the second charter.
i Much light has been thrown upon this period by the labors of Mr. Felt who
has collected and arranged in volumes the scattered papers which had lain in
an almost inaccessible condition in the department of the Secretary, and has
thus brought to view many valuable documents whose existence was scarcely
known.
Ch. 6.] GOVERNOR ANDROS. 97
In all trials, as well in matters of admiralty as others,
and before Justices of the Peace as well as the higher tri-
bunals, either party desiring it, might have a jury to pass
upon his case, he paying the expense of summoning them
into court. No person could be a juror who had not real
or personal estate of the value of 50 marks. And writs
were to issue from the clerk's office of the several courts
under the seal of the court, and in the King's name.
Justices of the Peace had civil jurisdiction in all mat-
ters of debt, trespass, &c. where the claim did not involve
the title to lands, nor exceed forty shillings in amount,
and Justices were bound to keep a regular record of their
proceedings.
The next court in rank was that of the " Quarterly Ses-
sions," held by the several Justices in their respective
counties, and was charged with the conservation of the
peace and the punishment of offenders.
An " Inferior Court of Common Pleas " was to be
holden in each county " by a Judge assisted with two or
more of the Justices of the County." Their jurisdiction
extended to all civil causes not exceeding ten pounds, in
controversy, wherein no question of freehold was involved.
This limitation however was extended in the town of
Boston to 20 pounds, and the court sat there once in two
months, instead of annually as in the other counties.
The reason given for this was that Boston was " the chief
seat of trade within this dominion."
The "Superior Court of Judicature" had jurisdiction
over all civil and criminal matters in the colony, either
original or by appeal. No action could be commenced in
this court for the recovery of less than ten pounds, unless
a question of freehold was involved in the suit.
The extent of jurisdiction of this court expressly em-
braced that of the King's Bench, Common Pleas and Ex-
13
98 JUDICIAL HISTORY. [Ch. 6.
chequer united, as they were exercised in England. Eng-
lish laws, so far as was consistent with the state of the coun-
try, were made the guide of the courts, and the times and
places of holding the Superior Court were prescribed in
the act. l
Besides these, there was a Court of Chancery created
with as full and ample powers in all matters of equity as
those of the High Court of Chancery in England. It was
to be holden by the Governor or by such person as he
should appoint Chancellor, to be assisted by five or more
of the council, and this court was to sit from time to time
as the Governor might appoint.
These were the several courts established by formal
acts of the Governor and Council, but there were from
time to time special courts of Oyer and Terminer created
for the trial of offenders, consisting of a larger or smaller
number, according to the circumstances of the case, three
at least being requisite to form a quorum and one of these
was always to be one of the Standing Judges of the Supe-
rior Court. In addition to these, '' Commissioners of
Small Causes" were continued as under the charter. Ap-
peals lay from the Quarter Sessions and the Courts of
Common Pleas to the Superior Court in case of error, and
causes were removed to the latter court by writs of Error.
So in cases of error in the Superior Court, appeals lay
to the Governor and Council, if the " value appealed for"
exceeded 100 sterling.
From the Governor and Council, as well as from the
Court of Chancery, appeals lay to the King in Council, if
the matter exceeded 300 sterling.
To prevent the accumulation of costs, no Inferior Court
1 These places were Boston, Cambridge, Charleslown, Plymouth, Bristol,
Newport, Salem, Ipswich, Portsmouth, Falmouth, Northampton and Spring-
field.
Ch. 6.] GOVERNOR ANDROS. 99
was permitted to sit more than three days at a term, and
in the language of the act " that no man be damnified by
the mistake of his lawyer for matters of form," it was di-
rected that no judgment should be arrested for mere mat-
ters of form, and the courts had full authority to grant
amendments.
The courts, moreover, were vested with full power of
making and establishing rules and orders for the regula-
tion of their own proceedings.
This is an outline of the system established by Gov.
Andros and his Council, and I infer from the few records
that are extant that it soon went into operation. Forms
of commissions were prescribed for Judges of the Court of
Common Pleas, Justices of the Peace, Clerks and Notaries
Public, and Commissions issued, I believe for the first
time in Massachusetts, to " Sheriffs " under that name.
A table of court fees was established during this period,
but seems to have answered very little purpose in guard-
ing the people from extortion. 1 The number of practising
Attorneys increased and the office of Attorney General be-
came an established one.
Among the changes introduced by Andros was that in
the- form of administering oaths. It was now required to
be " by the Book," and such as scrupled to do this were
i The court fees established were as follows, viz : For Commissioners of
small causes, attachment or summons, Is. Subprena for witnesses, 3d. En-
try, 3s. 4d. Filing papers each paper, 2d. Judgment, 6d. Confessing Judg-
ment, Is. Execution, 2s. Marshal's fees on every verdict, Is.
Sessions Fees. Each Justice per diem paid out of the fines. 5s. In civil ac-
tions, Entry, 5s. Jury on verdict not less than 6s. 6d. Entering and approving
Bonds, 2s. All other fees as above.
Superior Court. Jury, verdict not less than 6s. 6d. Entry of action, 10s.
Confessing Judgment, 2s. Additional entry fee if over 20, 10s. Entry of
Judgment, 2s. Marshal's fee in every verdict, Is.
Governor and Council. Entry of Appeals, 2s. 6d. Entry of actions, 1.
(St. Rec.)
100 JUDICIAL HISTORY. [Ch. 6.
fined and imprisoned. 1 (1 Hutch. 320.) And yet with
the capricious inconsistency of a tyrant who has a purpose
to answer by violating his own laws, in an action brought
by Randolph against Increase Mather, which will be
mentioned hereafter, a witness on the part of the plaintiff
having declined " swearing upon the Bible," was permit-
ted to take the oath by holding up the hand. (St. Rec.)
It would exceed our limits to trace, if I were able, the
several steps taken by Andros to rivet his own power and
supplant the liberties of the people. Among these how-
ever was his concentrating all legislative, judicial and ex-
ecutive authority in himself and a few supple and subser-
vient tools whom he adopted as his confidants. All others
were, in effect, excluded from any participation in the
government. Thus in June 1688, the king having cre-
ated the office of " Provost General" of New England,
granted it by letters Patent to Sir William Phipps, who
took the oaths of office, and called upon Andros to dis-
miss the Sheriffs he had commissioned, and requested that
writs thereafter might be directed to the Provost Marshal
or his Deputy, instead of the Sheriffs, as the Governor had
ordered them to be done. This requisition however was
evaded, and as stated by Graham, (i. 446) "the Gov-
ernor and his creatures incensed at this interference made
an attempt to have him assassinated and soon compel-
led him to quit the province and take shelter in Eng-
land."
Andros, at last, found himself in possession of absolute
power, and began to exercise it with an unsparing hand.
Upon mere suspicion of opposition to his measures, or, at
1 Judge Sewall states that four men were fined and imprisoned in one day
for refusing to lay their hands upon the Bible to s,vear. (Journal.)
Ch. 6.] GOVERNOR ANDROS. 101
most, for the mere uttering of words indicating such op-
position, some of the most respectable and leading men in
the Province were arrested by the Secretary's warrant,
brought from remote counties, and thrown into prison in
Boston and elsewhere, and there detained, in some instan-
ces, more than a year, without trial and even without a pre-
vious examination or indictment. And applications in the
most humble terms for even a trial, were wholly disre-
garded.
Dudley Bradstreet of Andover, son of the late Gover-
nor, and who was himself named as one of Dudley's coun-
cil, was arrested and thrown into prison in Boston by vir-
tue of a warrant from the Governor directed to the Mes-
senger of the Council. The ground of his commitment is
recited in the warrant to be " forasmuch as I have receiv-
ed information that he is a person factiously and seditious-
ly inclined, and disaffected to his Majesty's government,
and one who hath endeavored to alienate the hearts of his
majesty's subjects from the same."
Similar warrants were issued against Samuel Appleton,
Nathaniel Saltonstal and others who were leading men in
their several towns. And such was the state of abject
submission to which they* were reduced, that after a long
period of confinement, Dudley Bradstreet, as well as the
others, petitioned the Governor, in most humble terms, for
the privilege of being tried, and this being refused, he sup-
plicated for his discharge from imprisonment, as an act of
grace on the part of the Governor. 1
The same month that Mr. Bradstreet was arrested,
September 1687, an information was filed by one Philip
Nelson against the Rev. Samuel Phillips of Rowley, for
i John Nowell and Thomas Witt petitioned the Governor for a trial in
1680, " having been imprisoned a year and nothing having been offered
against them."
102 JUDICIAL HISTORY. [Ch. 6.
calling Randolph "a wicked man" and for this crime he
was sent to prison.
The reason given by this Nelson for making this com-
plaint was, partly, because he was a Justice of the Peace,
and partly " because that Christian rules do teach us not
to speak evil of the rulers of our people, but to honor
those that are in place and do bear rule in our Common-
wealth." Accompanying this information was the testi-
mony of Ensign Platt, who was their witness to the speak-
ing of the words charged, and which, if the truth could
ever justify the uttering, could never have rendered any
one amenable to punishment.
The Governor not only exercised the power of arresting
such offenders as he chose, but he delegated this authority
to others, among whom was Col. John Pinchon, of Spring-
field, who was one of his council, and who was empower-
ed to bind over all persons suspected of riots, outrages or
" abusive, reflecting words and speeches against the gov-
ernment."
Not only in criminal matters, but in the civil business
of the courts, the Governor seems to have been regarded
as equally sovereign. Checkley, himself an Attorney, pe-
titioned the Governor to stop the levy of an Execution
which had been recovered before the Superior Court, and
Richard Marett having been debarred by the Magistrates
from selling spiritous liquors, resorted to the Governor,
not only for leave to sell liquors, but also to keep a vict-
ualing house.
Although an honest and independent court might have
furnished protection to the citizen against the encroach-
ments of arbitrary power, there was too little of indepen-
dence if not of honesty in the courts during this period to
give any relief from the burdens that the people were suf-
fering. The Superior Court was constituted with three
Ch. 6.]
GOVERNOR ANDROS.
103
Judges, and one or more of those were present at the sev-
eral County Courts, and formed a constituent part of each
Special Court of Oyer and Terminer. Of course, their in-
fluence was more or less felt in every trial.
These Judges at the organization of the Court were
Joseph Dudley, Chief Justice, William Stoughton and Pe-
ter Bulkley. When this organization, under the order of
March 3 5 1687, took place, I have not ascertained. On
the 26th April, 1687, a Superior Court was holden at Bos-
ton by Joseph Dudley, Chief Justice, William Stoughton,
" Judge Assistant" and Samuel Shrimpton, Simon Lynde
and Charles Lidget, "Justices Assistants." * On the 24th
May, a Superior Court was held by Dudley, Chief Justice
and William Stoughton and no other term of designation
is given, nor were there any other members of the Court,
as would have been the case if the former organization of
the Court had continued.
It will thus be perceived that Stoughton had given
place to Dudley as Chief Justice of this Court, and he in
his turn, gave place to John Palmer, in 1688, while, with
Stoughton, he still remained upon the bench.
George Farwell was Attorney General as well as Clerk
of the Superior Court until June 20th, 1688, when James
Graham was made Attorney General of New England, to
hold his office during the Governor's pleasure, and held the
office till the Revolution.
The Sheriff who executed the mandates of this Court
was James Sherlock. And as if to mock the people of
New England, a new great seal for the Government was
i The entry in Jndge Sewall's Journal under this date is, " Court sits, Presi-
dent in Governor's seat, Mr. Stoughton at his right hand, Col. Shrimpton next
him, Mr. Lynde at his left hand, Major Lidget next him. One Hainan, Clerk,
Massy, Crier. Sheriff, Justices, Constables waited on the Judges to Town with
other gentlemen."
104 JUDICIAL HISTORY. [Ch. 6.
adopted, the motto of which was " ne unquam Libertas
gratior extat." (Chalm. 463.)
Under an administration that grew worse every day, it
would sound like a solecism to speak of any improvement
in the practice of the law. But so far as forms went, the
system was decidedly improved, although the spirit of
Justice was banished from the courts that bore her name.
The number of practising Attorneys increased, but the
state of the legal profession must have been very low.
Bullivant, Checkley, Webb, and Masters were still in
practice, and the names of Thomas Newton. 1 King, 2 Hay-
man, 3 Parwell, John West, Graham and perhaps others
may be found as Attorneys in the Courts during the time
of which I am speaking.
The character of the profession may be inferred from
an extract of a letter written by Randolph to Mr. Povey in
January 1687-8. " I have wrote you of the want we
have of two or three honest Attorneys (if any such thing
in nature.) We have but two, one is West's creature,
come with him from New York, and drives all before liim.
He also takes extravagant fees, and for want of more, the
country cannot avoid coming to him, so that we had bet-
ter be quite without them than not to have more."
The one here referred to as West's creature I suppose
was Farwell, but do not know who of the practitioners
1 Thomas Newton is mentioned in 1713-14 as a church warden of the Bos-
ton Church of England. 1 M. Hist. Col. 217. He is spoken of in Judge Sew-
all's Journal. " 1688 June 8, Mr. Dudley and Stoughtbn call here. In comes
Mr. West, and hath one Mr. Newton a new comer sworn an Attorney." He
was sworn upon the Bible by Mr. Dudley. He was afterwards Attorney
General and will be further noticed in this work.
I
2 King we believe was a Bookseller in Boston, and is probably the one men-
tioned by Dunton in his Life and Errors. 2 Hist. Coll.
3 Hayman was probably the same who under the new charter was a Judge
of C. C. P. in Middlesex.
Ch. 6.] GOVERNOR ANDROS. 105
at the bar was the other Attorney referred to by Randolph,
as Graham seems not to have removed to Massachusetts so
early as the date of this letter.
T cannot, perhaps, give a better idea of the practice in
the courts and of the mode of administering Justice under
Andros, than by copying, somewhat at length, from the
Court records the proceedings which were had in some of
the cases whose records are still preserved. I may re-
mark, by the way, that the number of actions that stood
upon the docket of the Suffolk Court during this period va-
ried from eight to fourteen, of which a good proportion
were informations or actions to recover penalties for sell-
ing rum, &c. In October 1687, four of the eight actions
were of this character, and February 1688, three of the
nine were penal actions, and the other six were actions of
debt.
The first case that will be noticed was one which was
tried at a Special Court of Oyer and Terminer in 1687. It
may be found in the Records at the Secretary's office, and
is also given in the History of Ipswich by that faithful
and accurate Antiquary, the Rev. J. B. Felt. Andros had
begun to exercise the right of levying and assessing taxes
upon the several towns under a mere order of the Council.
The people having always regarded this as proper to be
done by their own representatives only, were unwilling to
yield to the arbitrary impositions of the Governor and his
parasites. Among other towns which were ordered to
raise money for the government, was Ipswich, over which
the Rev. Mr. Wise was settled as minister. A town
meeting was called to act upon this requisition, and as
they doubted the authority of the Governor and Council
to raise money in that way, they declined making the
grant. Whereupon, Mr. Wise and five others of the prin-
cipal inhabitants of the town were arrested. In their
14
106 JUDICIAL, HISTORY. [Ch. 6*
own words " we were brought to answer for said vote out
of our own county, thirty or forty miles into Suffolk, and
in Boston kept in Jail for ' contempts and high misde-
meanor' as our mittimus specifies, and, upon demand, de-
nied the privilege of Habeas Corpus, and from prison over-
ruled to answer at a Court of Oyer and Terminer in Bos-
ton. Our Judges were Joseph Dudley of Roxbury,
Stoughton of Dorchester, John Usher of Boston and Ed-
ward Randolph. He that officiates as Clerk and Attorney
in the case is George Farwell. The jurors only twelve,
and most of them, as is said, non-freeholders of any land
in the colony, some of them strangers and foreigners, gath-
ered up as we suppose to serve the present turn. In our
defence was pleaded the repeal of the law of assessment
upon the place. Also the Magna Charta of England and the
statute laws that secure the subjects' properties and estate,
&c. To which was replied by one of the Judges, the rest
by silence assenting, that we must not think the laws of
England follow us to the ends of the earth or whither we
went. And the same person declared in open Council up-
on examination of said Wise, c Mr. Wise you have no
more privileges left you than not to be sold as slaves,' and
no man in council contradicted. By such laws our trial
and trouble began and ended. Mr. Dudley aforesaid,
Chief Judge, to close up the debate and trial, trims up a
speech that pleased himself (as we suppose) more than
the people. Among other remarkable passages to this
purpose he bespeaks the Jury's obedience who we suppose
were very well preinclined, viz. ' I am glad' says he
' there be so many worthy gentlemen of the Jury so capa-
ble to do the King's service, and we expect a good ver-
dict from you, seeing the matter hath been so sufficiently
proved against the criminals.'
"Note ! The evidence in the case as to the substance
Ch. 6.]
GOVERNOR ANDROS.
107
of it was that we too boldly endeavored to persuade our-
selves we were Englishmen, and under privileges, and
that we were all six of us aforesaid at the town meeting
of Ipswich aforesaid, and, as the witness supposed, we as-
sented to the aforesaid vote, and also that John Wise
made a speech at the same time, and said we had a good
God and a good King, and should do well to stand to our
privileges. The Jury returned us all six guilty, being all
involved in the same information. We were remanded
from verdict to prison and there kept one and twenty days
for judgment. Then, with Dudley's approbation, as
Judge Stoughton said, this sentence was passed, viz., John
Wise suspended from the ministerial function, fine 50,
pay cost, 1000 Bond. John Appleton not to bear office,
fine 50, pay cost, 1000. Bond. John Andrews not to
bear office, fine 30, pay cost, 500 Bond, (and similar sen-
tences were passed upon the others.) These bonds were
for good behavior for one year."
The whole expenses and charges thus incurred by the
six, exceeded 400, besides which they suffered a long
and most irksome imprisonment under which their spirits
sunk and their fortitude forsook them.
A trial, somewhat famous in its day, between Randolph
and the Rev. Increase Mather may serve to show the
practice of the courts during this period. It appears to
have been the custom not to file the declarations until the
actions were entered in court, arid that may in some mea-
sure account for the entire vagueness and insufficiency of
the allegations and averments in many of the writs on
file. The present action was for slander, and grew out of
Mr. Mather's having charged Randolph with forging a
letter which had been sent to England, purporting to have
been written by Mather, and calculated to prejudice him
in the minds of the King and Ministry. The damages
108 JUDICIAL HISTORY. [Ch. 6.
were laid at 500. 1 " Checkley and Masters for defen-
dant plead not guilty. Hayman for plaintiff opened and
declared. Farwell for plaintiff pursued and read the let-
ter. The letter was admitted to be wrote by defendant
to the President (that is, the one in which the charge of
forging the other letter was made,) but he says he never
published the same to any, To prove the publication of
the letter, Mr. Farwell produces John Hale of Beverly and
Giles Masters. Hale objects against swearing on the Bi-
ble and was admitted to swear by holding up the hand." 2
The whole of the witnesses' testimony is entered upon the
record. Masters acknowledged that he had the letter be-
fore the bringing of the action, and then both Hayman and
Farwell were sworn and testified in the case. Randolph,
as might have been expected, could not find a Jury who
would render a verdict in his favor, and, accordingly, fail-
ed in his suit. This however was rather from the univer-
sal odium in which he was held, than from any particular
purity or independence of Juries at that time.
The following case will illustrate the mode adopted to
manage Juries when any of them proved refractory and
declined yielding their own opinions to the dictation of
the Bench.
The case was Broadbent vs. Woodcock, tried Septem-
ber 1688. It was to recover a penalty for selling beer.
The trial was had arid the Jury retired and were out ail
night without agreeing. And before they agreed the Ses-
sion of the Court terminated, and it was adjourned with-
1 The bail for Mr. Mather, as stated by J. Sewall were Maj. Richards and
Mr. Tyrrel.
8 Judge Sewall has this entry in his Journal under January 31, 1687-8. " Mr.
Randolph in his action against Mr. Mather is cast. Mr. Hale being subpoenaed
by Mr. Randolph, pleaded he might not lay his hand on the Bible must swear
by his Creator, not creature. It was granted that he only lift up his hand as
customary in New England."
Ch. 6.]
GOVERNOR ANDROS.
109
out day. After this the Jury agreed, and the verdict being
signed by the foreman was handed in by him at the next
term of the Court, no other Juror attending. The Jury
found defendant guilty of selling two pots of beer for
which he received two pence, and they returned a verdict
against him for two pence costs of suit. Whereupon
Checkley, counsel for defendant, moved in arrest of judg-
ment for the reasons, substantially, ab6ve stated. And
upon this motion judgment was arrested.
It appeared that while the Jury were out, Graham, the
Attorney General, went to them several times to ask them
if they were agreed, and was told by them that all but one
had agreed. The next morning he went to the Jury again,
and took the juror who would not agree, out of the room,
and talked with him, telling him what he ought to do.
The juror insisted that it was for the Jury to judge of the
validity of evidence. The eleven had in the mean time
been supplied with food and drink, but the refractory juror,
was not permitted to partake of it. The juror still insist-
ed that he could not convict the defendant upon the evi-
dence before them. The Attorney General then told him
it was better for eleven men to destroy one man, than for
one man to destroy eleven. Whereupon the juror, whose
name was Edward Gouge, said, rather than destroy the
eleven he would agree. And the verdict thus made up,
was returned and recorded as above stated. The manage-
ment with the Jury by one of the counsel did not howev-
er, form any part of the ground upon which the judgment
was arrested.
One other case in which I shall suffer the party to tell
his own story, as it was carried through several courts,
will suffice to show the extent to which bad Judges, and
bad courts may become the means of prostituting justice,
and oppressing the people.
110 JUDICIAL HISTORY. [Ch. 6.
This was the case of Broadbent vs. William Colman for
an alleged violation of the excise law, tried before West,
who acted as Judge of the Court of Sessions.
" There was a profligate fellow, one John Weadon re-
ceived of Joshua Broadbent five shillings, to swear that I
sold him a gallon of rum, the which the said Weadon did,
before Justice Buliivant, and that it was on the 15th June,
1687, that I sold it him. At the petty Sessions, said Wea-
don swore it was on the 18th. This same case was trav-
ersed to the Inferior Court of Pleas, and there the said
Weadon did appear and swore that the said gallon of rum
was sold on the 19th July. I prayed Mr. West who was
then Judge of the Court, to ask said Weadon whether ev-
er he bought any rum of me above once, the which said
West did, and then said Weadon replied, never but once
in his life. But for all the plea I could make, this one
witness plainly appearing a foresworn person, the packed
Jury received the charge from the Judge, brought me in-
debted to the King 5, and Justice Buliivant sent for me
a few days after and demanded 81 shilling, refusing to
give me a bill of costs. I was forced to pay him 5 and
3 1 shilling costs, or else Execution must have come
against me. On the 24th October, I paid said Buliivant
the sum of 8 1 shilling, which as I remember was on
Saturday, and on Monday after, Larkin arrested me for
20 more that I should be indebted to the King. I was
forced to give bail, but could not procure a copy of the
writ. I went to the Sheriff but he refused to give me a
copy. I searched all the offices for the original writ, but
none to be found. The Court came, and when the case
was called, then a declaration appeared against me. No
time would be granted me for to answer the declaration,
but I must then answer guilty or not guilty. I made my
exception against sundry of the jurors, but all in vain.
Cll. 6.] GOVERNOR ANDROS. Ill
They went on to trial. I had two Attorneys, Masters and
King, but Judge West so handled the matter in giving the
charge to the Jury that they brought me in debt to the
King 16 Os. 6d. I made my address to Sir Edmund
Andros and gave him an account of my hard usage, but to
little purpose. I was advised to carry the case to the Su-
perior Court. I did so and Masters and West had 8
12s of me to bring it there, and that morning the Court
came, Masters had 48 shillings of me and told me it was
to enter the action, and make up the record. But when
it came to be pleaded, Judge Dudley that good man
would admit of no plea, but said it was the King's business
and so confirmed the former Judgment. Immediately then
came Farwell upon me for costs as the King's counsel, for
so he termed himself, and demanded of me 8 12s. My
bill of costs that he sent me, was in Latin. What it was
I cannot tell, and the bill of costs was signed by Judge
Palmer, and yet he was not in the country when the
cause was tried. Then comes Thomas Dudley and he
demanded of me 28 shillings, the which he called his fees,
but would give me no account what it was for, I was forc-
ed to pay it. The whole which hath been so injuriously
forced from me, amounts to the sum of 45 Is. 6d.
Sworn, January 23, 1689-90."
Poor William Colman was not the first man who has had
the sad experience of going to law to his cost, and if he
fared worse than others have done in more modern
times, it was because he fell into the hands of a knave for
a judge and a couple of pettifogging attorneys for counsel
who, of all harpies of the law, have ever been found the
most greedy and insatiable.
It would seem as if a course of measures such as have
been alluded to, would of itself, be enough to drive a peo-
ple to desperation. But this was but a part of the system
112 JUDICIAL HISTORY. [Ch. 6
of oppression and injustice under which the people of New
England suffered while Andros remained in power. The
administration of justice did not necessarily affect every
individual personally and at once, but when it was an-
nounced that all landholders must take out new patents
for their lands, and that their former titles however acquir-
ed, were regarded as void, a more general alarm was exci-
ted through the province. The records extant show a vast
number of petitions from individuals for confirmation of
their lands, while others, especially the favorites of the
Governor, petitioned that valuable and ancient estates
might be assigned to them at the expense of their lawful
owners.
A conversation with Mr. Higginson of Salem has been
preserved relative to the title of the lands in the Province
in which the Governor claimed that they all belonged to
the king, while Higginson insisted that they had been ac-
quired by fair purchase from the natives. The only reply
was, "you are either subjects or you are rebels." In an-
other instance, the Committee of Lynn resisted the appli-
cation of Randolph to have the peninsula of Nahant given
him, on the ground of a former purchase and occupation
by the town. The Governor told them that they could
have no true title until they could prove a patent from the
king, neither had any person a right to one foot of land
in New England by virtue of purchase or possession or
grant of court, and if they would have assurance of their
lands they must go to the king for it and get a patent of it.
He further refused them permission to have a town meet-
ing, as all town meetings had been prohibited by law, ex-
cept one for the purpose of choosing officers for the year,
and told them that their ancient records by which they
vindicated their title to their lands, were not worth a rush.
(Lewis' Lynn, 138.)
Cll. 6.] GOVERNOR ANDROS. 113
Forbidden to hold their accustomed meetings, mocked
with injustice whenever they sought redress in the courts,
threatened to be stripped of their possessions without trial
and without pretence of right, and subject at any hour to
be seized, under the Governor's or Secretary's warrant upon
the false or frivolous charge of some vile informer, or the
cowardly suspicions of the tyrants who held rule over them,
the people were at length driven to desperation, and a ru-
mor having reached Boston that the Prince of Orange had
landed in England, they rose by a spontaneous movement,
and seized the Governor and several of his advisers and
threw them into prison. This revolution took place on
the 18th April 1689, and the old Magistrates, with the
former Governor, Bradstreet, at their head, together with
some of the most influential men in the Province, assumed
the government under the name of "a council of safety."
Andros at the time of the rising of the people, fled to
the fort on Fort Hill ; and was taken from thence to the
House of Mr. Usher, where he was detained under guard
for several hours. He was there bound with chords and
led back to the fort, and transferred from thence to the
castle. In August he contrived to escape and had reach-
ed Newport, when he was arrested and sent back to pris-
on, In February 1690, he was sent home'to England by
order of the king, and from that time ceased to have any
connexion with New England. Before coming to this
government he had been Governor of New York, and in
1692, after his return to England, was appointed Gov-
ernor of Maryland and Virginia. In this office he is said
to have been acceptable to the people and far from being
a bad ruler. He probably learned experience from New
England, and never was wanting in capacity to do well,
if his inclination had not been perverse.
It may, however, be difficult to know what his course
15
114 JUDICIAL HISTORY. [Ch. 6.
of policy might have been in New England, if he had
been placed under different auspices. He was the vice-
roy of a contemptible tyrant, and his counsellors and ad-
visers were the willing panders of a wicked master.
Whatever he might have been under different circum-
stances, as he was, he will ever be remembered as an
odious, grasping and cruel despot. He was removed from
the office of Governor of Virginia in 1698, and returned
to London, where he died at an advanced age, in 1714.
I cannot close these remarks upon this period of these
sketches without noticing at greater length some of the
principal men who have been named in them.
As Stoughton seems to have been a sort of " Vicar of
Bray " politician, whereby, " whoever the King might
be," he contrived to be in office, I shall have occasion
to notice him more at length in connexion with the courts
of which he was a member under the new charter.
JOSEPH DUDLEY was the son of Thomas Dudley, gov-
ernor of the Massachusetts colony, and was born July
23, 1647, when his father was seventy years of age. His
mother afterwards married the Rev. Mr. Allen, of Ded-
ham, under whose care he passed the early years of his
life, till his admission into college. He was graduated at
Harvard in 1665, and was educated for the ministry. His
ambitious views rendered him unwilling to devote him-
self to the duties of that profession, and he accordingly
abandoned it for a public life. He was a representative
in the general court from Roxbury, from 1673 till 1675.
The following year he was chosen an assistant, and con-
tinued to be re-elected to that board till 1685. In 1681
he was chosen, with Mr. Richards, agent of the colony.
The colony charter was in danger of being lost through
the machinations of Randolph, and a last effort was made
to preserve it by a direct appeal to the crown. The polit-
Ch. 6.] GOVERNOR ANDROS. 115
ical parties in the colony, however, were divided in regard
to the policy which ought to be pursued, in view of this
threatened loss, and not a few, among whom was the cel-
ebrated Elisha Cooke, were opposed to taking any meas-
ures which could be construed into a surrender to the king
of a right to control the charter at all, unless the same
had been violated. Dudley belonged to the opposite or
prerogative party, The agency proved unsuccessful, and
the charter was vacated against law, and without even,
scarcely, the forms of justice.
The embassy to England was not however lost to Dud-
ley. He ingratiated himself with Randolph, arid was suc-
cessful enough to procure a commission as president of
Massachusetts and New Hampshire. He had in the mean
time so far lost his popularity in the colony, that he was
left out of the board of assistants at the election of 1686.
Soon after, however, he received his commission as presi-
dent, and entered upon the duties of the office. A council
was named to aid him in the government, but the house of
representatives was dispensed with.
He organized the courts of the colony anew, and, among
other improvements, introduced one regulating the admis-
sion of attorneys, and requiring an oath of office to be ta-
ken by them upon their admission to the bar. This oath
was adopted in July, 1686, and was in most respects sub-
stantially like the one required by the law of 1701, which
has been used ever since that time.
The term of his office soon expired by the arrival of sir
Edmund Andros, in December, 1686, with a commission
as governor of all New England, so that Dudley had only
held the place of president a little over seven months.
He was placed at the head of Andros' council by commis-
sion from the king, and seems to have been too much in
his confidence to escape the odium with which that mis-
116 JUDICIAL HISTORY. [Ch. 6.
erable tyrant was regarded by the people of Massachu-
setts.
No change was made in the courts until March, 1687,
when a superior court was established, consisting of three
judges, and Dudley was placed at the head of the court.
He held this place for about a year, when he was super-
seded by the appointment of chief justice Palmer, and ac-
cepted a subordinate place on the bench. It was while
he was at the head of the court, that the famous trial of
the Rev. Mr. Wise, of Ipswich, was had, a report of which
has already been given.
After a tedious and harrassing delay, the prisoners were
put upon their trial. They claimed the privileges secured
to them as Englishmen by the magna charta and the laws
of England. The chief justice, however, informed them,
that they must not expect that the laws of England would
follow them to the ends of the earth, and concluded by
telling them, that they had no more privileges left them
than, not to be sold as slaves. He charged the jury, and
stated that the court " expected a good verdict from them,
seeing the matter had been so sufficiently proved against
the criminals." A verdict was accordingly rendered
against them, and a severe punishment thereupon inflicted,
because the town in which they resided declined yielding
to an arbitrary and illegal act.
This anecdote may serve to illustrate the state of the
administration of justice at that time, in Massachusetts, as
well as the judicial character of judge Dudley. Nor was
this a solitary case of the grossest prostitution of the forms
of justice, to purposes of party vengeance and sordid self-
interest, which was practised while he was upon the
bench.
Dudley continued upon the bench until the revolution
of 1689. At the time that broke out, he was holding a
Ch. 6.] GOVERNOR ANDROS. 117
court in the Narraganset country. Upon hearing what
had taken place in Boston, some of the people of Provi-
dence went and arrested him, and brought him back to his
house in Roxbury, where he was placed under a guard of
soldiers. From thence he was carried to Boston, and af-
ter being imprisoned awhile at the house of Mr. Eyre, one
of the council of safety, he was confined in the castle and
underwent a long and rigorous imprisonment. He com-
plained of being destitute of necessary food and fire, and
there is little doubt that he suffered under the severity to
which he was subjected.
He was sent with Andros to England to answer to the
complaints of the colony, but these were never prosecut-
ed, and he seems not to have suffered much loss of royal
favor, for, the following year, he was appointed chief jus-
tice of New York, and held that office about three years.
He found that province in a state of great party excite-
ment, and his conduct in the trial of Leisler, the head of
one of the factions, gave great offence to his political op-
ponents, and was the ground of serious charges against
him in England.
He does not appear to have been satisfied with the of-
fice he held : for, in 1693, he was again in England, en-
deavoring to supplant governor Phipps, but having failed
in this attempt, he was made lieutenant governor of the
isle of Wight, through the influence of lord Cutts, the
governor of that island, and held the office eight years.
While resident there, he was elected and served as a
member of parliament for Newton in the county of South-
ampton, but with what degree of success, does not very
satisfactorily appear. With all his honors and emoluments,
however, he was discontented while away from New
England, and spared no opportunity for recovering the fa-
vor he had lost with the people there. He courted the
118 JUDICIAL HISTORY. [Ch. 6.
dissenters, made peace with Mr. Mather, and succeeded
so well in his endeavors to remove the prejudices existing
against him, that, on the death of lord Bellamont, he ob-
tained the office of governorof Massachusetts and New
Hampshire. He returned to Boston with his commission.
June, 1702, arid was well received by the people. He
however remembered those, through whose agency he had
suffered at the time of the revolution, and spared no op-
portunity of manifesting his feelings of hostility towards
them. Several of those who had been members of the
council for many years were again elected, but were re-
jected by him on coming into office. Among these was
Mr. Cooke, who was among the most popular men in the
province, and connected with many of its most influential
families. This involved him in disputes, and his lofty
bearing as chief magistrate also gave offence to many.
Charges of a scandalous nature were preferred against him
to the queen, but did not find credence in England, nor
were they generally believed even in Massachusetts.
Besides the wars with the Indians, the administration of
governor Dudley was distinguished by two military expe-
ditions, one in 1710, which resulted in the reduction of
Port Royal, and the " Canada expedition" of 1711, which
was little better than a series of disasters from the begin-
ning to the end. Among the consequences which result-
ed from the latter expedition, was a heavy province debt,
and a resort to bills of credit as a means of defraying the
expenses thereby incurred. Out of these arose two par-
ties which long divided the province ; one contending for
the establishment of a private bank, the other for a loan
of the public faith, in the form of bills of credit. The
latter project prevailed, and of the two it had the prefer-
ence in the mind of the governor, who thereby enlisted a
bitter and powerful opposition to all his measures.
Ch. 6.] GOVERNOR ANDROS. 119
The governor's commission expiring upon the death of
the queen, he was supplanted by colonel Burgess, who
was commissioned on the 17th March, 1715. Burgess,
however, never came to New England, and was succeed-
ed by colonel Shute. Governor Dudley retired from the
office in November, 1715, and the place was filled by the
lieutenant governor till the arrival of governor Shute,
in October, 1716. Governor Dudley was at this time
nearly seventy years of age, and had begun to feel the
cares of government as a heavy burden ; and upon his
leaving the chair of state, he retired to his seat in Roxbu-
ry, where he died April 2, 1720, at the age of 73 years.
On the 8th of the month he was buried with great pomp
and respect. Two regiments of infantry and two com-
panies of cavalry took part in his funeral ; minute guns
were fired from the castle and all the bells in Boston were
tolled. The council attended, and an immense concourse
of the most influential men in the province were present
on the occasion.
No native of New England had passed through so many
scenes and enjoyed so many public honors and offices as
governor Dudley.
Had he remained in private life, he would have been
justly eminent as a philosopher and a scholar, a divine or
a lawyer. He was, in fact, to no small extent, all these,
even amidst the cares and perplexities of public life.
In private life, he was amiable, affable and polite, ele-
gant in his manners, and courteous and gentlemanly in
his intercourse with all classes. His person was large,
and his countenance open, dignified and intelligent. He
had been familiar with the court, and his address and con-
versation were uncommonly graceful and pleasing. As a
judge he was distinguished for gravity, dignity, and on
ordinary occasions, mildness of manner. As a chief mag-
120 JUDICIAL HISTORY. [Ch. 6.
istrate, none could doubt his capacity to govern, and the
prudence with which he managed the affairs of the prov-
ince, disarmed even the opposition of his enemies.
Ambition was his ruling passion, and the desire to be
the governor of his own native province, seems to have
outweighed every other consideration of profit or advance-
ment. In accomplishing his ends, he regarded means as
of a secondary consideration. While pursuing his career
of ambition, he encountered enemies the most determin-
ed, and at the same time was able to win and draw around
him ardent and devoted friends, who never deserted him.
He ran through the scale of honors and political prefer-
ments in the colony, and retired at last wearied and worn
out with the perplexities and responsibilities of office, to
enjoy a few years of quiet and reflection in the scenes of
domestic life. He was justly regarded as an honor to
Massachusetts, and though his character and opinions as a
judge probably added little weight to the judiciary of the
province, it seemed due to his eminent station in public
life, to trace thus briefly his political character, although
these sketches are chiefly designed to preserve the names
of those who have been distinguished by their connection
with our courts.
Governor Dudley was connected by birth or marriage
with many of the principal families in the province. His
son Paul was afterwards the able and distinguished chief
justice of the province, and another of his sons was for
many years speaker of the house of representatives. His
descendants are still among us, but the name has yielded to
the republican tendency of our institutions, and is not now
to be found among those in place and power in our com-
monwealth.
PETER BULKLEY, was one of the associate Judges of the
Superior Court, while Dudley was Chief Justice. He was
Ch. 6.] GOVERNOR ANDROS. 121
the son of the distinguished Minister of Concord of the
same name. He was born August 12, 1643, and was
graduated at Cambridge in 1660. He was educated
for the ministry, but afterwards took a leading part in the
affairs of the colony. He was a representative from 1673
to 76 and, the last year, was Speaker of the House. He
was sent, the same year, to England as agent to answer
the complaints of the heirs of Mason and Gorges. He was
an Assistant from 1677 to 1684 and was named of Dud-
ley's council. He also held several military commissions
such as Captain, Major, &c. If the character given of Bulk-
ley as a judge, by Randolph, be correct, he made but an
indifferent figure in that office. " I have wrote," says he
in a letter to Mr. Povey, " to Blaithwait the great ne-
cessity of Judges from England. I know there are some
loyal gentlemen and able lawyers who have not practice.
The Judges with us being now three, have three hundred
and ninety pounds a year between them all, besides their
fees which they make very considerable to them. Now two
will, serve our occasions. They ought to be of the coun-
cil, and their salaries made up four hundred pounds a year
apiece they will deserve it. As for Bulkley he is stupi-
fied and drowned with melancholy and almost useless, be-
ing very seldom with us."
He died in May 1688, in his 45th year, at Concord,
" having languished a long time."
Each of the three Judges already named, had been edu-
cated clergyman, and were ignorant of the rules of evi-
dence as well as the forms of practice, if we may judge
from the records that remain of their proceedings.
Dudley was superceded as Chief Justice by JOHN PAL-
MER, who went to England and returned in 1688, with a
commission from the king for that place, while Dudley
16
122 JUDICIAL HISTORY. [Ch. 6.
consented to take a subordinate station upon the same
bench.
I have never been able to trace his history but infer from
letters written by him about this time, that he had been a
Judge of Admiralty in New York while Andros was Gov-
ernor of that province. He was in New England as early
as July 1686, relative to some breach of the revenue laws,
and then styles himself " one of the Council and Judge of
the Admiralty in his Majesty's Plantation of New York."
He was one of Andros' Council for New York, and early
became one of his confidants, and as he is called by a writer
of that day, " one of the Governor's tools." (Rev. in N.
E. justified.) He was the organ of the government in
preparing an answer to a declaration published by the in-
habitants of Boston in 1689, upon the subject of the diffi-
culties with the Governor, and, the same year, attended
Andros with Graham the Attorney General, in his tour to
Pemaquid. He was one of the persons imprisoned with
the Governor at the revolution, and was refused permission
to be bailed. (1 Hutch. 345, n.) I find among the re-
cords at the Secretary's office, a letter from the wife of
Judge Palmer to the Deputies, dated Oct. 5, 1689, praying
that he might be released from prison at the castle, as he
was suffering from the gout, and the room in which he was
confined had no chimney, and consequently he could have
no fire. She requested that he might be removed to his
house in Boston. The Deputies, however, refused her ap-
plication, but directed a chimney to be erected in his room.
In a few days he was transferred to the jail in Boston,
and in February 1690. was sent to England with Gover-
nor Andros, from which time I have found no further ac-
count of him.
SAMUEL SHRIMPTON was as has been stated, at one time,
one of the Judges connected with the Superior Court. He
Ch. 6.] GOVERNOR ANDROS. 123
belonged to Boston and was the son of a brazier. He
was born in 1643, and became a leading man in the colo-
ny. Under the old charter he was one of the Assistants,
and was named one of Andros' council for Massachusetts.
He however maintained the popular side in the controver-
sy with the Governor, and it is related to his credit by Mr.
Dummer, in his defence of the charters, that he was offer-
ed a new patent for his lands gratis, if he would accept it
from Andros, but, though rich in such estates, he refused
the offer, and submitted to having his lands seized, rather
than yield to such an arbitrary exercise of power. He was
one of the leaders of the troops at the time Andros was de-
posed, and became one of the committee of safety. He
was then Colonel of the Suffolk regiment. He was se-
lected to draw up a report of the proceedings of Andros
while Governor of the province, which report was published
in 1691, in the "New England Revolution justified." 1
From this selection it is to be inferred he was regarded as
somewhat of a literary man, although I do not find that
he was graduated at any college. He died of apoplexy,
February 5, 1698, aged 55. 2
SIMON LYNDE was associated with Col. Shrimpton as
Judge. All that I have discovered in regard to him is that
he belonged to Boston, as appears by a petition of his, on
record, and, upon the authority of Farmer ; that he had
nine sons and two daughters, and was at one time a mem-
ber of the Ancient and Honorable Artillery Company.
Even the fact that he was a judge of the Superior Court
1 The persons appointed for this duty by the committee of safety were
Stoughton, Bartholomew Gedney aud William Brown and such other members
of the late council of Andros as they should advise with. (St. Rec.)
2 Mr. Sewall says his funeral was attended by ten companies of troops, and
his bearers were Maj. Gen. Winthrop, Mr. Cooke, Lt. Col. Hutchinson, Mr..
Addington, Capt. Foster, and Maj. Wallfey.
124 JUDICIAL HISTORY. [Oh. 6.
is only ascertained by the record of his clerk. 1 He was
the father of Benjamin Lynde, afterwards Chief Justice of
the Superior Court.
Of CHARLES LIDGET another associate Judge, I have dis-
covered somewhat more than in regard to Lynde. He
belonged to Boston and was a merchant. He was one of
the confidential friends of Andros, and was imprisoned
with him at the Revolution. He was brother in law to
John Usher, of whom more will be said hereafter, the lat-
ter having married his sister. He was Lt. Colonel of the
Boston troops, an office of great honor in his day. Although
a confidant of the Governor, he was suffered to go at liber-
ty soon after the Revolution was effected, and was not sent
to England with the most obnoxious of Andros' friends. 2
JOHN WEST occasionally sat as judge of the Superior
Court, but he was principally known by the extortionous
exercise of his power as Deputy Secretary. He came
from New York with Andros, and became one of his most
confidential advisers. 3 He farmed the office of Secretary,
of Randolph, arid received the appointment of Deputy
Secretary, May 3, 1687. He was also a practising Attor-
1 By an entry in the Journal of Judge Sewall it appears that Lynde was bur-
ied Nov. 26, 1687. Bearers, Col. Shrimpton, Mr. Novvell, Justice Bullivant,
Justice Hutchinson, Mr. Addington, Mr. Saflin. " His Excellency there, went
in a scarlet cloak."
2 I copy the following notice from Judge Sewall 's Journal, as it tends to show
the gradual introduction of a looser state of morals under the influence of the
new government which had been imposed upon Massachusetts : " 1686, Sept.
3, Mr. Shrimpton, Capt. Lidget and others come in a coach from Roxbury about
9 o'clock or past, singing as they came, being inflamed with drink." He then
mentions their stopping at a tavern, drinking healths, singing improper songs,
&c., and adds, " Such high handed wickedness has hardly been heard of before
in Boston." By another entry it appears that Shrimpton and Lidget were
" bound over" for this " revel."
3 " Thursday April 21, 1687, Mr. West of New York, his wife and family
come to town in the even." (J. Sewall's Journal.)
Ch. 6.] GOVERNOR ANDROS. 125
ney in the court. He must have had a considerable share
of shrewdness and cunning, for he contrived to cheat even
Randolph out of his due share of the " spoils" of the of-
fice. He became intolerable to the people, and was seiz-
ed with the Governor, confined, and refused bail. He was
sent home to England with Andros and the other prison-
ers, and I discover nothing of him after that period.
Another who at times acted as Judge, as has been stat-
ed, was JOHN USHER who was too considerable a person-
age in his day to be omitted here. He was the son of
Hezekiah Usher, and was born in Boston, April, 1648.
His business Avas that of a bookseller. Dunton in his life
and errors (2d Ser. Hist. Col. 2d, 10) says " he is very
rich, adventures much to sea, but has got his estate by
bookselling. This trade makes the best figure in Boston."
This was written in 1685. He was one of Dudley's
council, and also of the council with Andros, under whom
he was Province Treasurer, and one of the few advisers
whom the Governor condescended to consult. He, of
course, went out of power with Andros, but in 1692, he
was appointed Lieutenant Governor of the Province of
New Hampshire, under Samuel Allen of London, who was
appointed Governor, which office he held for five years.
He was again appointed to it in 1702, under Governor
Dudley, and held the office till 1715, when he retired
from public life to his elegant seat in Medford, where he
spent the remainder of his days. He died September 5,
1726, in the 78th year of his age. His connection with
the government of New Hampshire was attended with
many difficulties and embarrassments. He was personal-
ly unpopular, and had little of the statesman, and less of
the courtier. He was fond of power, affected great sever-
ity in his demeanor, was loud in conversation, and stem
in command. His public speeches were always incorrect,
126 JUDICIAL HISTORY. [Ch. 6.
and sometimes coarse arid reproachful, and he wanted the
accomplishment of a learned and polite education. He
was however a faithful officer, and naturally of an open
and generous disposition. His connexion with Andros
was fatal to his popularity, and his deportment in office
seems to have taken its character from that of his associ-
ates during his government.
Farwell and Graham were both from New York, and
were brought into Massachusetts by Andros. * They
were imprisoned with him at the Revolution and were of
the number whom the Deputies refused to bail. Graham,
at one time, was permitted to leave the castle to visit his
family in Boston, where his daughter was sick, but was
remanded to prison the next day. They were both sent
to England with the Governor, in February 1689, and
from that time I know nothing of their history. Their
only connexion with the courts here, that I have discover-
ed, was what has already been mentioned. They were
probably educated as lawyers, and, so far as I can learn,
were the only practitioners in the courts at that time who
had been thus educated.
The members of the council of Andros, nominated for
Massachusetts, were Joseph Dudley, William Stoughton,
John Pynchon, Richard Wharton, John Usher, Bartholo-
mew Gidney, John Tyng, Edward Tyng, Samuel Shrimp-
ton and William Brown. For New Hampshire, Robert
Mason and John Hinks. For Connecticut, Robert Treat,
John Fitz Winthrop, Wait Winthrop, and John Allin.
For New York, Anthony Brockholst, Francis Nicholson,
Frederic Phillipse, Anthony Baxter, Henry Courtland,
John Young, Nicholas Bayard and John Palmer. For
Plymouth, Thomas Hinkley, Barnabas Lothrop, William
1 Graham arrived here with his family, June 7, 1688. (J. Sewall.)
Ch. 6.] GOVERNOR ANDROS. 127
Bradford, Daniel Smith, John Sprague, John Walley, Na-
thaniel Clark and John Cothill. For Rhode Island, Wal-
ter Clark, Walter Newberry, John Green, Richard Arnold,
John Alborrow and Richard Smith, while Edward Ran-
dolph seems to have been appointed without special refer-
ence to either province.
How many of these were called on to act in a judicial
capacity, I am not able to determine. The business of
the government was principally managed by Palmer, Brock-
hoist, Mason, Usher and Randolph, under the advice of
West, Bullivant and Graham.
Among the number who acted as Judges, at times, I
have ascertained in addition to those already mentioned,
Mason, Wait Winthrop, Gedney, Hinks and Nicholson.
Pinchon acted as such in his own county, and Walley,
Smith and Byfield in Rhode Island and Bristol.
Robert Mason was the grandson of John Mason, the
proprietor of New Hampshire. His father's name was
Tufton, but he took the name of Mason, and was declar-
ed proprietor of that Province by the King, in 1677. He
resided at Portsmouth. He was both of Dudley's and An-
dros' council, but died, in 1686, at Esopus while on a
journey with Andros from New York to Albany in the 59th
year of his age.
Of Wait Winthrop , Gedney, Walley and Byfield I
shall have occasion to speak in connexion with the courts
at a later period.
HINKS belonged to Portsmouth, New Hampshire, and
had but a short connexion with the government of Massa-
chusetts. In 1692, he was a member of the council of
that province when Usher was made Lieutenant Governor,
but was removed from that office because their views did
not coincide. In 1697, however, he was restored to the
council, and was made President of that body. I have
128 JUDICIAL HISTORY. [Ch. 6.
not traced his history any further, as it ceased to have any
interest in the way of throwing light upon the subjects of
our present investigation.
John Pynchon was born in England, 1625, and came
to Massachusetts in 1648, where he settled in Spingfield.
He represented that town in the General Court, in 1659,
62 and 63, and was an assistant from 1665 to 86. He
was the son of William Pynchon, to whom the whole ad-
ministration of justice in that settlement was delegated
from 1626 to 1630. The latter held courts in civil, Pro-
bate and criminal matters and when a larger number could
not be procured, he made use of juries of six, and appeals
lay in cases of difficulty from his decisions to the Court of
Assistants. Upon his being displaced in 1650. his son
in law, Henry Smith was substituted in his room, but up-
on his going to England soon after, a joint commission to
hold courts, &c. was granted to three persons, one of
whom was the subject of this notice. This continued till
the county of Hampshire was established. He died in
1703, aged 77 years.
Nicholson was among the most distinguished of Andros'
Council. He was made Lieutenant Governor of New
York, when the latter was promoted to the government
of New England. Upon the accession of William and
Mary to the throne, he was made Lieutenant Governor of
Virginia, and in 1694, was made Governor of Maryland.
In 1698, he succeeded Andros as Governor of Virginia,
and held that office seven years. In 1709, he was ap-
pointed commander in chief of the forces in the expedi-
tion, that year, sent against Canada, and the following
year was at the head of the forces that reduced Port Roy-
al. The year succeeding, he was commander in chief of
a second and unsuccessful expedition against Canada. In
1714 he was made Governor of Nova Scotia, and in 1720
Ch. 6.] GOVERNOR ANDROS. 129
was appointed Governor of South Carolina, which office
he held four years.
He seems to have been successful and popular in most
of the numerous offices that he filled, and I find, among
other things, by the address of the Minister and church
wardens of the church of England in Boston in 1713,
that he was highly commended for his " piety, generosity
and zeal for the church." (1 Hist. Col. 7th, 216.) He pro-
bably, while connected with the government of New Eng-
land under Andros, had little to do with the management
of the affairs of the province, and, therefore, had no op-
portunity to counteract the influences which directed the
administration of its government.
Edward Randolph was the " Evil Genius of New Eng-
land," or as he is called "her Angel of death," and his
zeal for her destruction was worthy a better cause. He
was first sent here from England, in 1676, to inquire into
the state of the colony, and brought with him a letter
from the king, and copies of the complaints of Mason and
Gorges against its government. In 1678, he came over
again with a commission from the Commissioner of Cus-
toms, as inspector of customs here, and informer of breach-
es of the " acts of trade." In 1679, he went to England
and returned the same year, and in 1680 went again to
England from whence he returned in 1681 with a com-
mission from the Crown as collector, surveyor and search-
er of customs in New England. Such was his zeal to
revolutionize the government, that he crossed the Atlan-
tic no less than eight times in nine years. His hand may
be traced in almost all the arbitrary acts of the mother
country towards the colony, and he seems to have possess-
ed, in addition to his deep seated malignity of purpose, no
ordinary versatility of talent in accomplishing his designs,
and retaining the confidence of his employers. Among
17
130 JUDICIAL HISTORY. [Ch. 6.
other things he was a bigoted Episcopalian and made in-
cessant war upon the churches of New England.
He was the bearer of the writ of Gluo warranto against
Massachusetts in 1683, and upon the dissolution of the
charter, was made one of the council of Government under
Dudley. He quarrelled with his associates and the Presi-
dent, and in his letters home abused them in no measured
terms. In 1683 he was made Attorney General of New
Hampshire by Gov. Crandal, who found in him a conge-
nial spirit of mischief and cruelty. Under Andros, he was
a member of the council, Licenser of the Press, and Sec-
retary of the Province, which office he farmed to West as
his deputy. His usual jealousy of disposition embroiled
him with his associates under Andros, and his grasping
avarice was disappointed of its ends by the equal or supe-
rior knavery of his retainers and dependents. There was
not one redeeming quality in his character. He was
mean, revengeful, cruel and extortions and while he
was universally dreaded he was as universally hated and
despised. He was imprisoned and sent home with An-
dros at the Revolution, and died in the West Indies, re-
taining to the last his malignity towards New England.
I have thus traced the judicial institutions of Massachu-
setts through her period of subjection to arbitrary rule,
and the reflection must have irresistibly arisen in the mind
of every one who has followed me, that a people has but
a precarious hold upon its liberties while the administra-
tion of justice is in the hands of men dependent upon the
will of the rulers, for the time being, for the tenure of
their office. Without being responsible to the popular
will for the manner in which they conduct their office,
and without the independence that admits of their
following the dictates of their own judgments or con-
sciences, they serve rather as the tools of a despot to op-
Ch. 6.]
GOVERNOR ANDROS.
131
press, than as a safeguard to protect the people. And
however much cause we may find to deprecate the sub-
jection of a popular court to the influences of popular prej-
udices and popular delusions, it is refreshing to find our-
selves once more approaching an administration where,
though the popular will might be the guide, and the pas-
sions of the many might work individual injustice, at
times, the zeal of honest minds was manifested in its
measures, and in which a regard to the people's rights dic-
tated its councils.
CHAPTER VII.
The Colony from the Revolution till the arrival of the charter of
1691.
Upon the breaking out of the Revolution and the im-
prisonment of their rulers, the people were in fact, with-
out law and without government. But the habits of good
order, the necessity of immediate action, and their cher-
ished attachment to their former charter, led, at once, to
the adoption of measures to continue the institutions of
government, and to restrain any outbreak of the multitude.
On the 18th of April 1689, Mr. Bradstreet, the last Gover-
nor under the charter, then 87 years of age, with several
of the Magistrates chosen in 1686, and some of the princi-
pal inhabitants in the colonymet at the town house in Bos-
ton, and prepared a message to Gov. Andros, calling upon
him to give up the reins of government. On the next
day they issued orders for taking possession of the fort
and stores, and on the 20th, calling to their aid some oth-
er of the principal inhabitants, assumed the title of " a
council for the safety of the people and conservation of the
peace. 3 ' Among these was William Stoughton who with
a kind of feline instinct, seems to have alighted safely on
his feet, however violent may have been the overthrow of
the administration of which he formed a part. Mr. Brad-
street was chosen President, Isaac Addington, Clerk of the
Council, Wait Winthrop Commander in Chief and, John
Foster and Adam Winthrop, Stewards. On the 2d of May
Ch. 7.] THE COLONY. 133
they recommended to the towns to choose Deputies to
meet on the 9th of that month.
Without detailing the various steps taken by the Depu-
ties and Magistrates, the government was'settled, in form,
agreeably to the charter, on the 24th of May 1689, and
on the 5th of June, a new body of Representatives met
in Boston. The charter magistrates were re-elected, and
the administration of its political affairs went on in the
colony as it had done before the revocation of the charter.
No change took place in the form of their government,
until the arrival of Gov. Phipps with the new charter
May 14, 1692. The people had been permitted, in the
mean time, to enjoy their rights under their former sys-
tem of institutions, and among these were the courts of
justice which were remodeled upon the plan of their orig-
inal organization.
The last term of the Court of Assistants arid Admiralty
under the old charter was held on the 15th of April 1686.
Arid the next in order, as the records stand, was held Dec.
1689. It was held by Danforth, Deputy Governor, and
the Assistants.
The last County Court or " Court of Pleas " in Suffolk
under the charter, was held May 6, 1686, and " adjourned
to Thursday 27th May inst. 1686 at 2 o'clock." Imme-
diately following this entry, but in different ink, is writ-
ten "and never met more, Laus Deo." Immediately
following this is entered " The court met again, Laus
Deo" These entries, probably having been made by
successive clerks, serve to indicate the changes that took
place in the politics of these officers.
The last record of the County Court in Suffolk, before
the Revolution, was Oct. ( 26, 1686 and the next succeed-
ing entry is July 30, 1689, by which it will be perceived,
there is an entire omission of its proceedings during the
period of Andros' administration. The term in July, as
134 JUDICIAL, HISTORY. [Oil. 7.
above stated, was held by Simon Bradstreet, Governor,
John Richards, Elisha Cook and John Smith, Assistants.
It continued its sessions regularly until April 20, 1692,
when it adjourned to the 2d of May following.
What I have said of the organization, powers and prac-
tice of the courts under the charter, will apply to them
during the period between the Revolution and the arrival of
Governor Phipps. On the 4th Sept. 1689, John Greene was
chosen " Marshal General of the colony, until other or-
der be made," and as such, he was called upon in Decem-
ber following, to execute the sentence of the law upon
one who was tried by the Assistants for murder, and con-
demned to death. In January following there was a con-
viction for piracy before the same court, so that they seem
not to have scrupled to exercise the highest judicial pow-
ers, notwithstanding the circumstances under which they
resumed the government.
In order, it is supposed, to obviate any objection to the
regularity of these proceedings, the General Court passed
an order January 20, 1689, " for holding the courts of As-
sistants and County Courts in ordinary course." (St. Rec. )
Anthony Checkly had been chosen Attorney General on
the 14th June, 1689, and the system, such as it was, was
thereby complete.
The forms of proceedings seem to have continued much
as they were it; 1686, and the names of the same Attorneys
are found upon the records as were in practice under
Andros, with the exception of those who left the colony
with him. 1
1 The case of Goffe vs. Green, " Marshal of Middlesex " shows how little
regard was had to form in seeking remedies by suit. It seems to have been
designed to replevy a negro slave of the plaintiff, but the action was case for
attaching him. The Jury found " for the plaintiff the negro man in contro-
versy to be delivered to the said Goffe and costs of court.*'
Ch. 7.] THE COLONY. 135
There are however some circumstances connected with
the administration of Justice during this period, that are
worthy of notice. Thus in the action of Nathaniel By-
field and al. vs. Charles Lidgit and Francis Foxcroft, exec-
utors of the last will of Hey wood, each of which parties,
by the way, before or afterwards, held high judicial offices,
the writ commands the Marshal to attach the goods or es-
tate of the deceased in their hands, and, for want thereof,
the bodies of the Executors. They were to answer " in
an action of the case for not paying to the plaintiffs the
sum of 8 10s. 6d. in money due by Book for cordage
sold and delivered to said Hey wood in the year 1689."
The action of Woodcock vs. Broad bent was case, for
false imprisonment the time alledged is " one month " in
March 1688, but no place is mentioned where the impris-
onment took place. It grew out of the arrest of Wood-
cock in the action Q,ui tarn before mentioned.
I have transcribed a part of a precept against William
Walley issued by Samuel Sewall, afterwards Chief J.
Sewall, reciting the form of complaint, as an example of
the looseness of the criminal proceedings under the court
at this period. " Complaint being made to me by Wini-
field Chick, Spinster, of Roxbury that William Walley of
said Roxbury, shoe maker, hath thrown stones at the
house of Alice Chick a widow woman, her mother, put-
ting them in fear by such actions and threatening words
in the night season and that said Walley hath abused and
slandered said Winifield Chick saying (the words are in-
serted) with such like revilings." Then follows the pre-
cept to the officer to bring the offender " to answer for
his misdemeanor hereof.' 1
As tending to illustrate the law 1 of Libel as it was under-
stood before the charter of 1692, I have copied from the
Records in Middlesex County under date December 18,
1689, an extract from the sentence against John Cutler,
136 JUDICIAL HISTORY. [Ch. 7.
who was ordered to pay a fine of 20 and to pay costs
for " joining with Mr. Thomas Graves and some others in
publishing a seditious libel against the Governor of this
their Majesty's Colony as established by law."
Another case may be cited in this connexion, to show
how little independence was exercised by the judiciary at
this period. It is the case of Frissel vs. Usher, and grew
out of Usher's conduct as Treasurer of the Province.
Frissel prevailed in the County Court, and from this judg-
ment Usher appealed to the Superior Court or Court of As-
sistants. The Jury again found against him " confirmation
of the former judgment, being 20 5s. 8d. money and costs
of courts allowed." The trial took place in December, and
upon the verdict being rendered, the defendant produced
an order from the King dated in September previous, "that
the appellant, John Usher Esq. be not molested in his per-
son or estate upon the account of his being treasurer, re-
ceiver General of his Majesty's revenue in New England,
until his Majesty's pleasure be further known."
In endeavoring to illustrate the periods into which
these sketches of our judicial history have been divided I
may have weaned the patience of the reader by the mi-
nuteness of these details. I have been led to this course
from a desire rather to furnish facts for the consideration
of others, than to indulge in speculations of my own.
The charter with all its faults was dear to the people of
Massachusetts. Under it they had grown into strength,
and what was far more important, had been free. Their
institutions were all popular, and they regarded with great
jealousy any innovations on the part of the crown. But
the time had come when they must give up many of their
long cherished habits and opinions, and those who had
lived in the palmy days of colonial republicanism ever af-
terwards looked back to the charter they had lost, with a
pang of bitter regret.
CHAPTER VIII.
From the arrival of the Charter in 1692 to the establishment of
Courts of Justice, including the trials for witchcraft.
The people of Massachusetts had entertained hopes that
a charter which had been seized by the crown, as admit-
ted by the English Commons, without law, (Chalm. 415)
would be restored to them by the new king. And a bill
for this purpose had actually been passed the House of
Commons, when parliament was prorogued, and the bill
consequently lost. The people were at length undeceived
when on the seventh of October 1691, a new charter pass-
ed the great seal although it did riot reach Massachusetts
till May J4, 1692. ; V ;>;&>, > > > . ;, -\{
This charter embraced Massachusetts, Plymouth, Maine,
Nova Scotia and the intervening territory, in one govern-
ment, by the name of the " Province of the Massachusetts
Bay in New England." Its provisions varied in many
particulars, from their former charter, and some of these
were far from being acceptable to the people. They no
longer had the right to elect their own Governor or Lieut.
Governor, the number of assistants or counsellors was in-
creased to twenty eight, and all English subjects, as well
as their children who might be born in New England,
were entitled to become freemen within the Province.
An entire change was wrought in their courts of justice
from those under the former charter. The General Court
was authorised to erect " judicatories and courts of record.
18
138 JUDICIAL HISTORY. [Ch. 8.
or other courts," to be held in the king's name, with pow-
ers to try civil and criminal matters of every kind. The
Governor and Council were made a Court of Probate, and
appeals lay to the king in council in cases where the mat-
ter of difference exceeded the value of three hundred
pounds.
The appointment of Judges, Sheriffs, Justices of the
Peace and other officers of the courts was given to the
Governor and Council, the nomination of such officers be-
ing to be made by the Governor, seven days, at least, be-
fore the appointment could be confirmed by the Council.
In case of the death or absence of the Governor from
the Province, the Deputy Governor was authorized to act
in his place, and in case of vacancy, in their offices, or the
absence of both these officers, the major part of the coun-
sellors were authorized to act in place of the Governor.
The tenure of the office of Judge was not fixed by the
charter, but it practically became "durante bene placito,"
and upon the death, or resignation, or removal of a Gover-
nor or of the King, it seems to have been thought neces-
sary to continue the former officers in commission by proc-
lamation until new appointments could be made. ( 1 Doug.
472.) In 1741, upon the accession of Governor Shirley,
this custom of renewing the commission of Judges upon
the appointment of a new Governor, was suspended
through the influence of Mr. Read, the great lawyer of his
day. (2 Hutch. 336, n.)
The power of re-appointment however was still retained,
and was, in fact, exercised by Governor Shirley himself
in 1746 ; and in 1761, upon the death of the King, Gov-
ernor Barnard issued his proclamation based upon the act
of Parliament, continuing all commissions then existing,
six months, during which time most of the places were
filled by new appointments. But as some appointments
Ch. 8.] THE PROVINCE. 139
had not been made, the order for extending the commis-
sions of such officers was renewed. (Prov. Rec.)
I have spoken of the appointment and tenure of office
of the Judges of the courts as they existed to near the time
of the American Revolution. During this period however,
the courts were far from being independent of the people,
since the amount and payment of the salaries of the Judges
depended upon the popular branch of the General Court,
and the power thus retained, was often exercised with an
unsparing hand.
To guard against this dependence of the Judges, the
crown made provision in 1773, for paying their salaries
from the royal treasury, and few things gave greater offence
to the people at large, than this interposition in behalf
of the courts. With Judges whose only tenure of office
was the will of the Governor, and who, by that arrange-
ment, were to be entirely independent of the people, every
one seemed to feel that his property and his life might be
at the mercy of the mere creatures of a creature of the
crown of England, and so strong was this feeling that only
one of the Judges dared to receive his salary from the
King.
Not, however, to anticipate what more properly belongs
to a later period of this work, I revert to the organization
of the courts under the new charter.
It will be perceived that, for the first time, the legisla-
tive and judicial powers of government were separated,
even in theory. I say in theory, for, as there was nothing
in the charter which expressly rendered the office of Judge
incompatible with that of counsellor, we shall find th'at
not only the Judges of the Superior Court sat as Counsel-
lors, but in more than one instance the Lieutenant Gov-
ernor was a member of that court and filled both offices at
the same time.
140 JUDICIAL HISTORY. [Ch. 8
But it nevertheless contemplated the erection of courts
separate and distinct from the legislative and executive
branches of the government, and in this, its provisions
were unlike the former charter, as well as the commissions
of Dudley and Andros.
The establishment of courts of judicature was, as al-
ready remarked, delegated by the charter to the Legisla-
ture, and we shall find that they early exercised this
power upon their being first convened. But before we
reach these courts, I must not omit to notice a special tri-
bunal, created, nominally, under the new charter, but be-
fore the Legislature of the Province had had time to con-
vene.
The court to which I refer was the special court of
Oyer and Terminer created for the purpose of trying the
persons in Essex and other counties charged with witch-
craft.
I do not propose to give any account of that melancholy
delusion which seized the public mind at the time of
which lam speaking. Sir William Phipps who had been
appointed the first Governor under the charter, was a thor-
ough believer in the existence of witches and witchcraft.
He moreover found the feelings of the people deeply ex-
cited against this imaginary exhibition of demoniacal
power, and the prisons filled with the victims of this pop-
ular delusion. Urged on by the seeming emergency of
the case, and sustained by the co-operation of many of
the leading men, especially of the clergy, in the Province,
the Governor issued his commission constituting the per-
sons named in it a court to act in and for the counties of
Suffolk, Essex and Middlesex,
*=* The date of this commission was June 2, 1692, and the
court convened at Salem upon the same day. No act of
the General Court creating Judicial Courts had then been
Ch. 8.] THE PROVINCE. 141
passed, nor did that body hold any meeting till June 8th,
six days after this special tribunal had begun its session.
No act of the Legislature was, in fact, passed in regard to
courts until the 28th of the same month. The conclusion
therefore must be, that, as the Legislature alone could es-
tablish judicatories, the court which became so distin-
guished for its cruelty and misguided fanaticism, acted
without any valid authority, and perpetrated by its pun-
ishments, a series of judicial murders without a parallel in
American history.
The extent of the jurisdiction of this court may be
judged of by the tenor of the commission which was issued
by Governor Phipps to Anthony Checkley, July 7, 1692, to
act as its Attorney General.
In that it is stated that he was to act in the court " as-
signed to enquire of, hear and determine for this time, all
and all manner of felonies, witchcraft, crimes and offences
how or by whomsoever done, committed or perpetrated
within the several counties of Suffolk, Essex, Middlesex,
or either of them. (St. Records.)
The court consisted of seven Judges, viz. STOUGHTON,
Chief Justice, NATHANIEL SALTONSTAL, whose place was
afterwards supplied by JONATHAN CURWIN, JOHN RICHARDS,
BARTHOLOMEW GEDNEY, WAIT WINTHROP, SAMUEL SEWALL
and PETER SERGEANT. Their first meeting as I have
stated, was at Salem on the 2d of June. They met again
on the 28th of the same month, on the third of the follow-
ing August, and the ninth of September. Their last
meeting was upon the 17th of that month, after which
the court was dissolved. The expenses of the court to
the county of Essex was 130 which was assessed upon
the inhabitants of the county. (Felt's Salem, 316.)
During this short period, nineteen persons were tried,
condemned and hung for witchcraft, and one was pressed
142 JUDICIAL HISTORY. [Ch, 8.
to death. This was Giles Corey, and it is the only in-
stance that I have discovered where the horrible death, by
the common law judgment of " Peine fort et dure " has
been inflicted in our country. He refused to plead to the
indictment against him, knowing that a trial was but the
form of convicting him of a felony, by which his estate
would be forfeited to the King ; and when called upon to
answer to the charge against him, stood mute, notwith-
standing the importunities and threats of the court, and
entreaties of his friends. He was sentenced on the 9th,
and suffered on the 19th of September. He was eighty
years of age and " as his aged frame yielded to the dread-
ful pressure, his tongue protruded from his mouth. The
demon who presided over the torture, drove it back again
with the point of his cane." (Upham's Lee. 88.) Such
is the tender mercy of fanaticism.
Before proceeding'to give a detailed account of the mode
of managing these trials, I will offer the form of one of
the indictments under which the unfortunate victims were
tried and executed.
" The Jurors &c. present that Mary Osgood, about
eleven years ago, in the town of Andover, wickedly, ma-
liciously and feloniously a covenant with the Devil did
make and signed the Devil's Book and took the Devil to
v_/
be her God, and consented to serve and worship him, and
was baptized by the Devil and renounced her former
Christian baptism, and promised to be the Devil's, both
soul and body, forever, and to serve him ; by which dia-
bolical covenant by her made with the Devil she is be-
come a detestable witch, against the peace, &,c." (1 Hist.
Col. 7th, 241.) Other indictments charged the prisoner
with sorcery and witchcraft acted upon the body of such an
one at such a time, whereby the afflicted person was wasted
consumed and pined, &c.
Ch. 8,] THEPROVINCE. 143
The course of proceeding in the trial was as follows.
After pleading to the indictment, if the prisoner denied
his guilt, the afflicted persons were brought into court,
and sworn as to who afflicted them. This testimony
having been given in, the "confessors " as they were de-
nominated, that is, those who had voluntarily acknowl-
edged themselves witches, were called upon to tell what
they knew of the accused. Proclamation was then made
for all who could give any evidence against the prisoner,
to come into court, and whatever any one volunteered to
tell, was admitted as evidence however foreign from the
charge for which the prisoner was on trial. The next
process was to search the prisoner for " witch marks,"
which was done by the Jury, who often returned that up-
on such and such parts of his body, was found a preternat-
ural excresence. And a wart or a mole became witnesses
against the person it deformed.
I have relied for the above account upon a statement
made by Mr. Brattle, an eye witness of these trials,
which is published in the 5th Hist. Col. 60. At the time
he wrote, nine had been condemned besides the nineteen
who had been executed; and Mr. Corey who had been
pressed to death, and there were fifty more in prison who
had confessed themselves to be witches. Indeed escape
seems to have been impossible, and a trial was but the form
of executing popular vengeance. Juries were intimidated
by the frowns and persuasions of the court, and by the out-
breakings of the multitudes that crowded the place of trial,
to render verdicts against their own consciences and judg-
ment. 1
i At the opening of the court the Chief Justice in the first charge which he
gave to the Jury, ** told them they were not to mind whether the bodies of the
afflicted were really pined and consumed as was expressed in the indictment,
but whether the said afflicted did not suffer from the accused such afflictions as
144 JUDICIAL, HISTORY. [Ch. 8.
In the case of Rebecca Nurse the Jury brought in a ver-
dict of not guilty, upon which the accusers raised a great
outcry, and the judges were overcome by the clamor.
They expressed their dissatisfaction with the verdict, and
one of them in terms of great vehemence. Another of the
Judges declared that she should be indicted over again.
The Chief Justice told the Jury they had overlooked one
important piece of evidence, which was an expression of
surprise, as the court construed it, of the prisoner at the
testimony of a witness. They were therefore sent out
again, and again returned for an explanation of this ex-
pression. The prisoner frankly stated her surprise at see-
ing a fellow prisoner brought up as a witness against her,
and that the expression she had used arose from her ina-
bility to hear what was said by the foreman of the Jury
on account of her deafness. The Jury however soon re-
turned a verdict of guilty and she was executed accord-
ingly. (Upham's Lee. 84. 2 Hutch. 54.)
I have stated that the last meeting of this court was
upon the 17th Sept. They then adjourned to the first
Tuesday in November ; but in the mean time the legisla-
ture met, the public mind began to be enlightened, the
mania upon the subject of witchcraft began to subside,
and before the time to which the court was adjourned had
arrived, the court was dissolved. 1
naturally tended to their bein pined, consumed &c. This said he, is a pining
and consuming in the sense of the law." (Brattle.) As I am not aware
that this rule of practice has ever been reversed, I suppose it must be regarded
as the law in all matters relating to trials of witches which may hereafter arise
in the court.
1 I am led to believe that this court had, in reality, ceased to be regarded as
having any authority before any formal act dissolving it was adopted. J. Sew-
all in his Journal has the following entry under Oct. 26, 1692, "a fast and con-
vocation of ministers is ordered by bill, " that we may be led in the right way
as to the witchcraft. The season and the manner of doing it is such that the
Court of Oyer and Terminer count themselves thereby dismissed."
ch. &]
THE PROVINCE.
145
For the credit of New England it would be well if ob-
livion could settle down over this period of her annals.
But the history of that court furnishes a lesson which ought
never to be forgotten. It was a popular tribunal, there was
not a lawyer 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, untram-
lelled bv the " quibbles of the law." to follow their own
-I, , ' "-
feejings and thp. popular will. Human nature may have
changed, and a court equally popular and equally unac-
quainted with the rules which govern judicial proceedings,
might stand against a strong popular delusion or excitement,
should such an 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 mon-
strous as the whole proceedings of that court, in fact, were,
could have been tolerated, had there been an enlightened
bar in Massachusetts whose services should have been ex-
erted in favor of the accused ? It was not for the want of
learning or honesty on the part of those who were engag-
ed in those trials, that injustice was done. It was that
their habits of thought, their entire ignorance of the salu-
tary 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.
I have said the Judges were honest and learned men,
and so far as it relates to most of them, certainly, the re-
mark is true. STOUGHT ON, the Chief Justice, had been edu-
cated a clergyman, had been long in public life, was after-
wards Chief Justice of the Superior Court, and was at that
19
146 JUDICIAL HISTORY. [Ch. 8.
time Lt. Governor of the Province. He retained his belief
in witchcraft till his death. SEWALL had been educated
a clergyman, and was afterwards Chief Justice of the Su-
perior Court. WINTHROP was by profession a physician,
and was also a member of the Superior Court. RICHARDS.
was a merchant, and with CURWIN was also a member of
that court. These will be noticed hereafter, when enu-
merating the Judges of the Superior Court under the Pro-
vincial charter.
NATHANIEL SALTONSTAL was of Haverhill. He was born
in 1639, and was grandson of Sir Richard Saltonstal, one
of the original grantees of the Patent. He was graduated
at Cambridge in 1659. He became distinguished as a
military man, and is spoken of by Randolph as among the
most popular, and well principled military men of the day.
He successively held the offices of Major, and Colonel,
then places of honor and responsibility. He was one of
the Assistants when Dudley's commission as President ar-
rived, and on that account declined acting as a member of
his council, although named as such in his commission.
He was from time to time, placed upon important commis-
sions connected with the claims arid disputes concerning
the Narraganset country, but was not one of Andros ? Coun-
cil. Upon the deposition of the latter, he was associated in
the government, and was an Assistant till the arrival of
the new Charter, under which he was commissioned as
one of the Council. Though one of the Judges of the
Court of Oyer and Terminer as above stated, he seems to
have been free from the prevailing delusion of the time,
and early left the bench, refusing to proceed in the trials
in which that court were engaged. 1 The powers of his
mind were of a superior order, and he held through life a
He became a member of the C. C. Pleas for the County of Essex in 1702
and retained the place until his death.
ch. a]
THE PROVINCE
147
distinguished rank in the Province. He married the
daughter of the Rev. John Ward of Haverhill, and was
the father of Gurdon Saltonstal, Governor of Connecticut.
His Grandson, Richard Saltanstal, was one of the Judges
of the Superior Court of Massachusetts. He died May 21,
1707, at the age of 68.
PETER SERGEANT was of Boston, and is called by Doug-
las in his account of this court, simply " Mister.' 7 He
was a man of considerable influence in the colony, and
took an active part in the revolution, being one of the
persons who addressed Andros in relation to his abdicating
the government, and who assumed the government on that
occasion. He was commissioned as one of the council
under the new charter, and was elected a member of that
board from year to year till 1703, when Dudley, having
been made governor, negatived his election on account of
the part he had taken in imprisoning Dudley at the Rev-
olution. He was elected the following year, and again
negatived, and although a leading and popular member of
the party headed by Mr. Cooke, was not again elected to
the council. He married the widow of Governor Phipps,
and was, I believe, a merchant. When the courts of
Common Pleas were established, he was appointed a Judge
of that court for Suffolk, and held the office till Dudley's
elevation to the executive chair, when he was removed
from this office, as he had been from that of counsellor,
and seems not to have again held any judicial office.
BARTHOLOMEW GEDNEY, the remaining Judge of this
court, belonged to Salem. He was a practising physician.
He was born in 1640, and was made a freeman in 1669.
From 1680 to 1683 he was an assistant and a member both
of Dudley's and Andros' councils. He joined Governor
Bradstreet and others when they assumed the government
on the imprisonment of Andros and was named as a coun-
148 JUDICIAL HISTORY. [Ch, 8.
seller in the new charter. In 1690 he commanded an ex-
pedition in the war with the French and Indians in Can-
ada. In 1692 (Oct. 3,) he was appointed Judge of Probate
for Essex county, and the same year was made one of the
Judges of the Court of Common Pleas for this county.
He commanded an expedition against the Eastern Indians
in 1696, and was constantly engaged in public or military
life until his death which took place February 28, 1698-9,
at the age of 58. In a character given of him by Mr. Felt,
it is said " though elevated by men, yet he bowed in rever-
ence and faith at the cross of Christ. He was cut off in the
midst of extensive usefulness and growing respectability."
Mr. CHECKLEY, who acted as Attorney General for this
court was a merchant, and a military man. As before re-
marked, no lawyer seems to have had any thing to do with
this court. There was not, in fact, any one in the Province
at that time who had been educated to the bar.
That the Judges who sat in these trials were honest in
their belief in witchcraft, and in their zeal to suppress it,
appears not only from their own conduct and declarations,
but from the estimation in which they were held after the
delusion had passed away.
Sewali was certainly among the most learned, pious and
honest men in the Province. His journal to which I have
referred and may again refer, is a faithful daily record of
his thoughts and feelings, and of the events, even the
most trifling, that were passing around him.
Under date, September 19, 1692, he narrates the fact
that about noon Giles Corey was pressed to death for
standing mute, and on the following day is this entry.
" Now I hear from Salem that about 18 years ago he (Co-
rey) was suspected to have stamped and pressed a man to
death, but was cleared. It was not remembered till Anne
Putnam was told of it by said Corey's spectre, the Sab-
Ch. 8.] THE PROVINCE. 149
bath day night before the execution." If any one could
doubt the honesty of this credulity, his doubt would be
removed by the public confession offered by Judge Sewall
in 1697, on the occasion of a public fast which was ap-
pointed by the General Court, " that God would pardon
all the errors of his servants and people in a late Tragedy,
raised amongst us by Satan and his instruments." (1
Doug. 451.)
I copy this confession from his journal, as offering a no-
ble proof of his purity of heart and magnanimity of spirit
in the humble acknowledgment of his errors which it
offers. " 1696-7, January 15. Copy of the Bill I put up
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
repeated strokes of God upon himself and family, and be-
ing sensible that as to guilt contracted upon the opening
of the late commission of Oyer and Terminer at Salem
(to which the order for this day relates) he is upon many
accounts more concerned than any that he knows of, de-
sires to take the blame and the 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 his sins, personal and relative, and according to his
infinite benignity and sovereignty, and not visit the siri 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 temptations to sin for the future, and vouchsafe to him
the efficacious saving conduct of his word and spirit."
It is not therefore on account of their having yielded to
a common delusion in believing in the existence of the
crime of witchcraft, that I have been so minute in this ac-
count of the proceedings of this court. So far they were
sustained by the prevailing opinion of the age in which
150
JUDICIAL HISTORY.
[Ch. 8.
they lived. The object has been to present in their true
light the dangers to which the public must always be sub-
jected in having their tribunals of justice so far identified
with the people themselves, as to be controlled in all their
measures and their judgments by the popular will. With
human nature as it has been, and always will be, it mat-
ters little, so far as the individual sufferer is concerned,
whether the passions and prejudices of the judge are awa-
kened by the fanaticism of religious bigotry, or that of po-
litical party. If the popular cry is to be the standard of
what is right, the security of property is at an end, per-
sonal liberty is no longer safe, and the blood of the inno-
cent will often seal the triumph of a popular administration
of justice, in the triumph of popular vengeance.
CHAPTER IX.
The Constitution and Powers of the Courts under the Province
Charter, with individual notices of some of their Officers.
The first meeting of the General Court under the new
^j
charter was held on the 28th June, 1692. At that time a bill
was passed for holding courts of Justice until their further
establishment, but it was merely a temporary arrangement,
and I have found no appointments made for any courts but
those of the Common Pleas. A term of this court was
held in Suffolk, called " an Inferior Court of Pleas," on
the 26th July, 1692, by Stoughton, Chief Justice, Richards,
Wait Winthrop, and Sewall, but I do not find that they
held it a second time.
The first law that was passed under the charter for the
permanent establishment of courts of justice, bears date
November 25, 1692, and is entitled " an act for the estab-
lishing of judicatories and courts of justice within the
Province."
The courts established by this act were Justices of the
Peace, Quarter Sessions of the Peace, Common Pleas, a
Superior Court and a Court of Chancery.
Although a new organization of the courts became ne-
cessary in 1699, on account of the King's refusing to give
his assent to the act of November 1692, yet, as the acts of
1699 were little more than a re-enactment of that of 1692,
with the exception of a provision for a Court of Chancery,
I propose to analyze the several powers of these courts as
152 JUDICIAL HISTORY. [Ch. 9.
I
conferred by the charter and the first act of the General
Court.
The first of these in dignity and importance was the
SUPERIOR COURT. It was to consist of a chief and four
associate Justices, three of whom could form a quorum.
Its jurisdiction extended to all actions, real, personal and
mixed, as well as to all pleas of the crown, and it was
moreover, a court of assize and general jail delivery. It
had original and concurrent jurisdiction with the Inferior
Courts in all matters of freehold, and in all actions often
pounds value and upwards, and the party who was cast in
the suit had a right to a review of the action as a matter
of course. It had also appellate jurisdiction over all mat-
ters brought from the inferior courts by appeal or writs of
error.
The Judges were further empowered to establish all
necessary rules and orders to govern the practice in their
courts.
By an act of the same year (1692,) the power of grant-
ing writs of Habeas Corpus was conferred upon the Jus-
tices of this court.
By the provisions of the charter all laws were required
to be sent to England for the approbation of the King,
and consequently the act creating these courts was in a
measure inchoate until the action of the King in council,
should be had thereon. From the necessity of the case,
however, the Governor and Council proceeded to appoint
Judges of the several courts, and on the 7th December,
1692, four of the five Judges of the Superior Court were
commissioned and the fifth was commissioned soon after.
The court, as thus constituted, consisted of William
Stoughton, Chief Justice, Thomas Danforth, Wait Win-
throp, John Richards and Samuel Sewall.
The first term of the court was held at Salem on the
Ch. 9.] THE PROVINCE. 153
third of January, 1692-3, as a court of assize and general
jail delivery, being a special term, and occasioned by the
great numbers still in jail upon the charge of witchcraft.
Fifty six bills of indictment were preferred for this offence
at this term, of which the Grand Jury returned thirty " ig-
noramus " (as was then the form of proceeding) and of
the twenty six returned by them as " true bills," three
only were sustained by the, traverse Jury, and the persons
thus convicted were pardoned. Upon Governor Phipps'
returning to England about 150 were in prison, and about
2()0 under the charge of witchcraft, all of whom were dis-
charged upon paying the Attorney General 30 shillings
each. (1 Doug. 450.)
The number of persons here spoken of, probably inclu-
ded the counties of Suffolk and Middlesex, for the same
Judges who held the special term in Salem, held a term
also in Charlestown on the 31st of the same month which
was the time fixed by the statute as the regular term of
the court. The court was regularly held in the various
counties till the death of Governor Phipps. This took
place February 18, 1694-5, in England, where he had gone
to answer certain charges which grew out of his rough
and violent treatment of individuals, among whom was a
master of a public vessel whom the Governor, for some
provocation, publicly caned in the street in Boston.
At the term at Plymouth in 1694, which was held by
Danforth, Winthrop and Sewall, among the actions that
stood for trial was one wherein Sewall was plaintiff and
Winthrop defendant, and another wherein Chief Justice
Stoughton, then acting Governor, was plaintiff and Seth
Perry defendant.' If the scales of justice were balanced
in the one case, the defendant in the other incurred some
hazard in presuming to " refuse to pay a bond," as he is
charged in the declaration, where his antagonist possessed
20
154 JUDICIAL HISTORY. [Ch. 9.
such means of changing the preponderance of his own
end of the scale. Neither action however was tried at that
term, nor have I learned what was their final disposition.
They are alluded to rather as showing the fact that the
Judges took cognizance of cases in which they were par-
ties, than from any other importance they possess.
The commissions of all the Judges except Richards',
were renewed in 1695, on account, as I suppose, of the
death of Governor Phipps. Richards had died in the mean
time, and his place had been filled by the celebrated Elisha
Cooke, the elder of the two of that name who filled im-
portant places in the public councils as popular leaders in
their respective periods.
No other changes in the court need be noticed till 1699,
when an order from the King disallowing the act creating
the courts was received. It happened that the court was
then in session and in the midst of a trial. The news
reached them after the adjournment for the day, on the
26th April. On the morning of the next day the Judges
did not repair to the court house at the tolling of the bell,
as was customary, but in the afternoon they went into
court and explained to the people the news which had
been received, and took the papers of the case then on
trial from the jury, and the court was dissolved. (Sew-
all's journal.)
On the 26th of May, of the same year, Lord Bellamont
arrived at Boston, as successor to Governor Phipps, and in
his first speech to the General Court on the 2d June, offi-
cially announced the disallowance of the act of 1692, and
recommended the revival of the courts by such a bill as
the King would approve. On the twenty sixth of the
same month bills were passed establishing courts of Jus-
tice, and continuing such actions in force as had been en-
tered in the former courts and discontinued by their being
dissolved. (St. Rec.)
Ch. 9.] THE PROVINCE. 155
Instead of a general act creating these courts as had
formerly been done, separate acts in relation to the Supe-
rior and the Inferior Courts and Courts of General Ses-
sions were passed, while the erection of a Court of Chan-
cery which had been the cause of the former act being
disallowed, was wholly omitted.
By the act of 1699, the Superior Court was to consist
of the same number of Judges as under the former act,
and its jurisdiction after specifying all matters of a civil
and criminal nature, including appeals, reviews and writs
of error, is extended generally to all matters " as fully
and amply to all intents and purposes whatsoever, as the
Courts of King's Bench, Common Pleas and Exchequer,
within his Majesty's Kingdom of England." (Prov.
Laws, 330.)
Two years after this, the court was empowered to adopt
rules of practice, and appoint its own clerk. And, as it
appears from the records, the Governor and Council were
authorized not only to call special meetings of the court
for the trial of criminals in certain cases, but to appoint
special Judges of the court to sit in the trial of particular
causes or particular classes of causes, in which the stated
Judges either declined acting, or thought themselves in-
competent on account of interest. No other change that
I am aware of, took place in the organization of the Supe-
rior Court until the American Revolution.
The number of instances of special appointments of
Judges is too great to be enumerated here, nor am I sure
that I have discovered them all. Among them however
I may mention the following. Samuel Thaxter 1 and
Thomas Berry 2 were appointed in 1735 special Justices for
1 Samuel Thaxter was of Hingham and was long engaged in public life.
Thomas Berry was of Ipswich, a physician, and one of the Judges of the
Court of Common Pleas of Essex.
156 JUDICIAL HISTORY. [Ch. 9.
the county of Suffolk in cases wherein the town of Bos-
ton was concerned. Benjamin Prescott 1 was appointed in
the same year for Worcester, and two years afterwards for
the county of Suffolk.
In 1737, Nathaniel Hubbard 2 was appointed for Suffolk
in a case of the town of Boston, arid Job Almy 3 at the
same time was appointed to act in the case of Aaron
Knapp.
In 1738, Thomas Greaves 4 was appointed in the place
of Judge Edmund duincy, to hold his office during the ab-
sence of Mr. duincy as the Province Agent in London.
In 1747, John Cashing, 5 Sylvanus Bourn 6 and Joseph
Pynchon 7 were appointed Justices of the Superior Court,
"in all cases relating to the silver scheme." And in the
following year John Jeffries, William Brattle 8 and Thomas
Hubbard 9 were placed upon the bench to act, in stead of
Richard Saltonstal, Stephen Sewall and Benjamin Lynde,
" in all cases relating to the society engaged in the emis-
sion of 120,000 pounds in notes of hand redeemable with
silver, commonly called the Silver Bank," which is doubt-
i Prescott lived in Groton and died August, 1738, aged 42. He was the
father of Col. William Prescott, who distinguished himself as an officer at Bun-
ker Hill. He was a member of the Council.
'Hubbard was afterwards one of the standing judges of the Superior Court.
3 Almy belonged to Bristol County, and was a Judge of the Common Pleas
in that County, and at one time represented Tiverton, then in Bristol County.
4 Greaves was afterwards one of the standing judges of this Court.
5 Gushing was soon after appointed one of the standing judges of this court.
e Bourn was a Judge of Court Common Pleas for Barnstable and died 1763.
* Pynchon was of Hampshire County and a Judge of the Court of Common
Pleas for that County in 1741.
8 General Brattle was of Cambridge and is noticed in another part of this
work.
9 Hubbard was of Boston, a representative of that town, Speaker of the
House and afterwards a member of the Council.
Ch. 9.] THEPROVINCE. 157
.
less the same " scheme," 1 referred to in the appointment
of Gushing &c., above mentioned.
Without mentioning the cases in which they acted I
will add the names of such of the special justices as have
fallen tinder my observation, since I should be glad to pre-
serve the names, at least, of all who have acted as mem-
bers of this court, even if only in particular cases. Eze-
kiel Cheever 2 was frequently called to this duty. Seth
Williams, 3 William Ward, 4 Andrew Oliver, 5 Samuel
Dariforth, 6 Thomas Hutchinson, 7 (father of the Governor,)
Joseph Richards, John Chandler, 8 Benjamin Lincoln, 9
i The " scheme " here alluded to was one of the many plans devised during
the latter part of the administration of Governor Belcher and the early part of
that of Governor Shirley to counteract the ruinous effects of the bills of credit
and other financial measures which had been adopted and pursued till public
credit and private wealth were well nigh annihilated. The " silver scheme "
was conceived as a means of remedying the evils of the " Land Bank " or
"Manufactory scheme" but it would swell this note to an unreasonable ex-
tent if any thing like a full statement of the nature and variety of these schemes
were attempted, and they are therefore purposely omitted. ,
* Cheever belonged to Charlestown and was frequently a member of the Gen-
eral Court.
3 Williams was of Bristol County and a Judge of the Common Pleas in that
county.
4 Ward belonged to that part of Marlboro' afterwards Southboro', and was a
judge of the Court Common Pleas for the county of Worcester.
a Oliver belonged to Salem, a son of Lieutenant Governor Oliver and a
Judge of the Common Pleas for Essex.
6 Danforlh was Judge of Probate and of the Court Common Pleas of Mid-
dlesex County.
7 Hutchinson was of Boston, and long a member of the council.
8 Chandler was of Worcester, and Chief Justice of Court Common Pleas
for the county of Worcester.
9 Lincoln was of Hingham and father of the celebrated General Benjamin
Lincoln of the Revolution.
158 JUDICIAL HISTORY. [Ch. 9.
Samuel White l and Joseph Lee, 2 in addition to those
above mentioned, were among the, special justices of this
court.
The commissions to the standing judges under the act
of 1699, were granted on the 25th July following the
passage of the act and the former members of the court
were re-appointed. Without giving here the changes that
took place in the incumbents of this office under the Prov-
ince charter, I propose in another part of this work to no-
tice each of these judges individually, and shall therefore
proceed with the powers which they exercised by virtue
of their commissions.
In common with courts of Common Pleas, this court
had authority to chancer penalties annexed to any spe-
cialties upon which suits were pending, and to enter up
conditional judgments in actions upon mortgages, and also
to decree a redemption of mortgaged estates, where the
mortgagor or his assigns should have paid or tendered the
amount due, &c., within three years from the time of entry
made by the mortgagee for condition broken. This au-
thority was given in 1698, although, at that time, the act
creating a court of Chancery was considered as in force.
(Prov. L. 324.)
I do not find that any further chancery powers than
these were granted to any court after 1699, so long as the
charter was in force.
Another power was exercised by this court which gave
great offence to the officers of the crown, and the exer-
cise of which was made a ground of complaint against the
Province, and that was the power of granting prohibitions
1 White was of Haverhill, and was afterwards a member of the Provincial
Congress.
2 Lee belonged to Cambridge, was a Judge of Court Common Pleas for
Middlesex, and a Mandamus Counsellor.
Ch. 9.] THEPROVINCE. 159
to the other courts, and restraining them from an undue
f v- *
exercise of jurisdiction, especially the Court of Admiralty.
This court ; of which I shall have occasion lo speak hereaf-
ter, was created by the crown under a power reserved in
the charter, and its officers received their commissions
from the King, or the Lord High Admiral. This natu-
rally led* to a jealousy between tribunals thus differently
constituted, and the Judges of the Admiralty Court were
frequent in their complaints of the interference of the
common Law Courts of the Province with their jurisdic-
tion. Mr. Dummer in his defence of the charter, exam-
ines this ground of complaint, and while he shows that
the power of issuing writs of prohibition to Courts of Ad-
miralty, as well as other courts of limited jurisdiction,
clearly resided in this court, he goes on to show that it
had never been exercised improperly in the Province, and
that the existence of such a power was essestial to the pres-
ervation of the liberties of the people.
He says that there had been but three instances in
which that power had been exercised, and those only after
solemn argument by the ablest lawyers.
It is no part of the object of this work to give the politi-
cal history of this Commonwealth, and therefore there will
be no attempt to trace the connexion of the Superior Court
with the political occurrences in which they were more
or less involved.
If we were to trace the connexion of the members of
the Superior Court with the politics of the day, it would
be difficult to separate the judicial from the general his-
tory of the Commonwealth during this period, since the
judges were frequently engaged as immediate actors in
public affairs.
There was no legal incompatibility between the office of
a Judge of the Superior Court, and that of a Counsellor, a
160 JUDICIAL HISTORY. [Ch. 9.
Representative in the General Court or even that of Lieu-
tenant Governor.
In 1762, under Governor Bernard, there was an attempt
made in the legislature to exclude the Judges of the Su-
perior Court from a seat either at the Council board or in
the House of Representatives. The Chief Justice, Hutch-
irison, at that time held the offices of Lieutenant Gover-
nor, Counsellor and Judge of Probate for the county of
Suffolk.
This attempt was however defeated by a majority of
seven.
The popular party adopted a much less honorable, but
perhaps under the circumstances an excusable means of
limiting the power of this court, and that was by reducing
the salaries of its judges.
The power of appointment had been given, by the char-
ter, to the Governor and council, but the tenure of the office
was not defined. 1
The Governor and council until 1774, exercised the
power of removing the Judges at will, and the only check
to this power was the apprehension of responsibility to the
King in council for an abuse of it. But after that time
the office of judge of the Superior Court was held during
the pleasure of the Crown. (2 Hutch. 337, n. 3 Hutch.
390.)
The court was always dependent upon the legislature for
their salaries until 1772, when an arrangement was made,
to the great dissatisfaction of the people, for their receiving
their salaries from the Crown. So great indeed was the
^f
feeling of opposition to this, that all the judges except Oliver
declined accepting salaries in this form. This conduct
on the part of Oliver was made one of the grounds of the
i Douglas says that the Governors nominated durante bene placito all
Judges, Justices and Sheriffs.
Ch. 9 1 .] THEPROVINCE. 161
impeachment which the house of representatives exhibited
against him before the council. 1
In 1774, a change was made in the mode of appointing
the judges of this court as well as removing subordinate
officers by conferring the power upon the Governor alone.
At the same time the election of counsellors was taken
from the legislature and assumed by the Crown, and their
appointment by " Mandamus ' gave rise to the name
which conferred no enviable notoriety upon those whom
the King thus undertook to honor.
The salaries received by the members of this court were
always inconsiderable, and do not appear to have been
uniform in amount. I have ascertained the sums paid
them at several periods, arid from these some judgment
may be formed of what their salaries usually amounted
to.
In 1702, Judge Hawthorn received 50 as a year's sal-
ary. (Felt's Sal.) 2 In a letter to Lord Hillsboro, Gov-
ernor Hutchinson says the salaries of the Judges are only
120 sterling, their fees not paying their travelling ex-
1 The council never acted upon this impeachment. When the articles were
exhibited before the council the Governor abandoned the chair, and it became
questionable whether the council could act upon the subject in his absence.
Hutchinson says this was the second attempt in the Province to impeach an
officer, the first having been made under Dudley's administration. The Gov-
ernor contended that the council had no judicial authority whereby to try im-
peachments, their judicial powers being limited to cases of divorce and appeals
from inferior courts of Probate. Before the controversy growing out of this
impeachment had been concluded, the government had expired.
2 In 1748, Douglas says that the five judges received 4000 old tenor or
800 cash. The ratio of depreciation of the old tenor money at that time was
as 10 or 11 to 1 , so that each judge, must probably have received less than $350
a year at that time.
It is stated in Boston Evening Post,(Nos. 1664 and 1667) that the salaries fix-
ed by the crown in 1767 were as follows : viz. Chief Justice of Superior Court
500, Secretary of the Province 300, Justices of the Court of Common
Pleas each 100, Chief Justice of that Court 300 sterling.
21
162 JUDICIAL HISTORY. [Ch. 9.
penses, as one of them had been from home nine mouths
in a year attending courts. (Mass. Spy.)
Chief Justice Oliver complained that his salary had never
supported him, and that he had suffered more than 3000
by holding the office, and he pleaded this as a reason for
taking his salary from the king.
At the time of the change in the mode of paying the
judges, 1772, the Chief Justice's salary was 200, and that
of his associates 160. The salary then fixed by the
Crown for the Chief Justice, was 400, and that of the as-
sociate Justices 200 each. The Attorney General was to
receive 150, and the Solicitor General 50 a year.
Notwithstanding the very meagre provision made for the
judges, there was much of imposing style and dignity in
the costume of the Court, and the manner in which their
Sessions were held.
When they went upon their circuits, the Sheriff of the
County and a number of gentlemen met them at the bor-
ders of the shire town, and conducted them to their lodg-
ings with great parade.
Judge Sewall in his diary, in describing his journey from
Cambridge to Springfield to hold a court in 1698, says,
" a guard of 20 from Springfield met us there (at Quaboag
Brookfield,) and saluted us with the trumpet as we
alighted,"
The custom of opening the courts with prayer was then
an established one, but the court did not seem to depend
altogether upon the clergy to perform this duty. In Sew-
all's journal he states, under date January 6, 1702, " the
Chief Justice prays at the opening of the court at Charles-
town." And a similar entry is made under date of Janu-
ary 28th of that year. Nor were these solitary instances
of the same ceremony being performed by members of the
Ch. 9.] THE PROVINCE. 163
court. Ail obvious reason, however, for this was, that
many of the court had been educated clergymen.
I cannot, by any description of my own, give so accurate
an idea of the state and manner of the Courts before the
revolution, as by transcribing the following graphic pic-
ture from the pen of the first President Adams to Mr. Tu-
dor, in describing the Court before whom the question, as
to the granting of " writs of assistance" was argued in
1761. The place in which the court sat was the council
chamber in Boston. a In this chamber near the fire, were
seated five judges with Lieut. Governor Hutchinson at
their head, as Chief Justice, all in their new fresh robes of
scarlet English cloth, in their broard bands and immense ju-
dicial wigs. In this chamber were seated at a long table all
the Barristers of Boston, and its neighboring County of Mid-
dlesex, in their gowns, bands and tye-wigs. They were
not seated on ivory chairs, but their dress was more solemn
and more pompous than that of the Roman Senate when
the Gauls broke in upon them. In a corner of the room
must bo placed, wit, sense, imagination, genius, pathos,
reason, prudence, eloquence, learning, science, and im-
mense reading hung by the shoulders on two crutches cov-
ered with a cloth great coat, in the person of Mr. Pratt,
who had been solicited on both sides, but would engage on
neither being about to leave Boston forever, as chief jus-
tice of New York."
The court who sat on this august occasion, were Chief
Justice Hutchinson, Benjamin Lynde, John Cushing, Peter
Oliver and Chambers Russell. The counsel engaged were
Gridley in favor, and Thatcher and Otis against the appli-
cation, and in the words of President Adams, " then and
there was the first scene of the first act of opposition to
the arbitrary claims of Great Britain. Then and there the
child Independence, was born."
164 JUDICIAL HISTORY. [Ch. 9.
The last term of this court was held in Sept. 1774, and
its powers under the charter were, in fact, vacated in Oc-
tober of that year when the Provincial Congress first as-
sembled. There was not, however, any formal act of
legislation vacating the offices of the Judges of the courts
until 1775, when an act was passed by which all offices
created under the royal government, were to cease on the
19th September of that year.
The last term of the court was held without a jury, as
the members of the panel who had been summoned, re-
fused to be sworn because the charter had been violated
in the appointment of the " Mandamus Counsellors," and
the Judges, and because Oliver, who had been impeached,
acted as Judge. J The court consisted, at the time of its
dissolution, of Chief Justice Oliver, Trowbridge, Foster,
Hutchinson, William Gushing and William Brown. Of
these Gushing alone was re-appointed under the new or-
ganization of the court.
The judges of this court on the very memorable trial
of Captain Preston which took place in 1770, for the part
taken by him and his soldiers in the " Massacre," were
Chief Justice Lynde, John Gushing, Oliver and Trow-
bridge. And as illustrative of the condition in which the
court were placed by the turbulent state of the times, and
their dependence alike upon the Governor and the legisla-
ture, it is stated by Governor Hutchinson, in a private let-
ter, that he found it difficult to prevail upon three of the
judges to sit in this trial for fear of losing their popularity.
And he speaks in high terms of Judge Oliver's firmness in
charging the Jury against the " false principles of govern-
ment lately preached up."
The following extract from a letter of Governor Hutch-
i Oliver, Hutchinson and Brown had been made Mandamus Counsellors.
Ch. 9.] THEPROVINCE. 165
inson under date August 28. 1770, throws further light
upon this subject. " I have persuaded Judge Lynde, who
came twice to me with his resignation in his pocket, to
hold his place a little longer. Timid as he is, I think
Goffe (Trowbridge) more so. The only difference is,
little matters as well as great, frighten Lynde. Goffe ap-
pears valiant until the danger or apprehension of it rises
to considerable height, after that he is more terrified than
the other. Judge Oliver appears to be very firm, though
threatened in yesterday's paper and I hope Gushing will
be so likewise."
The term of the court which was to have been held on
the 1st November, 1774, at Salem, was adjourned by the
sheriff, by order of two of its Justices, until the Monday
preceding the 3d Tuesday of June, 1775, but the events
that transpired in the mean time, prevented the adjourned
term from ever being held.
The interval between the dissolution of the old courts
and the organization of the new, exceeded a year, but the
defect of courts of justice was in some places supplied by
the establishment of local tribunals for the trial of causes, 1
but more by the spontaneous action of the people in re-
straining crime and enforcing justice.
Although we have reached the period to which I pro-
posed to confine these enquiries, it may be remarked that
i Without wishing to multiply the accounts of these courts, I have selected a
single instance by the way of illustration from the records of the town of Attle-
boro'. At a town meeting, December 6, 1774, voted to have a Supreme
and Inferior Court in this town, and chose four men to stand and serve as Su-
perior Judges to hear and determine controversies that have or may arise in
this town. Then voted and chose seven persons as Judges of the Inferior
Court in this town. (Then follow the names of the Judges.) Voted that we
will comply with, stand to and abide by the resolves, instructions and direc-
tions of the Continental and Provincial Congresses, and that all persons who
shall refuse to comply with them, shall be dealt with as infamous persons."
166 JUDICIAL HISTORY. [Ch. 9.
the time of the courts resuming the administration of jus-
tice was different in different counties.
In Essex a term of the Superior Court was held June
28, 1776. In Worcester, September 25, of the same year,
and in Suffolk, the earliest record of a term of the court
that I find is August 25, 1778.
It would need no great aid of the imagination to con-
ceive the change in circumstances under which the new
court convened, compared with those under which the
old court last assembled.
It was the same people, and the same laws, but the
events of a few months had more essentially changed the
political condition of the state than centuries had done in
the old world. And worthily did the people and their tri-
bunals of justice sustain themselves in their new relations.
Justice as well as liberty has ever been triumphant here
under the constitution of a free government.
COURT OF CHANCERY. The act of 1692, creating the
Province Courts provided for a High Court of Chancery,
to be kept by the Governor or such other person as he
should appoint chancellor, to be assisted by eight or more
of the council.
From their decisions appeals lay to the King in council,
and full equity powers were delegated to the court.
Chancery powers were, by the same act, extended to
all the courts of the Province, so far as to chancer the pen-
alties of bonds when in suit before them.
The following year the constitution of the court was so
far modified as to be held in Boston by three commission-
ers appointed by the Governor and council, assisted by five
Masters in Chancery. The court had the power of ap-
pointing its own register, and other necessary officers, and
legal process was to be issued under the Province seal and
to bear the teste of the three commissioners.
Ch. 9.] THE PROVINCE. 167
The court held four terms in each year, but was to be
always open to suitors.
This law did not, however, meet the approbation of the
King, and no court appears to have been constituted un-
der it, and in the act of 1699 re-establishing the courts of
the Province no provision is made for such a tribunal.
By subsequent acts, limited chancery powers were del-
egated to the common law courts, such as chancering the
penalties of bonds, rendering conditional judgments in suits
upon mortgages, and decreeing redemption of mortgaged
estates upon the tender or performance of conditions with-
in three years after entry made for the purposes of foreclo-
sure.
These were, substantially, all the provisions which re-
lated to the exercise of chancery powers by these courts
under the Province charter.
It is not easy to understand why a court with chancery
powers should have encountered so much opposition in
this Commonwealth. Under the colony charter when the
people, in fact, held the reins of government, there was al-
ways a court with plenary equity powers. So when a
legislature, elected by the people, under the new charter,
undertook to organize a judicial system for the adminis-
tration of justice, such a court was among the first to be
established. It was the jealousy of the crown, and not of
the people that defeated this part of the system.
Since the Revolution, the popular prejudice has been
decidedly opposed to courts of chancery, and the people
have been made to fear what the King did not dare to
tolerate.
We might find, however, in the course of the subse-
quent history of our courts that of late, a more liberal
spirit has been prevailing, and the people have begun to
understand the advantages which might reasonably be an-
168 JUDICIAL HISTORY. [Ch. 9.
ticipated from the introduction of a rational system of
equity.
COURTS OF COMMON PLEAS. Until the act of 1692, it
seems that the county courts as established in 1686 3 con-
tinued to exercise jurisdiction. But. by the latter act,
courts of Common Pleas were created in each county, to
be held by four judges specially appointed, three of whom
were competent to hold terms of the courts.
Their jurisdiction extended to all civil actions, triable
at common law, either party having a right to appeal to
the Superior Court, or the " party cast " might review his
cause in the same court, and, if aggrieved by the judg-
ment, might carry the case into the Superior Court by a
writ of error. Appeals lay to this court from the judg-
ments of justices of the peace in civil actions.
The act of 1699, re-established this court upon the
same basis, and with the same powers as that of 1692, ex-
cept that no action under the value of forty shillings could
be originally commenced in a Court of Common Pleas,
unless the question to be tried involved the title to real
estate.
The process of the court consisted of writs of summons,
capias or attachment, and ran into any county in the
Province. These were to be served at least fourteen days
before the sitting of the court to which they were made
returnable.
By the act of 1701, these courts were authorized to es-
tablish rules of practice, arid to appoint their own clerks
in the same manner as the Superior Court was authorized
to do.
The terms of these courts were coincident with those
of the Quarter Sessions, which were courts of criminal ju-
risdiction, but they never exercised any but civil jurisdic-
tion, nor was there any change or modification of their
Ch. 9.] THEPROVINCE. 169
I
powers from those already mentioned, during the continu-
ance of the Province charter.
Although the act creating these courts contemplated the
appointment of permanent judges in each county, the in-
stances of appointments of special justices to act in the
place of the established ones were too frequent to admit of
being enumerated in this place. Indeed, in most of the
counties there appears to have been special justices of this
court who held their offices from year to year as if the
office had been a permanent one. l
QUARTER AND GENERAL SESSIONS. The act of 1692,
separated the powers which had been exercised by the
County Courts under the colony charter, giving the juris-
diction over civil causes to the Courts of Common Pleas
and creating a court of criminal jurisdiction under the
style of the Quarter Sessions.
This court was to be held quarterly " by the Justices of
the Peace of the same county."
The style of the court was altered in the act of 1699,
to that of " General Sessions of the peace," and was to be
held by the justices of the peace of the same county, or
so many of them as should be limited in their commis-
sions.
The jurisdiction of these courts was partly criminal and
partly civil. As a criminal tribunal they could hear and
determine all matters relating to the conservation of the
Peace and the punishment of offenders, and trials were
had by juries.
1 We might infer from the following extract from ** Douglas' Summary,"
that the Court of Common Pleas did not hold a high rank among the Provin-
cial courts. " This court seems to be of no great consequence, and generally
serves without much pleadings only ta transmit it to the Superior or Provincial
Court, perhaps the most upright of any in our national plantations or colo-
nies." He adds, "The smallness of court fees multiply lawsuits and is a
snare for poor people to become litigious." (1st ~f. 517.)
22
170 JUDICIAL HISTORY. [Ch. 9.
They had appellate jurisdiction over criminal matters
which had been tried by a single magistrate, and from the
judgment of these courts, appeals lay to the next court of
assize.
Like other courts, they were authorized to appoint their
own clerks and establish rules of practice.
In their civil capacity, they had charge of the financial
concerns of their respective counties, superintended and
controlled the management of houses of correction, granted
licenses to innholders and retailers, at least after 1698,
and, from a period as early as 1693, located and estab-
lished high ways in their several counties.
In short, these courts had the charge of the prudential
affairs of the several counties, and a general jurisdiction
in ail criminal matters, the punishment of which did not
extend to life, member or banishment.
No essential change in the constitution or powers of
these courts took place after their first creation under the
act of 1699, as long as the Province charter continued in
force.
JUSTICES OF THE PEACE. The act of 1692, gave Jus-
tices of the Peace judicial powers " in all manner of debts,
trespasses and other matters not exceeding forty shillings
in value, wherein the title of land was not concerned.
These powers were only of a civil nature, and to carry
them into effect they were authorized to issue processes
against defendants which were required to be served at
least seven days before the time of holding their courts.
If the defendant neglected to appear, the justice who
issued the process, might issue a warrant for the contempt,
and inflict a fine upon the " contemner " not exceeding ten
shillings.
They were authorized to issue executions and warrants
of distress upon their judgments, unless appealed from.
Ch. 9.] THE PROVINCE. 171
But appeals lay from their judgments to the Courts of
Common Pleas.
An act was passed in 1697, re-enacting, substantially,
the provisions of that of 1692, so far as the civil jurisdic-
tion of Justices of the Peace extended.
The criminal jurisdiction of these officers was conferred
by several successive acts, the first of which was passed in
1692, of a different date from the one already referred to.
By this act they were authorized to arrest all breakers of
the peace, and to punish all breaches of the peace by one
person striking or smiting another, by binding over such
offenders, or inflicting fines not exceeding twenty shillings.
They might also inquire into cases of forcible entry and
detainer, and " make out hue and cries after run-away ser-
vants, thieves and other criminals."
Among other powers delegated to Justices of the Peace
was that of punishing " lying, libelling and spreading false
news to the injury of any one " by fine riot exceeding
twenty shillings, or binding over such offenders for their
good behavior. And if such offender was unable to pay
such fine, he was to be set in the stocks or whipped at the
discretion of the Justice.
An act of 1693, authorized Justices of the Peace to pun-
ish breakers of the peace, profaners of the Sabbath, unlaw-
ful gamesters, drunkards and profane swearers and cursors,
" by setting in the stocks, or putting in the cage, not ex-
ceeding three hours, or imprisonment twenty four hours,
or by whipping not exceeding ten stripes, where the offen-
der had not wherewith to pay a fine."
The act of 1699, gave to two Justices, Quorum unus,
authority to send to the work house, all persons who lived
idly or disorderly or misspent their time, or went about
begging.
In 1 770, an act gave to Justices of Jhe Peace and courts
172 JUDICIAL HISTORY. [Ch. 9.
of sessions, authority to commit the class of offenders last
mentioned to the House of Correction, or of otherwise
punishing them by setting them in the stocks not exceed-
ing three hours, or by whipping not exceeding ten stripes
at the discretion of the magistrate.
It will be perceived by this sketch that the civil and
criminal powers of Justices of the Peace, under the Prov-
ince charter, were in general terms, similar to those under
the constitution.
The progress of reform has softened down the cruel
features of the code of punishments which were in force
until recently, in the Commonwealth, but our judicial sys-
tem now in force is derived in a great measure from the
system that grew up before the Revolution.
COURTS OF ADMIRALTY. Under the colony charter by
an act of 1673, Admiralty Powers were given to the As-
sistants who were authorized to hear and try cases with-
out a Jury. (Prov. Law, 721.)
The Province charter reserved to the crown the power
of establishing courts of Admiralty, and the authority of
granting commissions to the officers of such courts.
No court of this kind was created in the Province until
1694, and in the meantime the Governor, Phipps, exer-
cised whatever admiralty jurisdiction there was. Upon a
representation to the King in regard to the manner in
which the Governor performed this part of his duties, a
court of Vice Admiralty was created consisting of one
Judge, a King's Advocate, a Register and a Marshal.
The commissions of these officers were either under the
broad seal, or by warrant from the Lord High Admiral,
but were in fact granted by the Lords commissioners of Ad-
miralty in England. The jurisdiction of the court exten-
ded to all breaches of the acts of trade, with a single ex-
Ch. 9.] THE PROVINCE. 173
ception, and the forms of proceeding were after the man-
ner of " Doctors Commons" in London.
Trials in this court were not by juries, and in the ab-
sence of express acts of Parliament, the. Civil and Mari-
time law was adopted as the rule for determining ques-
tions.
Appeals lay from the judgments of this court to the
court of delegates in England.
Until 1769, the officers of this court did not receive
any stated salaries, but were paid by the fees of their
offices.
Besides the court of Vice Admiralty, already spoken of,
there was what Douglas calls a " Justiciary Court of Admi-
ralty, " which convened as occasion required for the trial
of Piracies and other offences upon the high seas.
In Massachusetts this court generally consisted of the
Governor, the Council, the Judge of Vice Admiralty, the
Captain of the King's station ships of war, the Surveyor
of customs for the northern district, and the Collector of
customs for the Port of Boston.
At other times it was constituted by a special commis-
sion for the purpose.
Thus in 1723, a court assembled at Newport for the
trial of pirates, and consisted of William Durrjmer, Presi-
dent, Samuel Cranston, Nathaniel Paine, Addington Da-
venport, Thomas Fitch, Spencer Phipps, John Menzies and
Thomas Lechmere.
A similar court convened at Fanueil Hall for the trial
of pirates in 1746, of which Governor Shirley was Presi-
dent.
In 1769, there were two trials for piracy in Boston at
which the court consisted of Governor Burnett, Samuel
Hood, Commodore of the ships on this station, Lieutenant
Governor Hutchinson, Judge Auchmuty of the Admiralty
174 JUDICIAL HISTORY. [Ch. 9.
Court, Andrew Oliver, Secretary of the Province, Robert
Trail, Collector of the Port of Portsmouth and John Nut-
ting, Collector of the Port of Salem.
The prisoners in the cases last mentioned, claimed the
right of being tried by jury, but the court refused the ap-
plication, and in one case the prisoner was acquitted, arid
in the other he was discharged as the court were divided,
four being in favor and four against convicting him. 1
The territory over which the Judges of Admiralty exer-
cised jurisdiction varied from time to time according to
the extent of their several commissions.
The English Colonies were divided into districts over
which judges of Admiralty were appointed, and these
judges had the power of substitution or appointing depu-
ties to act under them. At first, the northern district em-
braced New York, Massachusetts, Connecticut, Rhode
Island and New Hampshire, and New Jersey was after-
wards added to the district.
Soon after this, a division seems to have been made in
it, whereby New York and New Jersey were separated
from the other Provinces, which continued to form the
1 A spirited sketch of this trial is given by the late President Adams, and pre-
served in Morse's History of the Revolution. The charge of piracy and murder
was made against four seamen of Marblehead for resisting a press gang from
the Rose Frigate, sent to impress them. In the encounter one man was killed.
The prisoners pleaded to the jurisdiction of the court and claimed a trial by
Jury. Adams was of counsel for them. The pleas were overruled and the
trial proceeded until all the evidence was given in. The prisoners' counsel was
about addressing the court when Hutchinson moved for an adjournment of the
court to the Council Chamber. The court adjourned and held a secret meet-
ing there. The next day when the prisoners appeared and their counsel was
about to proceed, the court without wailing to hear an argument, pronounced
judgment in favor of the prisoners on the ground that they had only committed
a justifiable homicide. The whole proceedings and reasons for the judgment
are represented as involved in mystery which was never solved.
Ch. 9.] THE PROVINCE. 175
t
"Northern District " for many years, if not until the Rev-
olution.
A change in the organization of the Courts of Admiralty
seems to have been contemplated and partly carried into
effect in 1764. In June of that year Dr. William Spry
was appointed by letters patent, Judge of his majesty's
court of Vice Admiralty over all America. He arrived
with his family at Halifax in September of that year, and
issued his proclamation fixing certain days for holding his
court there in each month, " when and where all causes
civil and maritime arising in any province of America
may be prosecuted."
The year following this proclamation, he made arrange-
ments for removing from Halifax to Boston, to enter upon
his duties there as Supreme Judge of Yice Admiralty, but
I do not find that he carried this design into effect. In
December 1767, he was commissioned as Governor of Bar-
badoes, and sailed for that island in January 1768, where
he died about October 1772. l (Bos. Ev. Post.)
Whenever vacancies existed in the offices of the court
of Admiralty, the Governor exercised the authority of ap-
pointing to the place until the vacancy could be supplied
by a new appointment by the Lords commissioners.
The first Judge of Admiralty whose appointment I have
ascertained was WAIT WINTHROP, and of him I shall have
occasion to speak more at large in connexion with the Su-
perior Court of which he was afterwards a member.
He was commissioned as Judge of Admiralty in 1699,
and New York, Massachusetts, Connecticut, Rhode Island
and New Hampshire were within his jurisdiction. 2
1 His wife, who was the niece of the Earl of Chatham and Littleton, died in
Barbadoes, Oct. 3, 1769, aged 38.
2 It is stated in the epitaph of John Phillips of Charlestown, that he was at
one time a Judge of Admiralty. But see the notice of Mr. Phillips in connex-
170 JUDICIAL HISTORY. [Ch. 9.
He was succeeded by WILLIAM ATWOOD, October 28,
1701, whose commission embraced the Jerseys in addition
to the Provinces already mentioned, and these constituted
the Northern District of customs. 1 He appointed Thomas
Newton Deputy Judge in 1701, who continued to hold
the place until 1707-8, when he is spoken of by Dr.
Mather in a letter to Governor Dudley as a " Judge in the
Admiralty."
In April 1703, ROGER MOMPESSON, was appointed judge
of the Northern District. The district however was divi-
ded as early as December of the same year, and Massa-
chusetts, New Hampshire and Rhode Island, were em-
braced in a new commission to Judge Byfield. Mompes-
son resided in New York and continued to be Judge of Ad-
miralty of that Province till his death, which took place
January 2, 1714-15. He was a Barrister and is said to have
been the best lawyer in America. At the time of his death
he was a member of the executive council of New York
and Chief Justice of the Superior Court of that Province.
His death was greatly lamented. (News Letter.)
NATHANIEL BYFIELD, was appointed to the Northern
District in December 1703, and held the office until 1715,
when he was superceded by John Menzies. Judge Byfield
had been made Deputy Judge as early as June 1699.
JUDGE MENZIES brought his commission with him when
he came to Massachusetts, and arrived here in the ship
Samuel, December 24, 1715, and entered upon the duties
of his office in March following.
He was a native of Scotland, and a member of the Fac-
ion with the Court Common Pleas of Middlesex, of which he was the Chief
Justice.
1 New Jersey was probably included in the same district with New York, in
consequence of having been united with the latter Province as one government
under Lord Cornbury, in 1702.
Ch. 9.] THE PROVINCE. 177
ulty of Advocates there. He, at first, settled in Roxbury,
but soon removed to Leicester, where he lived for many
years, being an early proprietor of that township. In 1721,
and several successive years he represented that town in
the General Court, and in 1726, was arraigned before that
body for having written home letters to the Lords Com-
missioners complaining of the manner in which the courts
of the Province had interfered with his jurisdiction by
granting prohibitions to stop proceedings in his court, and
stating that it was impossible to get a jury in the country
who would do justice to the King in trials which involved
the rights or authority of the crown. Instead of denying
or qualifying these charges, the Judge insisted they were
true and that he had done no more than his duty required,
and therefore declined making any apology to the House.
In consequence of this he was expelled from that body.
(Felt's Sal. 383-4.)
He died at Boston September 20th, 1728, in the 78th
year of his age. (News Letter.)
It is stated by Douglas that upon the death of Judge
Menzies, Robert Auchmuty was appointed Judge of Ad-
miralty, pro tempore, by Governor Burnett.
This could have been for a short period only, for Judge
Byfield was very soon appointed to the office, and was
commissioned, November 25, 1728, although he did not
receive his commission until April 10, 1729. He took the
oaths of office for Massachusetts at Salem on the 10th of
April, and at Newport for Rhode Island, on the 8th of
May, of that year. His commission embraced Massachu-
setts, Rhode Island and New Hampshire.
He appointed NATHANIEL HUBBARD, afterwards a Judge
of the Superior Court, his deputy for the county of Bristol,
the Province of Rhode Island, the " Narraganset country"
23
178 JUDICIAL HISTORY. [Ch. 9.
and the u King's Province," who took the oaths of office
at the same time with Byfield.
NATHANIEL BYFIELD was born in England in 1653,
and was the son of Richard Byfield, one of the clergymen
who constituted the famous Wesminster assembly of di-
vines. His mother was a sister of bishop Juxon, and he
was the youngest of a family of twenty-one children.
He arrived at Boston in 1674, where he resided until
he became a proprietor of the town of Bristol, then within
the limits of the Plymouth colony, at its incorporation in
1680. About that time he removed to that town, where
he settled upon and became the proprietor of the beautiful
peninsula of Poppysquash. Although educated as a mer-
chant, and possessed of a considerable fortune, he engaged
in the practice of the law after removing to Bristol, and
upon the divison of the Plymouth colony into counties, in
1685 ; he was made chief justice of the court of common
pleas for the county of Bristol. One of his associates upon
the bench was the famous warrior Church, with whose
exploits against the Indians, our early histories have ren-
dered every one familiar.
Upon the union of the Massachusetts and Plymouth col-
onies under the charter of 1692, although Colonel Byfield
continued to hold his place upon the bench of the com-
mon pleas, he entered with much spirit into the politics
of the day, and in 1693, having been chosen to represent
Bristol in the general court, he was made speaker of the
house of representatives.
A court of admiralty was early organized, and at first
embraced New York, Connecticut, Rhode Island, Massa-
chusetts and New Hampshire, which, together, constitu-
ted one district. The judge of this district appointed his
deputies for particular portions of the territory, arid in
Ch. 9.J THEPROVINCE. 179
1699 Colonel Byfield was made a deputy judge of this
court.
In 1703 a division of this district was effected, and a
commission to Colonel Byfield, as judge of the " northern
district," consisting of Massachusetts, Rhode Island, and
New Hampshire, was received by him. This office he
held until 1715, when, as it would seem, on account of
his political opinions, he was superseded in his place upon
the admiralty bench. En the year 1702 he was made
judge of probate for the county of Bristol, and held the
office till 1710.
The vicissitudes of political favor at length restored
him to the place in the court of admiralty, from which he
had been ejected, and he was again commissioned as
judge, in 1729. He continued to hold this office from that
time until his death. As he still held his office upon the
bench of the common pleas, it will be perceived, that for
many years he was judge of probate, of the common pleas,
and of admiralty, at the same time. And, as will be re-
marked hereafter, he was, during all this time, actively
engaged in political life, holding political offices, and em-
broiled in all the excitements of a bitter political warfare.
In 1731 he removed from Bristol to Boston, and upon
the accession of governor Belcher, with whom he was
connected by family, he was appointed to the place of
chief justice of the court of common pleas for the county
of Suffolk, having for one of his associates the distin-
guished Elisha Cooke, the younger of the two who bore
that name.
Although not constantly a member of the court of com-
mon pleas while he resided in the county of Bristol, it
is said he held the office of chief justice of that court for
thirty-eight years, the last period of his office having been
from 1716 to 1725. He remained upon the bench of
180 JUDICIAL HISTORY. [Ch. 9.
Suffolk county until his death, which took place in 1733,
at the advanced age of eighty.
Although it is not easy to conceive how, among his
other avocations and engagements, he could have qualified
himself as a lawyer, to fill the places which he occupied,
yet, it would seem from the character of Mompesson,
whom he succeeded, and Menzies, by whom he was su-
perseded, that legal acquirements were regarded in making
appointments to the bench of the admiralty court. How
much politics or family influence l had to do with his
numerous appointments, it is difficult to determine, but it
was true that he was quite as distinguished a politician as
a judge.
He seems to have possessed an inordinate share of ambi-
tion, and more perseverance than prudence. His first elec-
tion to the house of representatives has been mentioned.
In the years 1696, 7, and 8, he represented Boston in that
body, and iu the last of these years was again chosen
speaker.
He became a zealous supporter of that party which em-
braced the democracy of the province, at the head of
which were the Cookes, the father arid son, the latter of
whom has already been mentioned.
While the leaders of this party aimed only to secure
the rights of the people, Byfield sought by means of it to
obtain office and accomplish his purposes of revenge upon
his personal and political enemies.
He was for many years a member of the council, and,
although at the accession of Governor Dudley he seems to
have been his friend, in consequence of a harsh and severe
reproof from the governor in open council, on account of
some judicial proceedings, he conceived a most implacable
1 He is stated by Hutchinson to have been father-in-law to lieutenant governor
Tailer.
Ch. 9.] T H E P R O V I N C E . 181
hatred towards him, which he carried so far as to attempt
to supplant him in his office.
For this purpose he visited England in 1714 5 and an a-
musing account of this is given by the distinguished Jeremy
Dimimer, in a letter to Dr. Colman. " I had your letter
by Colonel Byfield, for which and fo rail other letters and
favors I thank you. The second time that gentleman and
I met was at my chambers, where we soon came to a full
understanding of each other with respect to the present
governor. I told him that both my duty and inclination
bid me to stand by his commission, with what friends and
interest I could make ; and he replied that by the help of
God, he would get him turned out, and therein please
God and all men. Accordingly we have both been pretty
diligent, but I think he is now out of breath. His age
makes him impatient of the fatigues of application, and his
frugality makes him sick of coach hire, fees to officers,
and door keepers and other expenses, so that I believe he
now heartily wishes himself safe in his own government
at Poppysquash. He is really an honest worthy man, but
he is so excessively hot against Colonel Dudley that he
cannot use any body civilly that is for him."
Although Dudley was unable to retain his office, By-
field met with but little success in his endeavors to obtain
the place, and sorely to his displeasure, colonel Shute was
appointed as Dudley's successor, in the place of colonel
Burgess, who, though appointed, never came to Massachu-
setts.
Colonel Shute found the state of party feeling highly
exasperated in the province, and did little to allay it. In-
deed there is scarcely a period in the history of Massa-
chusetts when the violence of party spirit was greater than
during the administration of Governor Shute. The year
1720 was distinguished for the height to which these dis-
182 JUDICIAL HISTORY. [Ch. 9.
sensions rose. Byfield having returned from England was
chosen to the council that year, and his election was neg-
atived by the governor. He was again chosen, and again
negatived in the two following years. Nor did he find
any more favor in 1723, when the government was left in
the hands of Lieutenant Governor Dummer. Prom that
period, however, he was permitted to take his seat at the
council board until 1729, when his name was omitted by
the house from the list of counsellors. This seems to
have closed his career of politics. And one can scarcely
refrain from remarking how little of personal satisfaction
or lasting honor is to be gained in such a career. He
partook deeply in all the agitations and conflicts of the
day, and devoted to the success of his party those powers
which otherwise directed, might have made him a happier
and far more useful man.
Like other political managers, he encountered much ob-
loquy and bitterness of reproach. He excited the jealousy
of Cotton Mather, and was an object of personal hatred
and abuse from Jeremy Dummer, the agent of the prov-
ince, at London. One extract has already been given
from the correspondence of this gentleman, and another
will justify the correctness of the above remark. " What
Colonel Byfield says of me as well as of sir William As-
hurst is false, and I can assure you I found him out in a
good many lies whilst he was here, notwithstanding he
was nauseously boasting of his honesty."
One thing in the character of judge Byfield ought not
to be omitted, as it indicated a more enlarged and liberal
spirit than was generally prevalent in the province at that
time, and that is his consistent and uniform opposition to
the spirit of fanaticism which displayed itself in the trials
and punishment of the unhappy victims of the witchcraft
delusion.
Ch. 9.] THEPROVINCE. 183
In his pecuniary affairs he was frugal to parsimony ;
and though his talents were respectable, they were not of
that commanding character that made him a prominent
leader among his political associates.
Of commanding person, imposing manners, an ardent
temperament and an enterprising disposition, he is said to
have preserved a large share of public respect through his
long and diversified life. Little, however, is preserved of
him as a politician, and far less is known of him as a judge.
ROBERT AUCHMUTY was appointed to succeed Judge
Byfield in the Admiralty, and his commission embraced
Massachusetts, New Hampshire and Rhode Island. Shir-
ley, afterwards Governor, was appointed at the same time
Judge Advocate of the same court.
Judge Auchmuty held the office until 1747, when he
was superseded by Chambers Russell.
He was an eminent Barrister, but when he was admit-
ted to practice does not appear. He was in pratice soon
after 1719, and the profession owed much to his character
and efforts for the elevated stand it was beginning to assume,
and the system and order which now began to distinguish
its forms of practice.
Among other public offices with which he was honored
he was one of the Directors of the Land Bank, was appoin-
ted from time to time to act as Attorney General in the
absence of that officer, and also during the vacancy occa-
sioned by the death of Mr. Overing.
He was sent to England in 1741 to settle the dispute
between this Province and that of Rhode Island relative to
the boundary line between them. He resided at his seat
in Roxbury.
It was while he was in England, that he is said to have
conceived and matured the plan of the expedition against
184 JUDICIAL HISTORY. [Ch. Q.
Cape Breton and Louisburg which crowned the Provincial
troops with so much glory and renown.
He died April, 1750. Mr, Bollan, so long the agent of
the Province in London, studied his profession under Mr.
Auchmuty's tuition.
His daughter married the distinguished Judge Pratt of
New York, and of his two sons, Samuel was a minister in
New York, and Robert became an eminent lawyer in
Massachusetts, and was for many years Judge of Admiral-
ty in that Province.
CHAMBERS RUSSELL was appointed in the place of the
elder Auchmuty as a judge of Admiralty, for Massachu-
setts, New Hampshire and Rhode Island in 1747. He
held this office until his death in 1767. As he was a
member of the Superior Court he will be noticed in con-
nexion with that court.
During his administration, GEORGE CRADOCK acted as
Deputy Judge. He resigned that place in" 1766 on account
of his great age and infirmities of body, and died July 1,
1771, aged 87 years.
Upon the resignation of Judge Cradock, the office was
given to WILLIAM REED, in July 1766. He was afterwards
appointed Judge of the Superior Court, and will be again
noticed in another part of this work.
Upon the death of Mr. Russell, ROBERT AUCHMUTY, the
younger, was appointed to his place, by the Governor.
This was in April, but on the 6th July 1767, he was duly
commissioned as Judge of Admiralty for all New England
with a salary of 300 a year. Previous to this time the
compensation of that officer had been by a percentage
(usually five) upon all condemnations, and had not gener-
ally amounted to more than 100 per annum.
His commission was renewed in March 1769, when his
Ch. 9.] THE PROVINCE. 185
salary was increased to 600 per annum. 1 He continued
to hold the office as long as the authority of the British
Crown was recognized, and being a zealous loyalist he
left the country in 1776 for England. Previous to leaving
the country his place of residence was in Roxhury.
Although he had not the advantages of a collegiate edu-
cation, he became an able and eminent lawyer. As an
advocate he was eloquent and successful. Among his co-
temporaries were Otis, duincy and Hawley, and Judges
Paine, Sargent, Bradbury, D. Sewall, W. Gushing and
Sullivan, and though less learned than some of these, he
was employed in most of the important Jury trials.
It was to him, together with that class of lawyers above
named, that the profession owed the respectability which
since his day has characterised the Bar of.Massachusetts.
He held the office of Advocate of the Court of Admiral-
ty from August 2, 1762, till his appointment as Judge,
having been originally appointed in the place of Mr. Bol-
lan, to hold the office during his absence.
It is to be regretted that of men as distinguished in their
day as were the Auchmuty's, father and son, so few me-
morials now remain. They will however be found to
have possessed a large share of the public confidence, and
to have left a decided impress of their characters upon the
profession which they adorned.
There was a Court of Admiralty continued during the
Revolution, but its history belongs to a more recent peri-
od than is embraced in these sketches.
Although the list of Advocates General of the Admiralty
Court which I have discovered may not be found complete,
I am able to give the following names as among their
number.
i In 1773 Thomas Oliver, afterwards Lt. Governor of Massachusetts was ap-
pointed Judge of Admiralty for the Province of New Hampshire.
24
186 JUDICIAL HISTORY. [Ch. 9.
BENJAMIN LYNDE was appointed in 1697, for Massachu-
setts, Connecticut and Rhode Island. As he afterwards be-
came a Judge of the Superior Court, there is no occasion to
notice him further here.
JOHN VALENTINE of Boston, held the office at the time
of his death in 1724, and may have been the immediate
successor of Mr. Lynde. He was a lawyer of distinguished
learning and integrity. An argument of his in the case of
Matson vs. Thomas, in which he was opposed by Auch-
muty, Reed and Isaac Littles, is preserved, in which he
manifested great familiarity with legal principles as well
as ability as an advocate. He is said also to have been "an
agreeable and expressive speaker."
WM. SHIRLEY was appointed to this place in 1733. and
held it until he was made Governor of the Province in 1741.
*
WILLIAM BOLLAN who was son-in-law of Governor Shir-
ley, succeeded him as Advocate General. He went to
England as agent of the Province in 1745, and Mr. Auch-
muty was appointed to his place in the Admiralty Court
during his absence.
The next man we find in possession of the place was
JAMES OTIS, Jr., who resigned it in 1761 rather than com-
promit his sense of duty to his country in advocating the
issuing of "writs of Assistance."
ROBERT AUCHMUTY was the successor of Mr. Otis, and
held the office till his appointment as Judge of Admiralty
in 1767.
JONATHAN SEWALL came into the office on Judge Auch-
muty's being promoted to the Bench, and was followed by
SAMUEL FITCH about 1770. Mr. Fitch held this office till
the Revolution. 1
1 There waa a body of " Commissioners of the Customs," who exercised
powers somewhat like those of the Court of Admiralty for a few years before
the Revolution. Among other officers connected with this commission was a
Ch. 9.] THEPROVINCE. 187
PROBATE COURT. Except during the administration of
Andros, Probate jurisdiction had been exercised by courts
of common law previous to the charter of 1691. By that
charter the jurisdiction in regard to probate affairs was
conferred on the Governor and council.
The Governor and council, however, by the right of
substitution which they possessed as a civil law court, ex-
ercised their judicial powers in probate matters by County
courts from whose decisions, appeals lay to the Governor
and council as the Supreme Court of Probate. For this
purpose they created Judges of Probate in each county.
And when the legislature undertook to exercise the power
of creating similar courts, the King negatived the act, so
that no law, in fact, existed under the Province charter
for the appointment either of Judges or Registers of Pro-
bate.
The organization and powers of this court were the sub-
ject of a learned and interesting communication by Gov-
ernor Pownal in 1760 to the council then sitting as the
Supreme Court of Probate. He states that the court then
existed without a seal, that it kept no records, had no
rules, and did not observe even the common formalities of
a judicial court. He traces the appointment of judges in
the several counties to the power of substitution which
the Governor and council possessed as a civil law court.
It was probably owing to this recommendation contained
in the communication, that registers were appointed and
seals adopted by these courts.
Very little can be said of the regularity of their proceed-
ings previous to the revolution, nor were there any changes
in their organization during the existence of the charter,
which deserve notice. (Suffolk Records, White's Dig.)
" Solicitor General !" David Lisle, held this office from 1769 to his death in
February 1775. Daniel Leonard of Taunton became his successor and held
the office till the authority of the Board was at an end.
CHAPTER X.
Civil and Criminal Process in the Province state of the Courts
and Bar before the Revolution.
In order to present any thing like a complete sketch of
the history of our judicial system, it would be necessary
to trace among other things the changes that were made
in the practice and forms of proceedings in courts, and to
ascertain to whose influence is to be ascribed the progress
of improvement that was made from time to time in the
administration of justice.
Something may be done by resorting to the records of
courts to define the state of judicial proceedings at differ-
ent periods of our history. But to whom we owe the one
improvement or another is not easily determined. To-
wards the close of the provincial government, as I shall
have occasion to remark, there arose a class of eminent
men who left upon the age itself an impress of their own
minds. Nor was this more manifestly distinguishable in
any departments of the government than in that which
was connected with the administration of justice. There
were learned men and noble spirits in the profession then,
whose influence elevated and dignified its character, but
the progress of change in the course of legal proceed-
ings was slow and almost imperceptible.
The forms of writs were adopted soon after the adoption
of the charter. But the forms of action, and especially the
Ch. 10.] THE PROVINCE. 189
forms of declarations upon different causes of action, were
unsettled until a much later period.
No rules of practice were established by the courts un-
der the charter. Perhaps the reason of this may be found
in the fact that with the exception of Lynde, Dudley,
Trowbridge and William Gushing, there was not an educa-
ted lawyer upon the bench of the Superior Court during all
that period.
Attorneys at law were recognized as officers of the
courts, and by the law of 1701, an oath of office was re-
quired of them upon being admitted to practice.
The distinction of rank between Barristers and mere At-
torneys was maintained. But no specific term of study
was required by the courts as a pre-requisite to an admis-
sion to the bar. The custom of requiring a term of three
years study was adopted just before the revolution upon
the recommendation of the bar of Essex.
No party could by law, employ more than two lawyers
to aid him in the management of his cause, and at the same
time no attorney at law could refuse to aid a litigant who
should tender him a fee of twelve shillings. Every attor-
ney produced his power in each case in which he was en-
gaged, and to guard clients from loss, it was enacted that
if an action failed from any error in the writ, the attorney
was bound to make a new one without fee.
For many years after the new organization of the gov-
ernment, the course of practice seems to have been ex-
tremely 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 de-
murrers for trifling errors and defects were in use in all the
courts. Special pleading however, was far from being
understood as a system. Indeed the profession, instead of
190 JUDICIAL HISTORY. [Ch. 10.
regarding 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.
An incident related by Willis in his valuable history of
Portland, will serve to illustrate the period of which we are
speaking. In the Court of Common Pleas between 1720
and 30, Shirley (afterwards Governor,) filed a special plea
in an action of trespass. The plaintiff's counsel was
obliged to reply ore tenus, and the cause went on " some
how or other " as the writer states, though no one seems
to understand the manner in which the proceedings were
completed.
In the account which Dummer gives of the courts in
Massachusetts about 1721, it is stated that declarations
then formed a part of the writ, and where book accounts
were sued, a copy of the account was annexed to the writ.
The time required for the service of writs before their
return was at least fourteen days. Special pleadings gave
place in all cases to the general issue, and so little regard
was paid to the forms of action that case continued to be
the action for the recovery of lands, whether the deman-
dant's title was conditional or absolute. 1
Towards the latter part of the period of which I have
been speaking, the forms of pleading and practice be-
came generally as correct as they have ever since been.
A more liberal system took the place of the quibbles and
chicane of an earlier day. The character of the legal pro-
fession tended to raise the character of the bench itself,
1 1 find the following action mentioned in the Boston Evening Post, Taunton
March 11, 1773. Nehemiah Liscomb vs. Jerathmeel Bowers, to recover one
hundred gallons of Jamaica rum won on a wager. The verdict was for the
defendant and the plaintiff appealed. This is said to be the first action for a
wager ever brought in the Province.
Ch. 10.] THE PROVINCE. 191
and gave to the business of administering justice a higher
degree of respectability than it had before obtained.
The character of the early period of the provincial ad-
ministration, cannot perhaps be presented in a stronger
manner than by an extract from the work of Dr. Douglas,
who wrote about 1746, when low salaries, cheap litigation,
a feeble court and an uneducated bar had produced the
effect which such a state of things always must create.
" Generally in all our colonies, particularly New England,
people are much addicted to quirks of the law. A very
ordinary countryman in New England is almost qualified
for a country attorney in England."
From such a state of things as this, the advance must
have been slow, and it was only by the influence of a suc-
cession of able and learned men that a reform was effected.
Lynde, Paul Dudley, Read, Gridley, the Auchmutys and
Trowbridge were among those to whom the administra-
tion of justice was indebted for many of its decided im-
provements.
There were many causes, some of which have already
been alluded to, which conspired to repress the influence
of courts of justice in the Province. For many years,
next to none of the practitioners at the bar were educated
men. Judge Lynde came upon the bench in 1712 and
was the first lawyer who had ever held that office. The
clergy too continued for many years to exercise a control
over the civil departments of the government, and to in-
terfere occasionally, directly with the administration of
justice.
An instance illustrative of this kind of clerical interfer-
ence is taken from the autobiography of the Rev. John
Barnard who was for a long time a clergyman in Marble-
head, having been settled there in 1715.
While there, an action of slander was brought by a cler-
192 JUDICIAL HISTORY. [Oh. 10.
gymau against a layman for words which he had spoken
of him. At the request of Cotton Mather, Mr. Barnard
and a Mr. Webb, another clergyman, attended the trial at
Salem. Mr. Barnard dined with the court and told the
judges, that when that case came on, he had something to
offer with their leave. They agreed to notify him of the
trial and of the proper time to speak.
The case was called, the plaintiff's attorney made his
opening statement. Thereupon Mr. Barnard asked per-
mission to put certain interrogatories to the plaintiff, which
he did, and the plaintiff answered them. The trial pro-
ceeded, and the defendant's attorney closed " with many
fleers upon the ministry and our churches." The Chief
Justice then told Mr Barnard that it was then a good time
if he wished to offer any thing, whereupon he " paid his
respects to the court and delivered his speech," and con-
cluded by wishing the court to dismiss the action. Mr.
Webb said he "joined in my sentiments and request."
"The judges immediately threw the action out of court,
being glad as they expressed it to get rid of so dirty an
affair."
As an offset to this interference of the clergy in the ad-
ministration of justice, I would refer to the case of the
Rev. Mr. Breck who was about to be settled in Springfield
in November 1735. He had been regularly " called," and
the council had convened to ordain him, and were actu-
ally examining him, when some reports unfavorable to
his orthodoxy having reached the ears of John Stoddard,
Ebenezer Pomeroy and Timothy Dwight, three of the
Justices of the Peace in that county, they issued their
warrant against him upon which he was arrested, taken
from the ecclesiastical council and brought before the ex-
w
amining justices and made to " answer upon matters of
doctrine and faith " before them they being the same
Ch. 10.] THE PROVINCE. 193
matters in regard to which the council were inquiring at
the time of the arrest.
As Mr. Breck had resided in Connecticut, the justices
thought best to send him to Windsor in that state, where
they caused him to be bound over to answer before the
court of Windham county.
The church and society in Springfield not relishing this
interference, applied to the legislature for relief. The
House after considering the matter came to the conclu-
sion that although the justices had a right by law to in-
quire into the facts charged against Mr. Breck, yet they
ought not to have interrupted the ecclesiastical council
while they were in the exercise of their just right in in-
quiring into the same.
Here the matter seems to have rested, for Mr. Breck
was soon after settled over the same church without oppo-
sition. 1
As the penal code of a state is often regarded as a kind
of criterion by which to determine the degree of refine-
ment of public feeling there, it may be proper to mention
the following as a mode of punishment adopted in 1735.
The defendant was indicted for forging a bond, but the
evidence not proving the fact fully, he was convicted of
being a cheat, and the punishment inflicted was to wear
the forged bond and a square piece of paper fixed to his
breast with the word " cheat " written in capital letters,
and to stand on the steps of the court house for half an
1 1 find from Mr. Felt's annals of Salem, that Judge Lynde, then a member
of the council, was upon a committee in 1731, " to consider a printed sermon
said to be preached at Southboro', December 21, by John Greenwood, pastor
of a church at Rehoboth, at the ordination of Nathan Stone pastor of the
church at Southboro', which the House apprehend may have a tendency to
subvert the good order of the churches and towns within this Province."
25
194 JUDICIAL HISTORY. [Ch. 10
hour between twelve and one o'clock. And this senteric '
was accordingly executed.
In criminal matters however, 1 the common law was
in a great measure retained, even to the benefit of cler-
gy. The last instance of this, that I have discovered,
was the case of James Bell in March 1773. He was con-
victed of manslaughter in the Superior Court in Boston,
where he pleaded the benefit of clergy and was accordingly
burned in the hand and discharged. 2
Before leaving the subject of practice, it may riot be
misplaced to insert the following account of the case of
James Otis against Robinson, for an aggravated assault
and battery which it may be remembered was cowardly
inflicted upon him in the British Coffee House in Boston
by the defendant, one of the commissioners of customs.
The action was tried in 1770. The damages were laid
at 3000, and the jury returned a verdict for 2000. In
the account of this trial, when it was approaching, given
in the News Letter, it is said, " His majesty's writ of orig-
inal summons on this occasion is very elegantly engrossed
on the best gilt paper. The above writ was served ac-
cording to the laws of the Province, not by holding to
bail, but by leaving a transcript engrossed in the same
hand and paper at the defendant's house." 3
1 It is stated by a writer in the Historical Collections that two negroes were
executed in 1749, in Charlestown, for poisoning their master. One, Mark, was
hung in irons upon a gibbet and the other (Philis) was burned. And he asks
'* are there any other instances of burning or gibbeting in the annals of New
England ?" (2 Ser. Hist. Col. ii. 166.)
2 Many other instances might be cited where prisoners were admitted to the
benefit of clergy. Thus in 1770, George White and Patrick Freeman having
been convicted of burglary were burnt in the hand, having claimed the benefit
of clergy.
3 Those who are familiar with the life of Mr. Otis will recollect that he remit-,
ed to the defendant the whole amount of damages found by the jury in this
Ch. 10.] THE PROVINCE. 195
An incident occurred in regard to the courts in 1774,
which may be here noticed. The disputes between the
government and the people had almost reached their crisis.
The crown had created a board of Mandamus counsellors,
among whom were the judges of the Superior Court.
Judge Oliver had moreover accepted his salary from the
crown. And in view of these things the jurors in Middle-
sex and Worcester refused to be sworn or to act at all un-
til they were assured that Judge Oliver would not attend
court. The same year in September the Grand and Petit
Jurors of Suffolk refused to be sworn because the charter
had been violated by the appointment of judges, Coun-
sellors by Mandamus. The court however went on with
the ordinary business of the term without the presence of
a jury. 1
Among other writs in use during the period of the Pro-
vince Charter, was that of Habeas Corpus. It seems to
have been adopted at first as a common law remedy. In
case, except a sufficient sum to reimburse his expenses actually paid. I have
referred to this, to show the sums charged as counsel fees at that time by the
most eminent counsel in the Province.
The taxable costs of court amounted to 13 10s. 8d. Defendant was to
pay these and, 30 each for the use of Samuel Fitch, John Adams and Samp-
son Salter Blowers, counsel retained by Mr. Otis and very diligently attending
the business three years."
1 The circumstances attending this occurrence were these. The court was
holden by Oliver, Trowbridge, F. Hutchinson, Gushing and Brown. The grand
ury refused to be sworn and filed their reasons in writing, four in number. 1st,
Because the Chief Justice was under impeachment. 2d, Because by the law
the Judges were to hold their offices during the pleasure of the King. 3d, Be-
cause three of the Judges, Oliver, Hutchinson and Brown, had taken oaths as
Mandamus Counsellors. 4th, Because they could not conscientiously act with a
court thus constituted. Twenty-two of the panel signed this paper.
The petit juries were then arrayed and foremen, as was the custom then,
appointed by the court. But they refused to be sworn for reasons similar to
those of the grand jury. The juries then withdrew and the court proceeded
the next day without judge Oliver.
196 JUDICIAL HISTORY. [Ch. 10.
1689, application for such a writ was made to Judge Dud-
ley by Mr. Wise, but the application was arbitrarily
refused.
In 1706, an application was made to Chief Justice Sew-
all for a writ of Habeas Corpus, and although it was refu-
sed for satisfactory reasons, there is nothing to indicate
that the court regarded it as a novel application. 1 have
however found no one of a similar kind made at any earlier
period of the Provincial Government. A writer in the
Historical Collections suggests a query if this was not the
first instance of an application for this writ in Massachu-
setts.
The instance of the Rev. Mr. Wise in 1689, has already
been noticed, and the refusal by Judge Dudley to grant it
was made the ground of a suit for damages, after the rev-
olution in New England, which shows that the right to
this writ was regarded as one of the existing privileges of
the colonists.
Those who are familiar with the forms of legal proceed-
ings in Massachusetts will recal the great number of pre-
cedents that are now in use, that were originally drawn
by leading members of the bar before the revolution.
Whatever books they had, were of course English books,
but these were very few in number. I find Chief Justice
Sewall citing Coke's Institute to justify himself for having
admitted certain persons to bail. Sir Matthew Hale, had
published his "Analysis of the Law," before this time, but
" Wood's Institute," once a popular work and a leading au-
thority, was not published in England until 1722. It was
more than forty years after the publication of the last men-
tioned work, before the Commentaries of Judge Blackstone
were published. 1
1 Perhaps the state of legal bibliography before the revolution, cannot be pre-
Ch. 10.] THEPROVINCE. 197
Mr. Holmes in his address to the Bristol bar says that
the books that were to be obtained by Otis, the father of
the distinguished James Otis, when he studied law, were
Coke's Institutes, Brownlow's Entries andPlowden's Com-
mentaries and Reports.
And by referring to a printed argument of Mr. Valentine
in the action of Matson vs. Nathaniel Thomas in 1720,
before the Superior Court, I find he cited as authorities 1
Co. Inst. 2d Do. Coke's Reports, 1 Modern Rep. Hobart's
Reports and Chancery Cases.
President Gluincy in his address at the dedication of
" Dane Law College," gives an extract from the writings
sented in a better manner than by referring to an advertisement published in the
Essex Gazette in December, 1774.
" The sages and students of the law in America now have an opportunity of
seeing at most of the Booksellers' shops in the capital towns and cities on the
Continent, printed proposals with conditions and specimens for printing by
subscription, American Editions of the following celebrated works, by the un-
dertaker Robert Bell, Printer and Bookseller, Philadelphia.
1. " Coke's Commentaries upon Littleton." Not the name of the author
only, but of the law itself, in one large folio volume, page for page with the
last London edition. At sixteen Dollars to the subscribers, although the Lon-
don edition is sold at 32 Dollars.
2. " Bacon's New Abridgement of the Law" in five volumes, 4to, page
for page with the last London Edition, at 20 Dollars to subscribers, although the
London Edition is sold at 40 Dollars.
3. A second American Edition of Judge Blackstone's Commentaries on the
laws of England, in four volumes quarto, at $3,00 each volume and the 5th
volume or appendix at $2,00, the whole in neat law binding. The 4th and 5th
volumes of this quarto Edition is already printed and sold at $5,00 to those
gentlemen who became subscribers for the 1st, 2d and 3d volumes which are
now printing at Philadelphia by said Robert Bell.
Gentlemen who are pleased to approve of these specimens and conditions by
speedily giving in their names as encouragers, will peculiarly oblige the under-
taker, and greatly contribute towards the elevation and enlivening of Literary
manufactures in America."
The former edition of Blackstone referred to in the above advertisement was
octavo and published in four volumes in 1771, 2, and 3, in Philadelphia.
198 JUDICIAL HISTORY. [CIl. ] 0.
of Lord Chief Justice Reeves which shows the condition
of the English students as to books before the publication
of Blackstone's Commentaries. " Read Wood's Institutes
cursorily and for explanation of the same, Jacob's Diction-
ary. Next strike out what lights you can from Bohun's
Institutio Legalis, and Jacob's practising Attorney, Compan-
ion, and the like, helping yourself by Indexes. Then read
and consider Littleton's Tenures without notes and abridge
it. Then venture on Coke's Commentaries. After reading
it once read it again, for it will require many readings.
Abridge it. Common place it. Make it your own, apply-
ing to it the faculties of your mind. Then read Sergeant
Hawkins to throw light on Lord Coke. Then read Wood
again to throw light on Sergeant Hawkins. And then
read the statutes at large to throw light on Mr. Wood."
If such was the process of acquiring legal knowledge in old
England, no wonder so little was known of law in the
provinces of New England.
I have already referred to the degree of style and im-
posing form which distinguished the Superior Court be-
fore the revolution. The judges of this court were ena-
bled to maintain their standing rather by their personal
influence and political connexions than any official quali-
fications. Whenever they went their circuits, there was
a kind of royal emanation accompanying them that gave
them a consequence in the eyes of the people.
They partook too in the politics of the day to a greater
or less extent. Thus, for instance, when Governor Hutch-
itisori took the oaths of office, " the Judges and gentle-
men of the law ; attended " in their gowns " after which
the Judges of the Superior Court made a written address
to him, and the bar also made an address on the occasion
to which the Governor replied.
The manner of the Court towards the bar and suit-
Ch. 10.] THE PROVINCE. 199
ors was distant and severe. Courtesy between them, and
even between members of the profession themselves, was
measured by the rules of artificial rank, in which urbanity
had little place. One cause of this was the distance, in
fact, between the members of the court and the uneduca-
ted practitioners at the bar, in the early part of the history
of the Province, and the still greater distance that grew
up at a later period, between the leading members of the
profession who were educated and those who were not.
It is said by President Adams, when speaking of Trow-
bridge, that while he was at the bar "he commanded the
practice of every county which he visited, and could crush
a young lawyer by a frown or a nod." Even down to a
period approaching our own times, if we may believe a
remark of Fisher Ames, " a lawyer ought to come intc
court with a club in one hand and a speaking trumpet in
the other."
The judges and the public had not learned that the true
dignity of a court depends more upon the learning, talents
and integrity of its members, than any robes of office or
pomp of ceremony that may attract the gaze or admira-
tion of the multitude for the passing moment.
If this remark required an illustration it might be found
in the want of respect with which the judges of the Infe-
rior Courts, during this period, were sometimes regarded by
those members of the bar who knew how to appreciate
their incompetency for the place of expounders of that law
which they did not understand. An anecdote which is
found in the address of the late venerable Mr. Holmes, be-
fore the Bristol bar in 1834, may serve as an instance of
this want of respect on the part of leading members of the
profession. While the distinguished " Brigadier Ruggles "
was practising at the Bristol bar, at a term of the Court of
Common Pleas in Plymouth, a very old woman who was
200 JUDICIAL, HISTORY. [Ch. 10.
a witness in his case, told him she could stand no longer
and asked him where she could sit. Ruggles looking
around and seeing no vacancy except on the bench, told
her, inadvertently, that she might go there. The old
woman hobbled to the bench and creeping up the stairs
got within the breast-work, and was sitting down, when
one of the judges asked her what she was there for ? She
replied that Ruggles told her to come there, and take her
seat. The court asked him if he sent the old lady there.
Ruggles feeling above equivocation said he did. " How
came you to do this ?" was the next question. He began
to repent, but as it was too late to retreat he must make
the best of it, and looking up with a dignified smile said
hesitatingly " I 1 really thought that place was made
for old women." The court hesitated, but concluding on
the whole that silence was the safest course, dropped the
subject.
It is difficult, if not impossible, to rescue even the names
of those who at one time or another were in practice as
lawyers, during the continuance of the Province charter.
The number of the barristers might be more easily ascer-
tained, but as no register of the several officers in the pro-
vince was published previous to that of Mein and Fleming
in 1767, it is difficult to determine even the number of
barristers at law at any time anterior to that date. In
1768, there were twenty-five barristers in the whole of
Massachusetts which, there is reason to believe, was more
than double the number of those who were in practice
twenty years before that date.
Of these, ten were in Boston, viz. Richard Dana, Ben-
jamin Kent, James Otis, Jr., Samuel Fitch, William Read,
Samuel Swift, Benjamin Gridley, Samuel duincy, Robert
Auchmuty, and Andrew Cazeneau, Five were in Essex,
viz. Daniel Farnham, William Pynchon, John Chipman,
Ch. 10.] THE PROVINCE. 201
Nathaniel Peaselee Sargent and John Lowell. Middlesex
had but one, viz. Jonathan Sewall. Two were in Wor-
cester, James Putnam and Abel Willard. Three were in
Bristol, Samuel \Vhite, Robert Treat Paine and Daniel
Leonard. Plymouth had two, viz. James Hovey and Pel-
ham Winslow. Jonathan Adams was in Braintree, then a
part of Suffolk county, and John Worthington was of Spring-
field, then in the county of Hampshire. Sixteen others
had been made Barristers before the commencement of the
revolution, viz. John Adams and Sampson Salter Blowers
of Boston, Moses Bliss and Jonathan Bliss of Springfield,
Joseph Hawley of Northampton, Zephaniah Leonard of
Taunton, Mark Hopkins of Great Barrington, Simeon
Strong of Amherst, Daniel Oliver of Hard wick, Francis
Dana of Cambridge, Daniel Bliss of Concord, Joshua Up-
ham of Brookfield, Shearjashub Bourne of Barnstable,
Samuel Porter of Salem, Jeremiah D, Rogers of Littleton
and Oakes Angier of Bridgewater.
Of these, thirty six were at the bar at the commence*
ment of the Revolution. There were ten or more attor-
neys at that time who had not been made barristers, viz.
David Gorham, Josiah Q,uincy, Samuel Sewall, John
Sprague, Edward Pope, Rufus Chandler, Theodore Sedg-
wick, Timothy Langdon, Isaac Mansfield and Thomas
Danforth.
Whoever is at all familiar with the general history of
this commonwealth, will recognize, at once, among the
names above enumerated, many who were not only able
to give character to the profession they adorned, but who
in fact stamped a character upon the age in which they
lived. As we look back upon this period of our judicial
history every one must feel that there were giants then in
the land. The influence of such a bar was reflected
upon the bench itself. The profession became an honor-
26
202 JUDICIAL HISTORY. [Ch. 10.
able and liberal pursuit. The judiciary became elevated
and improved, Legislation became more free, and the peo-
ple were taught their rights as Englishmen under the com-
mon law and as citizens of Massachusetts under their
charter.
There was a general tendency towards freedom, al-
though both the courts and many of the bar were decided
loyalists. As early as 1770, and two years previous to
the decision of Somerset's case so famous in England, the
right of a master to hold a slave had been denied, by the
Superior Court of Massachusetts, and upon the same
grounds, substantially, as those upon which Lord Mans-
field discharged Somerset, when his case came before
him.
The case here alluded to was James vs. Lechmere
brought by the plaintiff, a negro, against his master to re-
cover his freedom. Jonathan Sewall was counsel for the
plaintiff and Francis Dana for the defendant. The action
resulted, as above stated, in favor of the plaintiff.
But it would be wandering from the proposed objects of
this work, if I were to allude as I am almost irresistibly
led to do, to the political influence of some of those whose
names are connected with the bar of Massachusetts. Who-
ever has read the history of the American Revolution will
associate the names of Otis and Adams and Hawley and
Paine, with the achievement of American Independence,
but it is chiefly as lawyers that we now have to do with
them.
CHAPTER XL
Personal Notices of the Attorneys General, Solicitors'* General,
and some of the Barristers who practised in the Courts under
the Provincial Government.
Although I may fail altogether in doing justice to the
memory of the leading members of the legal profession pre-
vious to the Revolution, a work like this would be mani-
festly incomplete if they were passed over with no other
notice than their mere names.
But before attempting a sketch of the members of the
profession generally, we ought to speak more at large of
those who at different periods filled the office of Attorney
General in the Province.
The office of Attorney General had become an estab-
lished one as early as the time of Andros. It was contin-
ued under the new charter, but a controversy arose be-
tween the Governor and Council and the House, which
continued for many years, as to the appointing power to
fill this office. The House contended that it lay with
the General Assembly to elect the Attorney General, while
the council insisted that the appointing power was in their
branch. Sometimes, therefore, it will be seen, this office
was filled by an election by the House, and sometimes by
appointment by the Governor, just as the one party or the
other prevailed in the controversy.
204 JUDICIAL HISTORY. [Ch. 11.
The first Attorney General under the new charter was
ANTHONY OHECKLEY, who was appointed hy the Governor
and council, October 28, 1692. Checkley had been the
Attorney General of the Court of Oyer and Terminer for
the trial of the witches of which I have heretofore spoken.
How long he continued to hold the office I have not ascer-
tained, though I find no new appointment until 1702. In
1693, a petition was presented by him representing that
there were no fees stated by law for him in that office,
and praying compensation for his services, arid upon this
representation 60 were granted him.
A similar application was made by him in 1696, No-
vember 8th, and 50 were granted him for what he had
done or might do till the next May.
He was born in 1636, and his business was that of a
merchant. How early he began to practice law does not
appear, but I find he was formally admitted to practice
and took the oath as an attorney in July, 1686. From
the number of times afterwards, in which his name ap-
pears as an attorney in the courts, it would seem that he
was among the most prominent lawyers of his day.
He however continued to pursue his business of mer-
chandize, though he seems to have lacked one pretty im-
portant qualification of a good merchant, for I find the
record of a suit by Joseph Webb, who was clerk of the
court, against him in 1692, to recover 9 15s. 6d. for fees
due for the entries of actions. Upon the writ in this case
he was arrested and gave bail for his appearance at court.
He died of the small pox in October 1702. Among his
offices he was a captain in the militia of the Province,
and a member of the ancient and honorable artillery while
yet it was a select and distinguished corps of men.
PAUL DUDLEY was appointed attorney general July 4,
1702. He was in fact commissioned to that office by
Ch. 11.] THEPROVINCE. 205
Glueen Anne. Governor Dudley however never published
this commission, but instead of it appointed him to the
place by the consent of the council. No effort was made
for some time on the part of the House to exercise the
right of electing the Attorney General. In 1715, a move-
ment was made to that end, by the House choosing a com-
mittee to notify the Council that they were about to choose
an Attorney General if the Council would not concur.
Three days afterwards, November 20, the House chose
Thomas Newton to the office, but the Council declined act-
ing with them.
The next year the attempt was made with better suc-
cess. Colonel Tailer, the Lieutenant Governor, had be-
come acting Governor and yielded the point. Paul Dud-
ley, however, was the person elected. From this time
until the arrival of Governor Burnett in 1728, the election
was annual. But in order to be valid it was necessary
that both branches should concur in a choice.
Dudley continued in the office of attorney general until
his appointment to the bench of the Superior Court in
1718. He will be more particularly noticed in connexion
with that court.
I have not ascertained who succeeded Dudley as Attor-
ney General, but have reason to believe it was Thomas
Newton, as he held the office at the time of his death,
May 28, 1721. He was of the party in politics opposed
to Governor Dudley, and his name is appended to a peti-
tion for his removal in 1706.
Mr. NEWTON was born in England June 10, 1660, and
received his education there. He was for many years one
of the principal lawyers in the Province, and sustained
many responsible places of honor and trust here. He was,
as I have had occasion to state in speaking of the court of
Admiralty, a deputy judge of that court, and at the time
$06 JUDICIALHISTORY. [Ch. 11.
of his death was comptroller of the customs for the port of
Boston as well as Attorney General. He was a gentleman
of great worth and greatly beloved in the Province. His
death was much lamented and his funeral was attended
by the Governor, the members of the Council and many of
the principal men in and around Boston. He resided in
Boston and was 61 years of age at his death.
His library was advertised for sale soon after his death
and is said to have been the greatest and best col lection of
law books which had ever been offered for sale in the
country.
V
In 1722, the House chose John Overing and in 1723,
they chose John Read.
In 1727, John Read was again chosen.
In 1728, Governor Burnett nominated, and the Council
confirmed JOHN OVERING, as Attorney General. The
House chose Addington Davenport, Jr.; but the Governor
resisted, and the House yielded at that time. They again
renewed the struggle in 1732, and chose John Read, but
the Governor, Belcher, negatived the choice on the ground
that there was then an existing attorney who had been
appointed agreeably to the Royal Charter and his majes-
ty's instructions to his Governors.
In 1733, however, the Council yielded and joined the
House in electing this officer.
From 1733, till 1749, the House and Council continued
to elect him annually. But from 1749, till the Revolution,
the Governor and Council assumed and exercised the power
of appointment, although the House from time to time
renewed the attempt to render him an elective officer.
The grounds upon which this memorable controversy
between the Governor and House rested, are stated at
large by Mr. Minot in his history of Massachusetts.
Overing was elected, after being displaced, at the elec-
Ch 11.] THE PROVINCE, 207f
tion in 1733, during the years 1739, 40, and 41, and again
in 1743, and was annually re-elected until near his death
which took place November 24, 1748.
Mr. Overing is represented by Dr. Elliott as having
been a remarkable fluent and agreeable speaker at the bar,
an able and successful lawyer, and as having acquired
both fortune and influence in the Province.
ADDINGTON DAVENPORT, JR. was chosen Attorney Gene-
ral in 1728, and in 1732, but it seems doubtful if he ever
was permitted to perform the duties of the office. He
was a son of Judge Davenport and practised law for some
years. In 1732, he went to England to take orders in
the church and there received a Master's degree at Oxford.
Having been ordained, he was sent by the society for
propagating the gospel in foreign parts, as a missionary to
Scituate, where there then were two congregational
churches. Under his influence a church called that of St.
Andrews, was established in that town, of which he was
the first Rector.
From Scituate he removed to Boston, and became Rec-
tor of King's Chapel, which place he held three years until
1740, when he was transferred to Trinity Church, of which
he was Rector till his death, September 8, 1746.
He married a sister of Dr. Chauncy's wife.
JOHN READ was chosen to this office, by the House, in
1723, and again in 1732, but the Council in 1732, did not
concur. In 1733, 4, and 5, he was again successively
elected by the House and as the Council concurred he
held the office during those years.
He deserves a larger space than is compatible with the
design of this work, for he filled a wide sphere in the
affairs of the Province, while he lived.
He was graduated at Cambridge in 1697, and after study-
ing theology, preached awhile, He was admitted to the
$08 JUDICIAL HISTORY. [Ch. 11.
bar about 1720, when he was nearly forty years of age.
But he soon became eminent in the profession, and has
been spoken of as " the greatest common lawyer that ever
lived in New England." However just this eulogium
may have been, he was a man of very superior powers of
mind, and great and extensive acquirements. He did
much, perhaps more than any one man, in introducing
system and order into the practice of the courts of Massa-
chusetts, and his forms of declaring in various actions, are
still regarded as safe precedents by our courts.
He was, withal, exceedingly eccentric, and among other
instances of it, he used to travel incognito into the other
colonies, and occasionally would volunteer in the defence
of actions, and always astonished both courts and juries
by his profound learning, his captivating eloquence and
his sparkling wit, which produced a more striking effect
from the little indication which his garb or external ap-
pearance gave of what they ought to expect. Many an-
ecdotes are preserved of his eccentricity and his wit, some
of them while he was a preacher, and some while he was at
the bar, but the space allotted to this notice will not ad-
mit of repeating them here.
He was the first lawyer who was ever chosen as a
member of the General Court. -He represented the town
of Boston in 1738, and several successive years, and for
some years before his death was a member of the Council.
He was as prominent a leader in either branch of the
Legislature as he was at the bar, and the history of the
times furnish many instances of the influence he exerted
while in that body. Indeed he seems to have been re-
garded as a kind of oracle whose responses were always a
safe guide.
He was moreover an author, and his name is contained
in tc a list of writers who were citizens of Boston " pub-
Ch. 11.] THE PROVINCE. 209
lished in the 3d vol. Hist. Collection. And to him is as-
cribed the authorship of a grammar and political essays.
He died February 7, 1749 5 at an advanced age. 1
WILLIAM BRATTLE, was chosen by the House and Coun-
cil to the office of Attorney General, 1736 and 37. He
belonged to Cambridge and was the son of the Rev. Wil-
liam Brattle. He was graduated at Cambridge in 1722.
He became distinguished as well by his talents as by the
various professions which he pursued at various times.
He studied theology and was a popular preacher. He
was also a successful practitioner of medicine. And as a
lawyer his business was extensive. Nor was it in the
professions alone that he shone conspicuously among his
coternporaries. He became a leading politician, and to
complete his chain of titles and honors, he was made a
Major General of the militia, and sustained this part of his
public character with as much eclat as he did his multifa-
rious professional duties. As a political man he was many
years a member of the House of Representatives, and for
sometime one of the Council, having been elected to that
branch as early as 1763.
He held the office of Attorney General during the year
1736, and possibly during, that of 1738, and was occa-
sionally appointed to act in the absence of that officer. 2
But though his practice as a lawyer extended into the
neighboring counties to that in which he lived, I do not
find that he was ever made a barrister, arid there is some
reason to believe that the attainments of his Majesty's At-
torney General, the Honorable, Reverend, General, Doctor
Brattle, Esquire, were rather various than profound, and
that the description of him given by a witty cotemporary
1 The grammar was a Latin one, 16 mo. and was published 1736.
2 He acted as such ia September 1739, at Boston, and 1745, at Worcester.
27
210 JUDICIAL HISTORY. [Ch. 11.
may have had some truth in it, that he was " a man of
universal superficial knowledge."
He became a loyalist on the arrival of General Gage,
and left the country at the breaking out of the Revolu-
tion. He went to Halifax where he died about October
1776.
The sudden conversion of Mr. Brattle from a whig to a
loyalist is so graphically described by the late President
Adams that I am induced to transcribe it even at the haz-
ard of departing from my determination to confine these
sketches to the professional character of the subjects of
them.
" Brattle was a divine, a lawyer, and a physician, and
however superficial in each character, had acquired great
popularity by his zeal, and, I must say, by his indecorous
and indiscreet ostentation of it, against the measures of
the British government. The two subtle spirits, Hutch-
inson and Sewall, saw his character, as well as Trow-
bridge who had been his rival at the bar for many years.
Sewall was the chosen spirit to convert Brattle. Sewall
became all at once intimate with Brattle. Brattle was
soon converted and was announced a Brigadier General in
the militia. From this moment the tories pronounced
Brattle a convert, and the whigs an apostate. This rank
in the militia, in the time of peace, was an innovation,
and it was instantly perceived to have been invented to
take in the gudgeon." l (Morse's Revolution, 204.)
1 The following notice of the departure of Mr. Brattle from Massachusetts is
copied from the Boston Gazette.
" Norwich, May 13, (1776.) We hear that the Rev. General Brattle, Attor-
ney at Law and Doctor of Physic, went from Boston to Halifax in character of
Commissary, Cook. It seems in the hurry and timidity of the flight, this compli-
cation of excellencies, notwithstanding his eminent services, particularly in feed-
ing the rabbits and singing that beautiful elegy to their memory, was entirely
Ch. 11.] THE PROVINCE. 211
JEREMIAH GRIDLEY was chosen Attorney General in
1742. He held the office for a single year only at this
time, but in 1767, upon the appointment of Trowbridge,
Judge, he was appointed to the office of Attorney General
by the Governor and council.
At the time of making this appointment, the Governor
nominated Jonathan Sewall to act as special Attorney
General in cases where Gridley should be prevented from
attending, but the Council refused to concur in SewalPs
appointment and suppressed his commission.
He was graduated at Cambridge in 1725, and studied
theology. He was engaged as an assistant in the gram-
mar school in Boston, and at the same time was a preacher
of the gospel.
In 1732, he commenced a newspaper in Boston, called
the " feehearsal," which was the sixth paper in order of
time, published there. It continued but a single year.
After studying law, he became one of the most distin-
guished lawyers in the Province, especially on account of
his extensive and accurate learning. He was an easy
and graceful writer, being imbued with the spirit of classi-
cal literature. But as a speaker he was rough and un-
graceful, hesitating in his utterance but energetic in his
manner, and impressive by his peculiarly emphatic use of
language. Even to the court his manner is said to have
been magisterial when expressing any opinion in their
presence.
He was a representative for some years from Brookline,
and was ranked with the whig party of the day, but his
connexion with the famous application for " writs of assis-
tance " lost him the confidence of his political friends.
forgotten and had no birth provided for him, although he was allowed to have
a singular talent at running away."
212 JUDICIAL HISTORY. [Ch. 11.
The question in regard to these writs was argued before
the court in 1761, and it is stated by Allen and Minot
that Gridley acted as t: King's attorney " on that occasion.
If by that is meant "Attorney General," as Elliot states
that he was, he must have received the appointment tem-
porarily, which may have been the case, as I find by re-
ferring to the records that Trowbridge was commissioned
anew in 1762.
However this may be, he acted in behalf of prerogative
on that occasion, and was opposed by James Otis in his
memorable speech so eloquently described by the late
President Adams.
In 1767, Trowbridge was made Judge of the Superior
Court, and Gridley succeeded him as I have stated, and
held the office till his death, which occurred September 7,
1767.
Besides his civil offices, he was Colonel of a regiment
of militia. His brother Richard was a distinguished
military officer, and laid out the works on Breed's Hill, the
day before the battle of the 17th June, 1775.
Col. Gridley was a man of fine social qualities, and
greatly beloved by all who were connected with him by
social or domestic ties.
His eminence in his profession rendered his office a fa-
vorite place of resort for students, and some of the most
distinguished lawyers in Massachusetts received their
professional education under his instruction. Among
these it will be sufficient to name Chief Justice Pratt,
James Otis, Oxenbridge Thacher and William Gushing.
His place of residence was in Brookline. He was indiffer-
ent to the acquisition of wealth, and died insolvent.
JAMES OTIS was chosen Attorney General in 1748, and
held the office fora year, when Trowbridge was appointed
to succeed him. He is commonly known as Colonel Otis,
Ch. 11.]
THE PROVINCE.
213
in distinction from his more eminent son James, He was
a native of Barnstable, and was born in 1702. Although
not a liberally educated man he became a leading and
eminent lawyer. Governor Shirley, who had been him-
self a lawyer, promised him a seat upon the Superior
Bench when a vacancy should happen, but he did not
keep his promise. Upon the death of Chief Justice Sew-
all in 1770, he was again a prominent candidate for a
place on the bench, but Governor Bernard appointed Lieu-
tenant Governor Hutchinson to the place of Chief Justice,
which gave great offence to Colonel Otis's friends.
Colonel Otis was also a leading political man. In 1760,
and 61, he was speaker of the House of Representatives.
He was also Colonel of a regiment of the militia at a
time when both honor and influence belonged to the
office. He was also soon after a member of the Council.
In 1764, he was appointed Judge of the Common Pleas
and Judge of Probate for the County of Barnstable.
During the last years of Governor Bernard's administra-
tion, he was uniformly elected to the Council and as uni-
formly rejected by the Governor. Upon Hutchinson's com-
ing into office he was approbated as Counsellor, and was a
member of that board at the commencement of the Revo-
lution. He died in November 1778. 1
i Mr. Holmes in his address to the Bristol bar gives the following account of
Colonel Otis's studying law. " He was a man of great natural talent and had a
pretty good education. But he never had the most remote idea of paying any
attention to the study or the practice of law until suggested to him under the fol-
lowing circumstanced. He was accidentally attending court when one of the
parties to a suit then in order for trial, being destitute of counsel, importuned
Otis lo assist him. Otis agreed to. The action was on a mere question of fact
and depended on evidence. Otis in managing this case showed so much abil-
ity and strength of argument, that the court and all his friends advised him to
attach himself to the practice of law, with'which he complied, got him such
books as were then to be obtained Coke's Institutes, Brownlow's Entries and
214 JUDICIAL HISTORY. [Ch. 11.
EDMUND TROWBRIDGE was commissioned by the Gov-
ernor and Council as Attorney General June 29, 1749.
He held the office till his appointment as judge of the Su-
perior Court in 1767.
He will be further noticed in connexion with that
court.
JONATHAN SEWALL was the last Attorney General under
the charter. He was appointed to the office November
18, 1767. He was the nephew of Chief Justice Stephen
Sewall, and was left an orphan, and destitute of property,
in early life. He was indebted to his friends for his early
education. He was graduated at Cambridge in 1748, and
for eight years pursued the business of teaching school.
At the end of this period, Chambers Russell of Lincoln,
then a judge of the Superior Court, generously took him
into his family, gave him a legal education, furnished him
with books, and introduced him into practice at the bar.
He commenced practice in Charlestown, but used to attend
the courts in the neighboring counties. At this period he
was a whig in politics, and the circumstances of his con-
version to the opposite party will serve to illustrate the
influences that were exerted over men whose services
could be turned to account by the government.
He was a man of fine talents and highly honorable
feelings. He became administrator of his uncle Stephen's
estate, which proved to be insolvent. To enable him to
pay the debts of the Chief Justice, he applied to the Gen-
eral Court for aid. His petition was presented by Colonel
Otis, but was rejected, which was a source of great morti-
fication and chagrin to him. This was immediately
known to the government party, especially Governor
Plowden's Commentaries and Reports, and commenced reading and practis-
ing"
Ch. 11.] THE PROVINCE. 215
Hutchinson, and they forthwith began the work of win-
ning him over to their cause.
As no office was vacant, the attainment of which was
a sufficient lure, a new office was created under the name
of Solicitor General, and given to him June 24, 1767,
He had married the year before, the daughter of Edmund
Q,uincy and grand daughter of Judge Edmund CJuincy, a
lady of distinguished accomplishments. The office of
Attorney General becoming vacant by the elevation of
Judge Trowbridge, Sewall was appointed to fill it Novem-
ber 18, 1767, and was succeeded as Solicitor General by
Samuel Q,uincy who was a cousin of his wife. He, at
the same time, held the office of Advocate General of the
the Court of Admiralty, having been appointed May 28,
1767, in the place of Mr. Bollan, to hold the office during
his absence, which appointment was renewed in Septem-
ber of the same year.
In 1769, he was appointed Judge of Admiralty for No-
va Scotia and was to reside at Halifax. He did not re-
move there, but in July of that year visited Halifax for
the purpose of appointing Deputy Judges for duebec and
Halifax, and returned to Boston by the same vessel in
which he had sailed from there.
As a lawyer, Mr. Sewall was eminently successful as
an advocate, and able as a counsellor. " He had a soft,
smooth, insinuating eloquence which glided into the
minds of a Jury, and gave him at least as much power
over that tribunal as any lawyer ought ever to possess.
He was capable too of discussing before the court any in-
tricate question of law which gave him, at least, as much
influence there as was consistent with an impartial ad-
ministration of justice."
He was a distinguished political writer, and a series of
papers over the signature of " Massachusettensis," which
216 JUDICIAL HISTORY. [Ch. 11.
were published in the Boston Gazette in 1774 and 5 were
the most able defence of the measures of the government
that appeared in the discussion that was carried on pre-
vious to the Revolution.
Besides his merits as a writer, and his ability as a law-
yer, he was distinguished as a gentleman and a scholar,
and possessed an infinite fund of wit, humor and keen .
satire.
For many years he was a bosom friend of President
Adams, but the difference in their political views alienated
them from each other.
He left Massachusetts in 1775, and went to England,
where he resided near Bristol for some years. In 1788,
he returned to Halifax where he died. He left two sons,
one of whom was Attorney General and the other Chief
Justice of Canada.
SAMUEL Q.UINCY was the last Solicitor General before
the revolution, and succeeded Jonathan Sewall in that of-
fice, though he does not appear to have received the ap-
pointment till March 21, 1771.
Indeed the office seems to have been regarded by the
government, rather as a means of seducing ambitious men
into the support of their measures, than as an essential
part of the judicial system.
duincy was a brother of the distinguished orator and
patriot, Josiah Gluincy, Jr., was a personal and intimate
friend of John Adams, having been admitted to the bar
with him on the same day, Oct. 1758, and had such ties
and associations with the American cause, that it might
have been expected he would have taken part with the
patriots in their struggle for liberty. But unfortunately
for him, his brother rose to a higher degree of eminence
in his profession, though younger than himself, and Hutch-
i^son and Sewall were ready to fan the jealousy which
Ch. 11.] THE PROVINCE* 217
he felt, on this account, into a hostility against those who
favored the younger and far more able branch of that dis-
tinguished family. He became a loyalist and shared the
common fate of his associates. He was obliged to leave
the country at the breaking out of the Revolution, and
went to Antigua, where he was appointed King's attorney
and held the office till his death, in 1789.
Mr. Quincy was educated at Cambridge, and was grad-
uated in 1754.
Before dismissing the subject of the office of Attorney
General it may be proper to notice further the contest that
continued between the House and the Governor as to the
appointment of the incumbent. Although after 1749$ the
place was actually filled by the Governor and Council, the
House continued to insist upon his being an elective officer.
An occasion for discussing the subject arose in 1762, upon
the application of Trowbridge, then Attorney General, for
compensation for his services in the office. The subject
was referred to a committee of which James Otis was
chairman, and their report was against granting "any pay
or salary to any person officiating in said office whom
they had no hand in choosing." But in June 1763, the
sum of 300 was voted to him for his services, though
the principle contended for, was not abandoned. (Tudor's
Otis, 161.) .. J !u iMlrjiJ <m;1 ..^ fcwyrr.1
In thus noticing those who had been Attorneys General
and in speaking as 1 shall of the members of the Superior
Court, many of the leading members of the profession pre-
vious to the Revolution will have been described, as far
as the limits of this work will permit. And of those who
remain, nothing but a very brief sketch can find a place
in a work already swelling beyond its original design.
Nor have I any means of obtaining an entire list of the ear-
ly lawyers in Massachusetts. The names of the attorneys
28
218 JUDICIAL HISTORY. [Ch. 11.
in the several courts might be ascertained by examining
the record of each particular case. But so few of these
were entitled to the designation of Lawyers that it would
throw no light upon the subject.
JOSEPH HEARNE is thus noticed in the Boston News Let-
ter under date December 26, 1728. "On the 18th in-
stant, died here Joseph Hearne, a noted lawyer in this
place, aged nearly 70 years, and was decently buried from
the Custom House."
From the same paper of 1733, 1 copy a notice of another
member of the profession who seems to have owed his
little share of immortality to any thing rather than good
success. " We hear that Mr. Weldon, attorney at law,
who went away from this town about a fortnight ago con-
siderably in debt, is taken and confined in New London
jail." The next notice we have of him was the follow-
ing year, when it appears he escaped to New York and
went from there to London, where he committed suicide.
In 1737, Joseph St. Lawrence, who had been an attor-
ney of the Court of Exchequer in Ireland, was admitted
and sworn as an attorney in the Superior Court, and
opened his office, in u Wing's lane near the Town dock."
(News Letter.)
Mr. Holmes mentions Otis Little and Elisha Bisbee as
lawyers practising in the old colony, while Ruggles and
Colonel Otis were at the bar, about 1740.
. I find the name of Isaac Littles in 1720, associated with
those of Auchmuty and Read in a case where Valentine,
afterwards Advocate General, was opposed to them.
From his being thus aided by the two most eminent law-
yers at the bar, it is probable his rank in the profession
was not very eminent. He resided, I believe, in Marsh-
field, and was one of the deputies of that town in the Gen-
Ch. 11.]
THE PROVINCE.
219
eral Court of Plymouth before its union with Massachu-
setts.
After the union of the colonies he continued to be a
member of the House, and in 1740 was removed from his
office as Justice of the Peace by the Governor, for being
concerned in the passage of bills of the Land Bank.
In 1732, he had been chosen to the Council but was re-
jected by the governor. 1
WILLIAM SHIRLEY was born in England and came from
London, where he had been in practice, to Boston in 1733,
where he resumed the profession of the law, and contin-
ued in practice until his appointment as Governor in 1741.
He held this office from 1741, to 1756, during which
time the memorable expedition against Cape Breton in
1745, was planned arid executed. During a part of the
time of his being Governor, he was commander in chief
of the British forces in America, but was not a successful
general.
His character as Governor was deservedly popular.
His industry was unremitting and his discernment and
sagacity as a politician eminently qualified him for the
place.
His first wife was an English lady of good family, who
died while he was Governor. After her death he was em-
ployed as a commissioner to adjust the lines between the
English and French possessions in America, and visited
Paris in executing this commission. While there he
married a Catholic lady, which gave great offence to the
people of Massachusetts, and was one cause of his remo-
val from the government.
He was transferred from the government of Massachu-
1 1 copy the following from the Boston Evening Post under date of 1747.
" April 13, died, Mr. Andrew Lane, a very honest and faithful Attorney at
Law."
220 JUDICIAL HISTORY. [Ch. 11.
setts to that of one of the Bahama Islands. He left the
Island where he was succeeded by his son, and returned
to Massachusetts in 1770, and resumed his former resi-
dence in Roxbury, where he remained until his death,
March 24, 1771, in the 77th year of his age. He was
buried with the honors of war. He died poor, leaving
nothing to his posterity but a most excellent and honora-
ble reputation.
There is so much more of eclat in the life of a political
favorite of the public, or the career of a military man, than
the unobtrusive and laborious life of a lawyer, that the
professional character of Mr. Shirley has been obscured by
the more dazzling fame of his public life.
There is however satisfactory evidence that he was able
and eminent in his profession and successful in his prac-
tice.
I have had occasion heretofore to state his appointment
as Advocate General in the Admiralty Court, and should
be transcending my limits by enlarging any farther upon
the incidents of his life.
WILLIAM BOLLAN may be mentioned here rather on ac-
count of his connexion with Governor Shirley, than pre-
cedence in point of time. He was born and educated in
England, and came to this country at the time of Shirley's
being appointed Governor, and appears to have studied
law awhile with the elder Auchmuty. He married a
daughter of Governor Shirley. He was an eminent law-
yer and for some years Advocate General of the Court of
Admiralty. While in full and successful practice in his
profession he was chosen agent of the Province to visit
England, in 1745, in relation to a reimbursement of the
expenses of the expedition to Cape Breton. In a letter
written subsequent to this he states, that at the time of
his appointment he was concerned in all the best business
. 11.] THE PROVINCE. 221
t
of his profession in the Province, and in a great deal of
profitable business in some of the neighboring govern-
ments, yielding him more than 500 a year. Just be-
fore his election as agent he had been appointed Collector
of Salem and Marblehead.
He was exceedingly faithful and successful in his agency,
and remained for many years in that place. He was dis-
missed in 1662, but still continued agent of the council.
He remained a firm friend of the Province and rendered
whatever services were in his power towards effecting a
conciliation with the mother country. He visited Massa-
chusetts in 1748, but was soon after sent again to England
as agent, where he seems to have remained until his death
in 1776. During his absence, however, he was still re-
garded as the Advocate General, until September 1767,
the terms of the commission of the intermediate incum-
bents of the office having been " during the absence of
Mr. Bollan." ;. Vmo&nA Sr.'snwf, maw
He wrote and published many political essays, but does
not appear to have attained to any great celebrity as an
author.
JAMES OTIS, JR. has found too able a biographer in the
late accomplished Mr. Tudor, to require any further no-
tice than his connexion with the profession which he
honored. He was the son of Colonel James Otis of Barn-
stable, and was born there in 1725. He was graduated at
Cambridge in 1743. He studied law with Mr. Gridley,
and commenced practice in Plymouth. After remaining
there two years, he removed to Boston where his practice
became very extensive. His rank at the bar was unri-
valled for learning and eloquence, and among other marks
of the estimation in which he was held was his appoint-
ment to the office of Advocate General within a few years
after his admission to the bar. He held this office till
222 JUDICIAL HISTORY. [Ch. 11.
1761, and resigned it rather than sustain the application
for " writs of assistance." His memorable speech in op-
position to the granting of these, has been made a matter
of familiar history. In 1761, he was chosen a representa-
tive from Boston, and in 1766, was chosen speaker of the
House, but his election was negatived by the Governor.
In 1770, he was brutally attacked by Robinson, one of
the commissioners of the customs, and was so seriously
injured as to be obliged soon after to leave public life.
The trial growing out of this attack has been mentioned
in a former part of this work. The jury awarded him
;2000 damages which he voluntarily relinquished to the
-defendant. The last years of his life he was compara-
tively retired from public life. He was killed by light-
ning, May 29, 1783. He was not only a sound lawyer
and an able politician, but a finished scholar and a some-
what extensive author. The last few years of his life
were spent at Andover. Many anecdotes are preserved of
his honorable course of professional practice. Among
these was the stopping the progress of a suit and volun-
tarily becoming nonsuit, because he had discovered while
the judge was addressing the jury, a receipt in the hands
of his client which belonged to the other party, and which
showed that his client had been paid the debt for which
he was prosecuting the action.
Of the eloquence, patriotism and talents of James Otis,
Jr. there is no occasion here to speak. Their remem-
brance is familiar to almost every American, and his name
will go down to posterity as it has come down to us, as
among the first of an age distinguished beyond all others
in our history for eminent and able men.
OXENBRIDGE THACHER was so intimately connected
with Mr. Otis in the events of the last century, that his
name naturally occurs in this place. He was born in Mil-
Ch. 11.] THE PROVINCE. 223
ton, and was graduated at Cambridge in 1738. He was
then eighteen years of age. He first studied theology
and preached awhile, but his voice being feeble he left
the profession and entered the office of Mr. Gridley, with
whom he completed his legal education. He rose to great
eminence in his profession, and was not only a learned
lawyer, but an accomplished scholar and sound moralist.
He also engaged zealously in the politics of the day, in
favor of liberty, and was associated with Mr. Otis in the
argument of the question relative to the granting writs of
assistance, in which they were opposed by their former
tutor and instructor, Mr. Gridley.
Mr. Adams, in describing the manner in which he con-
ducted the defence in this case, gives a graphic sketch of
the character of Mr. Thacher's oratory. He argued the
question " with the softness of manners, the ingenuity and
the cool-reasoning which were peculiar to his amiable
character."
He was chosen a representative from Boston in 1763,
and continued a member of the House till his death, which
took place July 8, 1765. He died at the early age of for-
ty-five, and so early in the struggle for independence, that
his name is not generally associated with those leading
spirits who survived him. His constitution was always
feeble and his slender frame was a premonitory of the
disease, a pulmonary consumption, of which he died.
Hutchinson, although an uncompromising hostility existed
between him and Mr. Thacher, thus speaks of him in con-
nexion with the fact of his election to the House. " Death
is the common enemy of patriots and courtiers, and in
about two years frustrated the expectations which many
had formed of long continued benefit from his talents in
supporting the side of liberty, from the zeal with which
he engaged."
/224 JUDICIAL HISTORY. [Ch. 11.
His fame as a lawyer survived in the character of those
who entered the profession under his instruction, among
whom, it is enough to name, Judge Lowell and Josiah
Qnincy.
His father was the minister of Milton, and his son Peter
Thacher was the minister of Brattle street church in Bos-
ton. He was himself distinguished as well for his piety
as his patriotism, and " his death was universally lamented
as a great loss to the public."
BENJAMIN PRATT. The name of Mr. Pratt is too inti-
mately associated with the character of the Massachusetts
bar to be ever forgotten by any one who may write its
history. His success is an illustration of what may be ac-
complished in the profession by study and assiduity.
He was born in 1709, in Cohasset. His parents were
poor and in very humble life, and he himself was bred to
a mechanical trade. He lost a limb under circumstances
of severe suffering, attended with a long and painful sick-
ness, and upon his recovery he was led to apply himself
to a preparation for college. He entered Cambridge in
one of the higher classes and was graduated in 1737.
His standing there graduating it by the rank of his family,
was the lowest in his class. But he surmounted all these
embarrassments. He found a friend in Mr. Auchmuty, in
whose office he read law, and whose daughter he after-
wards married. He was then and long after an indefati-
gable student, and such was his intensity of application
that he would sit engrossed with his law book while he
was suffering such excruciating pain from his limb which
had been amputated, that large drops of sweat ran down
his cheeks.
He soon rose to eminence, and took the very first rank
in his profession for learning and ability.
Ch. 11.] THE PROVINCE. 225
He mingled, too, in politics, and from 1757, to 1759,
represented Boston in the General Court.
In his politics he was opposed to Governor Shirley, but
was a personal friend and supporter of Governor Pownal. 1
In 1761, he was appointed Chief Justice of New York,
through the influence of Governor Pownal, and for that
reason declined taking any part in the discussion of the
question relative to writs of assistance, although both
sides applied to him as counsel. He was present at the
hearing, and his appearance is graphically described by Mr.
Adams in a passage from one of his letters, which I have
quoted in another part of this work.
An interesting address from the bar to Mr. Pratt on his
leaving Massachusetts, and his reply to the same, which
are found in the newspapers of the day, serve to show the
high estimation in which he was held by his associates
who knew him best. Great jealousy was felt by the pro-
fession and people of New York, in having a stranger ap-
pointed to the place of Chief Justice of that Province.
But the consummate ability exhibited by Mr. Pratt in the
trial of some exceedingly intricate and important causes
which early came before him, overcame this feeling en-
tirely, and secured the confidence and esteem of all par-
ties.
He died in 1763, at the age of 54 years.
There may not perhaps be a more fit connexion in
which to mention the name of another lawyer, who though
never a member of the Massachusetts bar, may very prop-
erly be noticed while its members are under considera-
tion.
JOHN GARDNER was the son of Stephen Gardner, and
1 In the notice of his appointment as Chief Justice of New York in the Eve-
ning Post, he is called " his Majesty's Advocate General," from which I infer
that he had been appointed to that office upon the resignation of James Otis.
29
226 JUDICIAL HISTORY. [Ch. 11.
was born in Boston. He went to London where he en-
tered the Inner Temple, and in June 1761, "was called
and admitted to the degree of Barrister or Counsellor
at Law," " by the Honorable Benchers of the Inner Tem-
ple."
In the account from which I have taken this statement,
it is added from a London paper, " We hear he is the
first gentleman from Boston that ever attained to that
honor."
In 1767 he was appointed Chief Justice of the Province
of New York, and is spoken of, thus early in his profes-
sional life, as " an eminent lawyer in England," where
he was in practice at the time of receiving the above ap-
pointment.
TIMOTHY RUGGLES. Whatever may be thought of Mr.
Ruggles as a politician, no one can deny his claim to a
high rank as a lawyer. He was born in Rochester, Mass.
October 11, 1711, and was the son of a clergyman. He
was graduated in 1732, and soon entered upon his studies
as a lawyer. He commenced practice in Rochester, and
at the age of twenty-five, represented that town in the
General Court. Among the laws which he was instru-
mental in passing, was the very salutary one which has
been in force ever since, prohibiting sheriffs from filling
writs. After residing awhile in Rochester, he removed
to Sandwich, where his business became very extensive,
leading him into other counties, even as far as Worcester.
In addition to his business as a lawyer, he married a
widow and opened a tavern, in which he performed the
duties of landlord, hostler and bar keeper to the great ac-
ceptance of his guests. About 1755, he removed to Hard-
wick, in Worcester county, where he continued to prac-
tice law, except while absent in the army, until 1757,
when he was made a Judge of the Court of Common
> 11.]
THE PROVINCE.
227
Pleas, and in 1 762, was made Chief Justice of that court,
for the county of Worcester. As a lawyer he was sound
and ingenious, as an and advocatehe was more distin-
guished for strong and vigorous argument than any grace
of eloquence.
He was also distinguished as a military man. In the
expedition against Crown Point in 1755, he held the
office of Colonel under Sir William Johnson. And in the
battle at Lake George, the same year, in which Baron
Dieskau was defeated, he was second in command.
He remained in the army until 1760, and for the last
three years held the office of Brigadier General under Lord
Amherst.
He was always afterwards known as " Brigadier Rug-
gles," and is still remembered by that title, throughout
Massachusetts.
He was less fortunate, but not less distinguished as a
politician than in his other spheres of public life. He
represented Hardwick several years in the Legislature, and
was speaker of the House during the years 1762 and 3.
In 1765, he was one of the three delegates selected on
the part of Massachusetts to meet delegates from the other
colonies in convention. The convention assembled in
New York, and consisted of twenty-eight members. Mr.
Ruggles was chosen President. He did not concur in the
resolutions which the convention adopted, and on his re-
turn home was publicly censured in his place by the
speaker of the House.
He was a firm and consistent loyalist, and of course be-
came extremely unpopular in the Province. In 1774, he
was made a "Mandamus Counsellor," and had the cour-
age to accept the appointment, notwithstanding the state
of exasperation to which the public feeling had been
roused against the measures of the crown.
228 JUDICIAL HISTORY. [Ch. 11.
He continued firmly attached to the royal cause, and at
the breaking out of the Revolution abandoned his exten-
sive estates in Hardwick, and went to Boston where he
remained a short time, and from thence went to Long
Island. After a few months residence there, he removed
to Halifax, where he resided until his death in 1798, at
the age of 87.
Mr. Ruggles had many qualities to attract and win pub-
lic favor, if his politics had not been altogether adverse to
the opinions of those by whom he was surrounded. In
person he was large, more than six feet in height, with a
fine manly expression of countenance and dark complex-
ion. His manners were dignified though somewhat abrupt,
while his wit, learning and good sense made his society
generally attractive. He was a spirited promoter of the pub-
lic interests around him, social in his habits, but at the same
time temperate himself, almost to abstemiousness, and
his liberal hospitalities were long remembered. As a judge
he was faithful, able and incorruptible. As a soldier he
was brave, generous and well versed in the science of war.
But as a politician, though he may have been as honest
as it is possible for a politician to be, he was, to say the
least, unfortunate, and his name has not come down to us
with enviable notoriety.
While at the bar he was a rival of Col. Otis, and many
anecdotes are preserved of the practical and rather coarse
pleasantries played off by one upon the other, which seem
more suited to the state of the profession as it then was,
than to what we now see it. His extensive estates were
all confiscated upon his leaving the Province, but his loss-
es were made up to him by the munificence of the crown.
JOHN WORTHINGTON was cotemporary with Brigadier
Ruggles, and held perhaps as respectable a rank in the pro-
fession. He was born November 24, 1719, in Springfield,
Ch. 11.] THE PROVINCE. 229
and was graduated in 1740, at Yale College, after which
time he was, awhile, a tutor in that institution. In 1743,
he began to study law with General Lyman of Suffield,
and the following year, commenced practice in Springfield
where he acquired an extensive practice, and became
King's Attorney for Hampshire County. From the ac-
count given of him by the late Honorable George Bliss,
himself a distinguished ornament of the bar of " Old
Hampshire," it appears that his attainments as a lawyer
were very respectable, and that he was an able advocate.
He had a lively imagination and ardent feelings. His
ideas flowed rapidly, and he possessed a great command
of language as a speaker. His style was nervous, forcible
and uncommonly pure and correct. Nor was his knowl-
edge confined to his own profession. He had a taste for
general science, and as a politician, he took a leading and
conspicuous place.
He was chosen to attend the convention of colonies in
New York, in 1765, but declined the place.
In politics he was inclined to be a loyalist, and was ap-
pointed one of the Mandamus Counsellors, but understood
the tone of public feeling too well to accept so odious an
office.
Upon the interruption of the courts in 1774, he retired
from the bar, and never resumed the practice. He lived
in retirement in Springfield after the revolution till his
death in April 1800, in the 81st year of his age. His
daughter was the wife of Fisher Ames.
JOSEPH HAWLEY, a cotemporary of Colonel Worthington,
and a practitioner at the same bar, was his superior in
many respects, and far more fortunate in his political
course.
He was bom in Northampton in 1724, and was gradu-
ated at Yale college in 1742. He studied theology and
230 JUDICIAL HISTORY. [Ch. 11.
preached for sometime, but never was settled as a clergy-
man. He accompanied the expedition against Louisburg
in 1745, as a chaplain in the army. After his return he
studied law with General Lyman, of Suffield, and com-
menced practice in Northampton about 1749. Here his
business became extensive, and his reputation rose to that
of the first rank in his profession. His learning as a law-
yer, especially in regard to the early or black letter English
law, was profound, and his powers of argument, as an ad-
vocate, were felt and acknowledged by all who heard him.
It was only, however, when he was convinced of the
justice of his cause, that he put forth his strength, nor
was he willing to engage in any cause where he was not
satisfied, at the outset, that his client had justice in his
favor. His eloquence was grave, austere and impressive.
This resulted somewhat from his manner, which had the
gravity and solemnity of the puritan age. He was, more-
over, subject to fits of melancholy or despondency, but it
did not impair the vigor of his intellect, or the manliness
of his character. He was in all things strictly conscien-
tious and had an instinctive abhorrence of every thing ap-
proaching deceit.
In his political views he was, to all intents, a patriot
and a whig, and his influence was most extensively felt
through the Province. In consequence of this, there was
an attempt made to silence him as a lawyer, and in 1767,
an occasion was seized which succeeded for a short time.
There was a trial of several individuals before the Supe-
rior Court for a riot, in the county of Berkshire, in which
Hawley was counsel for the defendants. He published
an account of the trial in the Boston Evening Post, in
which he indulged in some severe, but merited, strictures
upon the opinions advanced by the court in the course of
the trial. The court taking umbrage at the remarks,
Ch. 11.] THE PROTINCE. 231
struck his name from the rolls of the court. But he was
restored the following term upon the motion of Colonel
Worthington, who though a rival was a generous one.
Mr. Hawley never practised at the bar after the com-
mencement of the Revolution.
His course as a political leader was firm, judicious and
eminently consistent. He was many years a member of
the House of Representatives, and it is said no measure
was ever carried against his opinion. The members had
great confidence in his judgment, and a perfect convic-
tion of his honesty, and his appeals to them rarely proved
unsuccessful. Even Hutchinson accords to him purity of
motives, and says that " he was more attended to in
the House than any of the leaders." He accepted of none
of the many places of honor and trust that were offered
him, and rose by the force of his own character to the
rank which not only his cotemporaries but posterity have
assigned him. He died in March 1788, aged 64.
SAMUEL WHITE of Taunton was a cotemporary at the
bar with Colonel Otis. He was born in 1710, and was
graduated at Cambridge in 1731. As a lawyer he was
" famed for his accuracy in making writs." The follow-
ing obituary notice of him is taken from the Boston Eve-
ning Post. March 20, 1769, " Died at his seat in Taun-
ton, Honorable Samuel White, aged fifty nine. A gentle-
man well known in this government from the many pub-
lic stations in which he has appeared, and well esteemed
for the attention and integrity with which he demeaned
himself in them. For many years he represented the
town of Taunton in the General Court, and several of the
last years (1759, 1764, and 1765,) was chosen speaker of
the House, from whence he was chosen one of his Majes-
ty's council the last three years. By long application and
232 JUDICIAL HISTORY. [Ch. 11,
fidelity in the practice of the law, he had acquired a hand-
some estate and a fair character."
BENJAMIN KENT was a barrister and lived in Boston,
although his business as a lawyer led him into other coun-
ties. He was a native of Charlestown, and was gradua-
ted at Cambridge in 1727, and studied divinity. In 1733,
he was settled over the church in Marlboro', and remained
there till February 1735, when he was dismissed from his
connexion with that society, and brought an action against
the town for the recovery of his settlement money, in
which he prevailed. Not liking the profession he had
chosen, he abandoned it, and studied law. The reason
given for this change is said to have been the natural
gayety of his disposition, which was unsuited to the gravi-
ty of the clerical profession.
He was not greatly distinguished in his profession, al-
though he acquired considerable popularity as an advocate
and practised with good success.
In 1767, he had become the oldest member of the pro-
fession but one, in the Province. Being in his political
sentiments a royalist, he left the country at the breaking
out of the revolution and went to Halifax, where he died
at the age of 81 years in 1788.
SAMUEL FITCH was a barrister in Boston. He received
an honorary degree at Cambridge in 1766, but whether he
had previously been graduated at any college does not ap-
pear.
He must have been a lawyer of some eminence, as he
was appointed Advocate General of the Court of Admiralty
about the year 1770, and held the office until the Revolu-
tion.
From his holding office under the crown he doubtless
belonged to the royalist party, and left the country with
many other members of the profession whose associations
Ch. 11*] THE PROVINCE. 233
with the government involved them in the opposition to
the revolutionary movements of the people. He was
among those who were forbidden by the legislature to re-
turn into the Province.
RICHARD DANA belonged to Boston, and was the father
of Chief Justice Francis Dana. Perhaps I cannot do bet-
ter justice to this distinguished man than by transcribing
an obituary notice which I find in the Boston Evening
Post of June 1, 1772. "On Saturday 17th May last,
died at his house in Boston, Richard Dana, Barrister at
Law, 72 years of age. He was a gentleman of unblem-
ished morals. By his liberal education, very good natural
powers and diligence in the study of the law, he was em-
inent in his profession. He was faithful to his clients
and unjust to no man. Ever since he came into business
he was exemplary in carefulness, diligence and frugality,
whereby he left to his widow, only sister of the Honorable
Judge Trowbridge, and to his children, two sons and one
daughter, a handsome fortune.
He hated flattery agreeable to the natural but honest
severity of his manners. He was a most inveterate enemy
of luxury and prodigality. A very steady, strenuous and
it must be confessed many times a'passionate opposer of all
those, even from the highest to the lowest, but especially
the former, who in his judgment were enemies to the civil
and religious rights of his country, and he very well under-
.stood what those rights were.
In short, to Mr. Dana may be applied with great justice
Horace's
" Justum et tenacem propositi virum,
Non vultus instantis Tyranni
Mente quatit solida."
DANIEL FARNHAM lived in Newburyport. He was grad-
uated at Harvard College in 1739, and died at the age of
30
234 JUDICIAL HISTORY. [Ch. 11.
59, in the year 1776. The late Honorable Levi Lincoln
read law in his office awhile when pursuing his profes-
sional studies. Mr. Farnham practised also in the courts of
Maine and for awhile was King's Attorney of the county
of York. His practice was extensive up to the time of
the Revolution.
WILLIAM PYNCHON was bom in Springfield in 1725, and
belonged to the ancient and respectable family of that
name. In 1745, he removed to Salem, where he studied
law with Mr. Sewall and afterwards resided until his
death in March 1789, at the age of 64.
He was an eminent lawyer and was distinguished for
his skill as a special pleader* He was moreover a finished
scholar and an accomplished gentleman, and an ornament
of the Essex bar which has been distinguished for the
eminent men who have been engaged, there in the pro-
fession of the law.
JOHN CHIPMAN belonged to Marblehead. He was the son
of the Reverend John Chipman, and was graduated at Cam-
bridge in 1 738. He was the father of Ward Chipman of
New Brunswick, one of the commissioners in settling the
boundary line under the treaty of 1783. His grandson is
the Chief Justice of that Province. He died of an apoplec-
tic fit while attending court in Falmouth, Maine, in July
1768.
He was in the habit of attending the courts in Maine
in company with Gridley, Jonathan Sewall and other gen-
tlemen of that character.
NATHANIEL PEASELEE SARGENT was born in Methuen
in 1731. He was graduated at Cambridge in 1750. He
practised law in Haverhill and held a high rank in his pro-
fession, though never a distinguished advocate. At the
organization of the Superior Court in 1775, he was ap-
pointed a Judge of that court, but declined the office.
Ch. 11.] THE PROVINCE. 235
The following year, however, he was reappointed and ac-
cepted the place. In 1790, he succeeded Judge Gushing
in the office of Chief Justice and held it until his death,
October 1791. He was sixty years of age at his death,
and left behind him the character of an able and impar-
tial judge.
JOHN LOWELL was born in Newbury in 1743, and was
graduated at Harvard in 1760.
He studied law in the office of Oxenbridge Thacher and
began practice in Newburyport, but soon after removed to
Boston. He there became a leading and distinguished
man, and as a member of the convention that formed the
constitution of Massachusetts, he took a prominent part.
In 1781, he was chosen a member of Congress, and in
1782 was appointed one of the three judges of the court of
appeals to whom appeals lay from the court of Admiralty.
In 1789, he was appointed Judge of the District Court
of the United States, and held that office until 1801, when
he was made Chief Justice of the first circuit, under the
then new organization of the United States Court. He
held the latter office until the act creating the court was
itself repealed in the year 1802.
He was not only an eminent lawyer, a learned civilian,
and an able judge, but he was a distinguished patron of
science and a finished scholar.
He died at the early age of 58, in May 1802, universally
lamented. His place of residence for some time previous
to his death had been in Roxbury. He left three sons,
who have been among the most distinguished men, in
their various departments, in the commonwealth, John,
Francis C. and Charles. The first recently deceased in
Roxbury, the second gave name to the city of Lowell,
having been an early proprietor of factories established there,
236 JUDICIAL HISTORY. [Ch. 11.
and the third is a well known and eminent clergyman in
Boston.
WILLIAM READ was of Boston, and will be noticed in
connexion with the courts of which he was at different
times a member.
SAMUEL SWIFT was of Boston. He was graduated at
Cambridge in 1735, but I have found no particular notice
of his life or character, or even the time or place of his
birth or death.
BENJAMIN GRIDLEY was also of Boston, and was gradu-
ated at Cambridge in 1751, and was appointed a Judge
of the Court Common Pleas for Suffolk in 1775. Of him,
I have found no particular account or memorial. He left
the country at the breaking out of the revolution, being a
royalist in politics.
Of ANDREW CAZENEAU, I find even less than in regard to
Gridley. In 1769, he married Hannah Hammock, and in
1774, with Gridley and many other members of the bar,
addressed Governor Hutchinson upon his leaving the
country.
He probably left the country soon after, as his politics
were riot congenial to the popular feeling of the day, and
his name is among those who were forbidden to return
into the Province by act of the Legislature in 1778.
ABEL WILLARD was bom in Lancaster, January 1732,
and was graduated at Harvard in 1752. He studied law
with Benjamin Pratt and was admitted to the bar in 1755.
His place of residence was his native town, and his prac-
tice became extensive.
He was a man of respectable talents, and enjoyed the
reputation of great honesty and uprightness. He was at
one time a partner in business with the late Judge Sprague
in Lancaster. Upon the breaking out of the revolution he
Ch. 11.] THE PROVINCE. 237
removed to Boston and from thence went to England
where he died in 1781.
JAMES PUTNAM was of Worcester. He was born in
what is now Danvers in 1725, studied law with Judge
Trowbridge, and commenced the practice of his profession
in Worcester, in 1749. He was very successful as a law-
yer, and attained a very high rank in the profession. He
was a competitor of Trowbridge, Gridley and Pratt at the
bar, not only in Worcester, but in Middlesex and Suffolk
counties.
He shared liberally in the favors of the government,
and in return was loyal to the crown.
In consequence of this, he was obliged to seek refuge
in Boston when the war began, and from thence he went
to Halifax. In 1776, he went to England where he re-
mained till the peace, after which he returned to New
Brunswick, where he was appointed a judge of the Su-
preme Court of that Province. In this capacity he was
distinguished for his ability and inflexible love of justice.
He held the office till his death in October 1789.
President John Adams was among those who received
their legal education in Mr. Putnam's office.
DANIEL LEONARD was of Taunton, and was born in Nor-
ton, in 1740. He was graduated at Harvard in 1760.
He is described by President Adams as having been " a
scholar, a lawyer, and an orator according to the standard
of those days." He married a Miss Hammock, probably
sister to the wife of Mr. Cazeneau, and by her, acquired a
considerable fortune. Upon the strength of this, he set
up a chariot which had till then never been done by any
lawyer in the Province, and adopted great style and dis-
play in his dress arid manners. He wore a gold band
around his hat and gold lace upon his coat. He at first
was upon the popular side in politics, but soon became a
238 JUDICIAL HISTORY. [Ch. 11.
convert to the persuasions of Hutchinson and Attorney
General Sewall, and joined the party of the royalists. In
consequence of this, he was obliged to leave the Province
at the breaking out of the Revolution, and went to Bermu-
das where he became Chief Justice of the highest court
in the island. He was accidentally killed by the bursting
of a pistol in 1829, at the age of 89. He was the last
survivor of the barristers at law who were in practice in
Massachusetts in 1767.
PELHAM WINSLOW was of Plymouth, and was the son of
the distinguished General John Winslow, who is men-
tioned in another part of this work. He was bom in
Marshfield, and was graduated at Cambridge in 1753.
He engaged in the profession of the law, and being a roy-
alist in his politics, he was obliged to abandon the Province
at the commencement of the Revolution. He removed to
Long Island where he died in 1776.
JAMES HOVEY was of Plymouth. He was born in Cam-
bridge and was bred to the trade of a joiner. He after-
wards studied law and removed to Plymouth, where I
find him mentioned as "an attorney and a magistrate in
1765." He died in Plymouth, but the time of his death
I have not been able to ascertain.
JONATHAN ADAMS was of Braintree, but I have learned
nothing more of his history.
Of the others whose names are found among the list of
barristers in Massachusetts in 1768, there has been, or will
be, occasion to speak in other parts of this work. And it
would enlarge this work to an unreasonable extent, were
brief justice, even, to be done to those lights of the profes-
sion who have since shed lustre on the bar of Massachu-
setts. I must therefore be content to confine myself to such
notices as I have offered or may be able to offer of those
members of the bar who have either held judicial appoint-
Ch. 11.] THE PROVINCE. 239
ments or have filled the office of Attorney or Solicitor
General in the commonwealth.
It may however be proper to add to these a brief no-
tice of one of the distinguished barristers who left Massa-
chusetts at the Revolution, SAMPSON SALTER BLOWERS.
He was graduated at Cambridge in 1763, and was made
a barrister in 1773. He resided then at Boston, and the
following year married the daughter of Benjamin Kent,
who has been already mentioned.
Being a royalist in his politics, he left Massachusetts
and went to Nova Scotia, at the breaking out of the war,
where he ever afterwards resided.
In 1798, he was made Chief Justice of the Supreme
Court of that province, and I copy the following sketches
of his judicial character from Halliburton's history, pub-
lished in 1829, when Judge Blowers was still at the head
of that court.
u The patient investigation that he gives every cause
that is tried before him the firmness, yet moderation of
temper which he exhibits the impartiality, integrity and
profound legal knowledge with which he dignifies the
bench, have rendered him an object of affection not only
to the gentlemen at the bar, but to the public at large."
He was the last survivor of the barristers who were at
the bar in Massachusetts in 1773.
I have thus, it will be perceived, brought down these
sketches to the time of the dissolution of the charter gov-
ernment, and nothing remains, according to the original
plan of the work, but to notice more at length, the several
members of the Superior Court during the existence of the
Province charter. To these, I shall add brief notices of
some of the members of the Inferior Courts of Common
Pleas in the several counties, and shall leave for others ta
complete the task which I have thus far accomplished.
240 JUDICIAL HISTORY. [Ch. 11.
Enough has been shown from the facts here presented
to establish the connexion that exists between the charac-
ter of a people and their judicial institutions. Indeed it
is difficult to separate the history of the means of adminis-
tering justice in a free state from the other elements of her
civil history. It has been my aim to supply this element
in the history of Massachusetts, which seemed to be in a
good degree wanting, and so far as I have succeeded, the
effort may not be without its use.
However perfect our system may have been rendered,
it may be well to look back upon the changes through
which it has passed, and to recal the memory of those
who in ancient times sat in the places now so honorably
and ably filled by the present judges of our courts.
With these remarks I must dismiss this part of my sub-
ject, and pass at once to the last division of this little
work.
CHAPTER XII.
Personal notices of the Judges of the Superior Court ffortl
1692, to 1775.
In attempting to offer a sketch of those who have sat
upon the bench of the Superior Court of the Province, I
cannot but again express regret that the materials for such
an undertaking are so exceedingly meagre and few. So
far as they were connected with the politics or ecclesiasti-
cal history of the day, their names and characters have de*
scended to posterity. But the frail memorials of these
men in their judicial capacity, are to be gleaned only
from the records of courts, the scattered annotations ap*
pended to political histories, or those humble records of
the past which the local histories of towns or individual
institutions afford to the inquirer after the great men of
by gone days. I have ascertained with accuracy the
names and times of appointment of the several judges of
the Superior Court during the existence of the Province
charter, and for convenience prefix a list of the same to
the notices which I have prepared*
WILLIAM STOUGHTON, appointed Ch. J. 1692* left 1701.
THOMAS DANFORTH, " Judge 1692, " 1699,
WAITE WINTHROP, " " 1692, " 1701, 1701,
Same, " 1708, 1717.
JOHN RICHARDS, " " 1692, 1694
SAMUEL SEWALL, " " 1692, " 1718, " 1728.
ELISHA COOKE, " " 1695, " 1702,
31
242 JUDICIAL HISTORY. [Ch. 12.
JOHN WALLEY, app'd. Judge 1700, left 1712.
JOHN SAFFIN, " " 1701, 1702.
ISAAC ADDINGTON, " Ch. J. 1702, " 1703.
JOHN HATHORNE, " " 1702, 1712.
JOHN LEVERETT, " < 1702, " 1708.
JONATHAN CURWIN, " " 1708, " 1715.
BENJAMIN LYNDE, " " 1712, " 1728, " 1745.
NATHANIEL THOMAS, " " 1712, " 1718.
ADDINGTON DAVENPORT, " " 1715, " 1736.
EDMUND QTJINCY, " " 1718, " 1738.
PAUL DUDLEY, " 1718, " 1745, " 1751.
JOHN GUSHING, " " 1728, " 1733.
JONATHAN REMINGTON, " " 1733, " 1745.
RICHARD SALTONSTAL, " " 1736, " 1756.
THOMAS GRAVES, " " 1738, " 1739.
STEPHEN SEWALL, " " 1739, " 1752, 1760.
NATHANIEL HUBBARD, " " 1745, " 1747.
BENJAMIN LYNDE, ' " 1745, 1771, 1772.
JOHN GUSHING, " " 1747, " 1771.
CHAMBERS RUSSELL, " " 1752, 1766.
PETER OLIVER, " " 1756, " 1772, Revo.
THOMAS HUTCHINSON, " " 1760, " 1771.
EDMUND TROWBRIDGE, " " 1767, Revo.
FOSTER HUTCHINSON, " " 1771, Revo.
NATHANIEL ROPES, < 1772, ' 1774.
WILLIAM BROWN, " " 1774, Revo.
WILLIAM GUSHING, " " 1774, Revo.
WILLIAM STOUGHTON
Was the first Chief Justice of the Superior Court under
the Province charter. Legal knowledge seems to have
formed no part of the requisite qualifications for judicial
offices in the early history of the Province. But the ver-
satility of talent as well as the political shrewdness mani-
fested by Stoughton on various occasions, supplied the
want of that learning which in later days has distin-
guished the bench of Massachusetts.
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 243
He was the son of Israel Stoughton, well known as a
leading man in the colony, having been the commander
in chief of the colony troops in the Pequod war, and after-
wards a Colonel in the Parliamentary army in England.
The subject of this notice was born in Dorchester in
1631, and was graduated at Cambridge in 1650, and his
name stands at the head of his class, which indicates the
relative rank which he held in the scale of birth and fam-
Uy.
He was educated for the ministry, and after completing
his course of studies here, went to England and, while
there, enjoyed a fellowship at the Oxford University.
During his remaining in England he preached for some
time in the county of Sussex, with considerable success,
and continued this employment after his return to New-
England. He acquired a high reputation as a preacher
here, and in 1668, was chosen to preach the annual elec-
tion sermon. He chose for the title to his sermon on that
occasion " New England's true interest not to lie," and it
was pronounced by a cotemporary to be " among the very
best delivered on that occasion."
He returned from England in 1662, and although he
continued to preach until 1671, he was never settled over
any church.
The occasion of his discontinuing his clerical engage-
ments was his election to the office of Assistant, which
place he held by annual re-election until the dissolution of
the colonial government in 1686. During this period how-
ever, he was absent in England as agent of the colony, a
part of the time, having been chosen to that responsible
office in 1677.
Upon the revocation of the old charter, Stoughton was
commissioned under Dudley as Deputy President of Mas-
sachusetts, and in July 1686, was placed at the head of
244 JUDICIAL HISTORY. [Oh. 12,
/
the courts of the colony, by order of the President and
council, which office he held until the arrival of Andros.
In the commission to Andros, Stoughton was named as
one of his council, and unfortunately for his popularity he
consented to accept the office, and thereby lost the confi-
dence of the people while he failed to gain that of the petty
tyrant whom he served.
In the new organization of the courts, under Andros, he
was placed upon the bench of the Superior Court, but in
a subordinate place to Dudley, the late President, who was
made chief justice of the court.
With his accustomed sagacity or good fortune, Stough-
ton was found among the foremost of those who favored
the revolution of 1689. His name stands at the head of
those who demanded of Andros a surrender of the govern-
ment, and he was one of the council of safety who assumed
the administration until the people had an opportunity of
acting upon the subject.
The people however had not sufficiently regained their
confidence in his political integrity to give him any place
in the government, upon their resuming the old charter,
and until the arrival of the new charter he seems to have
been condemned to the walks of private life.
The interval of his retirement from office, however, was
short, for upon the granting of the new charter he was ap-
pointed Lieutenant Governor of the Province, and from
that time till his death filled some of the most important
offices in the government.
Thus in the space of a little more than six years he had
shared in the offices and honors of a democracy, had been
himself second in authority to a royal viceroy, had served
the tyrannical representative of a royal despot, and under
an entirely new dynasty found himself in the second place
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 245
of honor and trust in the Province by the distinguished
favor of a new monarch.
Sir William Phipps, who was named as the first Gover-
nor of the Province, arrived here in the midst of the ex-
citement in relation to witchcraft which signalized this pe-
riod of New England's history. He was a thorough be-
liever in the prevalence of that crime, and found in Stough-
ton a faith in its existence equally sincere.
By the charter, the legislature alone was authorized to
create courts of judicature, but without waiting for that
body to convene, Governor Phipps proceeded to constitute
a special court of Oyer and Terminer to take cognizance
of the unfortunate victims of this wild popular delusion.
It was to consist of five judges, and at the head of these
was placed Lieutenant Governor Stoughton. He entered
upon the duties of his office with alacrity and honest zeal,
and if ever honesty of purpose could be an apology for the
baseness of an act, such would be the case with the meas-
ures pursued by Stoughton on that occasion.
He was sincere in his endeavors to ferret out the guilty
causes of so wide-spread an evil, and pursued his victims
with untiring assiduity, although, in so doing, he sacri-
ficed all the better feelings of his nature, and prostituted
the forms of justice to consummate a series of judicial
murders that have no parallel in our history.
Upon the organization of the Superior Court under the
charter, Stoughton was nominated and unanimously ap-
proved by the council as Chief Justice of that court. His
commission was granted December 22d, 1692. In 1695,
his commission was renewed, and he held the office until
a short time before his death. During this time he also
continued to hold the offices of Lieutenant Governor and
Counsellor, and, a part of the time, was commander in
chief of the Province troops.
246 JUDICIAL HISTORY. [Ch. 12.
His office as Lieutenant Governor often placed him at
the head of the government in the absence of the chief
magistrate. This was the case in 1694, upon Governor
Phipps returning to England, and he remained the acting
Governor until the arrival of Lord Bellamont in May 1699.
Upon the departure of the latter in 1700, Stoughton was
again left in possession of the government, and retained it
until his death, July 7, 1701. 1
It is not easy at this day to understand how any one
could perform acceptably the duties of so many apparently
incompatible offices, the first of which he derived from
the crown, the second from the Governor and council, and
the last by popular election. But that he contrived to re-
tain his popularity arid his influence to the last, is quite
apparent from the general support of his measures which
he derived from those associated with him in authority.
The bigotry of his opinions accorded with the prevail-
ing spirit of the day, and his education and experience
fitted him to be a discreet magistrate, and an influential
citizen. He is represented as an able and eloquent
speaker, 2 and so far at least as honesty of intentions ex-
tend, he was an upright judge.
Chief Justice Stoughton lived and died a bachelor, and
made atonement for his own bigotry, by liberally contrib-
uting to the cause of education. He erected in his life
time for the use of Harvard college, a building known as
1 Lieutenant Governor Stoughton appears to have been a practical farmer,
with his other avocations, for I find in Sewall's Journal the following entry,
* 1697, October 20, went to see Lieutenant Governor, at Dorchester, when I
first saw the Lieutenant Governor, he was carting ears of corn from the upper
barn."
Under date July 27, 1686, Judge Sewall has this entry in his Journal,
' Mr. Stoughton prays excellently and makes a notable speech at the opening
of the court.*'
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 247
" Stoughton Hall," and at his death left a legacy of a
thousand pounds to the use of that university.
He died at the age of seventy years, greatly lamented,
and was buried at Dorchester, " with great honor and so-
lemnity and with him much of New England's glory," and
a Latin epitaph records his virtues, his honors and his
name, and still points out to the enquirer, his grave in the
ancient churchyard of that ancient town.
THOMAS DANFORTH,
Though in many respects differing from his associate the
Chief Justice, was scarcely less distinguished by the marks
of public and executive confidence than he.
He fills an important place in the early history of New
England, not only in connexion with the courts, but with
the civil and political affairs of the colony.
He was born in 1622, in the county of Suffolk, Eng-
land, and came to Massachusetts with his father in 1634.
His father settled in Cambridge, and was a leading and
influential citizen of that town during the few years that
he lived after arriving in New England.
The subject of this notice, was admitted as a Freeman
in 1643, and appears to have entered public life in 1657,
when he was chosen to represent Cambridge in the Gen-
eral Court. In 1659, he was chosen one of the Assistants,
to which place he was annually elected for twenty suc-
cessive years. In 1679, he was chosen Deputy Governor
of the colony, and was annually re-elected to that office
till the dissolution of the old charter in 1686.
In 1679, Mr. Danforth was appointed by the General
Court of Massachusetts to the difficult and responsible
place of President of the Province of Maine, over which
Massachusetts then claimed to exercise jurisdiction.
The government of Massachusetts Bay, never seems to
248 JUDICIAL HISTORY. [Ch.
have lost any thing from any over wrought delicacy in
respect to interfering with the affairs of the neighboring
provinces. There is not in history a more systematic
course of policy pursued by one state to aggrandize itself
by adroitly taking advantage of the divisions which dis-
tracted or the weakness which disarmed its cotemporaries,
than that which Massachusetts pursued while a colony in
regard to the surrounding colonies. The people of Maine
came in for their share of this policy. By taking advan-
tage of the divisions existing among the people in 1651,
Massachusetts, who set up a claim to the whole province,
induced the inhabitants to submit to her jurisdiction, and
created a county embracing the province of Maine under
the name of Yorkshire.
The Province thus continued a part of the colony of
Massachusetts Bay till 1665, and during this time was rep-
resented by delegates in the General Court.
The claim, however, of the proprietor of Maine under
the original grant of the Province from the Crown, had
never been abandoned, and in 1678, the title of Sir Fer-
dinando Gorges, as heir of the original grantee, was con-
firmed by the King in Council.
Massachusetts was not inclined to abandon her claim,
but was too politic openly to resist the decision of the
crown. She therefore contrived to purchase the title of
Gorges, and thereby became herself the " Lord Proprietor "
of the Province.
Having acquired this authority, she was not slow to ex-
ercise it, and the following year the Governor and Coun-
cil of Massachusetts Bay, as " the lawful assigns of Sir F.
Gorges," &c. " erected and constituted a court and coun-
cil," over the Proprietary. Danforth was appointed Presi-
dent, and a General Court for the Province was held at
York in 1681.
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 249
Danforth continued at the head of the government of
Maine, holding courts and administering its affairs accord-
ing to the forms prescribed in the Patent to Gorges, till
the arrival of Dudley as President of Massachusetts in
1686,
It is no part of the object of this notice to discuss the
merits of the administration of Mr. Danforth as President
of Maine, He continued during the whole period for
which he held that office, to act as Deputy Governor of
Massachusetts, and, most of the time, resided in Cam-
bridge with his family, who at no time removed to Maine.
The connexion of Danforth with the government of
Massachusetts embraced a most difficult and trying period.
The colony had practically grown into a state of indepen-
dence under her charter, and, of course, regarded with jeal-
ousy any encroachments upon the powers of self govern-
ment which she had so long exercised. It would proba-
bly have been somewhat difficult to justify many acts of
jurisdiction which the General Court had exercised, by a
strict construction of the letter of the charter, and there
were not wanting those, both at home, and in the colony,
who were ready to seize upon these measures as grounds
of impeaching those who administered the government.
No one, however, was to be compared with Randolph for
the malignity arid perseverance with which he pursued
the colony, and labored to subvert their charter of govern-
ment.
Great divisions arose among the leading politicians of
the day as to the course which should be adopted in rela-
tion to these attacks upon their colonial privileges. One
party was for moderate, temporizing measures, whereby
they hoped to avert the anger of the crown, and save as
many of their privileges as they could. The other party,
at the head of which was Danforth, were for adhering to
32
250 JUDICIAL HISTORY. [Ch. 12.
the charter, as they construed it, at all events, and leaving
the event with Providence. Of this party were Major
Gookin and Elisha Cooke. The popular sympathies were
all upon the side of the charter, and Danforth as among
the most able and fearless of its defenders, was the idol of
the people.
The storm however which had been gathering, at last
broke upon the colony. Its charter was seized, its dem-
ocratic institutions annihilated, and Danforth, among oth-
ers, passed into the retirement of private life.
The people were too restive under the tyranny of An-
dros to remain long in a state of quiet, and spontaneously
rushed to the scene of action upon the breaking out of the
revolution that prostrated the government which had been
imposed upon them by the crown. The old charter was
resumed, and Danforth was again made Deputy Governor.
He continued to be re-elected to that office until the char-
ter of William and Mary was granted, which took from
the people the elective franchise, so far as the executive
was concerned. His attachment to the old charter con-
tinued still unabated, and so strongly opposed was he to
accepting any other from the crown that his name was
omitted among the counsellors who were created by the
charter of 1691. Of course, he was left out of the gov-
ernment upon Governor Phipps coming into power, but
his influence was still extensively felt. This was partic-
ularly true in regard to the strange delusion about witch-
craft, which presents such a dark chapter in the history of
New England, and much was due to his efforts in finally
suppressing the horrible fanaticism which had seized upon
the public mind.
Upon the organization of the courts of the Province, in
December 1692, Danforth was chosen one of the Judges
of the Superior Court, and of the fifteen counsellors pre-
Cll. 12.] JUDGES OF THE SUPERIOR COURT. 251
sent he received twelve votes. Notwithstanding this,
however, the Governor hesitated in giving him a commis-
sion to the place of judge, until some time after he had
commissioned his associates. 1 He remained upon the
bench of the Superior Court from 1692, till his death
which took place November 5, 1699, at the advanced age
of 77.
He had thus, it will be perceived, been almost cotempo-
rary with the existence and growth of the colony itself.
During a large portion of his life, he had taken a leading
part in the administration of her affairs, and although he
neither appears to have had the advantages of a public ed-
ucation, nor ever to have pursued any regular profession
in life, he proved himself to be an able magistrate, posses-
sing great firmness of mind as well as great prudence in
the management of public affairs. He probably brought
to the bench no other qualifications as a judge, than disci-
plined common sense, extensive experience, and habits of
observation and judgment which must have resulted from
a long life of active public duties. But in the absence of
the necessity of judicial learning he was adequate to the
task of dispensing justice satisfactorily to the people, and
left behind him a fair fame, and a general respect for his
memory. So far as he had any pursuits beyond the per-
formance of his public duties, they seem to have been
those of agriculture. Judge Sewall who had long known
him intimately, sums up his character in the following
words : " he has been a magistrate forty years, was a very
good husbandman, a very good Christian and a good coun-
sellor." And Chief Justice Stoughton in an address to
i The circumstances of electing and commissioning the [Judges arose from
Governor Phipps giving up at the first meeting of the council the right of nom-
ination, and only exercising the right of commissioning such as the council
elected.
252 JUDICIAL HISTORY. [Ch. 12.
the Grand Jury, in the language of Judge Sewall's Jour-
nal, " takes great notice of Judge Danforth, saith he was a
lover of religion, and a religious man, the oldest servant of
the country, and had zeal against vice."
Judge Danforth had a numerous family of children.
Two of his sons died in his life time, and his posterity
survive only in the female branches of his family.
WAITE WINTHROP
Was the son of John Winthrop, Governor of Connecti-
cut, arid grand-son of the first Governor of Massachusetts.
His proper name was Wait Still. He was born in Boston,
February 27, 1642, and removed with his father to Con-
necticut at the age of eight years. He was educated a
physician and during the latter part of his life practised
his profession not only gratuitously, but furnished his own
medicine at the same liberal rate.
While he resided in Connecticut he was one of the
commissioners, for that colony, of the united colonies of
New England.
When Dudley was made President, Winthrop was
named of his council, and in 1687, he removed to Boston.
He was also named as one of Andros' council in behalf
of Connecticut, and although he never could have had any
sympathy with so odious a tyrant, he was promoted to a
command in the military of the colony. His character as
a military man pointed him out as a proper leader at the
time of the revolution in which he took an early and an
active part, and he was accordingly created commander in
chief of the colony forces on that occasion. He was also
one of the council of safety, at the time of Andros being
expelled from the government.
In the disastrous Canada expedition of 1690, Mr. Win-
throp held a Major's command, but suffered, in common
CK. 12.] JUDGES OF THE SUPERIOR COURT. 253
with the leaders of the army, in reputation as an efficient
officer.
He was appointed one of the first board of counsellors
under the new charter and is the fourth in order named
in the list of twenty eight. He seems to have retained
the designation if not the authority of Major General, for
whenever he is mentioned by Judge Sewall in his journal,
he is always distinguished as "the Major General," al-
though referred to in his judicial character.
At the organization of the courts he was appointed a
Judge of the Superior Court, and was commissioned on
the 22d December, 1692. He held the office of Judge un-
til the death of Chief Justice Stoughton, upon whose
death, in the absence of both Governor and Lieutenant
Governor, the government fell upon the council at whose
head was Mr. Winthrop. He was, moreover, appointed
by the council Chief Justice in place of Stoughton. This
was in August 1701. Soon after this, he was chosen
agent of the Province, but the purposes secretly intended
by the measure were to secure to him an appointment to
the vacant place of Governor in opposition to Dudley, who
was making interest to obtain the place.
While Winthrop was preparing for his voyage, it was
ascertained that Dudley had been appointed Governor,
whereupon the agency was rescinded, and the agent re-
tained at home.
Dudley came into the government with no feelings of
cordiality towards those who had been instrumental in sub-
jecting him to imprisonment at the time of the revolution,
and among these, Winthrop probably had his share of the
Governor's displeasure. He seems to have resigned his
place upon the bench upon being chosen colony agent in
1701, but still continued a member of the council, though
254 JUDICIAL HISTORY. [Ch. 12.
I find no farther account of him till 1708, when he was
appointed Chief Justice of the Superior Court.
It should however, have been mentioned that in 1699,
he .was appointed Judge of Admiralty for New York,
Connecticut, Massachusetts, Rhode Island and New Hamp-
shire, and held the office till 1701.
He continued to hold the office of Chief Justice from
the time of his appointment till his death, November 7,
1717.
It is difficult at this day to determine how much Judge
Winthrop owed to talents and acquirements, and how
much to family for the many important offices which he
filled. His family was among the highest and most re-
spected in New England, and by his marriage with a
daughter of the Honorable William Browne of Salem, he
became allied with another old and influential family.
These circumstances added to his great wealth, may ex-
plain some of the many honors which were so profusely
showered upon him.
Hutchinson represents him as having been " a good sort
of a man," "of a genius rather inferior to either of his an-
cestors," and as " a plain, honest man." Of his judicial
qualifications, little of course can be known. Prom the
manner in which Judge Sewall speaks of Mr. Cooke's hav-
ing turned the mind of the " Major General," while con-
sulting upon a case which had been saved for " advise-
ment," it might be inferred that he was not distinguished
for firmness or independence.
His education and manner of life, were not well calcu-
lated to fit him for the bench. But as there was no oppor-
tunity for drawing unfavorable comparisons in this respect,
the mode of administering justice pursued by the courts
at that day was probably satisfactory to the people.
Chief Justice Winthrop had reached the advanced age
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 255
of 75, at his death. He left children, and was the direct
ancestor of the Honorable Thomas L. Wirithrop, and con-
sequently of his son, the Speaker of the last House of
Representatives of Massachusetts.
JOHN RICHARDS.
One might suppose from the selection of the first board
of Judges of the Superior Court, that it was considered an
object to embrace as many various callings in life as the
number of the Judges would admit. Richards seems to
have been selected to represent the mercantile interests of
the Province. He was born in England, and came to
Massachusetts in very humble circumstances. It is even
asserted by Randolph, that he came out to the colony as
a servant.
He settled in Dorchester, and by constant assiduity in
business became a wealthy and leading merchant. Among
other offices of trust and responsibility which he was
called upon to fill, was that of Major in the Militia, by
which title he is distinguished wherever he is mentioned
in Se wall's journal, even while they were associated togeth-
er upon the bench.
He was for many years a representative in the General
Court under the colony, and was selected by towns re-
mote from the capital, for this purpose, while by law a
residence within a town was not requisite in order to being
its representative. Thus from 1671, to 1673, he repre-
sented Newbury, in 1675, Hadley, and in 1679, and 80,
he was chosen from Boston, although resident in Dorches-
ter, and during the last of these years was speaker of the
House.
In 1678, through the instigation of Randolph, a commis-
sion was created, consisting, among others, of Randolph
and Richards, to administer to the Governor an oath to ob-
256 JUDICIAL HISTORY. [Ch. 12.
serve the acts of trade which the colonists had practically
disregarded. The commission however proved to be alto-
gether futile, as the Governor declined taking the oath.
If no other cause for refusal existed, it would have been
enough that Randolph was an instrument by which it was
to be accomplished.
From 1680, to 1684, Mr. Richards was a member of
the Board of Assistants. During the same time he was
one of the Trustees of the fund for propagating the gospel
among the Indians a fund which originated in the high-
est and best motives of redeeming the Indians of North
America from barbarism to Christianity, but which like all
other efforts for the same purpose, proved unsuccessful and
in the end abortive.
In 1681, Mr. Richards, with Mr. Dudley, sailed to Eng-
land as colonial agents. This office was considered as a
highly honorable one, but it was full of difficulty, and as
in a democracy like that of New England, every freeman
considered himself competent to judge of the various colo-
nial relations, few of their agents ever found themselves
able to accomplish enough to answer public expectation,
and thereby few escaped censure and distrust.
He was absent in England two years, and though,
while there, Randolph exhibited articles of high misde-
meanor against him, as well as [many other members of
the General Court, to the Lords of the council, he returned
to find the tide of popularity shifting against him, and the
following year, 1684, he was dropped from the number
of Assistants. His offence consisted chiefly in thinking it
expedient to surrender the old charter, to which the people
could never be fully reconciled.
He continued to enjoy the confidence of Mr. Dudley,
under whose administration as President there was a new
organization of the courts of the colony. Stoughton was
Ch. 12,] JUDGES OF THE SUPERIOR COURT. 257
appointed Judge, and Richards and Simon Lynde, " As-
sistant Judges " of the Pleas and Sessions of the Peace.
He held the office during the short period that Dudley
was President, but does not appear to have held any judi-
cial office under Andros. From his subsequent course, it
is pretty evident that he did not belong to the number
who sustained Andros. Thus, he became bail for Mr*
Mather when he was arrested at the suit of Randolph for
slander, and at the breaking out of the Revolution he acted
with the people, and was one of the council of safety, who
assumed the administration until the old government could
be restored.
In his capacity as Assistant he sat with the Governor,
(Bradstreet,) in a County Court which was held on the
30th July, 1689.
In the charter of William and Mary, he is named as one
of the council, and was selected by Governor Phipps, as
one of the Judges to constitute the Court of Oyer and
Terminer, to whom was committed the trial of the witches.
He took a part in the transactions of that court, nor is there
any evidence that he did not justly share in the odium
which they brought upon all the actors in that bloody
drama.
At the organization of the courts in 1692, he was ap-
pointed and commissioned as Judge of the Superior Court,
and held the office till his death.
His wife was the widow of Adam Winthrop, and for
several of the last years of his life, he resided in Boston.
His death occurred in a very singular manner, about
the 2d day of April, 1694. He dined well on the day of
his death, and soon after that, falling into a violent pas-
sion with his servant for some cause, suddenly fell and
expired as was supposed from an attack of apoplexy.
33
258 JUDICIAL HISTORY. [Ch. 1.
He was buried in great pomp and state, several military
companies attended his funeral, and his pall bearers were
Judges Stoughton, Danforth, and Sewall, with Russell and
Brown two eminent and leading men in the Province.
To a self made man like Mr. Richards, who passed
through life with so much honor, and performed duties so
various and arduous with so much acceptance, it would
be idle to deny strong and energetic powers of mind.
What his qualifications were as a Judge, it no where ap-
pears. But from his having been repeatedly called to the
duties of the place it is fairly to be presumed that a legal
education was not regarded as a requisite in any wise es-
sential for those who were to act as the interpreters of the
law. And this conclusion is corroborated as well by the
character and education of the other Judges who were
his cotemporaries, as by the brief sketch which has now
been offered of this eminent and wealthy merchant.
SAMUEL SEW ALL,
Was the son of Henry Sewall, who came from England
and settled at Newbury. He afterwards returned to Eng-
land and was the minister of Bishop Stoke for several
years. Samuel was born there and remained in England
till he was about nine years old, and arrived in New Eng-
land in 1661. He was graduated at Cambridge, in 1671.
Upon leaving College, he studied Divinity and became a
fellow of Harvard College for some years, during which
time, he was occasionally employed to preach. He was
admitted as a Freeman in 1678, and in 1684, was chosen
one of the assistants. He continued to be re-elected from
year to year till 1686. For some reason he was neither
of Dudley's or Andros' council, nor does he seem to have
taken any active part in the Revolution. But upon the
old charter being resumed he was again elected to the
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 259
Board of Assistants, and continued a member of that Board
until the arrival of the new charter, in which he was
named as a Counsellor.
The reason of Mr. Sewall taking so little part in the ex-
citing scenes of the New England Revolution is not now
very apparent. His patriotism seems not to have been
doubted, and any objection that might once have existed
to his acting in a military capacity had already been re-
moved, as he had already become a member of the Ancient
and Honorable Artillery Company, and held the office of
Ensign in that corps in the year 1683. He was moreover
promoted to the rank of Major of the Militia, and seems
to have regarded it as a mark of honor worthy of being
particularly remembered.
He was a member of the court of Oyer and Terminer,
which was created by Governor Phipps, for the trial of
the witches. And at the establishment of the Superior
Court was constituted one of its Judges. He remained
upon the bench as an associate judge, till 1718, when he
was appointed to the place of Chief Justice, which he held
till 1728, when he resigned it on account of his age and
growing infirmities.
From the arrival of the charter, till 1725, he was a
member of the council. And from 1715, to the time of
his leaving the bench of the Superior Court, he also held
the office of Judge of Probate for Suffolk county.
Although he was eminently a public man, he is chiefly
remembered from his connexion with the courts of which
he was a member. He kept a daily journal of every inci-
dent with which he was connected, even the most trivial,
which covers many years of his life and furnishes a faith-
ful transcript of himself and his personal history.
From the perusal of this journal it is apparent that he*
had a natural taste for legal science, which he had cultiva-
260 JUDICIAL HISTORY. [Ch. 12.
ted by a very respectable course of study. He saw how
chaotic was the system of legal practice at the bar, and
endeavored to introduce a corrective. In 1690, while he
held the office of a commissioner of small causes, he wrote
to Mr. Webb, the clerk of the court, and cautioned him
not to issue writs unless they were returnable on certain
days in the month, that he should not sue any book debts
which were over three years old, and for the recovery of
such accounts recommended Case instead of Debt. He
also expressed the opinion that the dates of the charges
ought to be "noted in the attachment" as much as the
dates of obligations that were sued.
I know not that this was the origin of our form of ac-
tions upon the case to recover accounts charged upon
book, but it shows a disposition on the part of Mr. Sewall
to introduce something like order into the practice of the
law.
So far as one may judge from the few records that are
left, Judge Sewall must have been altogether better read
in the principles of the common law than any other judge
upon the bench.
His connexion with the trials at Salem in 1692, was
not only most unfortunate for his memory as a judge, but
a source of great sorrow to himself in after life. He acted
with entire honesty of conviction while pursuing the hor-
rid though fancied crime of witchcraft, but when con-
vinced, as he soon became, that it was all a delusion, with
equal honesty and ingenuousness he confessed his errors,
and in the face of the congregation where he worshipped,
asked forgiveness of God and his fellow men for the part
he took in those trials.
He exemplified in his life, the virtues which adorn the
Christian profession, and though learned, honored and en-
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 261
trusted with power, he was distinguished for his simplicity
of life, and his meekness and singleness of heart.
From his journal many curious anecdotes illustrative of
the times in which he lived might be gathered, but they
might seem to be misplaced in a work like the present.
The following account of the opening of the new Town
House in Boston, which had been created to supply the
place of the one that was burned in 171 1, 1 has been selected
as containing some account of the forms of proceedings in
court, and particularly as exhibiting a specimen of the
quaint conceits which distinguish the address of Judge
Sewall and were suited to the public taste of the times.
" 1713, April 27, First court held in the new Town House
in Boston. Mr. Coleman prayed excellently. May 5,
1713, Dr. Cotton Mather makes an excellent dedication
prayer in the new court chamber. Mr. Paine, one of the
overseers of the work, welcomed us as we went up stairs.
Dr. Cotton Mather having ended prayer, the clerk called
the Grand Jury, giving their charge which was to enforce
the dueen's proclamation, and especially against travel-
ling on the Lord's day.
I said 4 you ought to be quickened to your duty in that
you have so convenient and august a chamber prepared
for you to do it in, and what I say to you I would say to
myself, to the court, and all that are concerned, seeing the
former decayed building is consumed, and a better built in
the room, let us pray that God would take away our filthy
garments arid clothe us with a change of raiment, that
our sins may be buried in the ruins and the rubbish of the
1 This was known as the " great fire " previous to 1760, " all the houses on
both sides of Cornhill from School street, to what is called the stone shop in
Dock Square, all the upper part of King street on the south and north side,
together with the town house and what is called the old meeting house above
it, were consumed to ashes." (2 Hutch. Hist.)
262 JUDICIAL HISTORY. [Ch.
former house, and not be suffered to follow into this ; that
a Lixivium may be made of the ashes which we may fre-
quently use in keeping ourselves clean.
Let never any judge debauch this bench by abiding on
it when his own cause comes under trial. May the Judg-
es always discern the right, and dispense justice with a
most stable, permanent impartiality. Let this large trans-
parent costly glass serve to oblige the attorneys always to
set things in a true light. May that proverb, ' Golden chalice
and wooden Priests ' never be transferred to the civil order,
and let the character of none of them be * Impar Sibi.'
Let them remember they are to advise the court as well
as plead for their clients, &c.' "
The principles of action laid down by the Judge on this
occasion, must certainly commend themselves to the mind
of every man who properly regards the relation that sub-
sists between the bench and the bar, or between these and
the public, and so far as these principles were applied by
him, there is little doubt that he acted consistently with
those he professed.
He was, withal, a very learned man in other branches
than the law, and familiarly and critically acquainted with
Latin, Greek and Hebrew, and was the author of many
religious works. 1
He is represented by a cotemporary biographer, as hav-
ing been " universally and greatly reverenced, esteemed
and beloved for his eminent piety, learning and wisdom 7
his grave and venerable aspect and carriage, his instruc-
tive, affable and cheerful conversation, his strict integrity
and regard to justice, and his extraordinary and tender
heart.
In person, Judge Sewall was large, being as he says in
1 One of these was " Some outlines towards a description of the new heav-
ens and new earth," 4to. A second edition was printed in 1727.
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 263
his journal of the weight of 193 Ibs, and his portrait pre-
served in the family exhibits indications of a full plethoric
habit. He survived his resignation of the place of Chief
Justice two years, and died January 1730, at the age of
77.
No family has been so much distinguished in connex-
ion with the judicial history of Massachusetts as that of
Judge Sewall.
He had two brothers, John and Stephen. John was the
ancestor of Judge David Sewall of York, Stephen was the
ancestor of Chief Justice Stephen Sewall and Jonathan
Sewall, Judge of the Court of Admiralty in Nova Scotia,
and Attorney General of Massachusetts.
Chief Justice Samuel Sewall, the subject of this notice,
was the ancestor of Chief Justice Samuel who died in
1814, to whose son, bearing the same name, 1 I am happy
to acknowledge rny indebtedness for the use I have been
permitted to make of the journal of his distinguished an-
cestor to which I have so often referred.
ELJSHA COOKE
Was the successor of Judge Richards, and was appointed
to the bench in 1695. He was the son of Richard Cooke,
and was born in Boston, September 1637, and was gradu-
ated at Cambridge in 1657. He was admitted a freeman
in 1673. He was educated to be a physician, but his taste
and connexions in life withdrew him from a profession
which he had begun to practice with success, into the
more dazzling and tempting .field of politics, in which he
spent most of his days. Though less distinguished as a
1 The Rev. Mr. Sewall of Burlington, (Mass.) who is in possession of many
valuable manuscripts of his ancestor, and by his courtesy and kindness in regard
to the use of these, has done much to throw light upon an interesting period of
out 1 early history.
264 JUDICIAL HISTORY. [Ch. 12.
politician than his son, of the same name, afterwards be-
came, he was for many years the leader of the democratic
party in the colony, and shared the odium or approbation
of the government, as the one or the other party prevailed.
He entered the House of Representatives in 1681, and
remained a member of it till 1683, the last of which years
he was speaker of the House.
He was chosen an assistant, in the place of Dudley on
account of his course in regard to the colony charter.
While Dudley and many other leading men in the colony
were in favor of surrendering this charter, Danforth, Cook
and some others were unwavering in their determination
to retain it. They carried with them the public voice,
and consequently the popular favor was manifested at the
elections of public officers.
But the decree had gone forth that the colony should
be robbed of their charter, and Dudley was rewarded for
his subserviency by being appointed President, ad interim,
of the Province.
Cooke of course, was left out of the government, and
continued to be an object of jealousy and hatred to Ran-
dolph and the other minions of the crown. He remained
excluded from any participation in public affairs until the
revolution which overthrew Andros, when, with the old
Governor and several of the assistants who had been cho-
sen in 1686, he constituted a " committee of safety," who
assumed the government till some arrangement could be
made to meet the emergency.
In order to justify the measures which had been pur-
sued in relation to the resumption of their old charter, and
to substantiate their charges against Andros, Dudley and
the other officers whom they had deposed, the colonists
thought it was necessary to send agents to represent them
in England, and Mr. Cooke and Mr. Oakes were selected
Cll. 12,] JUDGES 01' THE SUPERIOR COURT. 26#
for this delicate and invidious task. Mr. Ashurst and
Mather were then agents of the colony, and Mr. Wiswall,
a minister of Plymouth colony, was requested to accom-
pany Cooke and Oakes.
The consequence of having so many agents was,
that they differed so much among themselves, that the
enemies of the colony adroitly changed the position of
the agents from complainants to defendants, while Dudley
and Andros riot only escaped censure, but were taken
into royal favor and rewarded with new offices.
The situation of the colony in regard to its charter and
form of government, became a subject of discussion in
England. Strong hopes were for a while entertained that
the old charter would be restored. Cooke would not con-
sent to accept any other, nor did he at any time yield his
determination upon the point.
A new charter however was granted, and Sir William
Phipps was created Governor, but Mr. Cooke, though he
had been regularly chosen assistant, after the revolution,
was left out of the commission of the twenty eight Coun-
sellors who were named in the charter, at the solicitation
of Mather, to whom their selection was referred by the
King. . <;0 '#11
Mr. Cooke returned to New England, but though he
had been unsuccessful in his agency, he had not lost his
popularity, and at the election of 1693, was chosen one of
the council. Governor Phipps negatived his election be-
cause he had opposed the appointment of that officer.
The next year, Phipps having been recalled, Cooke was
again chosen to the council and was permitted to take his
seat at the board. He continued a member of that board
until the arrival of Dudley as Governor, and was a confi-
dential adviser of Lord Bellamont while in the govern-
ment.
34
266 JUDICIAL HISTORY. [Ch. 12.
Upon Dudley's coming into power, he indulged his im-
placable hatred against Cooke for his efforts against him
at the time of the Revolution, and negatived his election
as counsellor. Nor did his revenge stop here. Mr. Cooke
had been appointed, as has been stated, Judge of the Supe-
rior Court in 1695, in the place of Judge Richards, and
held the office on the arrival of Governor Dudley in 1702.
Upon his assuming the government he issued new com-
missions to all the Judges but Cooke, and from that time
he ceased to have any connexion with the court. Nor
was he permitted, though annually elected counsellor, to
take his seat at the Council Board until 1715, when he
was approved of by Dudley among his last acts in the
government. He did not however enjoy this return of
political favor long, as he died on the 31st October, 1715,
at the age of 78.
His wife was the daughter of Governor Leverett, and
his wealth, his family and political connexions, gave him
a great and leading influence in the colony. He left to
his son Eiisha, his politics, his popularity and his name,
and most fully did he sustain them through the struggles
between the people and the prerogative, that distinguish
the succeeding administrations of the provincial govern-
ment.
JOHN W ALLEY
Succeeded Judge Danforth, in 1700, having received as
Judge Sewall says all the votes of the council but one.
He belonged to the town of Bristol in the Plymouth
Colony, and had been one of the Assistants in that colony
from 1684, till its union with Massachusetts under the
new charter.
Previous to that time he had resided in Boston, and re-
moved to Bristol in 1680. He was named as one of An-
Ch. 12.] JUDGES OP THE SUPERIOR COURT. 267
dros' Council for Plymouth, but does not appear to have
acted with them.
In 1671, he became a member of the Ancient and Hon-
orable Artillery, and in 1679, rose to be its commander.
From this circumstance or some other, he had so high a
reputation as a military man that he was selected to com-
mand the land forces in the Canada expedition which was
sent against Quebec, in 1690, under the command of Sir
William Phipps. This expedition was got up at great
cost and sacrifice on the part of the colonists, and great
hopes were entertained by them of its success. These
however were all blasted. The expedition signally failed,
and the colony, drained of its resources, or means of defray-
ing the expenses it had thereby incurred, resorted, for the
first time, to the pernicious custom of issuing bills of credit,
by which the money of the colony at a subsequent period
of its history became well nigh worthless.
Major General Walley published a journal of this expe-
dition, which is contained in the appendix to Hutchinson's
history of Massachusetts.
Mr. Walley on removing from Boston became one of
the founders of Bristol, and among his associates were
Nathaniel Byfield and John Saffin, both of whose names
are connected with the history of the courts of Massachu-
setts.
A singular controversy arose between Mr. Saffin and Mr.
Wailey, in which Judge Byfield was also involved, an ac-
count of which may be found in Mr. Baylies' history of
Plymouth Colony. This controversy, which affected the
character of the two latter gentlemen, became a subject of
arbitration before Lieutenant Governor Stoughton, Isaac
Addington and John Leverett. By their award, Mr. Saffin
was to make a proper acknowledgment to Mr. Walley, and
the manner in which this was done, can only be appreci-
268 JUDICIAL HISTORY. [Ch. 12.
ated by transcribing his published communication. A
single paragraph will serve to show in what spirit the
award of the arbitrators was performed. lt I confess I
might have spared some poetical notions, and satyrical ex-
pressions, which I have used by way of argument, infer*
ence or comparison. Yet the sharpest of them are abun-
dantly short of those villifying terms and scurrilous lan-
guage which they (Walley and Byfield) themselves have
frequently given each other both in public and private,
generally known in Bristol."
This award was made in 1696, and as they both sat
together afterwards upon the bench of the Superior Court,
it is perhaps to be presumed that they became reconciled
to each other, although, as will appear when I come to
speak of Saffiri, he was of a most irascible temper.
Judge Walley died in Boston, January 11, 1712, and I
believe held his office till his death.
Of his character as a Judge, I have no means of speak-
ing. He probably owed his appointment to the bench
somewhat to his being a prominent man in Plymouth at
the time of its union with Massachusetts, and his military
services may have rendered him, in the mind of the Gov-
ernor, deserving some reward.
'
JOHN SAFFJN
Succeeded Judge Winthrop, and came upon the bench
in 1701. He was born in England, and came to Scituate
about the year 1650, where he married a daughter of the
distinguished Thomas Willett who was the first English
Mayor of the city of New York. Previous to 1671, he
had removed from Scituate to Boston, and for two or three
years represented that town in the General Court. He was
Speaker of the House of Representatives the year that the
Ch 12.] JUDGES OF THE SUPERIOR COURT. 269
charter was vacated. 1 About the year 1688, he removed
to Bristol then in Plymouth Colony, and was an early pro-
prietor of that town.
Upon the division of Plymouth into counties in 1685,
Bristol became the shire town of the county bearing that
name. And when the county officers were appointed un-
der the charter of William and Mary, Mr. Baffin was made
Judge of Probate and held the office until 1702.
In 1693, he was chosen one of the council and con-
tinued a member of that body until he was negatived by
Governor Dudley, at the election in 1703. From his
being negatived at the same time with Cooke, it is proba-
ble that he belonged to the popular party in politics, and
this may perhaps account for his controversies with Byfield
and Walley who enjoyed the favor of Governor Dudley.
This too may account for his being left out of the commis-
sion to the Judges of the Superior Court, issued by Dud-
ley upon coming into power. He had originally received
his appointment directly from the council, after the death
of Lieutenant Governor Stoughton, so that he held the
office of Judge but for a short period.
From some memoranda left by Judge Sewall, Mr.
Baffin's qualifications were not the best suited to the
place which he was called to fill, and intimations are
pretty distinctly given that he was guilty of tampering
with Jurors, using influence to obtain improper testimony
upon the trials of causes, and equivocating, when charged
with dishonorable conduct in which he had been detected.
How much of this was true, need not now be determined.
1 By an order of the General Court, in May, 1686, Samuel Nowell, John
Saffin and Timothy Prout were appointed a committee to take charge of such
papers on the files of the Secretary as related to the charter and the titles to
the lands of the colonists, which they had acquired by purchase of the Indians,
or otherwise. (2d Ser. Hist. Col. viii. 180.)
270 JUDICIAL HISTORY. [Ch. 12.
That he was a self-willed and quarrelsome neighbor, was
pretty strongly evinced in his controversy with Judge
Walley and Colonel Byfield, to which reference has already
been made.
His second wife was of the name of Lee, and for his
third, he married a daughter of Colonel Byfield. For
some cause he separated himself from his last wife, and
for his conduct towards her he received from Cotton Math-
er a letter of sharp reproof just before his death.
His temper became peevish and irascible, and he seems
to have lost the respect with which he had once been re-
garded.
He died July 29, 1710, at Bristol. His son Stephen
Saffin was buried in Stepney Church yard, England, and
his name acquired an immortality from the pen of the
author of the Spectator.
ISAAC ADDIIVGTON
Was created Chief Justice by Governor Dudley, on his
coming into the government, in 1702, and was the immedi-
ate successor of Chief Justice Winthrop. He was born in
Boston, January 1645, and was admitted a freeman in 1673.
In 1685, he was a member of the House of Representatives
and Speaker of that body, and the following year was
elected an Assistant. He does not appear to have had
any share in the government between the revocation and
restoration of the old charter, and must have acted with
the popular party against the tyrannical assumption of
power by Andros, for at the breaking out of the revolt
tion, he was made one of the committee of safety, and
clerk of the council. Upon the reorganization of the gov-
ernment, he was made Secretary of the Colony, and held
that place until the arrival of the new charter, by which
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 271
he was appointed to the same office, and retained it till his
death.
The office of Secretary was regarded as one of great
importance in the colony and province, and the great length
of time for which Mr. Addington was permitted to fill it,
shows the high estimation in which he was held. Indeed
all notices of him which have been preserved, represent him
as having been a man of great integrity, but remarkable
for his modesty. It is somewhat singular that while the
other offices which he held are carefully mentioned in the
notices which we have of him, none of them allude to his
having held the place of Chief Justice of the Superior
Court of the Province for nearly a year. It speaks but
poorly of the rank with which the members of that Court
were at that time regarded by the community.
He died March 19, 1715, at the age of 70. His daugh-
ter was the wife of Paul Dudley, Attorney General and
afterwards Chief Justice of the Province.
Mr. Addington was connected with this court too short
a time to affect its character, in any respect. He was
bred a physician, and in the practice of his profession he
was esteemed a useful man, but it is not difficult to con-
ceive that in undertaking to expound the law, he found
he had mistaken his proper sphere. He died however with
the esteem of all classes, having been, in the words of a
notice of his death, " a native of New England and a
great honor to his country."
He was the uncle and patron of Addington Davenport,
who, afterwards, sat upon the bench of the Superior Court
for many years.
JOHN HATHORNE
Was the son of William Hathorne, the first Speaker of
the House of Representatives, and was bom in Salem,
272 JUDICIAL HISTORY. [Ch. 1 2.
August 4, 1641. In 1683, he was chosen a representa-
tive from Salem to the General Court, and the following
year was elected one of the Assistants.
Upon the breaking out of the revolution in 1689, he
was made one of the council of safety who assumed the
government of the colony. He was named as one of the
council in the new charter, and at the time of establishing
a Court of Common Pleas for Essex County, was appointed
one of its Judges, and is the second named in the com-
mission. He held this office until his appointment to the
Superior Court, which was in 1702.
He was, during this time, a member of the council, and
in 1696, was one of the commissioners sent by the Gen-
eral Court to treat with the Eastern Indians. The same
year he was directed by Lieutenant Governor Stoughton
to proceed to Maine, and take command of an expedition
against the French and Indians on the Penobscot, thereby
superseding the gallant Colonel Church who had led the
enterprise. Church was deeply chagrined at this unwar-
rantable conduct on the part of Lieutenant Governor
Stoughton, and the event showed that Lieutenant Colonel
Hathorne was unfitted for the place to which he had been
commissioned. The expedition proved altogether unsuc-
cessful, and returned ingloriously to Boston.
The records of the proceedings against the witches in
Essex county, show that Judge Hathorne was very active-
ly engaged as a magistrate in their prosecution, and shared
deeply in the delusion that then prevailed.
He remained upon the bench of the Superior Court till
1712, when he was induced by increasing deafness to re-
sign his place, and he died at the age of 76, on the 10th
May, 1717.
It was more through the friendship of Governor Dudley
and his political associates, than any peculiar fitness for
Ch. 12.] JUDGES OF THE SUPERIOR CO-URT. 273
the place of Judge, that Mr. Hathorne was placed upon
the bench, and it is therefore unnecessary to inquire how
far he exerted any influence upon the character of the ju-
diciary while he was connected with it.
JOHN LEVERETT
Was appointed Judge of the Superior Court in 1702.
He was the grandson of Governor Leverett, and was borri
in Boston in 1662. In 1680, having been graduated at
Cambridge, he entered upon the study of theology, and
was subsequently licensed as a preacher. He preached
for some years but changing his pursuit studied and prac-
tised law.
In 1700, he resided in Cambridge, and represented that
town in the General Court, and was Speaker of the House
of Representatives. After this he was chosen a member of
the council, and seems to have enjoyed the public confi-
dence in a high degree. In 1707, he was selected with
Colonel Hutchinson and Colonel Townsend as commis-
sioners to visit the army that had been sent against Port
Royal, and had returned as far as Casco, without having
accomplished any thing in their expedition. Little good
seems to have resulted from this measure, for the whole
enterprise was a signal failure.
While he was a Judge of the Superior Court, he was ap-
pointed Judge of Probate, by Governor Dudley, with whom
he was a great favorite, and held his several offices of Judge
of the Superior Court, Judge of Probate and Counsellor,
until his appointment to the Presidency of Harvard Col-
lege in 1708. 1
1 The vacancy which was filled by the appointment of Judge Leverett was
occasioned by the death of President Samuel Willard. Cotton Mather was so
confident of being selected as his successor, that he observed days of fasting, to
solicit the divine direction, as to his accepting the office. This turned out to be
a work of supererogation, as the place wag not offered to him.
35
274 JUDICIAL HISTORY. [Ch.
His administration of the affairs of the College formed a
new era in its history, and under his wise and judicious
course of measures, it assumed a rank that it had never
before attained. He was eminent for his learning, pru-
dence and sagacity and was distinguished for his firmness
and energy of character. As early as 1680, he had be-
come so well known abroad as a scholar that he was then,
made a member of the Royal Society. He possessed the
somewhat incompatible qualities of mind of a sound theo-
logian and an able statesman.
He died of the stone very suddenly, May 3, 1724, at
the age of 62,
He is noticed by the Historian of the Ancient and Hon-
orable Artillery Company, of which he was a member,
and his character is there described in the language of a
quotation borrowed by the writer. " For more than forty
years he shone with near meridian lustre. The morning
of his life being so bright that it shone like noon."
He must have held a high rank among the judges with
whom he was associated, but it is chiefly in connexion
with his place as President of the College that his fame
has come down to posterity. The College was then re-
garded as the common property of the whole Province,
and whoever promoted its prosperity was sure to win pub-
lic favor and esteem,
JONATHAN CTJRWm
Succeeded Judge Leverett in 1708. He was born in
Salem, November 1640, and resided there during his life.
He represented Salem in the General Court under the old
charter, and by the new charter was appointed one of the
council.
He was an active magistrate during the excitement in
regard to witchcraft, and upon Major SaltonstaPs retiring
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 275
from the bench of the special court of Oyer and Terminer
created to try the persons charged with that crime, Mr.
Curwin was appointed his successor.
Upon the organization of the Court of Common Pleas
in Essex County, under the new charter, he was made
one of its Judges, and remained upon that bench until his
appointment to the Superior Court.
He held the office of Judge of the Superior Court until
1715, and died in June 1718, at the age of 77 years.
He was probably a merchant, as I find in the records of
Essex County, that Jonathan Curwin with several other
persons named in the record were authorized in 1686, " to
sell drink without doors at Salem."
In the character given of him by Mr. Felt, it is said,
" In his several relations as a member of society, arid a
Christian, he richly deserved the confidence which was ex-
tensively granted him."
BENJAMIN I/TNDE
Succeeded Judge Walley, and his commission as Judge,
was published in Middlesex in July 1612, upon which oc-
casion Judge Sewall in an address to the jury expressed
the hope " that they would hereafter have the benefit of
Inns of court education, superadded to that of Harvard
College." He alluded to the fact of Judge Lynde having
been a student at the Temple in London.
Judge Lynde was descended from a family of Dorsetshire,
England, and was born in Boston, in 1666. He was grad-
uated at Cambridge in 1686, and sustained the character
of a fine scholar.
In 1692, he went to England, where he became a stu-
dent of the middle Temple, and remained there till he
was admitted as a barrister, and was the first regularly ed-
ucated lawyer ever appointed to the bench of the Superior
Court.
276 JUDICIAL HISTOKY. [Ch. 12.
In 1697, he returned to Massachusetts with a commis-
sion as Advocate General of the Court of Admiralty for
Massachusetts, Connecticut and Rhode Island. About the
year 1699, he removed to Salem, where he continued to
reside during the remainder of his life.
About the time of his removal to Salem, he married the
daughter of the Honorable William Browne, a wealthy
and influential gentleman of that place, one of the Judges
of the Court of Common Pleas, and a member of the coun-
cil.
Soon after this, he entered political life, and for many
years, was a representative from Salem, in the General
Court. In 1713, he was elected to the council, and con-
tinued a member of that body, until 1737.
Upon the resignation of Chief Justice Sewall, in 1728,
Mr. Lynde was made Chief Justice of the Superior Court,
and continued to hold the office till his death.
He died January 28, 1749, at the age of 79 years. His
son, bearing the same name, was afterwards Chief Justice
of the same court.
The time during which Judge Lynde was upon the
bench is an important era in the history of the adminis-
tration of justice in the commonwealth. As has already
been remarked, he was the first educated lawyer who had
been appointed to that place. Paul Dudley who was also
an educated lawyer, held the place of Attorney General
until his appointment to the Superior bench, and Judge
Thomas, one of Lynde's associates, had been admitted to
practice at the bar, and had taken the oath as ail attorney,
although his legal education was altogether defective.
An impulse seems to have been given to improvement
in the forms of proceedings and the general course of ad-
ministering justice, although it was still but in its infancy.
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 277
Unfortunately, we have few or no reports of the judicial
opinions of the Superior Court at this period, and little
more is known of the men who formed the judiciary then,
than their names. And while the names and adventures
of so many of his cotemporaries, fill a large space in the
history of his times, little can be gathered of the services
of Chief Justice Lynde during his long and useful life.
From a brief notice of him in the Boston Evening Post,
published at the time of his death, I extract the following
sketch of his character.
"Inflexible justice, unspotted integrity, affability and
humanity were ever conspicuous in him. He was a
sincere friend. Most affectionate to his relations, and the
delight of all that were honored with his friendship and
acquaintance."
Although he was not remembered as a military chief, or
a partisan leader, he left behind him an enviable reputa-
tion as a scholar, a jurist, and a Christian.
NATHANIEL THOMAS
Succeeded Judge Hathorne in 1712. I have found
some difficulty in determining the time of Judge Thomas 7
birth or the name of his father. William Thomas, his an-
cestor, came into the Plymouth Colony in 1630, and settled
in Marshfieid. As this gentleman died in 1651, at the age
of 77, it seems probable that the subject of the present
article was the grand-son of the first settler of that name,
and of this opinion is the historian of Plymouth.
There was a Nathaniel Thomas, who served in Philip's
war, in 1675, and is said to have been the subject of this
notice. 1
*I am happy to express the obligation lam under to the venerable Dr.
Thacher and the Honorable Mr. Mitchell, for the information furnished by
them in relation to the subject of this notice. Since receiving communications
278 JUDICIAL HISTORY. [Ch. 12.
In 1686, he was admitted to the then Superior Court at
Boston, and took the oath as an attorney of that court.
He was then called " Capt. Thomas," as he continued to
be in 1692, when he represented Marshfield in the Gen-
eral Court. Subsequent to this, he was honored with the
office and style of the " Honorable Colonel Thomas," and
continued ever after to be so designated in his public and
official relations.
He seems early to have been connected with the ad-
ministration of justice. In the Plymouth Colony he was
one of the associates to hold county courts for the then
county of Plymouth, in 1685. In 1689, Andros created
courts of Common Pleas for these counties, but at the rev-
olution, the " associate courts ' were restored, and Mr.
Thomas was placed at the head of those of Plymouth
county, where he remained until the arrival of the new
charter.
Under the new charter, he was appointed Judge of the
Court of Common Pleas for the same county, and held
that place till his promotion to the Superior Court. He
was also Judge of Probate for the same county. He re-
sided in Marshfield until his death, which took place at or
about the time he left the bench in 1718, but he seems at
one time to have resided awhile in Plymouth. He left
a son Nathaniel, who resided at Plymouth, and was for
from them, and writing the text, I have discovered the following, which seems
to determine the parentage of Judge Thomas.
In the action Matson vs. Thomas, before the Superior Court, in 1720, which
involved the title to an estate which had been entailed, the lineage of the de-
fendant is stated to have been William, the ancestor, Nathaniel, his son, who
died leaving sons, William and Nathaniel, the latter being as I suppose, Judge
Thomas of Marshfield.
This impression is strengthened by a recital in the statement of said case,
wherein the son of William is called " Nathaniel Thomas, Gent." and the son
of this Nathaniel is styled " Col. Nathaniel Thomas, late of Marshfield."
Gh. 12.] JUDGES OF THE SUPERIOR COURT. 279
many years Chief Justice of the Court of Common Pleas
for that county.
The family of Thomas, have ever held a distinguished
rank, and as several of them have had the same sir name,
it is not easy at this day to determine which of them were
the persons intended when they have been spoken of in
connexion with the passing events of the times in which
they lived.
Judge Thomas of whom I have spoken in this article,
was the ancestor of General John Thomas, whose name is
well known in its connexion with our Revolutionary
history.
From his long association with the courts, either as an
advocate or judge, Colonel Thomas must have been famil-
iar with the ordinary duties of his office, and was probably
as well qualified for the place as his opportunities permit-
ted.
He long enjoyed the public confidence in the many
places of trust which he was called to fill, and his having
been appointed by Governor Dudley, who knew the requi-
site qualifications for the place, as an associate with Lynde,
and his being continued under a new administration, is
strong evidence that he was a useful and reputable member
of the Superior Court.
ADDINGTON DAVENPORT
Succeeded Judge Curwin, in 1715. On his father's
side he was descended from Richard Davenport, who was
the commander of the castle in Boston harbor, and was
killed in 1665, by lightning, while sleeping by the side of
the magazine, from which he was separated only by a
simple wainscot.
On his mother's side, he was connected with Chief Jus-
tice Addington, who was his mother's brother.
280 JUDICIAL HISTORY. [Ch. 12.
His parents died when he was young, and his uncle
Addington having adopted him, sent him to Harvard Col-
lege where he was graduated in 1689. In a class of four-
teen his name stands the fourth in the catalogue, from
which it would seem that his family held a high rank in
the colony*
In 1690, he went to England, from whence he returned
and established himself in business, and was elected the
clerk of the first House of Representatives under the new
charter in 1692. In 1695, he was appointed clerk of the
Superior Court, and held the office about three years. He
was then appointed clerk of the Court of Common Pleas,
for the county of Suffolk, and Register of Deeds for the
same county. He held the two latter offices until 1714,
when he was elected a member of the council, of which
body he continued to be a member for seventeen years.
At the time Mr. Davenport was elected to the council,
a struggle was going on in the province between the friends
and opponents of a public bank. The former party, at
length, prevailed, and a loan of 50,000 pounds in bills of
credit was raised and placed in the hands of five trustees
to be lent out to the inhabitants of the province on an in-
terest of five per cent. Mr. Davenport was one of these
trustees, and those associated with him were Andrew Bel-
cher, Thomas Hutchinson, Edward Hutchinson, and John
White, who were among the leading and most influential
men in the province.
'His uncle Addington died in 1715, whereby the office
of Secretary of the province became vacant, and thereupon
Paul Dudley and Mr. Davenport were appointed commis-
sioners to keep the seal and records of Massachusetts Bay.
He continued upon the bench till his death in April
1736, at the age of 66. For about a year and an half,
CIl. 12.] JUDGES OF THE SUPERIOR COURT. 281
\
however, before his death, his health was so feeble that
he was unable to perform much, if any official duty.
He seems to have enjoyed a great share of popular favor
if we may judge from the frequency of his being elected
to office, and the sketches of his character that have come
to us from his cotemporaries certainly would seem to jus-
tify the favor he enjoyed. "As a judge, he feared God
and regarded man. He was eminent for his religion, pru-
dence, modesty and moderation, which made his friend-
ship valuable. His temper was grave, yet sociable, withal,
and that rendered his conversation agreeable. In his pri-
vate relations of a husband, father, master and neighbor,
he was very exemplary and desirable."
He left three children, one of whom has already been
mentioned in this work. The other two were daughters,
and one of them married Colonel William Dudley of Rox-
bury.
EDMUND QUINCY
Came upon the bench at the time of the appointment of
Samuel Sewall to the place of Chief Justice in 1718.
The sketch of the character of this distinguished man, as
given by Elliott, is so full, that I have attempted little
more than a transcript of it, although I am not unaware
how meagre this must appear to such as are familiar with
the history of Judge &uincy. He was born in that part
of Braintree which is now called Q,uincy, and was the
son of Edmund Q,uincy, the second of the name. His
mother was a daughter of the distinguished General
Gookin. 1 He was graduated at Cambridge, in 1699, and
1 General Gookin was among the most eminent men in the colony. He was
born in England, and came to America, in 1644, when he settled in Cambridge.
He was at different times one of the assistants superintendent of all the In-
dians, licenser of the Press, and Major General of the Colony. He was at the
head of one of ihe political parties in the colony in which he manifested an un-
36
282 JUDICIAL HISTORY. [Ch. 12.
his name stands the fourth in order in a class of twelve,
upon the catalogue of that institution. He was at this
time eighteen years of age, having been born in October
1681. His father died while he was a member of college,
but the example which he had set before his son exerted
a most salutary and lasting influence upon his life and
opinions,
His mind was active, and he was early distinguished by
a brilliant genius. But not content with these, he labored
to acquire wisdom to guide him in after years, and the
confidence with which he was soon honored by the pub-
lic, was never found to be misplaced or disappointed.
In 1713, he was commissioned by Governor Dudley as
Colonel of the Suffolk Regiment, and, the same year, was
elected a representative to the General Court, in which
body he distinguished himself as an eloquent and graceful
speaker. In 1715, he was elected to the council, and in
1718, was, as has already been stated, promoted to the
bench of the Superior Court.
This withdrew him in a measure from the arena of pol-
itics, but in 1737, he was again called into the public ser-
vice as agent of the province in England. The occasion
for this was a dispute which had arisen between Massachu-
setts and New Hampshire, in regard to the boundary line
between the provinces. The particulars of this contro-
versy fill an interesting chapter in Belknap's history of the
latter province, but it would be inconsistent with the de-
sign of these sketches to enlarge upon it here.
Mr. Wilkes the former agent, and Richard Partridge a
brother-in-law of Governor Belcher were associated with
Judge Q,uincy in this commission, but the success of the
embassy, depended chiefly upon the ability of Mr. duincy.
tiring zeal for the maintenance of the old charter. He died in 1687, a poor
man though universally honored and lamented.
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 283
But it was not permitted that Mr. duincy should long ex-
ercise the sagacity and talents for which he was so emi-
nently distinguished, in this sphere. He was innoculat-
ed for the small pox soon after he arrived in London, and
died of the disease, February 23, 1737, at the early age of
fifty-six.
When appointed to this agency, he did not vacate his
seat upon the bench, except for the term of his absence,
and a successor was appointed to hold the office while Mr.
duincy should be detained abroad on public affairs, so that
he remained in office till his death.
His loss was regarded as a national one, and the pro-
vince erected to his memory a handsome monument in
Bunhill Fields, London, with an elegant and appropriate
Latin inscription thereon.
In the language of Elliott, " the loss to the country was
great, as he was one of the most useful and accomplished
gentlemen in the province. He loved his country and
understood the laws and constitution of this government,
equal to any man in it, and was very popular, as well as
wise and judicious."
He left two sons, Edmund and Josiah, the latter of
whom was the father of the distinguished orator and states-
man Josiah duincy Jr., whose son Josiah is the present
accomplished President of Harvard University.
PAUL, DUDLEY
Succeeded Judge Thomas in 1718. It is refreshing to
mark in our progress, the eras in our judicial history when
the bench has presented a constellation of learned and
wise men, such as at times have distinguished it. The
name of Paul Dudley, is associated with one of these eras.
He was born in Roxbury, September 3, 1675, and was
graduated at Cambridge, in 1690. His name stands first
284 JUDICIAL HISTORY. [Ch.
in order, in the catalogue of that year, because of the rank
of the family of his father the Honorable Joseph Dudley,
who was afterwards Governor of the province. After
being graduated, he commenced the study of the law,
but soon went to England, where he completed his
studies at the Temple. In 1702, he returned to Massa-
chusetts, with a commission as provincial Attorney Gen-
eral and held the office until his appointment to the bench.
The commission which he received in England was
from Queen Anne, but it was thought better that he should
be appointed by the Governor and council here than at-
tempt to exercise a doubtful authority, though derived di-
rectly from the crown. He was accordingly commis-
sioned here without publishing the commission which he
had received from the Queen.
As has been remarked in another part of this work, a
controversy arose, at an early period, between the Gover-
nor and House in regard to the appointing power to fill
the office of Attorney General. Every attempt, however,
of the House to exercise the power was resisted by the
Governor until 1716, when Lieutenant Governor Taylor
yielded the point, and the House wisely elected Mr. Dud-
ley who had hitherto held the place by executive appoint-
ment.
He represented his native town, for some years, in the
General Court, and in 1710, was elected to the council for
Sagadahoc, a district in Maine, which by the charter was
entitled to be represented at the Council Board. He was
re-elected in 1720, and 1721, but it having been suggest-
ed that he owned no lands in that district, the House un-
dertook to investigate his right to a seat at that Board.
He resisted this inquiry, and an angry and memorable
controversy arose, the particulars of which would fill too
large a space for a work like this.
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 285
In politics, he was a friend of Governor Shute, but op-
posed to Governor Belcher. The consequence of this was,
that in 1739, when Mr. Dudley, who was then a member
of the House, was elected Speaker, he was negatived by
the Governor and John Q,uincy was elected in his place.
Besides performing his judicial and political duties, Mr.
Dudley became a learned naturalist, and an able theolo-
gian, in both of which departments he wrote and published
works, and such was his reputation for scholarship that he
was elected a member of the Royal Society in London.
In January 1745, he succeeded to the place of Chief
Justice of the Superior Court, upon the death of Chief Jus-
tice Lynde, and held that office till his death, January 21,
1751, when he was succeeded by Stephen Sewall.
He was a benefactor to Harvard College, and by his
last will, made provision for an annual Lecture to be de-
livered before the College upon some one of four prescrib-
ed subjects. In his religious sentiments he was among
the straightest of the strict, especially towards the close of
life. ./-r.-:-;^;j.j ' j^igM
But it is chiefly with his character as a judge that we
have to do, and it is upon this that we can dwell with
great satisfaction. Indeed there is something cheering to
a generous mind, while engaged in the incessant and toil-
some duties of judicial life, in the consciousness that, al-
though few can appreciate the value of his labors, posteri-
ty will do justice to his memory, when the noisy, popular
politician of the day, shall have passed away into oblivion.
Judge Dudley was a thorough and accomplished lawyer,
and to his connexion with the Bar and the Bench may be
traced many of the reforms which obtained in the practice
of the Courts and the mode of administering justice. He
had cotemporaries, among whom was Mr. Read, whose in-
fluence was coincident with his own, and we seem to be
286 JUDICIAL HISTORY. [Ch, 12.
entering a new field as we approach the period distinguish-
ed by such names as Paul Dudley, Read, Gridley, Thach-
er, Pratt, and others of their cotemporaries who were en-
tering upon the stage of professional life as Chief Justice
Dudley was passing from its more active duties.
Whatever may have been the influence of Judge Dudley
in raising the character of the judiciary, and improving the
administration of justice in Massachusetts, it will be found
as we proceed, that it was principally through the influence
of the members of the bar that the reform to which I have
alluded was effected.
But I would do justice, as far as I am able, to the mem-
ory of Chief Justice Dudley, and cannot perhaps accom-
plish the purpose better than by transcribing from Elliott,
the sketch of his character as given by Chief Justice Sewall
who was his successor. " It was on the Bench he shone
with the greatest lustre. Here he displayed his admira-
ble talents, his quick apprehension, his uncommon strength
of memory, and extensive knowledge ; and at the same
time his great abhorrence of vice, together with that im-
partial justice which neither respected the rich, nor coun-
tenanced the poor man in his cause." " When he spoke it
was with such authority and peculiar energy of expression,
as never failed to command attention, and deeply impress
the minds of all who heard him. And his sentiments of
law and evidence, in all cases before the court, had gene-
rally a determining weight with those who were charged
with the trial of them."
A power such as is here ascribed to Mr. Dudley, would
certainly be a dangerous one unless it were coupled with
upright intentions and a disciplined judgment, as well as
adequate resources of learning.
The respect that is attached to the very place he occu-
pies, gives to the arguments and opinions of a judge, the
Ch. 12.] JUDGES OP THE SUPERIOR COURT. 287
weight of almost irrefutable authority, and it is only when
they are dictated by a sound mind and an honest heart
that they become as they may be, one of the strongest
safeguards of the people's rights. In regard to Judge Dud-
ley, it is added that " thus while with pure hands and an
upright heart, he administered justice in his circuit through
the province, he gained the general esteem and veneration
of the people." A reputation truly enviable, but one to
which he seems to have been justly entitled as a judge,
whatever feelings of animosity may at any time have
been entertained towards him as a politician.
JOHN CUSHING
Came upon the bench in 1728, upon the promotion of
Judge Lynde to the office of Chief Justice. He was born
in Scituate in 1662. Little, I believe, is known of him
beyond his connexion with the courts. I have referred
for dates mostly to the elaborate history of the town of
Scituate which was prepared and published by a late ac-
curate and lamented antiquary, Mr. Dean.
In 1702, Mr. Gushing was appointed Chief Justice of
the Court of Common Pleas for Plymouth county, which
office he held until 1728. In 1710, he was elected to the
council, of which body he continued to be a member until
1728. v rife*'*.] ^V,^^*;^*..
He remained upon the bench of the Superior Court
from 1728, to 1733, when his name was omitted in the
commission which was then issued to the other members
of the court. Although he was seventy one years old
when he was left out of the commission as judge, and of
course must have been somewhat advanced when he first
came to the bench of the Superior Court, he is neverthe-
less said by a cotemporary to have been " the life and
soul of the court." By this is probably meant that his
288 JUDICIAL HISTORY. [Ch. 12.
cheerfulness gave life and vivacity to its sessions, for I do
not find that he was educated beyond what was requisite
for the duties of a highly respectable walk in private life,
and of course he could not have held a high rank for learning
in comparison with some of his associates upon the bench.
Judge Gushing died in 1737, at the age of 75. His place
of residence was in Scituate, and from him descended two
other Judges of the same court, John and William Gushing,
and Nathan, another of the judges of the court, was his
nephew. From him also has descended the Honorable
James Savage, to whose labors as an antiquary, I am
happy to acknowledge my obligations, in the prosecution
of these researches.
JONATHAN REMINGTON
Was the successor of Judge Gushing, and his commis-
sion as such was published at Cambridge in July 1733.
He was bora in Cambridge, and was graduated at Har-
vard College in 1696. He was appointed a Judge of the
Court of Common Pleas for Middlesex in 1729, and in
1731, was made Judge of Probate for that county. He
was somewhat connected with political life, and sat for
some years at the council board. But less is known of
him either as a judge or civilian than his merits in these
relations seem to deserve, or than there would have been,
had he mingled in the strife of party instead of faithfully
pursuing the unpretending path of his official duties.
He died September 20, 1745, and at the next term of
the court at Charlestown, Chief Justice Dudley in a charge
to the Grand Jury, pronounced an eulogy upon his char-
acter.
In this he did justice to the high moral and religious
attainments of his late associate, his diligence and fidelity
hi the performance of his official duties, and his amiable
Ch. 12.] JtlDGES OF THE SUPERIOR COURT. 289
and excellent qualities in private life, and uttered in be-
coming terms the sentiments of respect and esteem which
he cherished for the memory of his friend.
Judge Remington was the father of Mrs. Ellery, the wife
of one of the immortal band whose names are affixed to
the Declaration of American Independence.
RICHARD SAI/TONSTAL
Was the successor of Judge Davenport, and was com-
missioned December 29, 1736.
He was grand-son of Major Saltonstal who was one of
Special Court of Oyer and Terminer in 1692, He was
born at Haverhili June 4, 1703, and by birth was con-
nected with some of the best families in the Province.
His education and associations early familiarized him with
the refinements of polished society, and his deportment
and address were characterized by the graceful urbanity
of a gentleman of the old school.
He was graduated at Cambridge in 1722. Not engag-
ing in any regular profession, he indulged his taste for
military pursuits, and at the early age of 23, held a com-
mission as Colonel of the provincial troops. He did not
lose this taste even after his promotion to the bench. He
was the commander of the Ancient and Honorable Artil-
lery Company in 1737, and afterwards continued a mem-
ber of that corps-
He held the office of Judge till his death, which took
place October 20th, 1756.
His place of residence was Haverhili, where he lived in
a generous and hospitable style, and was surrounded by
ardent friends to whom he was endeared by his many
amiable and excellent qualities.
Notwithstanding he never pursued any systematic
course of professional study, he was a scholar and a man
37
290 JUDICIAL HISTORY. [Ch. 12.
of learning, and possessed many of the best qualities of a
judge, although destitute perhaps of the legal acquirements
which are in a measure essentially necessary to the satis-
factory administration of justice.
Among his descendants is the Honorable Leverett Sal-
tonstal, one of the Representatives in Congress from Mas-
sachusetts.
We ought not to omit in this connexion the name of
JOHN STODDARD. Although he never sat upon the
bench, he was appointed a member of the court, June 24,
1736, and probably declined the office. He was born in
1682, February 17th, and was graduated at Harvard Col-
lege in 1791. He studied no particular profession, but
engaged early in public business. Among the offices
which he held were those of Colonel of the Militia, Judge
of Probate for Hampshire, and Judge of the Court of Com-
mon Pleas for that county, of which court he was Chief
Justice during the last ten years of his life. In 1713, he
was sent by the province to Quebec for the purpose of re-
deeming the American captives who had been made pris-
oners by the French and Indians, and in 1725, was a com-
missioner to treat with the Indians in Maine.
For many years he held a seat at the Council Board,
until he preferred a seat in the other branch, when he was
chosen to represent his native town, Northampton, in the
General Court. In his politics he was a " prerogative
man," and consequently was not a favorite of the people,
although his enemies accorded to him the possession of an
upright heart.
He died of apoplexy, June 19, 1748, while attending
the General Court as a representative in that body.
He was a leading influential man in his day, a safe
Counsellor and an efficient public officer, and in the va-
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 291
rious places which he was called to fill, he performed his
duties with honor and success.
THOMAS GREAVES
Was appointed, ad interim, to supply the place of Judge
duincy. He was commissioned in January, 1738, and
the tenure of his office was " during his (Mr. Q,.'s) contin-
uance in the service of this Province at the court of Great
Britain."
He was born in Charlestown, in 1 684, and was gradu-
ated at Cambridge in 1703. His name stands the fifth in
the catalogue of the class of that year, at the head of
which, is the name of Spencer Phipps, afterwards Lieu-
tenant Governor of the Province, from which circumstance
it would seem that the family of Judge Greaves was very
respectable in point of rank.
He studied and practised medicine as a profession, and
resided in Charlestown.
\
His first connexion with the courts that I have discov-
ered, was in 1731, when he was appointed Special Judge of
the Court of Common Pleas for Middlesex, " in all causes
wherein the commissioners for the 100,000 loan for said
county are concerned."
He was next made Special Judge of the Court of Com-
mon Pleas for Suffolk, in 1735. In 1737, he was ap-
pointed Special Judge of the Superior Court for the coun-
ty of Essex.
In the mean time he was appointed one of the standing
Judges of the Court of Common Pleas in Middlesex, in
1733, and held the office till his appointment to the Supe-
rior Court in the place of Judge Quincy. He did not
however lose all his connexion with the Common Pleas
by this promotion, for Judge Foxcroft, who was appointed
his successor, was commissioned to hold his office " while
292 JUDICIAL, HISTORY. [Ch. 12.
Thomas Greaves remains one of the Justices of the Supe-
rior Court."
Judge Greaves retained his place upon the Superior
bench, until the death of Judge duincy, and the appoint-
ment of his successor. He was then, 1739, restored to
his office in the Court of Common Pleas, and held the
place till his death, June 19, 1747.
It is difficult to discover why the subject of this notice
was so frequently called to act in a judicial capacity, when
his professional studies and pursuits could not have had
any direct tendency to fit him peculiarly for such duties.
Indeed where the influence of family and of political sub-
serviency to power often outweighed the claims of merit,
it is not surprising that we should find men occupying
places of honor and trust for which it is not easy to detect
their fitness or qualifications.
Such was the case under the administration of the Roy-
al Governors of Massachusetts, and the judiciary among
other departments of the government, offered one of the
spoils of office which were distributed at times among the
favorites of the men in power.
Thomas Greaves, supposed to be the father of the Judge,
was an active magistrate in Middlesex, and his name ought
to be preserved as one of the few who dared to denounce
the delusion of witchcraft, and to raise his voice against the
barbarous proceedings of Governor Phipps's special court in
1692.
The connexion of Judge Greaves with the Superior
Court was so brief, that he could not have left any im-
pression upon its character, and it has been rather from a
wish to preserve his name from oblivion than in the ex-
pectation of giving any interest to the sketch, that I have
thus noticed him.
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 293
STEPHEN SEW ALL
Was appointed Judge of the Superior Court upon the
death of Mr. duincy, in 1739. He was born in Salem, in
1702, and was the son of Stephen, who was a brother of
Chief Justice Samuel Sewall, and for many years Clerk of
the Courts and Register of Deeds in Essex. His mother
was a daughter of the Rev. Jonathan Mitchell of Cam-
bridge.
He was graduated at Cambridge, in 1721, and then en-
gaged in keeping school in Marblehead, where he remained
until he was appointed a Tutor in Harvard College, in
1728. He remained in this office till his appointment to
the Superior Court. In the mean time however, he stu-
died theology, and preached occasionally, but was never
settled over any church.
Upon the decease of Chief Justice Dudley, Mr. Sewall,
though not the senior judge, was appointed his successor.
This was in 1752, and he continued at the head of the
court, till his death, in November 1760.
It was while he was Chief Justice, that the application
for " writs of assistance " which forms so important an
epoch in the History of Massachusetts, was made to the
Superior Court. The death, however, of Judge Sewall be-
fore the question came on for argument, was regarded by
the popular party as peculiarly unfortunate, as it was gen-
erally understood that his opinion was adverse to the ap-
plication.
Judge Sewall died a bachelor, but the affections of a
generous nature, were not thereby wasted, but expended
themselves in acts of benevolence and kindness to those
around him to a degree that bordered upon injustice to
himself and his creditors.
In the character given of him by different writers he is
uniformly represented as " a distinguished scholar," a man
294 JUDICIAL HISTORY. [Ch. 12.
" of honor and spirit," " a knowing lawyer and an upright
judge.' 3
In the collections of the Massachusetts Historical Soci-
ety there is a letter of the Rev. Charles Chauncy, written
in 1768, in which he purports to give " a sketch of emi-
nent men in New England." Out of some thirty five,
mentioned by him, Judge Sewall alone, of those who had
been members of the Superior Court, is honored with a
notice.
In speaking of him, Dr. Chauncy says, " Quickness of
apprehension and a capacity to look thoroughly into a sub-
ject, were united to him in the highest degree I ever saw
in any of my acquaintance. One could scarce begin to
mention a train of thought, but he would at once perceive
the whole of what was going to be said; and if it was a
disputable point, had in readiness whatever was proper to
be said in answer." " He was too benevolent in his make
for his circumstances."
The consequence of this trait in Judge Sewall's charac-
ter, was that he died insolvent.
His nephew, the distinguished Jonathan Sewall, who
was appointed his administrator, made an appeal to the
legislature, for a grant of money with which to discharge
the debts of his uncle, and the ill success with which he
met in his application was one of the causes which alien-
ated him from his former political friends, and induced
him to unite with the government party.
What the claims of Judge Sewall to a place upon the
bench were, which led to his being promoted at once from
a tutorship in college to the Superior Court, it is not easy
now to determine. His education and pursuits hitherto
had not been such as to fit him for the place, and respecta-
ble as were his family connexions, he does not seem to
have taken, any prominent stand as a politician, or even as
Ch. 12.] JUDGES OP THE SUPERIOR COURT. 295
a divine. His appointment therefore, while such men as
Read and Gridley and Dana were at the bar, is pretty
good evidence, either that the proper qualifications for the
office were but little regarded by Governor Belcher, or that
it was resorted to as an expedient often adopted, to quiet
the claims of rival candidates, by selecting some third one
of unexceptionable qualities. In the selection of his suc-
cessor as Chief Justice, the influence of political action was
too obvious to be concealed, and, if any thing were neces-
sary to prove the proposition, shows how essential to the
liberties of a people is the independence of their judiciary
of the political factions which so often divide a commu-
nity.
Whatever may have led to the appointment of Judge
Sewall to the bench, it is the concurrent testimony of his
cotemporaries that he faithfully, ably arid honestly per-
formed its duties, and died universally honored and la-
mented by the Province.
NATHANIEL, HTJBBARD
Was appointed Judge, January 24, 1745, simultaneously
with Benjamin Lynde, one as the successor of Paul Dud-
ley upon his being promoted to the place of Chief Justice,
and the other as successor to Judge Remington.
I have found no little difficulty in tracing the history of
Judge Hubbard, although he held many important offices
under the provincial government. 1
He is said by Hutchinson to have been a grandson of
the historian of Massachusetts, the Rev. William Hubbard.
For many years he was a resident in that part of the town
of Bristol, then the shire town of Bristol county, that re-
tains the Indian name of Poppysquash, where his tomb is
1 For the principal information upon this subject I am indebted to the Honor-
able Mr. Mitchell, whose aid I have before had occasion to acknowledge.
296 JUDICIAL HISTORY. [Ch. 12.
now seen. When he first removed there it does not ap-
pear.
From 1728, till his promotion to the Superior Court, he
was a Judge of the Court of Common Pleas for the county
of Bristol, and in 1729, was appointed by Nathaniel By-
field Deputy Judge of Admiralty for the county of Bristol
in Massachusetts, the colony of Rhode Island and the Nar-
raganset country.
He was on one occasion appointed special Judge of the
Superior Court in 1737, to act in a case where the town
of Boston was a party, and for many years was a member
of the council, being in 1741, in the words of Hutchinson
"the oldest counsellor for the county of Bristol."
He left the bench of the Superior Court in 1747, which
was probably the year of his death.
Hutchinson, who knew Judge Hubbard, describes him
as " a gentleman of amiable character, who filled the sev-
eral posts he sustained with applause." And, in another
connexion he remarks, that " he shone with peculiar lus-
tre and inherited his grand-father's virtues, especially that
amiable spirit of benevolence. He was of the council
and one of the Justices of the Superior Court too late in
life for his country to reap any long benefit."
BENJAMIN LYNDE,
The second of the name, came upon the bench in 1745,
He was the son of Chief Justice Lynde, and was born at
Salem, in 1700. He was graduated at Cambridge, in
1718. I infer that he did not study any profession, for I
find him, soon after, the naval officer of the port of Salem,
from which office he was removed by Governor Burnett
in 1729, because, as a member of the House, the previous
year, he voted contrary to the Governor's wishes on the
subject of his salary.
Ch. ISL] JUDGES OF THE SUPERIOR COURT. 297
In 1734, he was appointed a special justice of the Court
of Common Pleas for Suffolk, and in 1739, was made one
of the standing Judges of that court for the county of Es-
sex. He held the office of Judge of the Common Pleas
until his promotion to the Superior Court;
In 1766, a controversy having arisen between the House
of Representatives and the Governor as to the right of the
Judges to sit as members of the council, Judge Lynde, who
had long been of that body^ declined re-election as coun-
sellor, and thus escaped the odium which fell upon other
members of the court. He was, in fact, liberal in his po-
litical views, and rather inclined to the side of the people*
In 1770, the trials of Captain Preston and the British
soldiers who were concerned in what is known as the
"Boston Massacre >" came before the Superior Court. It
Was an occasion of the deepest interest to the province, to
the government and the cause of justice. The trial was
to take place in the very scene of the event which had
roused a whole nation. The jurors who were to try the
cases, were drawn from among the very populace who
had been fired upon by a hated and dreaded soldiery, the
neighbors and fellow citizens of the murdered victims, as
they were regarded.
In consequence of Governor Burnett having returned to
England, Chief Justice Hutchinson, who was also Lieuten-
ant Governor, was left at the head of the government,
whereby Judge Lynde became the presiding judge on that
occasion. The result of these trials is a proud memorial
of the purity of the administration of justice in our com-
monwealth, and of the extent to which jurors may be
trusted even in times of popular excitement.
Not only did these trials evince impartiality and inde-
pendence on the part of the court, and jury, but no less so
a love of justice and a self devotion to her cause on the
38
298 JUDICIAL HISTORY. [Ch. 12.
part of the bar. Eloquent and able advocates were found
ready to hazard their popularity, and, it might be, their
very means of livelihood, in defence of right, and the ver-
dicts which were returned under such influences, have
found a hearty approval in the unbiassed judgment of pos-
terity.
Upon Chief Justice Hutchinson's being raised to the
place of Governor of the province, Judge Lynde became
his successor. He however continued to hold his seat as
Chief Justice but a short time. The controversy coming
on in regard to the payment of the judges, salary by the
crown, Judge Lynde was unwilling to engage in it, and
resigned his seat upon the bench.
He was now 72 years of age, but was appointed the
same year Judge of Probate for Essex, which office he
held till his death, He died in his 81st year, October 9,
1781. His daughter married Lieutenant Governor Oliver,
and to her he left a farm in Brimfield, " which was part of
1000 acres given by the Indians to her mother's great great
grand-father, the Rev. John Elliot, in 1655, as a token of
their love for teaching them the good knowledge of God."
Judge Lynde had the reputation of being a learned man,
and was greatly esteemed for his private virtues and his
public services.
JOHN GUSHING,
Second of the name, and son of the former Judge, was
the successor of Judge Hubbard in February 1747.
He was born in Scituate in 1695, and ever resided there
while he lived. As early as 1721, he represented that
town in the General, Court, and from 1746, to 1763, was a
member of the council.
He held the office of Judge of Probate of Plymouth
county from 1738, to 1746, and during the same time was
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 299
Judge of the Court of Common Pleas in the same county.
He resigned his seat upon the bench of the Superior
Court in 1771, and died in 1778, at the age of 82 years.
He was undoubtedly a respectable magistrate, but I can
learn little of his qualifications for the place of Judge,
which he filled for twenty four years.
The family to which he belonged, have been distin-
guished in the judicial annals of the commonwealth, hav-
ing furnished four Judges of the Superior and Supreme
Courts. But it is chiefly through the eminent rank and
reputation of Chief Justice William Gushing, who was a
son of John the 2d, that the name of the family has been
so intimately associated with the history of our courts.
CHAMBERS RUSSEL.L,
Was appointed Judge upon Stephen Sewall's being pro-
moted to the office of Chief Justice. He was commis-
sioned April 6, 1752. He was the son of Honorable Dan-
iel Russell, and great grand-son of the Honorable Richard
Russell who settled in Charlestown, in 1640. He was
born at Charlestown, in 1713. He was graduated at
Cambridge, in 1731, and soon after settled in Lincoln,
then a part of Concord.
In 1747, he was appointed Judge of the Court of Common
Pleas for Middlesex, and, the same year, was made Judge
of Vice Admiralty over New Hampshire, Massachusetts
and Rhode Island. His commission as Judge of Admi-
ralty, was under the great seal of the High Court of Ad-
miralty in England. For some reason the original com-
mission, which run merely during the pleasure of the
crown, was renewed in 1761, and in 1762, but Mr. Rus-
sell continued to hold the office till his death.
In the preface to " Novanglus " Judge Russell is called
of Lincoln, and his name is introduced there, on account of
300 JUDICIAL HISTORY. [Ch. 12.
his connexion with Jonathan Sewall, to whom he was a
most efficient but disinterested patron. He not only took
young Sewall into his family, but instructed him in law,
furnished him with books, and introduced him into prac-
tice as a lawyer. From the manner in which he is spoken
of by President Adams, I should infer that Judge Russell
was a practising, educated lawyer before his appointment
to the bench, but I have not been able to ascertain if such
was the fact. He represented Concord several years in
the General Court and was chosen to the council in 1759.
He died in England, at Guilford, Surry, November 24,
1766, after an illness of only three days.
In a notice of him contained in the Boston Evening
Post, published at the time of his death, he is described as
having been " a gentleman whose upright and truly ami-
able character in public and private life, had justly en-
deared him to all who had a knowledge of him, but more
especially to those who were favored with his particular
friendship and intimacy."
PETER OL.ITER
Succeeded Judge Saltonstal in September, 1756. He
was a native of Boston, and brother of Lieutenant Gover-
nor Andrew Oliver. He was born in 1712, and was grad-
uated at Cambridge, in 1730. He did not study any pro*
fession, but turned his attention to the cultivation of gen-
eral literature and the fine arts.
He was a handsome writer, both of poetry and prose,
and possessed a fine literary taste. He had a decided
fondness for historical research, and among other materi-
als which he collected for an American history, was a copy
of Hubbard's History, which he transcribed with his own
hand.
Middleboro' was his place of residence, and he had been
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 301
eight years a Judge of the Court of Common Pleas, when he
was appointed to the Superior Court.
He expected to have been promoted to the place of
Chief Justice when Governor Hutchinson left the bench,
hut did not obtain the appointment until the resignation
of Chief Justice Lynde in 1772.
He entered upon the duties of the office at a most criti-
cal and trying time. The salary heretofore paid the in-
cumbent by grants of the General Court had only been
200. By the new modification of the charter, the sala-
ries of the judges were thereafter to be paid by the crown,
and that of the Chief Justice was increased to 400 per
annum. Yet such was the determined hostility of the
people to this independence of the legislature on the part
of the Judges, that Oliver alone dared to accept his salary
from the crown. The House had passed a resolution
calling upon the Judges to determine from which they
would receive their salaries, the province or the king.
Four of them had declined accepting any grant except
from the General Court, but Oliver not only expressed his
intention to accept the salary offered him under the new
arrangement, but defended his right so to do, with great
firmness and ability. He insisted that his former salary
was altogether inadequate to his support ; that his estate
had been greatly impaired while he had held the office,
and that he had been prevented from resigning only by
the encouragement held out to him that his salary would
be raised, and that as his Majesty had graciously made the
grant he dare not refuse to accept it. This resolution of
the Chief Justice was communicated to the House in an-
swer to the inquiry in 1774.
As might have been supposed, the answer of Judge Oli-
ver, in the excited state of feeling and alarm on the part
pf the House, at the encroachments of the crown, was
302 JUDICIAL HISTORY. [Ch. 12.
-
wholly unsatisfactory and they at once proceeded to im-
peach him before the council. Articles were drawn and
exhibited against him, but as the Governor was resolved
to protect him at all events, no trial was had upon the ar-
ticles.
The odium in which the Chief Justice was held for
thus daring public sentiment, was not confined to the
House, but was felt through the community. Juries re-
fused to be sworn, or to proceed to business until assured
that the Chief Justice was not to be present at the term of
the court for which they had been summoned, and this
took place in Worcester, Middlesex and Suffolk.
The situation in which Judge Oliver found himself was
not only embarrassing to himself, but to his associates
upon the bench. He complained that they did not sustain
him, and towards some of them, at least, he entertained no
very friendly feelings. They on the other hand complain-
ed of duplicity on his part, and though he retained the con-
fidence and friendship of the Governor, his residence in
the Province must have been any thing but pleasant. His
official conduct impeached, his friends alienated, his useful-
ness destroyed, and public confidence in him at an end,
he left the Province in 1776, when the troops evacuated
Boston, and carried with him the feelings of bitter hatred
towards the country which he cherished through life and
instilled into the minds of his children. Upon leaving
Boston he went to England, where he died at Birmingham
in October, 1791, aged 79. He was the last chief justice
of the Superior Court under the king, and if we were to
study his character from the papers of the day it would be
difficult to form an accurate estimate of his true merits.
It was enough that he was opposed to the popular will, to
be regarded with odium as a traitor to his country. No
allowance was made for the fact that he was a loyalist
Ch 12.] JUDGES OF THE SUPERIOR COURT. 303
from his earliest associations, and that his education and
rank in life tended to confirm these impressions. And
when he dared openly to resist the known will of the legis-
lature, he encountered obloquy and reproach in unmeas-
ured terms.
But had he lived in other times, his name would have
come down to posterity with honor. His zeal for the
prerogative, would have been remembered as loyalty, and
his obstinacy in maintaning his purpose, as true courage
and commendable firmness. His learning, his fine and
cultivated taste, and his association with men of letters,
would have rendered him justly conspicuous among the
eminent men of his time. 1
As an evidence of the different estimate in which he
was held among his countrymen and abroad, we may re-
mark that while no honorary degree was ever conferred
upon him by an American College, he was honored by the
degree of LL. D., from the University of Oxford.
In this notice of Judge Oliver thus far, I have been
compelled to regard his political rather than his judicial
character. The interest that might otherwise have been
felt in the question of his capacity for the duties of the place
he filled, was merged in the political questions of the day.
But from the nature of the charges urged against him, it
may fairly be inferred that his course as a judge would,
under ordinary circumstances, have merited the public
confidence and respect. No one can be unconscious of
1 A writer in the Massachusetts Historical Collections in speaking of Judge
Oliver says, " His seat was on Namauskeag river, a tributary to the Cohannet,
where the native grove under his forming hand became such an one as Thomp-
son found in the shades of Hagly, but the groves, the gardens and the man-
sion house are no more." The mansion house was destroyed by fire.
The families of Judge Oliver and Copely the painter, father of Lord
Lyndhurst, were connected by marriage. (2d Ser. Hist. Col. iii. 169.)
304 JUDICIAL HISTORY. [Clh 1 2.
the prejudice under which the names of most of those who
were upon the bench at the Revolution, have come down,
to us, and however willing he maybe to do justice to their
memories, the means of doing this are not now accessible*
Various causes combined to render Chief Justice Oliver
and Chief Justice (afterwards Governor) Hutchinson par-
ticularly odious to the people, but it would be entering a
new field if I were to attempt to trace out these causes,
which would be found in the political agitations of the
Province*
THOMAS HUTCHINSON
Was appointed Chief Justice, while he was Lt. Governor,
and succeeded Chief Justice Stephen Sewall, December
20, 1760. He was the son of Thomas Hutchinson, many
years a member of the Council, and a highly respectable
and influential merchant of Boston and was born Septem-
ter 9, 1711. He was graduated at Harvard College in
1737.
After leaving college he engaged in mercantile business
which he afterwards abandoned for the study of law and
politics, especially the latter, in which he early embarked.
He represented Boston in the General Court, several years,
and was Speaker of the House from 1746 to 1749, when
he was elected a member of the Council.
He was appointed a Judge of the Court of Common
Pleas for the county of Suffolk, in 1752, and, the same
year, succeeded his uncle Edward Hutchinson, who had
died that year, as Judge of Probate for that county.
In 1758, he was commissioned as Lieutenant Governor of
the province, and resigned his seat upon the bench of the
Common Pleas in favor of his brother Foster, but retained
his office as Judge of Probate.
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 305
Upon Governor Bernard's leaving the province in 1769,
the Lieutenant Governor became the acting chief magis-
trate, on which occasion he resigned his office of Judge of
Probate in favor of his brother Foster, but continued to
hold the office of Chief Justice, although he ceased to per-
form its duties.
In 1771, he was made Governor, and of course his com-
mission as Chief Justice was superseded and he was suc-
ceeded by Chief Justice Lynde.
He held the office of Governor till 1774, when he was
succeeded by the last Royal Governor, Gage, and left
Massachusetts in June 1774, never more to return. 1 He
went to England, where he became a pensioner of the
crown, and died at Brampton near London, June 3, 1780,
having experienced the fickleness of " Princes' favors," in
the neglect with which he was treated during the last
years of his life.
Were I to attempt to give an outline of the personal and
political history of Governor Hutchinson, it would require
a wider departure from the original design of this work
than could easily be justified.
It would cover not only a long period of time, but a pe-
riod the fullest of incident of any which our history fur-
nishes.
i As a mark of respect when he left the Commonwealth, a complimentary
address was forwarded to him signed by many of the leading members of the
bar. This measure gave great offence to the people, and some who had been
parties to it publicly retracted their expressions of approbation of the Governor's
character. The following were among those whose names were appended to
this address.
Robert Auchmuty, Jonathan Sewall, Samuel Fitch, Samuel Quincy, Wil-
liam Pynchon, James Putnam, Benjamin Gridley, Abel Willard, Andrew Caze-
neau, Daniel Leonard, John Lowell, Daniel Oliver, Samson Sailer Blowers,
Shearjashub Bourn, Daniel Bliss, Samuel Porter, David Ingersol, Jeremiah D.
Rogers, Daniel Gorham, Samuel Sewall, John Sprague, Rufus Chandler,
Thomas Danforth and Ebenezer Bradish. (Bos. Eve. Post.)
39
306 JUDICIAL HISTORY. [Ch.
It is by no means an easy task to do justice to the char-
acter of one towards whom a feeling of such bitter hostil-
ity prevailed, as towards Governor Hutchinson. Whoever
should be able to separate his character as a judge from
that as a politician, would do much to rescue his name
from the odium in which it has come down to us, and
help to do justice to the memory of a man who unhappily
for his own fame, was permitted to reach the summit of
his loftiest ambition.
Few who sat upon the bench in the last century, were
more deserving commendation than Judge Hutchinson.
His character, in this capacity, was irreproachable. His
learning, even in the science of the law, was highly respec-
table, and, when we consider his early education, was in-
deed remarkable. He possessed great clearness of thought,
and excelled in that most difficult property of a good judge,
a clear and intelligible statement of the case upon which
he was to pass. It is a traditionary anecdote, that after
listening to the charges given by his associates, juries
were in the habit of remarking, when Hutchinson rose to
address them, that "now we shall have something which
we can understand."
In private life, he had those qualities which always
command respect and esteem. He was polite, affable arid
winning in his manners, abstemious, industrious and reg-
ular in all his habits, and upright and honest in all his
dealings. He was a friend to literature and a patron of
the arts.
No one can read his history of Massachusetts without
feeling an unqualified respect for his memory as an histo-
rian. The laborious research, the faithfulness and accu-
racy of detail, and the degree of candor, even in regard to
what most intimately concerned himself, which his vol-
umes evince, are enough to commend them to all who
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 307
wish to study our early history, even though they possess
few graces of style or philosophical reflections to attract
the reader.
That he should have viewed the political events and
actors of the period in which he lived, in a different light
from those who have undertaken to collect the history of
his times from the papers of the day, is not surprising.
But whoever reads even the third volume of his history,
which embraces the period of his own administration, and
remembers the losses and indignities be suffered at the
hands not only of the populace, but of their political lead-
ers, his favorite measures all thwarted, his house ransacked
and his papers destroyed by a mob, and himself the ob-
ject of the hate of his enemies and neglect, not to say in-
gratitude, of his friends, cannot fail to acknowledge the
fairness of his narrative and the integrity of his motives.
In this respect at least, Massachusetts owes him a lasting
debt of gratitude. Others may write her history in a
more attractive form, but for their facts they must to no
small extent depend upon the results of Hutchinson's la-
bors.
In his manners, he had the ease and grace of a courtier,
and if his enemies may be believed, not a little of a cour-
tier's art and duplicity.
In his official character, he had great readiness and ca-
pacity for business, and was faithful and laborious in the
performance of his duties.
He was a fluent and graceful speaker, a vigorous writer,
and a respectable scholar.
The times in which he lived, may have contributed to
make him what he was, but had he lived at almost any
other period of our history, with the same industry and ap-
plication of his powers, his fame would have survived as
that of an useful, honorable and honored man.
308 JUDICIAL, HISTORY. [Ch. 12.
But the passion that blighted his private happiness, and
sullied his fame, was ambition. As a politician, he was
selfish, grasping and inordinately ambitious. His own
aggrandizement and that of his family, were his ruling
passion. In his own person he monopolized the offices
of Lieutenant Governor, Chief Justice, Counsellor and
Judge of Probate, and as he rose above these subordinate
places, he exercised his influence to secure as many of
them as he could to members of his own family. Upon
his brother Foster, who was Judge of Probate, being pro-
moted to the supreme bench, a son of the Governor suc-
ceeded him upon the bench of the Court of Common Pleas
while a younger son was appointed clerk of the court.
These are but samples of the eagerness with which he
seized upon whatever could raise and dignify himself and
family. He rose to the highest rank in the province, but
he shared the fate of most ambitious men who have aban-
doned the humbler walks of usefulness or the less dazzling
pursuits of science and literature, to climb the dizzy
height of political power ambition led him astray and he
died of a broken heart,
EDMUND TROWBRIDGE
Was appointed to succeed Chambers Russell, March 25,
1767.
His name was not to be found in any " Biographical
Dictionary" of American names when this sketch was
written, but to a lawyer, it need not be told how much the
character of Judge Trowbridge is identified with the very
system itself, which we call our own common law. It is
refreshing to our better feelings, to witness the progress of
this able lawyer, rising by severe toil and discipline, and
surmounting every obstacle in his honorable career. It is
gratifying in another point of view, as serving to mark
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 309
the approach of an era when a mere ready tact for business,
a popular influence or a family name were no longer to be
made the tests of qualification in a judge.
Judge Trowbridge was born in Newton, in 1709, and
was graduated at Cambridge at the age of nineteen. He
resided and practised law in Cambridge, but was a regular
attendant of the courts in some of the other counties.
During a part of his life he bore the name of Goffe, after
that of an uncle.
He was one of the most learned lawyers in Massachu-
setts, and, withal, one of the most devoted students of the
law. Such was his learning and ability, that it is said by
President Adams, he had the entire command of the prac-
tice in Middlesex, Worcester and several other counties,
and had the power to crush any young lawyer by a frown
or a nod.
In his politics, he was inclining to the prerogative party,
but did not lose the popular favor.
In June, 1749, he was appointed by Governor Shirley
Attorney General of the province, and held that office till
his promotion to the bench of the Superior Court. He
was also for some years a member of the council, and con-
tinued upon the bench until the Revolution.
Hutchinson is said to have made pretty free use of
Judge Trowbridge's legal knowledge while upon the
bench, and when his brother Foster was made a judge,
Trowbridge was urged, against his own better judgment,
to remain in office for the very purpose of sustaining the
Governor's brother. Judge Trowbridge continued to hold
the place of judge, but lost his respect and friendship for
the Governor.
While most of those who held offices under the crown,
left the province at the breaking out of the Revolution,
Judge Trowbridge remained unmolested, and retained the
310 JUDICIAL HISTORY. [Ch. 12.
confidence and esteem of his former friends, and the re-
spect of the public, though he ever after that event, re-
mained in private life.
He died at Cambridge at the age of 84, April 2, 1793.
Although I have alluded to the character of Judge
Trowbridge as a lawyer, I cannot conclude this notice of
him without again speaking of him in his relation to the
Superior Court. His accuracy as a special pleader is
evinced by the forms of his declarations and pleadings,
which have been incorporated into our books of practice.
His learning and discrimination as a "a real estate " law-
yer, are conspicuous in the treatises which he left, some of
which have been published in connexion with the reports
of our Supreme Court. Few reports of his decisions as a
judge, have come down to our times, but from the few
which are preserved, as well as from the uniform testimony
of his cotemporaries and tradition, he stood justly pre-em-
inent on the bench and the bar. He did not lose his fond-
ness for the study of the law by ceasing to be connected
with the court, but continued to pursue it, and exercised
a salutary influence upon the younger members of the pro-
fession with whom he associated, in guiding and encour-
aging them in their incipient struggles with its embarrass-
ments. Chief Justice Parsons was ever ready to acknowl-
edge the benefits he experienced from his early intercourse
with Jud^e Trowbridsre.
o o
Many of the most distinguished lawyers in Massachu-
setts enjoyed the advantages of his instruction, among
whom may be mentioned James Putnam, afterwards a
judge of the King's Bench in New Brunswick, Chief Jus-
tice Dana, and Chief Justice Parsons, already referred to,
by whom the light of his intellect has been transmitted to
after times with an increased lustre. He retained the fa-
vorable regard of the public until his death, although for
Ch. 1&] JUDGES OF THE SUPERIOR COURT. 311
many years in retirement, and great and deserved respect
was paid to his memory.
FOSTER HUTCHINSON
Was appointed to the Superior Court upon Judge Lynde
being raised to the head of that Court. His commission
was published September, 1771. He was, as -was before
remarked, a brother of Governor Hutchinson, and to that
circumstance it is probably owing, that he was ever pro-
moted to the place of Judge. He was by profession a mer-
chant, and in the news papers of 1756 he advertises the
somewhat heterogeneous stock of salt, glass, steel, cam-
bricks, shirtings, &c., for sale at his store on the " Town
Dock." Two years after this, he succeeded his brother,
Thomas, as Judge of the Court of Common Pleas, for Suf-
folk, which office he held till he was appointed to the Su-
perior Court.
In 1766, he was appointed special Judge of Probate
during the absence of the Lieutenant Governor, not to ex-
ceed twelve months. In 1769, upon his brother being
left at the head of the government by the recall of Gov-
ernor Bernard, he was made the standing Judge of Probate
for Suffolk, which office he retained, notwithstanding his
appointment to the Superior Court, until the Revolution.
Very little is to be known of Judge Hutchinson from
the ordinary sources of information. His brother is rep-
resented as having entertained a high opinion of his judg-
ment and capacity, but so far as we can judge from re-
marks of his cotemporaries, he left his proper sphere by en-
tering the field of judicial labors.
He left the country at the revolution, and went first to
Halifax, and from thence to England. 1
1 A letter from Halifax, dated September 11, 1776, speaks of ''Foster
Hutchinson and tribe" being there and preparing to go to England.
312 JUDICIAL HISTORY. [Ch. 12.
NATHANIEL ROPES
Was commissioned in 1772, upon Judge Oliver being
created Chief Justice.
He was born in Salem, May 20, 1726, and was graduated
at Cambridge in 1745.
He was, for some years, a member of the House of Rep-
resentatives, and from 1762 to 1769, was of the council.
In 1766, he received the two appointments of Judge of
Probate for Essex, and that of Chief Justice of the Court
of Common Pleas for that county.
Of his fitness or capacity for the office of Judge, I
have no means of determining. He could not have been
very prominent among the leading men even upon the
government side.
He resided in Salem, where he died, March 18, 1774,
and the Historian of that town has summed up his char-
acter in this brief notice, " his honors were many arid he
was worthy of them."
The name of Judge Ropes, lives in his highly respecta-
ble posterity, but the little that is known of him in his
official capacity, is but another illustration, how ineffectu-
al is the mere possession of place and power without true
greatness of mind, to preserve for posterity the memory of
him who enjoys them.
WILLIAM BROWN
Succeeded Judge Ropes June 15, 1774. He was born
in Salem, and was graduated at Cambridge in 1755. He
was descended from an ancient and respectable family in
that town, several of whom had been connected with the
Judiciary of the Province, and the rank which he held in
his class by birth, compared with that of others of his
classmates, and their subsequent fortunes in life was a
fine illustration of the tendency of our institutions to break
Ch. 12.] JUDGES o# THE SUPERIOR COURT. 313
down the factitious influence of family, and to elevate tal-
ent and enterprise however humble in their origin. In
the class of 1755, the name of William Brown stands the
third, John Wentworth, afterwards Gov. of N. Hampshire
and of Nova Scotia, is the fifth, David SeWall, afterwards
Judge of the Supreme Court of Massachusetts} was the
tenth, Tristram Dalton, afterwards a senator in Congress ?
was the eleventh, and John Adams, afterwards presiden t
of the United States, stood as low as the fourteenth, in
the rank of his family.
In 1764, he. was appointed collector of the port of Sa
lem, and in 1770, was made a Judge of the Court of Com-
mon Pleas, for the county of Essex. He was, for several
years, a representative from Salem, and among other honors
he enjoyed, was that of commanding the Essex Regiment,
in which office he was succeeded by the celebrated Timo-
thy Pickering.
From the account which President Adams has left of
Judge Brown, it would seem that, at first, he was inclined
in politics to the liberal party. Indeed he was removed
from the office of collector for not more rigidly enforcing
the " laws of trade," which were so odious to the people of
Massachusetts. " But,'* says Mr. Adams, " they made
him a Judge of the Superior Court, and that society made
him a refugee- a tory, I verily believe he never was."
His appointment as Judge of the Superior Court, met
with serious opposition in the Council. He was nomina-
ted in May, 1774, at a meeting when only seven were
present. But they dare not risk their popularity by con-
firming his appointment, and deferred acting upon the
nomination until a new Council should be chosen. He
was not, therefore, confirmed as Judge, till June 15, of
that year.
The same year of his appointment to the Superior
40
314 JUDICIAL HISTORY. [Ch.
Court, he was made a "Mandamus Counsellor," in conse-
quence of which a committee of the Essex Convention,
then sitting in Ipswich, applied to him to resign both offi-
ces. He replied, that " he meant to conduct, with honor
and integrity, but would do nothing derogatory to the
character of a counsellor of his Majesty's Province." Up-
on this refusal being made known, the officers of his reg-
iment refused to serve under him, and resigned their com-
missions.
He remained upon the bench until the Revolution, when
he left the country, and in 1781 was made Governor of
Bermuda.
WILLIAM CUSHING
Was appointed to the Superior Bench at the same time
with Judge Ropes in 1772. He remained upon the bench
until the Revolution, and was the only one of that court
who was restored to office under the new organization of
the Judiciary. And, although his history is more particu-
larly identified with that of a later period than the one
to which we have arrived in these sketches, it has been
thought proper to complete the notice of him in this place.
Judge dishing was born in Scituate, March, 1732, and
was the son of John Cushing, the second of the name who
had been a Judge of the Superior Court. He was gradu-
ated at Cambridge in 1751, and studied law with Jeremy
Gridley. Before commencing his professional studies, he
had been employed as a school teacher in Roxbury, where
Increase Sumner, afterwards Governor of the Common-
wealth, was one of his pupils.
Upon being admitted to the bar, he commenced business
in Dresden, then a part of Pownalboro, Maine, in 1755,
and was the first regularly educated lawyer who settled in
Maine. In 1760 he was appointed the first Judge of Pro-
Ch. 12.] JUDGES OF THE SUPERIOR COURT. 315
bate for the county of Lincoln, and in 1772, succeeded
his father as a Judge of the Superior Court.
In November, 1775, the Superior Court was reorganized
and Judge Gushing was restored to his place on the bench.
John Adams was appointed Chief Justice, but never sat as
a Judge, and, the following year, he resigned his place on
the bench. Judge Gushing was then appointed his succes-
sor, and held the office till his promotion to the Supreme
Court of the United States in 1789. In the mean time,
he presided over the Convention which assembled in Mas-
sachusetts in 1787, to act in regard to the adoption of the
constitution of the United States.
While Chief Justice Jay was absent in Europe, as envoy
extraordinary, in negotiating the treaty with Great Britain,
Judge Gushing was the presiding Judge of the United
States Court, and upon the resignation of Judge Jay, he
was nominated and unanimously confirmed as Chief Jus-
tice of that Court. His ill health, however, compelled him
to decline the honor of this appointment, and he continued
to hold the place of an associate justice until 1810, the
time of his death.
He was eminent for his learning, as well as for his un-
shaken integrity and deliberate judgment, and the confi-
dence with which he was honored during the whole period
of his life, though one of the most trying in our annals, is
of itself the strongest proof of his ability as a judge, and his
honesty and independence as a man. He brought with him
upon the bench, under the new constitution of the court,
some of the artificial insignia of office which, under the
royal government, were regarded as essential to secure a
proper degree of respect in the public mind. He was the
last Chief Justice who wore the large English wig while
sitting in Court. 1
1 It is said Judge Gushing abandoned his large wig on account of the obser-
316 JUDICIAL HISTORY, [Ch. 12.
As an orator, he had a ready command of language, but
his temperament was not adapted to producing powerful
and exciting appeals. And his excellence consisted in his
cool, logical and lucid argumentation, which convinced, if
it did not move his hearers.
In his politics, he was before and during the Revolution
a whig, and after the achievement of our national inde-
pendence belonged to that party who were known as Fede-
ralists, but of his character as a politician it is not proposed
to speak. For many years before his death he resided in
Scituate, his native town.
In person he was of middling stature, erect and grace-
ful. His form was slender, and his complexion fair. In
private life he was an amiable and delightful friend and
companion, as a scholar he possessed a cultivated taste and
a respectable share of general learning, and his various
relations in public life he sustained with honor to himself
and usefulness to his country.
With this imperfect sketch of Chief Justice Gushing,
terminate these notices of the men who constituted the
highest tribunal of Justice in Massachusetts during the ex-
istence of its provincial charter. I have more than once
expressed regret that these were necessarily so brief, and
J can again repeat that great injustice would be done to
the memory of these eminent men of a former age, if the
sketches here given were regarded in any other light than
a mere effort to arrange, for more easy access, the names
of those who composed our judiciary during a period that
is fast passing beyond the memory of living witnesses.
ration it attracted while holding a court in New York. The boys followed him
in the street with silent admiration, but he was not conscious of the cause until
he heard the exclamation of a sailor who came suddenly upon him, " my eyes
what a wig," whereupon he changed it to one of more moderate dimensions.
(Law Reporter.)
Ch. 12.] JUDGES OP THE SUPERIOR COURT. 317
This work cannot be complete without extending our
inquiries beyond its original design, and appending to it a
list of the Judges of the courts of Common Pleas, in some
of the principal counties of the Province. In doing this
however, I have far less to guide me than in regard to the
Superior Court. The appointments to the inferior courts
were so frequent, the rank of those who received them was
often so obscure, and the records of their proceedings are, in
some counties, so defective, that nothing beyond a meagre
and imperfect account could reasonably be expected from
almost any effort.
CHAPTER XIII.
Personal notices of the Judges of the Courts of Common Pleas
during the continuance of the Province charter.
The territory of Massachusetts was early divided into
counties, of which at the time of the Revolution, there
were eleven in number.
Suffolk, Essex and Middlesex were incorporated in
1643, Hampshire in 1662, Plymouth, Bristol and Barn-
stable in 1685, Dukes and Nantucket in 1695, Worcester
in 1731, and Berkshire in 1761.
Under the province charter a Court of Common Pleas
was established in each of these counties, consisting of
four judges. f
As it is my purpose to present, so far as I have been
able to learn them, the names of the several judges who
have held places in these courts, the most proper course
seems to be to consider each county by itself.
SUFFOLK COUNTY.
The courts of this county have uniformly been held in
Boston. A term of the Common Pleas was held here July
26, 1692, in pursuance of a special act of the General
Court, before the organization of the courts under the char-
ter had been made.
This term was held by Chief Justice Stoughton, John
Richards, Wait Winthrop and Samuel Sewall, who have
CL 13.] JUDGES OF THE COMMON PLEAS. 319
severally been noticed in their connexion with the Supe-
rior Court.
The first regular term of the Court of Common Pleas in
this county, was holden March 7 f 1693, when the com mis
sions of its judges were formally published. These and
their successors before the Revolution, so far as they have
been ascertained, were as follow.
ELISHA HuTCHiNsoN, 1 March 3, 1693, to Dec. 10, 1717.
John Foster, March 3, 1693, to January 1710.
Peter Sergeant, March 3, 1693, to 1702.
Isaac Addington, March 3, 1693, to 1702.
PENN TOWNSEND, 1702, to August 21, 1727.
Jeremiah Dummer, 1702, to 1715.
THOMAS PALMER, 1711, to 1740.
Edward Lyde, December 29, 1715, to 1723.
ADAM WINTHROP, December 29, 1715, to 1741.
EDWARD HUTCHINSON, 1723, to 1731, and 1740, to 1752.
William Dudley, 1728, to 1731, 1733, to 1743.
NATHANIEL BYFIELD, December 9, 1731, to 1733.
Elisha Cooke, December 9, 1731, to July 1733.
Anthony Stoddard, July 1733, to 1748. ' ;'
ELIAKIM HUTCHINSON. 1741, to Revolution.
Edward Winslow, 1743, to 1753. '!
Samuel Watts, 1748, to 1770. r '< ; < H -- ( *r a
Thomas Hutchinson, 1752, to 1758.
Samuel Welles, 1755, to 1770.
Foster Hutchinson, 1758, to 1771,
William Reed, 1770, to Revolution.
Nathaniel Hatch, 1771, to Revolution.
Joseph Green, July 3, 1772, to December 31, 1772.
Thomas Hutchinson, Jr. 1772, to Revolution.
i The names of those who held the place of Chief Justice of this court, are
printed in small capitals.
320 jtifciciAL H i s T o A . [Ch. 1 3.
Benjamin Gridley, May 1775, after Revolution had
begun.
Commissions were issued by a major part of the council
October 31, 1775, to
SAMUEL DEXTER^
John Hill,
Samuel Niles and
Samuel Pemberton.
ELISHA HUTCHINSON, the first Chief Justice of the Court
of Common Pleas of Suffolk county, was born in Boston,
in 1640, and was the grand-son of the distinguished Anne
Hutchinson, whose antinomian opinions gave such special
offence to the early fathers of the colony.
The father of Judge Hutchinson was Edward, who Was
killed by the Indians in 1675.
Although bred to a mercantile profession, which he af-
terwards pursued, for a livelihood, he was long engaged in
public life, and filled many important and responsible offi-
ces. From 1680 to 1684 he was a member of the House
of Representatives, and afterwards was elected an assistant
under the old Charter.
In politics he belonged to the liberal party, who clung
with such tenacity to the Colony Charter, and was among
the number who would consent to no compromise, prefer-
ring to abandon every thing rather than consent to any
modified form of government. Of this party Major Goo-
kin and Elisha Cooke, were members, and of course were
found in opposition to Dudley and Andros, as the govern-
ment successively passed into their hands.
During the administration of the latter, Mr. Hutchinson
was in London, and while there joined with Samuel No-
well and Increase Mather in a petition to the Lords Com-
mittee for Trade and Plantations, for relief from the op-
pressive acts under which the colony was suffering. But
Ch. 13. J JUDGES OF THE COMMON PLEAS. 321
the petition seems to have produced no effect. Andros
continued to exercise his tyranny till the people could en-
dure it no longer, when they rose and having deposed
him resumed their former charter.
In this revolution Mr. Hutchinson was found upon the
popular side, and was not only made one of the Assistants,
but received one military appointment after another until
he was placed at the head of the colony forces, and held
that office at the time of the arrival of Governor Phipps
with the new charter in 1692.
In this charter Mr. Hutchinson was named as one of the
Council, and afterwards held that place until his death.
He is said to have been the second Colonel of the Boston
Regiment, succeeding Colonel Shrimpton, who was the
first, in point of time, who ever held that office.
From his military rank he was commander of the Cas-
tle, a post of honor and some emolument, but having been
adverse to Governor Dudley in his politics, when that gen-
tleman came into the government in 1702, he was remov-
ed from his command, although he was suffered to retain
his judicial office.
This, the Governor did by issuing a new commission,
as it was supposed that the former commissions of the
Judges were vacated by the death or removal of the Gov-
ernor by whom they had been granted.
His commission was again renewed upon Governor
Shute's coming into power, and he continued to hold the
office until his death, which took place December 10, 1717,
at the age of 77.
There is no memorial of Judge Hutchinson left, where-
by his competency to fill a judicial office can be estimated.
But the part which he took in the leading events of the
day, shows that he exercised a commanding influence and
held a high rank both under the old charter and the new.
41
322 JUDICIAL HISTORY. [Ch. 13.
He was the father of Thomas Hutchinson, whose sou
Thomas was governor of the province a short time pre-
vious to the Revolution. His son Edward was a judge of
the Court of Common Pleas, and, as will appear in the se-
quel, two of his grand -sons, as well as a great-grand-son,
successively held the same office.
JOHN FOSTER was a native of Aylesbury in England,
and came to this country to pursue his business as a mer-
chant, by which he acquired a large estate. It is not as-
certained when he arrived in New England, but he was
admitted a freeman in 1682, and in 1689 was one of the
most leading men in the colony in promoting the revolu-
tion that overthrew Andros.
He was made one of the committee of safety on that
occasion, and more of the papers that were issued at that
time by the friends of the people, came from his pen than
from that of any other person who was engaged in the
revolution.
With Adam Winthrop, he was made steward or treasurer
of the colony until the government could be settled, and
from that time till the arrival of the Province Charter, he
took a leading part in the public affairs.
Among other offices he held that of colonel of the colo-
nial troops.
He was named as a counsellor in the charter of 1692,
and continued to be re-elected to that place until his death,
February 9, 1711.
Few memorials remain of this able and distinguished
man, and even his connexion with this court has only been
discovered by tracing its records to find who had held the
places of judges upon its Bench. Hutchinson says he
was " a wealthy merchant in the town of Boston and of
a most fair and unblemished character. "
Ch. 13.] JUDGES OF THE COMMON PLEAS. 323
PETER SERGEANT and ISAAC ADDINGTON have been no-
ticed in other parts of this work.
PENN TOWNSEND was born in Boston in 1651, and was
the son of William Townsend. He succeeded Judge Ser-
geant upon the Bench of this court.
He was long engaged in public life, both in a civil and
a military capacity, and was commonly known as Colonel
Townsend.
He was one of the persons mentioned by Dunton in his
" Liferand Errors," when describing his visit to New Eng-
land in 1685, and is there spoken of as "a gentleman, very
courteous and affable in his conversation."
He became a member of the House of Representatives
in 1686, the year of the arrival of Governor Andros. In
the controversy with the Governor, he was upon the side of
the people, and was made one of the committee of safety
at the time of the Revolution in 1689, in whose hands the
functions of government were for a while entrusted.
At the election in December, 1689, he was again chosen
to the House, and was continued a member of that body
until 1698. During four years of this time he was the
speaker of the House.
Owing to the disastrous fate of the " Canada Expedi-
tion," as it was called, in 1690, the colony were obliged to
resort to Bills of Credit as a means of defraying the expen-
ses of that undertaking. These were the first of that spe-
cies of paper money that was multiplied to such a ruin-
ous extent at a subsequent period, and Colonel Townsend
was one of the committee who were authorised to issue
the Bills.
He continued to hold his place upon the bench of the
Common Pleas, being for some years its Chief Justice, un-
til his death, which took place at the age of 75, on the 21st
August, 1727.
324 JUDICIAL HISTORY. [Ch. 13.
JEREMIAH DUMMER was the son of Richard Dummer,
and was born in Newbury, September 14, 1645. His fa-
ther was among the wealthiest and most influential men
in the colony, and one of its most public spirited benefac-
tors.
It is impossible now to determine from any historical
memoranda, to what extent Judge Dummer was a lead-
ing man in the colony. But he so far enjoyed the public
confidence that he was made one of the committee of
safety at the time of the Revolution in 1689.
It is principally, however, through the fame of his dis-
tinguished and gifted son, Jeremy, that he is remembered.
The reputation of his son, as a scholar, was one of which
the Province was justly proud, and his services as its agent
entitled him to public gratitude,
Judge Dummer remained upon the bench until the year
1715, when, probably on account of his age, he was
omitted in the new commission to the judges which was
then issued by Lieutenant Governor Tailer. He died
May 24, 1718, at the age of 73.
From any thing that has come down to us at this day,
in regard to the character or capacity of Judge Dummer,
it is fair to infer that he owed his preferment rather to his
family rank and influence than to the possession of any
commanding talents or distinguished personal qualifications
for office.
Of THOMAS PALMER and EDWARD LYDE, I have found
no memorials beyond their connexion with this court, if I
except the fact that Mr. Lyde was at one time one of
the wardens of the King's Chapel in Boston, and that
Judge Palmer died October 8, 1740.
ADAM WINTHROP was a great-grand-son of the first Gov-
ernor of Massachusetts his father and grand-father bearing
the same name with himself. He was graduated at Cam-
Ch. 13.] JUDGES OF THE COMMON PLEAS. 325
bridge in 1694. Like most of the distinguished men in
that day, he was promoted to a military command, and, at
one time, was " Captain of the Castle," which was regard-
ed as an honorable and important office.
He was a representative from Boston, in the General
Court, as early as 1714, and continued a member of that
body or of the Council several years.
He held the office of Judge of this court until within
about two years of his death, when he resigned the place.
He died October 2, 1743, leaving two sons, one bearing
his own name, who was Clerk of the courts in Suffolk, and
the other bearing the name of John. Although Judge
Winthrop must have been a respectable and influential
man, the reputation of his son John far out-shone that of
the father. He was a learned and distinguished Professor
in the College at Cambridge, and in mathematical science
was considered superior to any man in America. He was
a member of the Royal society, and otherwise honored by
literary and scientific associations in Europe.
EDWARD HUTCHINSON was a son of Elisha Hutchinson
already mentioned, and brother of Thomas the father of
Governor Hutchinson. He was born in 1678. He rose to
the rank of Colonel of the Provincial troops in his military
career, and seems early to have entered public life. He
was a representative from Boston in the years 1717 and 18.
In 1723 he succeeded Judge Lyde upon the bench of
this court, and held the place till 1731, when he was re-
moved by Governor Belcher to make room for one of his
favorites whom he was desirous of rewarding by an office.
This was done notwithstanding Judge Hutchinson was a
firm friend and supporter of the government, and even of
Governor Belcher himself. Nor was it till 1740. that he
was restored to office. After that he remained a member
of the court until his death, March 16, 1752, at the age of
326 JUDICIAL HISTORY. [CH. 13.
74. At the time of his death he also held the office of
Judge of Probate for Suffolk County, and was succeeded
by his nephew, afterwards Governor, Thomas Hutchinson.
WJLLIAM DUDLEY appears to have been the first educat-
ed lawyer who sat upon the bench of the Common Pleas.
He, however, had never practised law as a profession, and
in selecting him for the place, more regard was, probably,
had to his public services than his learning as a lawyer.
He filled a pretty large place in the public affairs of his
time, and merits a much fuller notice than the present
space or opportunity will admit.
He was the youngest son of Governor Joseph Dudley,
and was born in Roxbury in 1 686. He was graduated at
Cambridge in 1704. After completing his legal education
he retired to Roxbury, where he built an elegant seat and
lived in a style of generous hospitality.
During the government of his father, parties in the Pro-
vince ran high, and as the Governor was ambitious to pro-
mote his own family as well as to enlist talent in support
of his measures, his son William was early brought into
public life. The first of his public services seems to have
been an embassy to Canada in 1706, to negotiate an ex-
change of prisoners, where he succeeded in redeeming the
Rev. Mr. Williams of Deerfield.
In 1710, an expedition against Port Royal was success-
fully carried on, in which Mr. Dudley bore an active part,
and acquired considerable reputation as an officer. He
subsequently was promoted to the command of a Regiment
of the provincial troops.
He represented Roxbury several years in the General
Court, and during the years 1724 to 1728 inclusive, was
speaker of the House. The following year he was elected
to the Council.
He married a daughter of Addington Davenport, one
Ch. 13.] JUDGES OF THE COMMON PLEAS. 327
of the Judges of the Superior Court, by whom he had two
sons, who were said by his biographer to have been " very
unlike their ancestors."
Colonel Dudley died at the early age of 57, August 10,
1743, in the midst of his usefulness and honors.
He had been displaced by Governor Belcher from the
court of Common Pleas, to make room for a favorite of the
Governor, but after the end of about two years he was re-
stored to his office of Judge of that court.
He is represented as having been extremely popular in
the Province, and to have possessed talents of a very high
order. As a popular debater he had distinguished merits,
possessing strong intellectual powers, as well as a brilliant
fancy and a ready elocution, and thereby exercised a com-
manding influence in all public assemblies of which he
was a member.
Although the name of Colonel Dudley is often to be
met with in history, especially in that of Hutchinson, I
have borrowed the substance of this sketch from Elliot's
notice of his character, and can only regret that it is so
meagre in its details.
ANTHONY STODDARD. Although connected by family
with some of the most distinguished men in the colony, I
have discovered very little of his personal history. He was
born in 1678, and was graduated at Cambridge in 1697.
His grand-father, Anthony Stoddard, married a sister of
the distinguished Sir George Downing, whose history is
connected with that of England during the time of Crom-
well. He was the father of Solomon Stoddard of North-
ampton, so eminent among the early divines of New
England. The father of the judge was of the name of
Simeon. He held the office of Judge until his death,
March 11, 1748.
He once represented Boston in the General Court, but
328 JUDICIAL HISTORY. [Ch. 13.
how far he was engaged in public life beyond this, I have
no means of ascertaining.
SAMUEL WATTS was a distinguished gentleman of Chel-
sea, and was long and extensively employed in public ser-
vices, the enumeration of which could be of little use.
Among these may be mentioned his connexion with the
Land Bank, of which he was a Director. This scheme
for raising money was particularly odious to Governor
Belcher who, in order to suppress it, would not permit any
of its officers to enjoy any civil office under him. Mr.
Watts therefore, having been elected speaker of the House,
was negatived by the Governor.
In 1746, he is found connected with the army, and was
commissioned as muster master of the forces which were
raised for an expedition against Canada.
In 1752, he was appointed a commissioner with Thomas
Hubbard and Chambers Russell to treat with the Eastern
Indians.
He died March 12, 1770, having continued to hold his
place upon the bench until that time.
From a brief notice of his death contained in the Bos-
ton Evening Post, I copy the following extract as con-
taining a summary of the character of Judge Watts. He
discharged the duties of the offices which he held, " to
general acceptance, with firmness and integrity, and, as
he lived, so he died, a lover of all mankind, a friend to his
country and truly an honest man."
ELISHA COOKE was the second of the name, and filled
a far greater sphere in his political than his judicial capaci-
ty. If I were to speak at any considerable length of the
former it would require a detail of the public events of
three successive administrations, since from the time he
entered public life till his death, his name is connected
with most of the leading measures of the government.
Clh 13. J JUDGES OF THE COMMON PLEAS. 329
His connexion with the courts was very brief, having
been appointed by Governor Belcher in 1731, and having
left it in 1733. In order to make place for him upon the
bench, one of the Judges who was not acceptable to the
Governor was omitted in the commission which he saw fit
to issue to them upon coming into power.
In renewing the commissions of the Judges, Governor
Belcher did no more than what had generally been thought
proper by his predecessors. The exercise of the power
however was strongly resisted upon his coming into
office, but the Council at last yielded and confirmed his
new nominations. Mr. Cooke and Mr. Byfield were among
the favorites whom he saw fit to prefer on this occasion,
and so far as the people were concerned, the nomination of
Mr. Cooke was a highly acceptable appointment.
He was a son of Judge Elisha Cooke, who had been a
member of the Superior Court. His mother was a daugh-
ter of Governor Leverett.
He was born December 20, 1678, and was graduated at
Cambridge in 1697. Like his father he studied and prac-
tised medicine and was a successful physician.
It was principally however as a political leader that his
riame has come down to posterity. In 1702, he was ap-
pointed Clerk of the Superior Court in Boston, where all
the records of that court were then preserved. He held
the office until 1718, when on account of some free re-
marks made by him concerning Governor Shute, he was
displaced from the office, and the following year his name
was erased by the Governor, from the list of Counsellors, of
which body he had been one year a member.
From that time an uncompromising hostility arose
between him and the Governor, which was carried on as
long as Colonel Shute remained in the government.
He had been a member of the House in 1715 and 1716,
42
330 JUDICIAL HISTORY. [Ch. 13.
and after his rejection as a Counsellor he was again elected
to that branch, and was at once chosen its speaker. Gov-
ernor Shute negatived the choice, and the acrimony of
party spirit growing out of this measure rendered the year
1720, memorable in the history of parties in the province.
The popularity and influence of Mr. Cooke were such,
that the House refused to recede or to elect another pre-
siding officer, and in consequence thereof the Governor
dissolved the assembly. Although he was a member of
the House nineteen years after the time of his election as
speaker, he does not seem to have ever been again chosen
to preside over its deliberations.
Mr. Cooke was at the head of the democracy of the
province, and at all times a consistent opposer of the un-
due exercise of prerogative. The House of Representa-
tives went with him in sentiment, and Governor Shute
found no quiet till his return to England in 1722.
Upon arriving in England the Governor preferred a com-
plaint to the King against the province, embracing charges
which rendered it necessary to send an agent to London
to answer to those charges. To the great chagrin of the
Governor, his determined foe Mr. Cooke was chosen to this
agency and went to England in the performance of the
trust in 1723.
He remained in London till 1726, when he returned to
Massachusetts and was again elected to the Council, and
was permitted by Lieutenant Governor Dummer to take
his seat at that board.
Governor Burnett succeeded Colonel Shute as Governor,
and Mr. Cooke soon after his arrival found himself in op-
position to the government, and remained in that position
during Burnett's administration.
Of Governor Belcher, who next succeeded to the gov-
ernment, he was both a personal friend and ardent support-
Ch. 13.] JUDGES OF THE COMMON PLEAS. 331
er, and by this means the confidence of the people in his
political consistency was for a while impaired.
But in his opposition to the exercise of arbitrary power
he was alike consistent, whether upon the bench, a candi-
date for popular election, or a member of the Council.
Among the illustrations of this trait of his character
while he was upon the bench, I have selected the following
as an example. In 1731, the Court of Common Pleas
passed a peremptory order that a certain number of con-
stables should attend their sittings. To this order Judge
Cooke dissented. The constables refused to attend, and
the court thereupon imposed a fine upon them for their con-
tempt. Mr. Cooke however protested against the proceed-
ings of the court as well as against their original order and
caused his protest to be entered upon the records of the
court.
Although as a political adversary he was justly to be
dreaded, yet even his enemies accorded to him the charac-
ter of a fair and open antagonist and an honest supporter
of his own political opinions.
He literally wore himself out in the service of the peo-
ple by whom he was honored and beloved, and died in
1737 at the early age of 59.
He was buried with every mark of respect. Minute
guns were fired from the battery on Long Wharf, and most
of the vessels in the harbor had their flags hoisted at half
mast during the ceremony of his burial.
In private life his character was every thing to admire
kind, faithful and affectionate as a husband and a father,
sincere as a friend and upright as a man. The few years
he was upon the bench seem not to have produced any
marked influence upon him or upon the court. He re-
ceived the appointment as a reward for his political ser-
332 JUDICIAL HISTORY. [Gil. 13.
vices, and neither lent nor derived from the place either
honor or essential benefit.
Although he was probably the most uniformly popular
man who ever flourished as a politician in Massachusetts,
yet he found a politician's life one of anxious care and un-
requited toil a ceaseless struggle to ride in safety upon
the treacherous waves of popular favor, in which personal
quiet and self respect are too often sacrificed to political
expediency or the achievement of some transient party tri-
umph.
Of THOMAS, afterwards Governor HUTCHINSON and ELIA-
KIM HUTCHINSON I do not propose to speak in this place, as
the former is fully noticed in another part of this work,
and of the latter I am not in possession of any definite in-
formation beyond his long continued connexion with this
court. He was descended from the famous Mrs. Hutchin-
son, through her son Richard, one of whose sons, Eliakim,
was the grand-father of Judge Eliakim.
EDWARD WINSLOW was sheriff of the county of Suffolk
at the time of his promotion to the bench as successor
of Col. William Dudley. He had also held a military
command as colonel of the Suffolk Regiment. He was a
man of great consideration in his day, and among other
offices which he held at the time of his death, was that of
Treasurer of the county of Suffolk.
He remained upon the bench until his death, which took
place in December, 1753, at the advanced age of 85, so
that he must have been at least seventy-five years of age
when he first received his appointment to this court.
SAMUEL WELLES was a member of this court for the
term of fifteen years, but was much more distinguished for
his political than his judicial services. The marks of pub-
lic favor and confidence which he received, are too numer-
Ch. 13.] JUDGES OF THE COMMON PLEAS. 333
ous to repeat, and I will only mention a few of the places
he was commissioned to fill.
He was, for many years, a member of the House of Rep-
resentatives from Boston. While a member of that body,
the plan of an union of the colonies was proposed, and dele-
gates from New York, Pennsylvania, Massachusetts, New
Hampshire, Rhode Island, Connecticut and Maryland met
at Albany, June 1754. At the head of the delegation
from Massachusetts was Mr. Welles, although Governor
Hutchinson was also one of the delegation.
Two years after this, he was joined in a commission
with Sir William Pepperell and Mr. Hutchinson to meet
Lord London in Albany, to devise means for relieving
Massachusetts from the debt she had incurred in the pros-
ecution of the war. The following year, he met Lord
Loudon in Boston, where a meeting of delegates from the
New England colonies was held for the purpose of devising
means of carrying on the war in which the country was
then embroiled with the French and Indians.
In 1765, Lord Adam Gordon visited Boston, and a
committee consisting of Mr. Welles and Thomas Hubbard
was appointed to receive him upon his arrival.
He was, for some years, a member of the Council,
though in his politics he must have been of the popular
party, for, on one occasion he was appointed of a commit-
tee to tender to General Conway and Colonel Barre the
thanks of the citizens of Boston for their magnanimous ser-
vices in behalf of the colonies in the British Parliament.
Wherein his claims upon the public favor consisted,
there are few or no data by which to determine. He did
not live to take part in the events of the Revolution, as
his death took place May 20, 1770, at an advanced age.
FOSTER HUTCHJNSON and WILLIAM REED are mentioned
334 JUDICIAL HISTORY. [Ch. 13.
in their connexion with other courts of which they were
members.
NATHANIEL HATCH belonged to Dorchester, and was
graduated at Cambridge in 1742. He was one of the
commissioners of the Land Bank in 1763, and succeeded
Judge Welles upon the bench of the Common Pleas, in.
1771.
In his politics he belonged to the party of the loyalists,
and left the country at the breaking out of the Revolution.
JOSEPH GREENE was the successor of Foster Hutchin-
son, but held the office only for a few months. I have
learned little of the previous or subsequent history of Judge
Green.
He was named as one of the Mandamus Counsellors in
1774, but declined acting in that capacity. He left the
province at the Revolution, and his name is among those
" refugees " who were forbidden to return.
THOMAS HUTCHINSON, Jr. was the son of Governor Hutch-
inson. He was graduated at Cambridge, 1758, and en-
gaged in mercantile pursuits, and as such was publicly de-
nounced in 1769, for importing goods contrary to the agree-
ment entered into by the merchants of Boston. Being a
royalist in his political opinions, he was obliged to leave
the country at the Revolution. He went to England,
where he continued to reside until his death in 1811, at
the age of 71.
BENJAMIN GRIDLEY, though regularly commissioned as a
member of this court in May, 1775, can hardly be enumer-
ated among its judges, for the functions of the court had
ceased in October previous to his appointment. His was
the last nomination made for this court by a royal Gover-
nor.
Mr. Gridley was a barrister at law, and was graduated at
Cambridge, in 1751. Being a royalist, he left the country
Ch. 13.] JUDGES OF THE COMMON PLEAS. 335
at the time of the Revolution, and was prohibited from
returning again by a general act of the legislature in Sep-
tember, 1778.
As the records of this court in Suffolk are wanting from
1752, to 1776, it does not appear from them when the last
term of it was held. New commissions were issued by
the majority of the Council in the name of " the Govern-
ment and People of Massachusetts Bay in New England,"
in October 1775.
It is hardly necessary to say that these commissions
were granted to a different class of men from those who
had held office under the king. And on referring to the
records of the Council it appears that Samuel Dexter, John
Hill, Samuel Niles arid Samuel Pemberton, who have
already been named, were the persons embraced in the
commission.
Mr. Dexter does not appear to have acted under his ap-
pointment, for Thomas Gushing was appointed Chief Jus-
tice of the court in February, 1776. And I do not find
that any term of the Common Pleas in Suffolk, was held
before April, 1776. - ty ; ' >*
In order to present a complete list of those who acted
as Judges of this court before the Revolution, it would be
necessary to name the special Judges who from time to
time were appointed to act in the place of some or all of
its standing Judges.
But this would swell the catalogue to an unreasonable
extent, in consequence of the frequency of these appoint-
ments.
The records of the court would lead one to suppose
that the appointment of its special Judges was not always
regarded as desirable, and for the sake of illustration I
have selected an instance of the kind.
In 1732, the sheriff was ordered by the court then in
336 JUDICIAL HISTORY. [Ch. 13.
session, to wait upon Thomas Hutchinson, Thomas Fitch,
Anthony Stoddard and Thomas Steele, commissioned as
Justices of the Court of Common Pleas, for the trial of an
action between Samuel Swazey and Nathaniel Byfield,
(then Chief Justice of the court,) to acquaint them that
the court were then ready to give way to them, in order
to their hearing and trying said action, the next day.
The sheriff afterwards came into court and informed
them that he had waited upon Mr. Hutchinson, who told
him that he had already excused himself to the Governor
and Council, and that he peremptorily declined acting on
said commission ; that the Honorable Thomas Fitch told
him he was lame of the gout and was unable to act ; that
Mr. Stoddard said he was ready to act if the other gentle-
men would ; and that Mr. Steele said he was lame and
unable to attend to the service.
From the names of the Judges of this court, it may be
fairly inferred that it was always regarded with a respect
during the administration of the Royal Governors in Mas-
sachusetts, superior to that of similar courts in most of the
other counties, and it is a matter of regret that no more
is known of its history during this period.
MIDDLESEX COUNTY.
The Courts of Common Pleas for this county were held
by the Deputy Governor and Assistants until October,
1692, when a court, consisting of a Chief Justice and sun-
dry Justices of the Peace, was held for a single term, and
its first regular term after its organization under the char-
ter seems to have been December 13, 1692. For several
terms however, after that, for some reason, three or more
Justices of the Peace sat with the regular Judges when
they held the court, though this custom was soon discon-
tinued.
Ch. 13.J JUDGES OF THE COMMON PLEAS. 337
The names of the Judges of this court, so far as they
have been ascertained, were as follow.
JOHN PHILLIPS, December 7, 1692, to 1715.
James Russell, December 7, 1692, to 1707.
Joseph Lynde, December 7, 1692, to 1719.
Samuel Hayman, December 7, 1692, to 1702.
Jonathan Tyng, July 1702, to 1719.
Francis Foxcroft, 1707, to 1719.
JONATHAN REMINGTON, 1715, to 1733.
JONATHAN DOWSE, 1719, to 1741.
Charles Chambers, 1719, to 1739.
FRANCIS FULLAM, 1719, to 1755.
Thomas Greaves, 1733, to 1738, and from 1739 to 1747.
Francis Foxcroft, 1737, to 1764.
SAMUEL DANFORTH, 1741, to Revolution.
Chambers Russell, 1747, to 1752.
Andrew Boardman, 1752, to 1769.
William Lawrence, 1 1755, to 1763.
John Tyng, 1763, to Revolution.
Richard Foster, 1764, to 1771.
Joseph Lee, 1769, to Revolution.
James Russell, 1771, to Revolution.
Commissions were issued November 2, 1775, to
JOHN TYNG, of Dunstable,
Henry Gardner, of Stow,
John Remington,
Samuel P. Savage, of Weston.
JOHN PHILLIPS belonged to Charlestown, and was bom
in 1631. He was Jong engaged in public life, and held
many responsible places in the administration of the gov-
ernment. From his epitaph transcribed by a writer in
the Historical Collections, it appears that he was at differ-
1 Judge Lawrence belonged to Groton, but I have found no memorial of him.
43
338 JUDICIAL HISTORY. [Ch. 13.
ent times a Judge of Admiralty, Treasurer of the Pro-
vince, Colonel of a Regiment, and for many years a
member of the Council. If the statement in regard to his
connexion with the Court of Admiralty be correct, it must
have been either as Deputy Judge, which is very probable,
or he could have held the office only for a brief period.
Under the colony charter, he was a member of the
House of Representatives from 1683, to 1686, and at the
time of the Revolution in 1689, he was constituted one of
the committee of safety who assumed the government,
until the old charter was resumed.
He was named of the Council in the new charter, and
continued a member of that body until 1716, when he
seems to have left public life, probably on account of his
age, being then 85 years of age. He however survived
until March 20, 1725, when he died at the age of 94.
JAMES RUSSELL was also of Charlestown, and was the
son of Richard Russell, the ancestor of the family of this
name which has produced many public spirited and dis-
tinguished men. He was born October 4, 1640, and mar-
ried a daughter of Governor Haynes. He was a represen-
tative and one of the assistants under the old charter, and
was one of the council of safety, at the deposition of
Governor Andros.
Under the new charter he was named as one of the
Council, and was at one time Treasurer of the province.
He died April 28, 1709, aged 68.
JOSEPH LYNDE was born in Charlestown, in June, 1636,
and represented that town several years under the colony
charter. He was also an assistant under that charter, and
when the people assumed the government in 1689, he
was made one of the committee of safety.
Under the new charter he was named as a Counsellor,
and was constituted one of the first Judges of the Court
Cll. 13.] JUDGES OF THE COMMON PLEAS. 339
of Common Pleas in Middlesex, which office he held until
1719. He died at the age of 90, January 29, 1727.
SAMUEL HAYMAN, as stated by Farmer, was of Water-
town, and was named as a member of the Council in the
province charter. He had been a representative under
the colony charter in 1690, but I have been unable to find
any other notice of him besides his connexion with this
court. He must have removed from Charlestown to Wa-
tertown after 1692, for he represented the former in 1690,
and in 1692.
JONATHAN TYNG. The only information I have obtained
of Judge Tyng, is derived from very brief notices of him
which are to be found in Farmer's Register, and in the
Collections of the Massachusetts Historical Society. From
these, it appears that he was the oldest son of Edmund
Tyng, the ancestor of the families of this name in New
England. He was born in 1642, and married a daughter
of Hezekiah Usher, a prominent family in the colony.
He was the grand-father of Judge John Tyng, of Tyngs-
boro', who was distinguished among other things, for his
great eccentricity of character. One of his sisters married
Vice President Willard of Cambridge College, and another
Governor Joseph Dudley.
His brother Edward, as well as himself, were members
both of Dudley's and Andros' Councils, but neither of
them were named of the Council in the charter of William
and Mary.
Upon Dudley's coming into power in 1702, he commis-
sioned the subject of this notice as Judge of the Court of
Common Pleas, which place he held until 1719.
He is called by Farmer, " of Woburn, a magistrate and a
man of influence." He died at the age of 82, Jan. 19, 1724,
FRANCIS FOXCROFT was of Cambridge. Few memori-
als are left of him, but among them is the very creditable
340 JUDICIAL HISTORY. [Ch. 13.
fact that he was decidedly opposed to the witchcraft ma-
nia that prevailed in 1692, and disapproved of the pro-
ceedings against its unfortunate victims.
He was in commission as a magistrate under Andros,
and rendered his name somewhat famous for having issued
a warrant to arrest and imprison a Mr. Winslow, who
brought from Virginia a copy of the Prince of Orange's
declaration on his landing in England. The charge
against the prisoner was the " bringing into the country a
traitorous and treasonable libel." The revolution shortly
after followed, and nothing more was heard of the prose-
cution.
From an address to King William soon after his acces-
sion to the throne, signed by Judge Foxcroft as one of the
church wardens of the Episcopal Church in Boston, it
would seem that he was no friend to this revolution.
" We have lately," says the petition, " to our great hor-
ror and amazement, been forced to behold a well estab-
lished and orderly government here subverted and over-
thrown," &c. &c. " And all this by a party of pretended
zealous and godly men moved upon by no other grounds or
reasons but their own ill principles, malice and envy, being
more fond and regardful of the former charter government
(famous for nothing but their mal-administration and cruel
persecutions of all persons differing from them in matters
of religion only,) than of their duty and allegiance to your
majesty," &c.
Although language and sentiments like these, were but
little calculated to win popular favor, he seems to have
been remembered by Governor Dudley, who never forgot
his enemies if he did not always remember his friends,
who rewarded him with a place on the bench of this court
which he held till 1719.
He left two sons, one of them the popular minister of
Ch. 13.] JUDGES OF THE COMMON PLEAS. 341
the first church in Boston, and the other afterwards, a
Judge of the same court of which his father had himself
been a member.
He died in January, 1728, in the 71st year of his age.
JONATHAN REMINGTON has already been noticed in his
connexion with the Superior Court.
Of JONATHAN DOWSE I have learned nothing except that
he resided in Charlestown and was connected with this
court as already stated, and a part of the time its Chief
Justice.
CHARLES CHAMBERS was the grand-father of Chambers
Russell, a Judge of the Superior Court. But beyond
this fact I have discovered little of his history. He be-
longed to Charlestown and resigned his place upon the
bench in 1739.
FRANCIS FULLAM was of Weston, and held many public
offices besides that of Chief Justice of this court, such as
Colonel in the Militia, member of the Council, &c. He re-
signed his place upon the bench a few years before his
death. This took place January 18. 1758, at the age of
87. He is spoken of as a man of " distinguished natural
powers and good conduct," and as " having discharged the
duties of his several betrustments with honor, and died
with the serenity and good hope of a Christian."
THOMAS GREAVES and CHAMBERS RUSSELL, have been no-
ticed in their connexion with the the Superior Court.
FRANCIS FOXCROFT was the son of Judge Foxcroft, al-
ready mentioned, and was born in 1693. He was gradu-
ated at Cambridge in 1712, His original appointment to
the Court of Common Pleas was limited to the time that
Judge Greaves should remain upon the bench of the Supe-
rior Court, but he continued to hold the place for nearly
thirty years.
342 JUDICIAL HISTORY. [Ch. 13.
He was also Judge of Probate for Middlesex. He died
at the age of 75 on the 28th of March, 1768.
His place of residence was in Cambridge. " He sus-
tained many posts of public trust, honor and importance,
and in them all his integrity and uprightness ever pre-
served him."
SAMUEL DANFORTH was the son of John Danforth, minis-
ter of Dorchester, and was graduated at Cambridge, in
1715. He was Judge of Probate as well as of the Court
of Common Pleas in Middlesex, and was named a Manda-
mus Counsellor in 1774. He had been for many years a
member of the Council and resided at Cambridge. Not-
withstanding Judge Danforth filled an important place in
the affairs of the province, and was long in public life, it is
difficult now to trace his connexion with the events of the
day.
His adherence to the cause of the King was unfortunate
for the quiet of his declining years, and, for the time being,
brought great odium upon his name. And yet he seems
to have been either a moderate or a timid politician, for
after having taken the oath of office as one of the Manda-
mus Counsellors, he publicly declared his determination
not to act under his commission.
A convention of Middlesex County was held in August,
1779, and among their resolutions was one reciting that
whereas Samuel Danforth and Joseph Lee had accepted
commissions under the then late act, " we therefore look
upon them as utterly incapable of holding any office
whatever." The resolution closed with the expression of
a determination " not to submit to courts thus constituted."
Judge Danforth held his place on the bench until the
Revolution, and died October 2, 1777, at the age of 81.
He was the father of the late Dr. Samuel Danforth of Bos-
ton who died in 1827.
Ch. 13.] JUDGES OF THE COMMON PLEAS. 343
ANDREW BOARDMAN was of Cambridge frequently rep-
resented that town in the General Court, and was also
Register of Probate for Middlesex County. He died May
20, 1769.
JOHN TYNG belonged to that part of Dunstable which
was afterwards called Tyngsboro'. He died April 18,
1797, at the age of 93, and was buried in his own gar-
den. He was the only one of the Judges on the bench of
this court at the Revolution who was re-nominated under
the new order of government. He continued upon the
bench until 1786.
Judge Tyng was a graduate of Harvard in 1725, was
long in public life, and held offices both civil and military,
having been at one time a Colonel of a Regiment. He
was distinguished as the " eccentric Judge Tyng," but
the grounds of this characteristic distinction are not suffi-
ciently understood to be repeated here.
He seems to have been a citizen of Boston before re-
moving to Dunstable, and to have represented that town
in the legislature during the term of ten years, the last of
which was 1759.
RICHARD FOSTER was of Charlestown. He was more
than forty years Sheriff of the County of Middlesex, and
upon resigning that place was appointed to the bench of
this court. He received the office of Judge in May, 1771,
and died August, 1774, at the age of 82.
In a notice of his death by a coternporary, he is said to
have performed the many important trusts which were
committed to him " with honor and approbation."
JOSEPH LEE was a graduate of Cambridge in the year
1729, and died December 5, 1782. He resided at Cam-
bridge and was named as one of the Mandamus Counsellors
in 1774. Although he took the oath of office under his
appointment, he soon shrunk from the odium which was
344 JUDICIAL HISTORY. [Ch. 13.
excited against all who consented to hold the office of
Counsellor under a commission from the crown, and re-
signed the place. He continued however to hold his office
as Judge of this court, until the Revolution.
JAMES RUSSELL was the last who was commissioned as
a Judge of this court before the Revolution, and was the
successor of Judge Foster. He belonged to Charlestown,
which was his native place, and was bom August 5, 1715.
He was brother of Chambers Russell already mentioned.
He represented the town of Charlestown in the legisla-
ture thirteen years, beginning in 1746, and was subse-
quently a member of the Council.
He married a daughter of Judge Greaves, and was the
father of the Honorable Thomas Russell, formerly of
Boston, a distinguished merchant and a public benefactor.
At the time of the invasion of Charlestown by the Brit-
ish troops, he removed to Dunstable, and subsequently to
Lincoln, where he continued to reside several years. He
afterwards returned to Charlestown, where he died in 1798,
at the age of 83.
The last term of this court was held May 21, 1774.
The court was then adjourned to the second Tuesday of
September, when it was again adjourned to the 18th of
October, and afterwards to the 15th of November, 1774.
From that time till the second Tuesday of March, 1776,
no attempt was made to hold a term of the court, nor was
a term held until the 21st of May, of the latter year. The
court then convened under the authority of the Provincial
Government, and resumed the duties of administering Jus-
tice for the county of Middlesex.
ESSEX COUNTY.
The first term of this Court under the Charter was held
December 27, 1692. The succession of Judges upon the
Ch. 13.] JUDGES OF THE COMMON PLEAS. 345
bench from that time to the Revolution, so far as ascer-
tained, was as follows.
BARTHOLOMEW GEDNEY, 1692, to February 28, 1698.
John Hathorne, 1692, to 1702.
Samuel Appleton, 1692, to May 15, 1696.
Jonathan Corwin, 1692, to 1708.
William Brown, 1696, to 1715.
Daniel Pierce, 1698, to 1704.
NATHANIEL SALTONSTAL, 1702, to 1707.
JOHN APPLETON, 1704; to 1732.
Thomas Noyes, 1707, to about 1725.
John Higginson, 1708, to 1720.
SAMUEL BROWN, 1715, to 1731.
John Burrill, 1720, to 1721.
Josiah Walcott, 1722, to 1729.
TIMOTHY LINDALL, 1729, tc 1754.
John Wainwright, 1729, to 1739.
Theophilus Burrill, 1733, to 1737. 3
THOMAS $ERRY, 1733, to 1756.
Benjamin Marston, 1737, to 1754.
Benjamin Lynde, Jr., 1739, to 1746.
JOHN CHOATE, 1746, to 1766.
Henry Gibbs, 1754, to 1759.
John Tasker, 1755, to 1761.
Benjamin Pickman, September 14, 1756, to 1761.
CALEB GUSHING, 1759, to Revolution.
Stephen Higginson, 1761, to October 12, 1761.
NATHANIEL ROPES, 1761, to 1772.
Andrew Oliver, 1761, to Revolution.
William Bourn, 1766, to 1770.
William Brown, 1770, to 1774. T
Peter Frye, 1772, to Revolution.
A commission issued October 28, 1775, to
JOHN LOWELL, Benjamin Greerileaf,
Caleb Gushing, Azor Orne.
1 Afterwards Judge of the Superior Court.
44
346 JUDICIAL HISTORY. [Ch. 13.
Of the Judges of the Court of Common Pleas in this Coun-
ty I have already noticed in other parts of this work Bar-
tholomew Gedney, John Hathorne, Jonathan Curwin, Na-
thaniel Saltonstal, Benjamin Lynde, Jr., Nathaniel Ropes,
and William Brown, and shall not therefore again refer to
them in their connexion with this court.
SAMUEL APPLETON was born in England, Suffolk Coun-
ty, in 1625, and is supposed to have come to New Eng-
land with his father in 1635. He resided in Ipswich, and
was for many years a member of the House of Deputies,
and subsequently was five years of the Board of assistants.
He held a conspicuous rank as a military man, and
commanded an expedition in Philip's war, in 1675. It
was engaged in the memorable attack upon the Narragan-
sett fort, in December, of that year, by the Plymouth,
Massachusetts and Connecticut forces, under the general
command of Governor Winslow, in which the power of
that tribe was effectually broken and subdued. More
than a thousand of the enemy are said to have fallen on
that occasion. He was named in the new charter as one
of the Council, and was placed upon the first Bench of
Judges of the Court of Common Pleas for Essex County,
which place he held until his death, May 15, 1696, at the
age of seventy years.
He was a brother of John Appleton, who was selected
as one of the objects of Andros' revenge for the offence of
the town of Ipswich, to which allusion has heretofore been
made.
A nephew of Judge Appleton was, subsequently, a Judge
of the same court, and among his descendants have been
the distinguished President of Bowdoin College and some
of the most eminent and respectable families in Boston.
DANIEL PIERCE was of Newbury. He frequently repre-
Cll. 13.] JUDGES OF THE COMMON PLEAS. 347
sented that town in the General Court, and held the office
of Colonel in the Militia of the Colony.
At the Revolution in 1689, he was appointed one of the
committee of safety who took charge of the affairs of the
government. He died January 22, 1704, and if his epi-
taph may be taken as a true testimonial of character, he
deservedly stood high in the public estimation.
"Here lies interred a soul indeed
Whom few or none excell'd,
In grace, if any him exceed,
He'll be unparalell'd."
WILLIAM BROWN was of Salem, was born in 1639, and
was the son of the Honorable William Brown ; a descend-
ent of the same name was upon the bench of the Superior
Court at the commencement of the Revolution. He was
a man of great influence in the Colony and Province, and
had been a member both of the House of Deputies and of
the Council. At the Revolution in 1689, he took the pop-
ular side of the controversy, and was made one of the
committee of safety. He was withal a man of great
wealth, and munificient in his private charities and public
benefactions.
He died at the age of 78, February 14, 1716, in the
language of the historian of Salem, u full of years, useful-
ness and honors." His daughter was the wife of Chief
Justice Lynde, the elder.
JOHN APPLETON was of Ipswich. He was born in 1652,
and was the son of John Appleton, who was imprisoned
by Governor Andros. He married a daughter of President
Rogers of Harvard College, and his daughter married Pres-
ident Holyoke. He represented the town of Ipswich in
the General Court as early as 1697, and from 1698, to
1723, was a member of the Council.
He also held a military commission and commanded a
348 JUDICIAL HISTORY. [Oil. 13.
regiment in the unfortunate expedition against Port Royal
in 1707.
He was removed from the bench in 1732, by Governor
Belcher, who had some apology for the measure in the ad-
vanced age of Judge Appleton, as he was then eighty years
old. He however was made Judge of Probate the follow-
ing year, and survived until 1739, when he died at the
age of 87.
He had filled so many important places in public life,
and his public and private virtues were so generally known,
that his death was commemorated by eulogies and ser-
mons from many of the clergymen of the province.
THOMAS NOTES was of Newbury, and had all the quali-
fications of a Judge which could result from his having
been a captain in the Militia, and a representative in the
General Court, and a member of the Council.
He died April 12, 1730, in the 82d year of his age.
JOHN HIGGINSON was the son of the Reverend Mr. Hig-
ginson of Salem, where he himself resided.
His business was that of a merchant, but he took an
active part in the public affairs of his time, and held many
important civil and military offices. He was at different
times, a member of the House of Representatives and of
the Council.
In 1709, he was the member of a committee to prepare
a chart of the River St. Lawrence, with a view to aid a
projected expedition against Canada, and he was selected
as a guide in prosecuting the enterprise. The expedition
failed altogether.
As Colonel of a regiment, however, he was more than
once engaged in actual service against the enemy.
His life was one of great activity and usefulness, and
he filled other places of honor and trust than those already
enumerated. They had no connexion however with his
Ch. 13.] JUDGES OF THE COMMON PLEAS. 349
character as Judge, and are therefore omitted. He died
in 1720, at the age of 73.
SAMUEL BROWN was the son of Judge William Brown
already noticed, and was born October 8, 1669. His fam-
ily influence and his wealth, as well as the ability with
which he performed the duties of the offices which he
was called to fill, gave him a high rank in the province.
He often represented his native place, Salem, in the Gen-
eral Court, and, for many years, was a member of the
Council.
Like the other leading men of his day, he was ambitious
of military rank, and rose to the command of a regiment.
He was a distinguished friend and patron of the cause
of education, and was no less respected in private life,
than honored as a public man. Having succeeded his
father upon the bench of the Common Pleas in 1715, he
retained his connexion with the court until his death,
having for many of the last years of his life, been Chief
Justice of the court. He died at the age of 62, June 16,
1731. . Sf !.: I "";,-,... 7 }\>\.-
JOHN BURRILL was of Lynn, in which town he was
born October, 1658. He represented that town twenty
one years, during ten of which he was Speaker of the
House. As presiding officer of that body he possessed
great popularity, and was admired as well for his affable
manners and dignified deportment, as for the purity of his
life. 1 In 1720, he was chosen a member of the Council,
and was succeeded by Elisha Cooke as Speaker of the
House. He was an universal favorite with all who knew
him, and his death was greatly lamented. He died of the
small pox, December 10, 1721, leaving no children. A
younger brother of his was the ancestor of the Honorable
1 Hutchinson says, " the House had been as fond of this Mr. Burrill as of
their eyes."
o
50 JUDICIAL HISTORY. [CH. 1 3.
James Bnrrill, the late distinguished Senator from Rhode
Island in Congress.
JOSIAH WALCOTT was a merchant of Salem. Besides
his connexion with this court and his having represented
Salem in the General Court, little is known of his public
or private life.
He died February 2d, 1729. He was, says Mr. Felt,
"extensively useful and much respected/ 3
TIMOTHY LINDALL was born at Salem, November 4,
1677, and was graduated at Cambridge, in 1695. He
was many years a member of the House of Representa-
tives from Salem, and in 1720, was chosen Speaker of that
body in the place of Mr. Cooke whose election the Gover-
nor had negatived. He declined re-election the following
year. He was also for many years a member of the Coun-
cil. He was not a zealous partisan in politics, and seems
to have shared to a good degree, the confidence of both
the parties into which the people of the province were
then divided. He died October 25, 1760, at the advanced
age of 84 years.
He was an ancestor of the Honorable Thomas L. Win-
throp, formerly Lieutenant Governor of the commonwealth.
JOHN WAINWRIGHT was of Ipswich, and was a merchant.
He was born in 1691, and was graduated at Cambridge,
in 1 709. He was frequently a representative, and for eight
years clerk of the House. He was often employed in a
public capacity, and, among other commissions, which he
was appointed to execute, was that of treating with the
Indians in Maine in 1725. He held the office of Colonel
of a Regiment of Militia which seems to have been re-
garded as an office of much distinction, and only conferred
upon the leading men in the province.
He died at the early age of 48, in the midst of his use-
fulness and his honors, September 1, 1739.
Ch. 13.] JUDGES OF THE COMMON PLEAS. 351
THEOPHILUS BURRILL, I suppose, belonged to Lynn, and
was a nephew of Judge John Burrill. If so, he was born
May 21, 1709, but I have learned nothing more of his his-
tory except his connexion with this court, and that his
death, as I suppose, took place in 1737.
THOMAS BERRY was a physician of Ipswich. He was
a native of Boston, was graduated at Cambridge, in 1712,
and studied his profession with Judge Greaves of Charles-
town, who was a physician. He removed to Ipswich in
1686. He had the requisite qualifications as a Judge, of
having been a Representative, a Counsellor and a Colonel.
He was Judge of Probate as well as of the Court of Com-
mon Pleas in Essex.
Amidst all his public employments he continued his
practice as a physician, which was very extensive, and
found time to peform his various duties with faithfulness
and success. He died August 10, 1756.
BENJAMIN MARSTON was born in Salem, and after re-
siding there many years he removed to Manchester, where
he died in 1754. He had represented Salem in the Gen-
eral Court before his removal, and for some years pre-
vious to his promotion to the bench, had been sheriff of
the county of Essex. He married a daughter of Judge
Isaac Winslow of Marshfield.
JOHN CHOATE belonged to Ipswich, and at the time of
his elevation to the Court of Common Pleas, possessed all
the qualifications, civil and military, which seem to have
been regarded in selecting the Judges for this court.
Thus he had been a Representative, a Colonel and
Counsellor, and in addition to these was made a Judge of
Probate and Chief Justice of the Court of Common Pleas.
He retained his judicial offices and honors until his death
in 1766.
352 JUDICIAL, HISTORY. [Ch. 13.
HENRY GIBBS was a native of Watertown, and was
born May 1709. He was graduated at Cambridge, in
1726, and settled in Salem, where he became a merchant.
He married a daughter of Secretary Willard for his second
wife. The last year of his life, he represented Salem, in
the General Court, and was clerk of the House. He died
at Boston, February 1759, while engaged in his legisla-
tive duties. He retained his place upon the bench until
his death.
JOHN TASKER was of Marblehead. He retained his
office as Judge until his death, November 9, 1761, and at
the time of his death, was a representative in the General
Court from Marblehead.
BENJAMIN PICKMAN was a merchant, and resided in Sa-
lem, where he was born in 1708. He was successively a
Representative, a member of the Council, a Colonel of a
Regiment and a member of this court. He left the bench
in 1761, and died August 20, 1774.
CALEB GUSHING belonged to Salisbury, and remained
upon the bench until the Revolution, and after the court
had been re- organized, he became its Chief Justice. He
was a member of the Council that was chosen immediately
before the Revolution, and as such, by invitation from the
first Provincial Congress, met and acted with that body.
STEPHEN HIGGINSON belonged to Salem, and was born
July 1716. He held the office of Judge only about three
months. He died October 12, 1761, at the early age of
45.
ANDREW OLIVER belonged to Salem, and was much more
eminent in private life, as a scholar and a man of science,
than as a politician. He however was frequently called
to represent his town in the General Court, and was
named as one of the " Mandamus Counsellors," appointed
by the Crown. So great was the odium in which this
Cll. 13.] JUDGES OF THE COMMON PLEAS. 353
office of counsellor was held, that he resigned the appoint-
ment.
He was a son of Lieutenant Governor Oliver, and neph-
ew of the Chief Justice of that name. He was graduated
at Cambridge in 1749, and through life cultivated a
taste for letters. He was one of the founders of the Amer-
ican Academy of Arts arid Sciences, and contributed many
of the valuable articles which are contained in the first
volume of the transactions of that Society.
He was also a member of the Philosophical Society of
Philadelphia. He published an u Essay on Comets," in
1772, which gained him much reputation. He died in
1799, at the age of 68. He remained upon the the bench
of the Court of Common Pleas until the Revolution, but
his political opinions probably were not congenial to the
popular feeling of the day, and he ceased to take any part
in public affairs after the overthrow of the royal govern-
ment.
WILLIAM BOURN was a son of Sylvanus Bourn of Barn-
stable, and was graduated at Cambridge in 1743. He
settled in Marblehead, and died there at the early age of
47, August 12, 1770. - ' . . ' ' ' '".^"
He left a high reputation for private worth and social
virtues, as well as for faithfulness and ability in the per-
formance of his many public duties.
PETER FRYE was born in Andover, in 1723, and was
graduated at Cambridge in 1744. In 1755, he became
the teacher of the grammar school in Salem, where he af-
terwards resided. He held at one time or another the
offices of Colonel of a Regiment, Register of Probate and
Collector of the Excise.
Notwithstanding tho commanding influence which he
once exercised in the county, he found it necessary to leave
the country at the Revolution on account of his political
45
354 JUDICIAL HISTORY. [Ch. 13.
sentiments. He went to England where he resided near
London, until his death in 1820, at the advanced age
of 98.
The last appointment that I have found, of Judges to
this court, bears date January 15, 1772, and embraces
Caleb Gushing as Chief Justice, Andrew Oliver, William
Brown and Peter Frye. The vacancy created by the
promotion of Judge Brown to the Superior Court seems
not to have been supplied, and Gushing, Oliver and Frye
consequently constituted the last bench of Judges of this
court before the Revolution.
The Judges commissioned in 1775, as before stated, if
they acted under their appointments, held their offices for a
short time only, for in 1779, the court consisted of Caleb
Gushing, Chief Justice, Benjamin Greenleafof Newbury-
port, Timothy Pickering of Salem, and Samuel Holten of
Danvers, Associate Judges.
PLYMOUTH COUNTY.
The first term of this court, held under the charter, 1
which appears from its records, was in June, 1702. For
the eleven successive years the names of the Judges do
not appear upon the records, so that possibly, the names
of all who constituted this court during the Provincial
government, may not be contained in the following list of
Judges. 2
1 It is probable that until 1702, the organization of the courts in the Old
Colony, known as the Associate Courts, were continued. These were orig-
inally established in 1685, in the Counties of Plymouth and Bristol. During
the administration of Andros they assumed the name of Courts of Common
Pleas. In 1689 the Associate Courts were restored, and the Judges appointed
for Plymouth, were Nathaniel Thomas, Ephraim Morton, and Thomas How-
ard, and these were again appointed in 1690 and 1691. (Baylies.)
2 For the list and residence of the Judges of this county, I am indebted to
the politeness of J. B. Thomas, Esq. Clerk of the courts in Plymouth, who
Ch. 13.J JUDGES OF THE COMMON PLEAS. 355
NATHANIEL THOMAS, 1702, to 1712.
JOHN CUSHING, 1702, to 1728.
James Warren, 1702, to 1714.
Joseph Otis, 1703, to 1714.
ISAAC WINSLOW, 1712, to 1738.
NATHANIEL THOMAS, 1715 to 1738.
Seth Arnold, 1717, to 1721.
ISAAC LOTHROP, 1721, to 1731, 1739, to 1743.
Josiah Cotton, 1729, to 1747.
NICHOLAS SEVER, 1731, to 1762.
John Gushing, 1738, to 1747.
Thomas Clapp, 1743, to 1770.
Peter Oliver, December 12, 1747, to 1756.
Isaac Lothrop, 1748, to 1749.
Elijah Gushing, 1751, to 1762.
Thomas Foster, 1756, to 1774, Revolution.
John Winslow, 1762, to 1774.
Gamaliel Bradford, 1762, to 1774, Revolution.
Josiah Edso7i, 1771, to 1774, Revolution.
Of the foregoing names, Nathaniel Thomas, both the
John Oushings and Peter Oliver, have been noticed in
their connexion with the Superior Court.
JAMES WARREN was of Plymouth, and his connexion
with the court continued from June, 1702, to June, 1714.
He was the grand-father of Honorable James Warren of
Revolutionary memory. He died in May, 1715. His son
James was many years sheriff of the county of Plymouth.
He was a lineal descendant from Richard Warren who
came over in the May Flower His death occurred very
suddenly while on his way to attend the General Court of
which he was a member. He is spoken of by his cotem-
poraries as "a gentleman of great integrity and capacity,
and one whose loss was universally lamented."
gratuitously examined the records of the court for the purpose, although the
favor of the information was asked by one who had no other claims upon his
kindness than those of a stranger.
356 JUDICIAL HISTORY. [CH. 13.
JOSEPH OTJS was of Scituate, and is probably the one
mentioned by Mr. Dean, the Historian of that town, as
having been the son of John Otis, and born in 1675. He
was of the family, a branch of which settled at Barnstable,
and from which James Otis, Jr. was descended.
ISAAC WINSLOW was of Marshfield, and was the only
son of Governor Josiah Winslow. He was appointed
Judge of this court in 1712, and was promoted to the place
of Chief Justice in 1728. In 1718, he was also appointed
Judge of Probate for the county of Plymouth.
He resigned his office of Chief Justice in May, 1738,
and died in December, of the same year, at the age of 67.
He is said by Dr. Elliot to have been the principal military
officer in the colony.
In an obituary notice of him, published in the Boston
Evening Post, he is represented as having been a man of
great integrity, fortitude and humanity, of singular mod-
esty, uncommon generosity, and possessing universal
confidence and esteem. He was for more than 30 years
a member of the Council.
NATHANIEL THOMAS was the son of Judge Thomas of
the Superior Court, and succeeded Judge Winslow as
Chief Justice of this court. He belonged to Plymouth,
and died at his son's house in Plympton, while upon a
visit there in Feburary, 1739, at the age of 75.
In the cotemporary notices of his death he is honorably
mentioned as having acquitted himself with justice and
integrity in the performance of his various official duties.
SETH ARNOLD, I suppose, belonged to Duxbury, and was
the son of the Rev. Mr. Arnold of Marshfield.
ISAAC LOTHROP was of Plymouth, arid passed through
the various grades of civil and military rank till he arrived
at the place of Chief Justice of the Court of Common
Pleas in the one, and that of Colonel in the other. He
Ch. 13.] JUDGES OF THE COMMON PLEAS. 357
had been a member of the Council and sheriff of the coun-
ty, and, in the language of a writer in the Evening Post,
"in all posts of trust he behaved with great fidelity, and
to good acceptance."
He died September 10, 1743, in the 71st year of his age.
JOSIAH COTTON was of Plymouth, and was the son of
the Rev. John Cotton of that town, whose father was the
distinguished clergyman of Boston of the same name. He
was born January 8, 1679, arid was graduated at Cam-
bridge, in 1698. He then engaged in teaching school in
Marblehead, where he studied divinity and preached for
about two years.
In 1704, he returned to Plymouth, and pursued the em-
ployment of a teacher for seven years. He occasionally
preached to the Indians in Plymouth and the vicinity in
their own tongue, which he had acquired. He held at one
time or another a great variety of civil offices, such as
Clerk of the Court of Common Pleas, Register of Deeds,
Register of Probate and Judge of this Court, and died in
1756, at the age of 76 years.
He is said by the Historian of Plymouth, from whose
work I have collected this sketch, to have possessed a
strong and sound mind to have been fervently pious and
indefatigable in the discharge of all the duties of his va-
rious and honorable stations in life.
His daughter was the mother of Chief Justice William
dishing, and a son succeeded him in the office of Register
of Deeds for the county of Plymouth.
NICHOLAS SEVER belonged to Kingston, and was at one
time Chief Justice of this court. He was originally from
Roxbury and was graduated at Cambridge, in 1701. He
studied theology, and at one time preached as a candidate
for settlement in Haverhill, where he received "a call."
He was afterwards settled in Dover, New Hampshire,
358 JUDICIAL HISTORY. [Ch. 13.
from 1711, to 1715. He then removed to Plymouth
county, where he continued to reside until his death. He
died April 7, 1764, at the age of 84.
His son, Honorable William Sever, was for some years
Judge of Probate for the county of Plymouth.
THOMAS CLAPP belonged to Scituate, and from Mr.
Dean's history of that town, I have derived the following
facts in relation to his history. He was born in Scituate,
in 1705, and was graduated at Cambridge, in 1725.
He studied theology, and was settled as a minister over
the first church in Taunton. After a few years he re-
moved to Scituate, where his taste seems to have taken a
more warlike turn, for we find him at the head of a regi-
ment with a Colonel's commission. Whether this pre-
pared him for the bench, or his judicial duties fitted him
for those of the field, it does not appear. He held both
these offices, and continued to hold that of Judge for nearly
thirty years. He married for his first wife, a daughter of
Judge George Leonard of Norton, and for his second, a
daughter of Honorable John Chandler of Worcester.
ISAAC LOTHROP was a son of Judge Lothrop, already
mentioned, and a merchant in Plymouth. He was a man
of great influence in his day, and enjoyed to a high degree,
the public confidence and respect. He died at the early
age of 43, on the 26th of April, 1750. His associates
upon the bench pronounced eulogies upon his character,
in which they expressed the highest regard for his mem-
ory, as an upright Judge, and a virtuous and honorable
man.
The inscription upon his monument exhibits his char-
acter as that of an " unbiassed Judge," a "faithful officer," 1
a " sincere friend," and "an honest man," and adds,
1 He was Lieutenant Colonel of a Regiment.
Ch. 13. j JUDGES OF THE COMMON PLEAS. 359
" Had virtue's charms the power to save
Its faithful votaries from the grave,
This stone had ne'er possessed the fame,
Of being marked with Lothrop's name."
ELIJAH GUSHING, I suppose, from a note in Dean's His-
tory of Scituate, was a son of Judge John Gushing the 2d.
He resided in Pembroke. His son Joseph, was afterwards
Judge of Probate for this county, and a daughter married
the distinguished General Lincoln, of the Revolutionary
army.
He died very suddenly, while on a visit at Boston, June
26, 1762, at the age of 64. " He was always conspicu-
ous," says a writer in the Evening Post, " for fidelity and
perseverance in the discharge of the various duties of his
posts, civil and military." His character is spoken of as
highly estimable, both in private and public life.
THOMAS FOSTER belonged to Plymouth, and was, as I
suppose, a son of Deacon Thomas Poster. He taught
school in that town for some years after 1749. He was
liberally educated, having been graduated at Cambridge.
I have learned little of his history, but if the Judge was
the person supposed, he died in 1777, at the age of 74.
JOHN WINSLOW. The name of General Winslow, fills so
considerable a space in the history of Massachusetts, that
he seems to deserve a particular notice among the Judges
of her courts, although little is known of him in that con-
nection.
He was the presiding Justice of the Court of Common
Pleas in his native county of Plymouth, for the term of
twelve years, and held that office at the time of his death.
He was of the family of Governor Winslow, and was
born in Marshfield, in 1703. His father, Isaac Winslow,
who was a son of the Governor, had been Chief Justice
of the same court for the term of ten years, and left the
bench in 1738.
360 JUDICIAL HISTORY. [Ch. 13.
General Winslow was educated as a merchant, and pur-
sued mercantile business as a means of livelihood.
Early in life, however, he became connected with pub-
lic affairs, and among other offices, he was for some time
Register of Probate for the county of Plymouth.
Soon after this appointment he was commissioned as a
military officer, and entered upon a brilliant and successful
career. An expedition was fitted out under the direction
of the crown, against Cuba, then, as now, under the gov-
ernment of Spain, and the command of a company was
on that occasion given to Mr. Winslow. He took an ac-
tive part in the enterprise, but it altogether failed. The
troops belonging to the British army, were attacked and
swept off by disease to such a degree, that of the five hun-
dred men who had been furnished by Massachusetts, fifty
only returned from this disastrous campaign.
In 1744, he was in command of a company which
formed a part of an expedition then fitted out against the
French in Nova Scotia, and ten years afterwards he led an
expedition against the Indians in the eastern part of
Maine.
In these various enterprises, his courage and conduct
had been such as to secure him general confidence, and
when, in the year 1755, it was desirable to raise a new
army to carry on the war with the French, General Wins-
low, who held the rank of Lieutenant Colonel in the ex-
pedition, was able to enlist two thousand men in the space
of two months.
The enterprise in which he now bore a part, was among
the most memorable in the annals of New England, not
so much on account of the magnitude of its consequences,
as the incidents that marked its progress.
The whole expedition was put under the general com-
mand of Colonel Monckton, but the chief responsibility
Ch. 13.] JUDGES OF THE COMMON PLEAS. 361
rested upon Lieutenant Colonel Winslow, who was at the
head of the provincial troops.
The destination of this army was Nova Scotia, which
was claimed by Great Britain, under the treaty of Utrecht.
The inhabitants of a considerable portion of the coun-
try were French, who had been suffered to retain their
property and religion, under an understanding that they
would in the case of a war with France remain neutral.
They were accordingly known as the " French Neutrals,"
and the early history of Massachusetts contains frequent
references to them as a people.
From a real or supposed violation of their neutrality,
and the danger which was apprehended from their num-
ber and concert of action, it was thought to be necessary
to remove them from the country, arid to scatter them
through the English colonies.
The execution of this severe, not to say odious meas-
ure, devolved upon General Winslow, whose good judg-
ment, forbearance and lenity in performing so ungracious
a duty, met with universal approbation.
There was in the character and manners of this people
more of romance than ordinarily is found in civilized life.
They realized the poet's dream of Arcadian simplicity,
honesty, happiness and contentment. Attached to their
religion, fond beyond measure of their homes, possessed
of comfortable if not independent estates in their well cul-
tivated arid well stocked farms, they formed a most inter-
esting community.
As nothing but stratagem could avail in inducing them
to bring themselves within the power of the invading
army, that was resorted to, and about five hundred men
in the district of Minas were thus seized. The families
of these were also secured, making a total of nearly two
thousand persons in that district alone. To prevent any
46
362 JUDICIAL HISTORY. [Ch. 13.
escape the country was laid waste by fire. There were
more than two hundred and fifty houses burned in a single
district.
The historian of Nova Scotia, 1 describing this scene,
says, the soldiery " stationed in the midst of a beautiful
and fertile country, suddenly found themselves without a
foe to subdue and without population to protect.
" The volumes of smoke which the half expiring em-
bers emitted, while they marked the site of the peasant's
humble cottage, bore testimony to the extent of destruc-
tion.
" For several successive evenings the cattle assembled
around the smouldering ruins, as if in anxious expectation
of their masters, while all night long the faithful watch-
dogs of the Neutrals howled over the scene of desolation,
and mourned alike the hand that fed, and the house that
sheltered them."
The whole population were forced on board ships and
carried off into exile. More than a thousand were dis-
tributed through Massachusetts, being divided among the
towns and supported for a while at the public charge.
But they were never reconciled to their state of bondage
and dependence, and never mingled with the inhabitants
or became incorporated with them. Many of them died,
and some returned at last to their former homes, and their
history is lost.
General Winslow having executed this unpleasant com-
mission, returned to Massachusetts in disgust at the treat-
ment to which the provincial troops were subjected by the
officers of the regular army.
He did not however long remain inactive. War was
then raging all along the frontier settlements. The year
1 Halliburton.
Ch. 13.J JUDGES OF THE COMMON PLEAS. 363
IV,
1755, became memorable not only by the defeat of Gen-
eral Braddock, but by disasters upon the northern frontier.
The following year General Winslow was in command of
an expedition under Lord London against Crown Point,
but accomplished little by the enterprise. He however
received on this occasion a commission as commander in
chief of the provincial troops, from the Governor of New
York.
The next year, 1757, he received from Governor Pow-
nal, the appointment of Major General of the Massachu-
setts forces, and this commission was renewed by Gover-,
nor Bernard in 1762.
Nor was it in military life only that he received marks
of public confidence. He filled many important civil
posts of honor, especially that of counsellor, which was
ever regarded as one of the most honorable in the province
under its charter form of government.
At the age of fifty-nine, without any previous prepara-
tion or study, he was made the Chief Justice of this county.
How he succeeded in his new sphere of duties or how
the stern soldier and exemplary officer was able to hold
the scales of justice between his fellow citizens, does not
appear. He retained the office till his death, May 17,
1774, at the age of 71.
His cotemporaries spoke of his character in the obituary
notices of him which have been preserved, in terms of
high eulogy, and the long time during which he retained
the public confidence seems to have justified such com-
mendations, for he was alike esteemed as a gentleman, a
soldier, and a magistrate.
GAMALIEL BRADFORD was of Duxbury, and was the
grand -father of Alden Bradford, late secretary of the Com-
monwealth, whose father was Colonel Gamaliel Bradford
of the Revolutionary Army. He represented that town
364 JUDICIAL HISTORY. [Ch. 13.
many years in the Legislature, and afterwards was for
several years, a member of the Council, having resigned his
seat at that board in 1770, on account of age and bodily
i
indisposition.
JOSIAH EDSON was of Bridgewater, and one of the Man-
damus Counsellors. He had been a deacon of the church
in that town, and a man of great influence. His political
opinions however rendered his remaining in the Province
uncomfortable, and he left it at the time of the Revolution
and went to New York, where he died soon after leaving
Massachusetts. Among the measures adopted by the peo-
ple to mark their disapprobation of his political course,
they refused to sing when, as was customary, he stood up
in church and read the psalm to the congregation, on the
Sabbath.
The last term of this court before the Revolution was
held in July, 1774.
From that time until October, 1777, there is no record
of any court having been held in this county.
A commission however had been issued on the 26th of
October, 1775, to William Sever, John Thomas, Nathan
Gushing and John Torrey.
It is doubtful whether these Judges ever acted under
their commissions, for on the 10th of April, 1777, a com-
mission was issued to Daniel Johnson, John Cotton, John
Gushing and John Turner, and still other commissions to
Peleg Wadsworth, in July, and Benjamin Willis, in Sep-
tember, of the same year.
There was therefore an entire change in the members
of this court at the time of the Revolution, and the limits
of this work preclude our extending it beyond this period.
Ch. 13.] JUDGES OF THE COMMON PLEAS. 365
BRISTOL, COUNTY.
As the records of this county are somewhat mutilated
and defective, it is possible that the names of some of its
Judges have not been discovered, and may consequently
have been omitted, in the following list. The times dur-
ing which some of them held their offices have not been
ascertained. 1
The first term of which there is any record was held
October 13, 1702, and the last term of the court was hoi-
den in June, 1774. 2
NATHANIEL BYFIELD, 1702, to 1710, and from 1716, to 1725.
John Brown, 1702, to 1709.
THOMAS LEONARD, 1702, to 1713.
Ebenezer Bronson, 1702, to 1708.
NATHANIEL PAINE, 1710, to 1729.
Benjamin Church, 1708, to 1714.
Henry Mclntosh, 1709, to 1725. , ' ...... - ,-.
Simon Davis, was upon the bench in 1713.
George Leonard, 1716.
GEORGE LEONARD, 1725, to 1730, 1733, to 1740, 1746 to Rev,.;
SETH WILLIAMS, 1724, to 1729, and from 1730 to 1760. ^ '
Samuel Vial, 1725, to 1726. ' . , , * , .
Nathaniel Hubbard, 1728, to 1745. f ' ', " ' .<
Thomas Church, 1729, to 1745. < ;. / ' ; i, .
Job Almy, 1740, to 1747. ' ' ' -'k* / ;' '
Stephen Paine, 1746, to 1749. - ; , : <>;. , :
Ephraim Leonard, 1747, to the Revolution.
Stephen Leonard, time not ascertained.
Samuel Willis, 1749, to 1760. ', v, , ,; '.(,
James Williams, 1760, to the Revolution.
ZephaniahlLeonard, 1761, to 1766.
1 For the list of Judges in this county, as well as for aid in the index to this
work, I am indebted to my friend and associate, C. W. Hartshorn, Esq., of
Worcester.
2 A court however had been commissioned in 1699, under a new arrange-
ment of which John Saffin, Thomas Leonard, Nicholas Peck, and John Brown
were Judges.
366 JUDICIAL HISTORY. [Ch. 13.
Elisha Tobey^ 1766, to Kevolution.
Timothy Poles? appointed and left the bench in 1760.
Of those who are named in the foregoing list, I have
already noticed Nathaniel By field, Nathaniel Hubbard,
and John Saffin.
NICHOLAS PECK belonged to Rehoboth,but I have learned
little of his history beyond his connexion with the affairs
of that town, and the rank of Lieutenant to which he at-
tained as a military man. He was one of the Associates
who were authorized to hold County Courts in Bristol
County in 1685, but was not re-appointed by Andros when
he assumed the government.
JOHN BROWN was the grand-son of John Brown, an early
settler of Taunton and Swansea. At the organization
of County Courts in the Plymouth Colony under Gover-
nor Andros, he was made one of the Associate Judges for
Bristol County, and upon a new organization of the court
in the year 1689, he was again made an Associate Judge
of the same court when it assumed the name of the Com-
mon Pleas, and remained a member of the court until 1709.
A captain of the same name, and whom I suppose to
have been Judge Brown, commanded a company in an ex-
pedition under Colonel Church, in 1704, and is supposed
to have resided in Swansea.
THOMAS LEONARD was the son of James Leonard, the
ancestor of the distinguished family that bear that name
in the Old Colony. In a notice of this family published
in the 3d volume of the Historical Collections, 1st series,
Thomas is said to have been " a distinguished character.
He held the office of a Justice of the Peace, a Judge of the
court, a physician, a field officer and was eminent for pi-
ety."
He was one of the Associates appointed in 1685, to hold
1 Judge Tobey belonged to Dartmouth. 2 Mr. Fales was of Taunton.
Oil. 13.] JUDGES OF THE COMMON PLEAS. 367
County Courts in Bristol, but during the government of
Andros held no judicial office. In 1690, he was again
appointed to the same place, and upon the organization of
the courts under the new charter, was made a Judge of the
Common Pleas for Bristol County.
He was a native of Wales, and came into the Colony
with his father when a child, and engaged with his father
in the business of manufacturing iron. He died at an ad-
vanced age in 1713, and an Eulogy to his memory was
published, the same year, by the Rev. Mr. Danforth of
Taunton.
NATHANIEL PAINE originally belonged to Swansea, but
became one of the early settlers of Bristol, now in Rhode
Island. He succeeded Colonel Byfield, as Judge of Pro-
bate, in 1710, and in the same year, was made a Judge of
the Court of Common Pleas. He remained upon the
bench until 1729, during a part of which time he was
Chief Justice of that court. He was long engaged in pub-
lic life, and among other posts of honor which he filled,
was that of Counsellor of the Province. He was the an-
cestor of the families of that name in Worcester, through
his son Timothy, who was named as one of the Mandamus
Counsellors in 1774.
BENJAMIN CHURCH. When it is stated that the subject of
this notice was Colonel Church, the famous warrior, it will
be perceived that his history could not be given without
combining with it a history of the long and bloody wars
in which the colonies were embroiled with the Indians
for the many years in which he commanded the colony
troops. His name and exploits are too familiar with every
one who is at all acquainted with the early history of
Plymouth and Massachusetts, to render it necessary or
proper to occupy any considerable space in recapitulating
his adventures and sacrifices here.
368 JUDICIAL HISTORY. [Ch. 1 3.
He was born in Duxbuiy, in 1639, arid was brought up
to a mechanical trade.
He removed in 1674, from Duxbury to Saconet (Little
Compton) which belonged to Massachusetts, until 1741.
He afterwards removed to Bristol, and represented that
town in the Legislature of Massachusetts, after the union
of the colonies under the new charter. During Andros'
administration he was one of the Judges of the Court of
Common Pleas of Bristol county, but held the office for a
short time only.
From Bristol he removed to Fall River, and once owned
that stream and territory. He afterwards returned to
Little Compton, where he died from an injury received in
falling from his horse, January 17, 1718, at the age of 78.
As a partisan warrior, the fame of Colonel Church is un-
rivalled in the history of Massachusetts. He seems to
have been raised up by Providence, to counteract the de-
signs of that artful and deadly enemy of the English,
Philip of Pokanoket. But his courage and prowess were
not confined to one scene of action. Wherever the state
called for his services he was found in the field, and al-
though he was repaid by the province only with mean-
ness and ingratitude for his sacrifices, he was her boldest
champion and her bravest warrior, and history has done
that justice to his memory, which was denied to him while
living.
GEORGE LEONARD was of Norton, and the son of Judge
Thomas Leonard. Having held a military commission,
he was commonly known as " Major George." He was
upon the bench but a short time, as he was commissioned
in 1716, the same year in which he died. He is styled
in a poem, published on the occasion of his death, " the
prudent, pious, worthy and worshipful Major George Leon-
ard, Esquire." As I have not seen the production I am
Ch. 13. J JUDGES OF THE COMMON PLEAS. 369
not advised how all these epithets were wrought into me-
tre or rhyme.
GEORGE LEONARD was the son of " Major George," and
grand-son of Judge Thomas Leonard. He was Judge of
Probate as well as of the Court of Common Pleas.
From the few facts I have been able to gather of his
history, it would seem that he was a member of this court
at three or four different periods.
The first, from 1725, to 1730, the second, from 1733,
to 1740, when he was dismissed from office for having
been concerned in passing bills of the " Land Bank," con-
trary to law. In 1746, he was again restored to his place
upon the bench, and I find him a member of the court in
1760. He continued to hold the office until the Revolu-
tion. He belonged to Norton, and was known as " Colonel
George," to distinguish him from his father.
His son George was at one time a member of Congress.
Like the other members of his family, Judge Leonard sur-
vived to a ripe old age exceeding eighty years.
EPHRAIM LEONARD was a son of Major George, and be-
longed also to Norton. He was also a military officer as
well as a Judge. He was the father of Daniel Leonard
formerly of Taunton, who left the country at the Revolu-
tion, and afterwards became Chief Justice of the Superior
Court in Bermuda, and who has already been noticed in
this work.
STEPHEN LEONARD was a nephew of Judge Thomas
Leonard and the father of Judge Zephaniah Leonard. I
have taken the fact that he was a Judge of this court
from the 3d volume Massachusetts Historical Collections,
but I have not ascertained when or how long he was upon
the bench.
ZEPHANIAH LEONARD was appointed Judge of this court
in 1761, and like most of the public men in his day held
47
370 JUDICIAL, HISTORY. [Oil. 13.
a military as well as a civil office. He was of Ray n ham,
and represented that town in the General Court.
JOB ALMY was of Tiverton, and represented that town
in the General Court, while it belonged to Massachusetts.
THOMAS CHURCH was the son of Colonel Church, and
lived at Sacoriet. He often represented Little Compton
in the Massachusetts Legislature, and sustained through
life an honorable rank and reputation. He died 'in 1746.
SAMUEL WILLIS was of Dartmouth, and is said to have
been a " gentleman distinguished in life by several offices,
civil and military, which he discharged with a singular
cheerfulness and fidelity, to general acceptance." " In
the decline of life was more retired, ripened fast for heaven
and went to his grave in peace." He died October 3,
1763, at the age of 79.
SETH WILLIAMS was of Taunton, where he died May
13, 1761, at the age of 85. He was highly respected as
a citizen and a public officer. He represented that town
nine years in the General Court, and was a member of
the Council eleven years. He was Chief Justice of the
Court of Common Pleas thirty-six years, and resigned the
place in May, 1760. From that time till his death, he
withdrew from public life.
STEPHEN PAINE belonged to Bristol, now in Rhode
Island, and represented that town in the Legislature of
Massachusetts while it belonged to this province and dur-
ing the time he was a Judge of this court.
JAMES WILLIAMS was of Taunton, and upon the re-or-
ganization of the courts during the Revolution, was made
Chief Justice of the Court of Common Pleas in Bristol, but
left the bench previous to 1780.
Of the others who have been members of this court I
have found no memorials beyond what are found in its
records.
Cll. 13.] JUDGES OF THE COMMON PLEAS. 371
BARNSTABLE.
It is unfortunately out of my power to obtain any thing
like a complete list of the Judges of this court. Timothy
Reed, Esq., the present Clerk of this court, politely inform-
ed me, in reply to a request that he would furnish such a
list, that the records of the court were destroyed by fire in
1827. The few whose names I have ascertained from
newspapers, and other memoranda, I give without refer-
ence to order in point of time.
In 1689, the Associate Courts which had been estab-
lished in 1685, but discontinued during Andros' adminis-
tration, were revived, and Jonathan Sparrow, and Stephen
Skiff were appointed its Judges.
DANIEL PARKER who belonged to Barnstable, died while
a member of this court, December 23, 1728, at the age of
59 years.
PETER THACHER was commissioned as Chief Justice,
September 2, 1731. He was the son of Colonel John
Thacher, of Yarmouth, was born in 1645, and was one of
a family of eighteen children. He was first appointed to
the bench of this court in 1720. His residence was in
Yarmouth, where his son Peter, Jr., the father of the late
Judge George Thacher, of the Supreme Court, was born.
He was many years a member of the Council, and in
1729 was appointed to the care and government of all the
Indians in the county of Barnstable in civil and criminal
matters. He died in the 71st year of his age. "Asa
Judge," it is said, " he was full of compassion, and when
transgressors were before him he appeared always to de-
sire their reformation more than their punishment."
JOSEPH LOTHROP was appointed a Judge of this court in.
1731. He belonged to Barnstable, and was descended
from John Lothrop, the first minister of that town, who
372 JUDICIAL HISTORY. [Ch. 13.
was educated at Oxford, and was among the distinguished
literary men in New England.
EZRA BOURN was appointed Judge in 1731. He was
the son of Shearjashub, and grand-son of Richard Bourn,
one of the early emigrants to New England, who settled
in Sandwich, and devoted himself to christianizing the
Indians in that neighborhood.
Judge Bourn inherited from his father and grand-father
a valuable estate acquired from the natives of Marshpee.
He was for several years Chief Justice of the court and
died in September, 1764, at the age of 88 years.
His descendants have embraced many able and distin-
guished men, and at one time, 1794, there were three of
his grand-sons in Congress, one from Massachusetts, one
from Rhode Island and one from New York.
SHUBAEL BAXTER was appointed a Judge of this court
at the same time that Mr. Thacher was made its Chief
Justice, but I have been unable to discover any thing
more of his history.
JOHN DOANE was appointed a Judge of this court in
1736. He belonged to Easthani, and was undoubtedly a
descendant of Deacon John Doane, who with Governor
Prince was one of the original settlers of that town, and
whose descendants have been among the most respectable
families in that town.
JOHN DAVIS of Barnstable, was appointed a Judge of
the court at the same time with Mr. Doane, but I have
not learned any thing further of his history.
DAVID CROCKER was commissioned as Judge in March,
1747, and remained upon the bench until 1758, when he
was succeeded by Thomas Smith.
JOHN THACHER of Barnstable, was appointed to the
bench of the Common Pleas, June 2, 1758, and held the
Ch. 13.] JUDGES OF THE COMMON PLEAS. 373
place, as I have reason to believe, until he was succeeded
by Edward Bacon in 1764.
He was the youngest brother of Judge Peter Thacher
already mentioned, and was born January, 1674, and
among other offices which he held were those of Register
of Deeds and Colonel of the Militia. His epitaph is in the
following words, " Here lies interred the body of the
Hon. John Thacher, who after a long life of usefulness
and faithfulness, in the several military offices, and of em-
inent exemplariness in the religion of Christ, and in the
hope of eternal life, died March 17, 1764, in the t90th
year of his age."
THOMAS WINSLOW was made a Judge June 2, 1758,
and continued upon the bench until the Revolution.
THOMAS SMITH came upon the bench at the same time
with Judges Thacher and Winslow, and continued to be
a member of the court until the Revolution. He resided
in Sandwich and was by profession a Physician. After
the courts had been again organized during the revolution
he was re-appointed to the place he had filled under the
royal government.
SYLVANUS BOURN was commissioned as Judge, June 2,
1758, but I have reason to believe he had previously held
the same office for several years.
He was the son of Meltiah Bourn of Sandwich. His
own residence was in Barnstable. where he was for many
years in successful and extensive practice as a lawyer.
He had been regularly educated for the profession, and his
practice extended into other counties than that in which
he resided.
He was for more than twenty years a member of the
Council, and during that time was frequently called upon
to act by special commission as a member of the Superior
Court.
374 JUDICIAL HISTORY. [Oh. 13.
He held the office also of Judge of Probate for more
than twenty years, and at the time of his death was Chief
Justice of the Court of Common Pleas.
In military life too, he rose to distinction and held the
command of a regiment.
His cotemporaries speak of him as a man of most amia-
ble and excellent qualities in private life, of sprightly wit,
polite deportment and deeply imbued with religious prin-
ciple.
He was the father of Judge William Bourn, who has
been mentioned as a member of the Court of Common
Pleas in Essex county.
Judge Bourn died September 18th, 1763, at the age of
seventy years, after having long enjoyed a great share of the
public confidence, and faithfully performed his many pub-
lic duties.
JOHN OTIS was for thirteen years Chief Justice of the
Court of Common Pleas, and as he died November 30,
1727, he must have been early appointed to the place.
He was born in Hingham, in 1657, and while young,
removed to Barnstable, where he continued to reside dur-
ing the remainder of his life, being seventy years old at
his death.
Besides his office of Chief Justice he was also Judge of
Probate for twenty-one years, and as a military man, rose
to the command of a regiment. In all his official sta-
tions he performed his duties with great honor to himself,
and to the general acceptance of the public, and justly
commanded a great share of influence in the province.
He owes his fame, however, among posterity, to the
name of his distinguished grand-son who was the first to
apply the Revolutionary torch to the combustible materials
which had been accumulating for years before the colo-
nies struck the decisive blow, against the mother country.
Ch. 13.] JUDGES OF THE COMMON PLEAS. 375
Two of his sons, John and James, were Judges of this
court.
JOHN OTIS, son of the Chief Justice, just named, was
commissioned as Judge in August, 1746.
He resided in Barnstable, and was a representative from
that town in the General Court. From the House he was
promoted to the Council, and was a member of that body
at the time of his death, in 1756.
JAMES OTIS succeeded Colonel Bourn as Chief Justice of
this court, in February, 1764, and also as Judge of Pro-
bate. He continued at the head of the court until the
Revolution.
He has been so fully noticed in his connexion with the
office of Attorney General, in another part of this work,
that there is no occasion to enlarge any farther upon his
history here.
EDWARD BACON was made a Judge of this court at the
same time that Colonel Otis was made Chief Justice in
1764, and was the successor of John Thacher.
He belonged to Barnstable, and represented that town
in the General Court.
He held the office of Judge until the Revolution.
The first commission issued to Judges in the county of
Barnstable by the " Government and People of Massachu-
setts Bay," bears date October 11, 1775, and was directed
to James Otis as Chief Justice, Daniel Davis of Barn-
stable, Nathaniel Freeman of Sandwich and Richard Bax-
ter of Yarmouth, as his associates.
DUKES COUNTY.
The records of this county show that a Court of Com-
mon Pleas had been organized and held its meeting as
early as September 29, 1691. But as the charter of Wil-
liam and Mary did not arrive in Massachusetts until May,
376 JUDICIAL HISTORY. [Ch. 13.
1692, and no meeting of the Legislature was held until
some time subsequent to that period, the courts of the
county probably continued for some time to act under
their former organization.
Indeed up to the time of this charter, the Islands consti-
tuting Dukes county were a part of the province of New
York, having been granted to the Duke of York, (from
which circumstance the county took its name) in 1664.
The organization of the court under the new charter
probably took place in 1697, as the number of Judges was
then for the first time four, as provided by law, it having
been under the former regime but three. 1
Those who constituted the court so far as ascertained
from time to time were as follow :
MATTHEW MAYHEW 1697, to 1700.
THOMAS MAYHEW, 1697, to 1715.
Richard Sarson, 1697, to 1700.
James Allen, 1697, to time not ascertained.
Benjamin Skiff, in 1700.
Joseph Norton, in 1700.
Paine Mayhew, time not ascertained.
Zaccheus Mayhew, time uncertain.
Ebenezer Allen, time uncertain.
Benjamin Smith, in 1738.
John Chipman, time uncertain.
ENOCH COFFIN, in 1761.
MATTHEW MAYHEW, 1768, to the Revolution.
JOHN ALLEN, in 1761.
Ebenezer Smith, 1761, to 1772. *
i 1 am happy to acknowledge the obligation I am under to Daniel Fellows,
Esq., Clerk of the Courts of Dukes county, for his aid in obtaining the list of
Judges here presented. The records, however, of the court are incomplete,
and I have been obliged to supply, so far as I could, this defect from other
sources of information. Thus the records from 1716, to 1722, are not pre-
served. From 1742, to 1762, they do not contain the names of the Judges
who sat during that period, and the same omission occurs from 1763, to 1674.
Cll. 13.] JUDGES OF THE COMMON PLEAS. 377
John Sumner, October 16, 1761, to the Revolution.
John Newman, in 1761.
Josiah Tilton, June 8, 1764, to the Revolution.
Joseph Mayhew, December 10, 1771, to the Revolution.
The first term of the court after the authority of the
Royal Governor had been annulled at the commencement
of the Revolution, was held in March, 1777. Commis-
sions however had been issued in October, 1775, to Joseph
Mayhew, James Athearn, John Worth, and Shubael Cottle,
as Judges of the Court of Common Pleas, for Dukes Coun-
ty. Worth and Cottle were of Chilmark, arid Athearn of
Tisbury.
MATTHEW MAYHEW was the grand-son of Thomas May-
hew, one of the earliest settlers, and for many years Gov-
ernor of Martha's Vineyard. His father's name was also
Thomas, and has been preserved with just veneration as
having been the earliest to engage in the work of christ-
ianizing the Indians upon this Island, He was lost at
sea at the early age of 37, in 1657. In 1681, his son
Matthew succeeded his grand-father in his civil and mili-
tary honors. To these duties he added that of a preacher
to the Indians, and was, moreover, an author to some ex-
tent, having published a small work in 1694, on the suc-
cess of the gospel among the Indians of Martha's Vineyard.
He died in the year 1710.
THOMAS MAYHEW was a brother of Matthew, and sur-
vived him until 1715. He was upon the bench when the
charter of William and Mary united Martha's Vineyard
with the Province of Massachusetts, and continued to hold
a place as a member of that court until his death.
RICHARD SARSON was also upon the bench when the
charter of William and Mary arrived, and continued to
hold the office until 1700.
I have learned little of his history, but find him distin-
48
378 JUDICIAL HISTORY. [Ch. 13.
guished as " Captain" Sarson, as early as 1675. He was
then sent by Governor Mayhew, with a small military
force, to ascertain the disposition of the Indians residing at
the west end of the Island, towards the English in regard to
the war that Philip was then waging against the colonists.
The manner in which he executed this trust appears
to have been satisfactory, and the tribe which had enjoyed
the benefits of Mr. Mayhew's Christian ministrations re-
mained faithful to the English during that fearful struggle
known as Philip's war.
ENOCH COFFIN belonged to Edgartown, and died in 1761,
at the age of 83, leaving ten children. He had represent-
ed that town in the General Court, was Register of Probate,
and Senior Judge of the Court of Common Pleas.
MATTHEW MAYHEW is supposed to be the one known as
Dr. Mayhew, and was grand-son of the first Matthew
Mayhew. He is spoken of as a " gentleman of uncom-
mon powers of mind and of exquisite wit and humor."
He, like most of the other members of the family, lived to
a ripe old age, and died at the age of eighty-five.
JOHN NEWMAN I apprehend belonged to Edgartown, and
was settled as a clergyman over the Church in that town
in 1747. In 1758, he was dismissed from his connexion
with his people, and in 1761, was appointed Judge of this
court-
BENJAMIN SMITH belonged to Edgartown, and died De-
cember 18, 1738.
Few and brief as have been these notices of the Judges
in Dukes County, it perhaps may have already occurred
to the reader, that in order constantly to supply the num-
ber of four Judges from so small a population it could not
be expected that any considerable proportion of them
would be men sufficiently distinguished to be preserved in
history beyond the records of the Court in which they sat.
Ch. 13. J JUDGES OF THE COMMON PLEAS. 379
Such was the case, and these records no longer existing,
the memory of most of them has passed away.
NANTUCKET.
The records of this county do not, I am informed, 1 ex-
hibit the names of the Judges of the Court of Common
Pleas.
The first term of this court of which there is any rec-
ord, was held in 1708, and the last term previous to the
Revolution, in March, 1774,
The following are the names of all the Judges whose
connexion with this court I have been able to ascertain.
JAMES COFFIN was Chief Justice of the court from 1708,
to 1712, and the succession of Chief Justices from 1712,
to 1754, was as follows, viz :
GEORGE BUNKER,
RICHARD GARDNER,
GEORGE GARDNER,
JAMES COFFIN,
JOSIAH COFFIN was Chief Justice, from 1754, to 1774.
Among the associate Judges, were
John Coffin and Joseph Gardner, appointed in 1732.
Thomas Brock, }
Jonathan Coffin, > appointed in 1747.
Grafton Gardner, )
John Bunker, appointed in 1751.
Caleb Bunker, appointed in 1767.
Obed Hussey, " in 1767.
No business was done by the court after March, 1774,
until 1783. But a new organization of it took place in
1775, when Josiah Coffin as Chief Justice, Grafton Gard-
ner, Caleb Bunker and Ebenezer Calef, were commissioned
as its Judges, and continued to hold their offices until
1781.
i By a communication from George Cobb, Esq., Clerk of the county.
380 JUDICIAL HISTORY. [Ch. 1 3.
The revival of the court after the Revolution, is thus
noticed in its records.
" The Court of Common Pleas having been discontin-
ued from March, 1774, until October 1783, by reason of
the war and Revolution in North America ; and the war
being now happily ended, and America being owned and
acknowledged for a sovereign, independent Common-
wealth, the court now begin to take place upon the new
constitution, and to do business as formerly. May the
blessing of Heaven attend North America !
Fred. Folger."
With this transcript of the recorded spirit that was
alive in 1775, I must close this very brief notice of the
courts of Nantucket before the Revolution, merely adding
that previous to the charter of William and Mary, the
Island belonged to the jurisdiction of New York, but was
united to Massachusetts by that charter.
HAMPSHIRE COUNTY.
By the diligence and disinterested kindness of Samuel
Wells, Esq., clerk of the courts in the county of Hamp-
shire, I am able to present a very perfect list of the
Judges of the Court of Common Pleas in this county.
They are as follows, and the only omission of which I am
aware, is in not distinguishing the Chief Justices of the
court from their associates.
John Pynchon, from 1692, to 1702.
Peter Tilton, 1692, to 1694.
Samuel Partridge, 1692, to 1740.
Joseph Hawley, 1692, to 1711.
Joseph Parsons, 1698. 1
John Pynchon, 1708.
Samuel Porter, 17 II. 2
1 Mr. Parsons belonged to Northampton He died in 1729.
3 Mr. Porter was of Hadley. He died in 1722.
Ch. 13.] JUDGES OF THE COMMON PLEAS. 381
John Stoddard, to 1748. 1
John Ashley, to 1737. 2
Henry Dwight, to 1731. 3
Ebenezer Pomeroy, 1735, to 1753, 4
Eleazer Porter, 1737, to 1757. 5
Timothy Dwight, 1737, to 1741, and in 174S. 6
William Pynchon, 2d, 1737, to 1738. 7
William Pynchon 1st, 1738, to 1742. 8
Joseph Pynchon, 1741, to 1752. 9
Ephraim Williams, 1741, to 1749.
Timothy Dwight, 1748, to 1757. 10
Josiah Dwight, 1750, to 1768. n
Joseph Dwight, 1753, to 1761.
Israel Williams, 1758, to 1774.
Timothy Dwight, Jr., 1758, to 1774. 12
Elijah Williams, 1761 to 1763. 13 .). .. ' ./'> .. ";';.'
i
1 Mr. Stoddard has already been mentioned on page 290.
2 Mr. Ashley was of Westfield. He died 1759.
3 Henry Dwight was of Hatfield, died in 1733. Both he and Judge Ashley
had been practising attorneys before being made Judges of the court.
4 Mr. Pomeroy was a member of the Council. He belonged to Northamp-
ton, died in 1754.
5 Mr. Porter belonged to Hadley was a member of the Council, and died
in 1757.
6 Mr. Dwight was of Northampton. He was admitted as an Attorney in
1721.
7 Mr. Pynchon was of Springfield, son of John, 3d, who was son of Judge
John 2d, and brother of Judge William, 1st, died 1783. He was a practising
attorney before he became a Judge.
8 Mr. Pynchon was son of Judge John, 2d, was of Springfield, born 1703,
died 1742.
9 Joseph Pynchon was also of Springfield, and a member of the Council.
10 Mr. Dwight was of Northampton, died 1771.
11 Josiah Dwight was of Springfield, died 1768. Both Timothy and Josiah
Dwight were grand-sons of Timothy Dwight of Dedham, having different
fathers. They had been practising attorneys before they were appointed
Judges.
12 Mr. Dwight was of Northampton He died in 1776.
13 Mr. Williams was of Deerfield. He died in 1771.
382 JUDICIAL HISTORY. [Ch. 13.
Thomas Williams, 1763, to 1774. 1
Oliver Partridge, 1769, to 1774. 2
The first court after the Revolution consisted of Timo-
thy Danielson of Brimfield, John Bliss of Wilbraham,
Eleazer Porter of Hadley and Samuel Mather of Westfield,
the first three of whom were commissioned December 1,
1777, and the last on the 16th January, 1778.
JOHN PYNCHON belonged to Springfield, and his history
is identified with the early history of that ancient town.
He was long known by the honorary title of " worshipful,"
and was for many years a member of the Council.
He was the son of William Pynchon, and removed with
his father from Roxbury to Springfield in 1636.
Full authority was given to the father to try causes as
a Judge, and in 1652, a joint commission was given to
John Pynchon and two others, to hear and determine
causes that were for trial. This authority existed until
1660, when Hampshire county was incorporated.
The manner in which justice was administered during
this time must have been somewhat anomalous in its char-
acter. Trials were always by Jury, but there was a dis-
position manifested to exercise equity powers, and some-
times to the sacrifice of legal forms as well as the rules of
law.
Upon the establishment of Courts of Common Pleas un-
der the charter, he was made Chief Justice of this court
for the county of Hampshire, which place he held till his
death.
He had filled many important places before this appoint-
ment. He had represented Springfield in the General
Court, had been an assistant under the colony charter,
1 Mr. Williams, was of Deerfield, son of Ephraim Williams of Stockbridge,
before mentioned He died in 1779.
2 Mr, Partridge was of Hatfield he died in 1792.
Ch. 13.] JUDGES OF THE COMMON PLEAS. 383
was one of President Dudley's and Governor Andros'
Council, and a Colonel of the Hampshire Regiment.
He was born in England, in 1625, married the daugh-
ter of Governor Wyllys of Connecticut, and died January
17, 1703, at the age of 77.
PETER TILTON belonged to Hadley, and was often call-
ed " worshipful" on account of the dignity of office and
power to which he attained.
He represented that town in the Legislature, and was
for seven years a member of the body of Assistants under ,
the Colony charter.
In the discussions about surrendering the charter, Mr.
Tilton took a leading part with Major Gookin, Elisha
Cooke &c., against yielding at all, to the demands of the
crown. He was for adhering to the charter at all events,
and leaving the event with Providence. His name is
thus intimately associated with the history of the loss of
the first charter.
Under the new charter he was made a Judge of the
Common Pleas for the county of Hampshire, and remained
upon the bench until 1694. He died in the year 1696,
having been a member of the Provincial Council.
SAMUEL PARTRIDGE belonged to Hatfield, and was a
member of the Council. He was born at Hartford, Octo-
ber 15, 1645, and died at the age of 95, December 25,
1740. He was a member of this court from 1692 to the
time of his death, and for a part of the time its Chief Jus-
tice. He had been s a practising attorney before his eleva-
tion to the bench, and was clerk of the court under the
Colonial charter.
JOSEPH HAWLEY of Northampton, was the remaining
member of the first court of this county under the new
charter. He was grand-father of the distinguished lawyer
384 JUDICIAL HISTORY. [Ch. 13.
and patriot, Major Joseph Hawley of Revolutionary mem-
ory, whose name I have before referred to in this work.
He remained upon the bench until his death in 1711.
JOHN PYNCHON was of Springfield, and the son of Judge
John, who has already been mentioned. He was born
October 17, 1647. He married a daughter of the Rev.
William Hubbard of Ipswich, the distinguished New
England historian. He filled many important offices in
his county, among which was that of clerk of the courts,
and Register of Deeds. He was appointed Judge of the
Court of Common Pleas in 1708, and died April 25, 1721,
at the age of 74 years.
EPHRAIM WILLIAMS was born in Newton, and removed
to Stockbridge among its earliest settlers. He was the
father of the distinguished Colonel Williams, who was
the founder of Williams College. He was himself a Colo-
nel in the Militia, and a leading man in the western part
of Massachusetts. He died at Deerfield, though the pre-
cise time of his death in not preserved in the brief notices
of him which remain. He was a member of this court
from 1741, to 1749.
JOSEPH DWIGHT was born in Dedham, in 1703, and was
graduated at Cambridge, in 1722. He removed to Brook-
field where he settled and was admitted to the bar in
1733. In 1743, he was appointed Judge of the Court of
Common Pleas for the county of Worcester, and held the
office until 1750.
During this time, however, he was engaged in military
life, and held the responsible rank of Brigadier General in
the memorable expedition against Louisburg, in 1745.
He had charge of the artillery on that occasion, and his
courage and conduct gained for him the applause and com-
mendation of the army and its commander.
In 1756, he commanded a Brigade of New England
Ch. 13.J JUDGES OF THE COMMON PLEAS. 385
troops, in an expedition against the French in the vicinity
of Lake Champlain.
He probably removed to Great Barrington, then in
Hampshire County, about the time of his leaving the
County of Worcester. In 1753, he was appointed to the
bench of Hampshire, and retained the office until the di-
vision of the county, when Berkshire became a distinct
county.
Upon this taking place, he was commissioned as Judge
of the same court in the new county, and also as its Judge
of Probate, and held both these offices until his death, June
9, 1765, at the age of 62.
His daughter was the second wife of Judge Sedgwick.
ISRAEL WILLIAMS was the son of the Rev. William Wil-
liams of Hatfield, and was born in 1708. He was liberal-
ly educated and entered early into public life. He was
many years a representative from Hatfield, and afterwards
a member of the Council. He was a Judge of Probate
for the county of Hampshire, and Chief Justice of the
Common Pleas, "in which offices he conducted with that
ability and integrity which made him truly respected and
a public blessing."
He died in 1788, in the 79th year of his age, from a
mortal injury in his head received from a fall.
WORCESTER COUNTY.
The following is believed to be a complete list of the
Judges of the Court of Common Pleas in this county. It
is taken from the Worcester Magazine, a periodical pub-
lished in 1825, and 1826. 1
i This magazine was edited and published by William Lincoln, Esq., and
the late Christopher C. Baldwin. Its object among other things, was to col-
lect and embody the local history of the county, and the spirit and zeal with
which this was pursued did much towards preserving the perishing memorials
of the past.
49
386 JUDICIAL, HISTORY. [Ch. 13.
JOHN CHANDLER, 1731, to 1743.
JOSEPH WILDER, 1731, to 1757.
William Ward, 1731, to 1745. 1
William Jenison, 1731, to 1743. 2
Joseph Dwight, 1743, to 1753. 3
Samuel Willard, 1743, to 1753. 4
Nahum Ward, 1745, to 1762. 5
Edward Hartwell, 1752, to .1762. 6
Jonas Rice, in 1753.
JOHN CHANDLER, 1754, to 1762.
Thomas Steele, 1756, to Revolution.
TIMOTHY RUGGLES, 1757, to Revolution. 7
Joseph Wilder, 1762, to 1773.
ARTEMAS WARD, 1762, to Revolution.
The first Judges commissioned for this court after the
commencement of the Revolution were
Artemas Ward, Jedediah Foster of Brookfield, Moses
Gill of Princeton, and Samuel Baker of Berlin. Their
commission bore date October 17, 1775, and a term of the
court was holden December 5, 1775.
JOHN CHANDLER belonged to Woodstock, then a part of
the county of Worcester, to which place his father remov-
ed from Roxbury. He held many offices of trust and
honor, and was distinguished in military as well as civil
life. He was successively a Representative in the Gener-
al Court and a member of the Council. He was a Colo-
In the death of Mr. Baldwin, who was killed by being thrown from a stage
coach on a journey in Ohio, in August, 1835, the American Antiquarian Socie-
ty lost his invaluable services as their librarian, and the cause of antiquarian re-
search a most zealous and devoted friend.
1 Colonel Ward was of Southboro.
2 Mr. Jenison belonged to Worcester. He died in 1743.
s Mr. Dwight is noticed among the Judges of Hampshire County.
4 Mr. Willard was of Lancaster.
s Mr. Ward belonged to Shrewsbury.
e Mr. Hartwell belonged to Lunenburg.
i Chief Justice Ruggles has already been mentioned, (page 226.)
Ch. 13.] JUDGES OF THE COMMON PLEAS. 387
nel of a Regiment of the militia, besides being Chief Jus-
tice of the Court of Common Pleas and Judge of Probate.
He held these several offices at the time of his death,
which took place in 1743.
He was the father of Judge John Chandler of Worcester,
who will be further noticed.
JOSEPH WILDER belonged to Lancaster, and, on the de-
cease of Judge Chandler, succeeded him as Chief Justice
of this court. He was also his successor in the office of
Judge of Probate. He was the father of Judge Joseph,
who was upon the bench of this court from 1762, till the
Revolution.
He often represented Lancaster in the General Court,
and sustained other public trusts with ability and honor.
He died March 29, 1757, aged 74. -" V;*
JONAS RICE, as I learn from Mr. Lincoln's History of
Worcester, removed to that town from Marlboro', and was
one of its earliest settlers. Two attempts to settle the
town having failed by reason of the attacks of the Indians
upon the few white settlers, a new attempt was made in
1713. Mr. Rice, " who had been a planter during the
second settlement, returned October 21, 1713." I have
transcribed from the work already referred to, the follow-
ing account of this gentleman, whose qualifications for the
place of Judge seem not to have consisted in legal knowl-
edge or professional skill.
" He remained with his family alone in the forest, the
solitary inhabitant of Worcester, until the spring of 1715.
The union of cool intrepidity and firmness, with good
sense and integrity in the character of Mr. Rice, com-
manded the respect and secured the confidence of his fel-
low citizens when the town he had founded, rose from its
ashes in renovated beauty, to commence that steady pro-
gress of prosperity which has brightened its advance.
388 JUDICIAL HISTORY. [Oil. 13.
He was often elected to municipal offices, was frequently
representative to the General Court, and was one of the
Justices of the Court of Common Pleas at the time of his
decease, September 22, 1753, at the age of 84 years."
JOHN CHANDLER was the son of Judge Chandler already
mentioned. He belonged to Worcester. He was born at
Woodstock, October 10 ; 1693, and removed to Worcester
in 1731. From that time he was clerk of the courts and
register of probate, till 1754, and register of deeds till
1762. In 1751, he was appointed Sheriff of the county,
and held the office eleven years.
He represented the town of Worcester, many years in
the General Court, and, on the decease of his father, suc-
ceeded to the offices of Colonel of the Militia and member
of the Council.
He succeeded Judge Wilder as Judge of Probate, and
was succeeded by his own son, in 1762.
" His talents," says Mr. Lincoln, " were rather brilliant
and showy, than solid or profound. With manners highly
popular, he possessed a cheerful and joyous disposition, in-
dulging in jest and hilarity, and exercised liberal hospital-
ity. While Judge of Probate, he kept open table on court
days for the widows and orphans who were brought to his
tribunal by concerns of business. He died at Worcester
in 1763."
THOMAS STEELE was a native of Boston, from which
place he removed to Leicester, where he spent the remain-
der of his days. He was graduated at Cambridge, in
1730, and was a class-mate of Chief Justice Oliver. He
was bred a merchant and pursued that business both be-
fore and after leaving Boston. He was a loyalist in his
politics, and a man of influence until the period of the
Revolution. He frequently represented the town of
Ch. 13.] JUDGES OF THE COMMON PLEAS. 389
Leicester, in the General Court, and was much respected
by his fellow citizens, as a man of integrity.
JOSEPH WILDER was of Lancaster, and a son of Chief
Justice Joseph, already mentioned. He represented that
town in the General Court eleven years, and died April 20,
1773, aged 65. He is said to have been, in connexion
with his brother, the first in America, who established pot
and pearl ash works.
He held the office of Judge until his death, and no ap-
pointment seems to have been made to supply the vacancy
thereby created, before the Revolution.
ARTEMAS WARD. For the sketch of the life of this dis-
tinguished man, I have principally referred to Elliot's Bi-
ographical Dictionary. It is to be hoped that some one
will yet do justice to the memory of one of the earliest
and bravest of the patriots of the Revolution, by a suitable
biography of General Ward.
He was a native of Shrewsbury, and was graduated at
Harvard College, in 1748.
He early entered into public life, and represented his
native town in the Legislature. At a later period he was
chosen to the Council, and was one of the number regu-
larly chosen, who were displaced by the appointment of
the Mandamus Counsellors, in 1774. He was a member
of the first Provincial Congress, and took a leading part in
its transactions.
He had obtained a good military reputation before the
difficulties with the mother country broke out into a war,
and at the organization of an army by the Provincial Con-
gress, in 1775, he was appointed Commander in -Chief of
the forces. He held this rank on the memorable 17th
June, when the battle of Bunker Hill was fought, and
continued at the head of the army until the arrival of
General Washington, at Cambridge.
390 JUDICIAL HISTORY. [Ch. 13.
He was appointed Senior Major General of the army,
by the Continental Congress, but resigned his place soon
afterwards, although he continued in the service for some
time after his discharge.
After leaving the army he still continued in public life.
In 1788, he was a member of the executive Council of
the Commonwealth, and in 1791, was chosen a representa-
tive in the Congress of the United States.
Through all these changes he seems to have retained
his connexion with the Court of Common Pleas, while
that court had an existence. He was appointed its Chief
Justice, in October, 1775, and retained the place until his
resignation of office, in 1798.
His conduct in the office of Chief Justice, during the
excitement known as " Shay's rebellion," in 1786, is de-
serving of particular and most honorable commemoration.
It cannot be given in a better manner than in the graphic
and spirited language of the historian of Worcester already
referred to. An armed band under Captain Wheeler had
taken possession of the Court House and the hill on which
it stood. The Judges, Clerk and Sheriff, were pro-
ceeding towards the court house at the regular hour of con-
vening the court.
" On the verge of the crowd thronging the hill, a senti-
nel was pacing on his round, who challenged the proces-
sion as it approached his post.
General Ward sternly ordered the soldier, formerly a
subaltern of his own particular regiment, to remove his
levelled musket. The man, awed by the voice he had
been accustomed to obey, instantly complied and present-
ed his piece in military salute to his old commander. The
court having received the honors of war from him who
was planted to oppose their advance, went on. The mul-
Ch. 13.] JUDGES OF THE COMMON PLEAS. 391
titude receding to the right and left, made way in sullen
silence till the judicial officers reached the court house.
On the steps was stationed a file of men with fixed bay-
onets. On the front stood Captain Wheeler with his
drawn sword. The crier was directed to open the doors,
and was permitted to throw them back, displaying a party
of infantry with their guns levelled as if ready to fire.
Judge Ward then advanced and the bayonets were turned
against his breast. He demanded, repeatedly, who com-
manded the people there, by what authority and for what
purpose they had met in hostile array. Wheeler, at
length, replied : after disclaiming the rank of leader, he
stated that they had come to relieve the distresses of the
country by preventing the sittings of the courts until they
could obtain redress of grievances. The Chief Justice
answered that he would satisfy them their complaints
were without just foundation. He was told by Captain
Smith of Barre, that any communication he had to make
must be reduced to writing. Judge Ward indignantly re-
fused to do this, he said, he did not value their bayonets
they might plunge them to his heart, but while that
heart beat, he would do his duty, when opposed to it his
life was of little consequence ; if they would take away
their bayonets and give him some position where he could
be heard by his fellow citizens, and not by the leaders
alone, who had deceived and deluded them", he would
speak, but not otherwise. The insurgent officers, fearful
of the effect of his determined manner on the minds of
their followers, interrupted. They did not come there,
they said, to listen to long speeches, but to resist oppres-
sion, they had the power to compel submission, arid they
demanded an adjournment without day. Judge Ward
peremptorily refused to answer any proposition unless it
was accompanied by the name of him by whom it was
392 JUDICIAL HISTORY. [Ch. 13.
made. They then desired him to fall back, the drum
was beat and the guard ordered to charge. The soldiers
advanced until the points of their bayonets pressed hard
upon the breast of the Chief Justice, who stood as im-
moveable as a statue, without stirring a limb, or yielding
an inch, although the steel in the hands of desperate men
penetrated his dress. Struck with admiration by his in-
trepidity and shrinking from the sacrifice of life, the guns
were removed, and Judge Ward ascending the steps, ad-
dressed the assembly," in a speech of nearly two hours in
length.
No immediate effect was produced by this address, but
the conduct of the Chief Justice could not fail to impress
the multitude with a deep sense of the dignity and maj-
esty of the law, when represented by the purity, intelli-
gence and moral courage of its accredited ministers. The
attempt to arrest the course of the administration may not
be repeated in this commonwealth, but the lesson of ex-
perience taught in the ill-judged and ill-fated insurrection
of 1786, ought not to be lost upon those whose rights and
liberties so essentially depend upon the preservation of
our civil institutions.
Judge Ward survived the resignation of his office
about two years, during which he was sinking under the
slow progress of disease. He died after a long decline,
October 28, 1800, at the age of 73 years, leaving the rich
inheritance of an unblemished character as a man, and of
incorruptible integrity as a Judge.
BERKSHIRE COUNTY.
I am indebted for the following list of Judges, and,
principally, for the few brief sketches of them which fol-
low, to the history of Berkshire County, prepared and pub-
lished by " gentlemen in the county," in the year 1829.
Ch. 13.J JUDGES OF THE COMMON PLEAS. 393
This county, it will be recollected, was incorporated in
1761, having before that period belonged to the county of
Hampshire. Of course only a few in number had filled
the place of Judges of its courts, previous to the Revolu-
tion. The business of the courts in this county was sus-
pended from 1774 to 1780.
The first court consisted of
^ JOSEPH DWIGHT, who continued upon the bench till 1765. *
WILLIAM WILLIAMS, " to Revolution.
Timothy Woodbridge, " to Revolution.
John Ashley, 1765, to Revolution.
Perez Marsh, 1765, to Revolution.
WILLIAM WILLIAMS succeeded Judge Dwight as Chief
Justice of the court, and retained the place till the Revo-
lution. He was also Judge of Probate for this county.
After the Revolution he was re-appointed to the place of
Chief Justice of the Court of Common Pleas, which office
he held until 1781.
He belonged to Pittsfield, and was one of the earliest
settlers of that beautiful town. He often represented the
town in the legislature. His death occurred April 5, 1788,
at the age of 75.
TIMOTHY WOODBRIDGE deserves a place in this work,
not only on account of his connection with the courts of
the county, but for his devotion to the cause of humanity
in his endeavors to educate and christianize the native
tribes which continued to reside in the vicinity of Stock-
bridge, till a comparatively recent period. Mr. Wood-
bridge commenced a school for this purpose in Stockbridge
in 1734, and continued it for many years, when he was
succeeded by Mr. Sargeant, who sustained it until the re-
moval of the tribe to the western part of New York.
1 Judge Dwight has already been noticed.
50
394 JUDICIAL HISTORY. [Oil. 13.
Mr. Woodbridge was, during this time, the agent and
superintendent of the Indian affairs in this region.
He was named as one of the Mandamus Counsellors, but
refused to accept the appointment. He was a man of su-
perior attainments, and of great influence in the county.
He died May 11, 1774, at the age of 65 years, leaving
a son Enoch, who has since been Chief Justice of the su-
perior Court of Vermont.
JOHN ASHLEY was born in Westfield, and is supposed to
have been a son of Judge Ashley of that town already
mentioned. He was graduated at Yale College in 1730,
and was admitted to the bar in 1732, when he settled in
Sheffield where he ever after resided. He was a leading
and influential man, and possessed great wealth. He
continued upon the bench of the Court of Common Pleas,
with the interval of the suspension of the courts at the
Revolution, till 1781. He was known as Colonel Ashley,
in distinction from his son John, who was Major General
of the Berkshire Division of the militia, and distinguished
himself during the Shays rebellion in dispersing the in-
surgents in that county.
Judge Ashley, died September 1, 1803, at the advanced
age of 93.
PEREZ MARSH belonged to Dalton, and was one of the
early settlers of that town. He was a graduate of Har-
vard, in 1748, and was a physician by profession.
The sessions of this court were very summarily arrest-
ed by the people, who collected in such numbers at its
regular term in the summer of 1774, as to fill the court-
house so completely that no admission could be had for
the Judges. The Sheriff made proclamation for them to
disperse and make way for the court, but they gave him
to understand, they recognized no court but such as ob-
Oil. 13.] JUDGES OF THE COMMON PLEAS. 395
served the ancient laws and usages of the country, and
paid no heed to his command.
I do not find that any new commissions to Judges of
this court were issued until February 16, 1779, when John
Ashley of Sheffield, John Bacon of Stockbridge, William
Whiting of Great Barrington, and John Brown, I suppose
of Pittsfield, were appointed.
This closes the notices of the Judges of the Court of
Common Pleas during the existence of the Provincial
Charter. They have been, it is true, in most instances
exceedingly meagre, arid the reason of this has been more
than once alluded to. Many who held these offices were
scarcely known beyond their connexion with the courts,
and in several of the counties, there are from various
causes defects in their records which prevent the inquirer
from fully tracing even the names of the Judges who have
held their courts.
This defect may be supplied only by recurring to the
local histories of the several towns in the commonwealth,
most of which, however, are yet to be written in order to
be accessible.
It would be a pleasant task to trace the history of these
courts through the various modifications through which
they have passed under the constitution of the common-
wealth. As the importance of a learned and independent
Judciary has become better understood, the jurisdiction of
these courts and the qualifications required in their Judges
have been proportionately elevated, till, under their present
constitution, the public have a tribunal in every way ade-
quate to determine the interesting and important questions
of private right and public police, which arise in a populous,
refined and wealthy community like our own. It is left
however for a future work, or an abler, pen, to perform this
396 JUDICIAL HISTORY. [Ch. 13.
task, while I am obliged to content myself with such
gleanings of an earlier period as time and opportunity have
enabled me to gather into these Sketches of our Judicial
History.
I cannot take leave of this subject however, without
again expressing the hope that some one will be found to
do more ample justice to it than I have been able to do.
It was a well nigh untrodden field, and the most that can
be claimed for this work is that it may serve as a pioneer
to future explorers.
The importance of a work which shall embody the his-
tory of the courts, the forms of legislation and the modes of
administering justice in Massachusetts, must be obvious up-
on a moment's reflection. When so many crude and sophis-
tical notions are advanced upon the subject of making, in-
terpreting and administering laws, by professed reformers,
it is well to draw lessons of wisdom from past experience
for the guidance of the public mind in detecting the selfish
purposes of artful and designing men, or the errors and
false views of honest but mistaken minds.
There have been, ever since the establishment of our
government, a class of politicians who have decried the
independence of the judiciary as anti-republican in princi-
ple, and as a feature in our constitution which ought to be
modified. Whatever may be thought of the propriety of
limiting the tenure of Judicial office to a certain age in the
incumbent, the importance of having tribunals of justice
independent of the passions, prejudices, and biases which
always have influenced and always will influence and con-
trol free communities, at times, cannot be better illustrated
than by a faithful history of the judiciary of our own com-
monwealth.
On review of this, we are carried back to the period of
our Colonial Charter, when popular election limited the
Cll. 13.] JUDGES OF THE COMMON PLEAS. 397
tenure, and popular favor was the test of qualification for
office.
We look at the administration of justice during this pe-
riod, and find it, at best, little better than legislation adap-
ted to individual cases.
If life, liberty and property were then secure, it was rath-
er through the influence of a strong, pervading moral sense
which then controlled the public mind, than the well set-
tled rules of civil rights and duties which distinguish the
condition of a free people.
Passing from this period, we find a new era opening
upon the view, in a judiciary independent, indeed, of the
popular will, but deriving its appointment from a royal
governor, and holding office substantially during his pleas-
ure. Under such a constitution, although more uniformity
and greater stability might naturally be expected in the
administration of the law, the citizen was taught by sad
experience how slender was the protection afforded him
in the improved forms of Justice, when his interests were
opposed to those of the ruler. He sued in vain to a tribu-
nal that owed its existence to the power against whose in-
terest he was contending.
The framers of the constitution of Massachusetts, whose
sturdy love of liberty had been strengthened and disci-
plined in the school of the revolution, knew the value of
personal security to the citizen too well to suffer it to de-
pend upon the fluctuating will of the many or the caprice
of the few.
And we find that in the very " Declaration of Rights"
prefixed to the Constitution, this right of being tried by
impartial and independent judges is solemnly guarantied
to the citizens of the commonwealth.
And the history of the results of the adoption of this
principle, would show how far the peace and good order
398 JUDICIAL HISTORY. [Ch. 13.
of the community, as well as individual safety and gener-
al confidence, have been the fruits of such a system.
The citizen has found that so far as his interests have
been brought under judicial examination, he has, in the
language of this Bill of Rights, been " tried by Judges as
free, impartial and independent as the lot of humanity will
admit."
Another scarcely less obvious inference may fairly be
drawn from the history of these several eras in the constitu-
tion of our courts, and that is that an enlightened, intelli-
gent and independent BAR is scarcely less essential to a just
administration of the law, than an independent Bench.
Indeed, without such a Bar, it would be idle to hope for
an enlightened and educated Bench. The one becomes
the only proper school of preparation for the other.
Besides, without such a Bar, to stand as a medium of
connexion between the Bench and those who come before
it in the relation of suitors, justice could be but partial-
ly administered. The cunning, knavish litigant would
successfully practice his arts upon the honest suitor with
whom he should contend, and the undisciplined feelings
of disappointed or unsuccessful parties would find vent
in such a manner as to convert our courts of justice into
arenas in which personal rancour would trample upon the
courtesies of life, and popular vengeance too often take
the law into its own hands.
These topics have already been alluded to more than
once in the course of this work, and to reflecting minds no
argument is needed to enforce them. I have however
again referred to them in the hope of thereby presenting a
proper incentive to ingenuous minds to enter this field of
historical research, and to complete what has been so im-
perfectly begun.
Ch. 13.] JUDGES OF THE COMMON PLEAS. 399
It was the wish of Giles Duncomb, that his Treatise
upon " Trials per Pais," " might not be read of the most
learned, nor of those who are not learned at all, because
these understand nothing and the others more perhaps than
the author himself."
However wise might be such a wish in an author who
should write for his own fame alone, I cannot but indulge
the hope that these pages may find readers who will be
far more able to make use of the facts here collected than
I have been.
The legal profession is not what it once was in our
Commonwealth. Law is no longer regarded as a mere art
or trade. As a moral and political science it has taken its
place by the side of the most exalted and important of hu-
man sciences, and whatever shall tend to diffuse a true es-
timate of its pursuit through the community, may be ac-
counted as something added to the stock of useful knowl-
edge, though it may not wear the attractive garb of inge-
nious speculation or of a polished style.
Massachusetts has been a distinct community long
enough to have accumulated many of the elements of an
unwritten or common Law of her own. And these must
be traced in the fading memorials of an earlier age in
the origin of those institutions, social and political, which
grew up to meet the expanding wants of a young and vig-
orous Commonwealth.
Whatever, therefore, may be the form in which these
memorials are preserved, be it even in the dry details of
legislative enactments, they cannot fail to be useful to any
one who would pursue the study of our law as a science,
or seek to give to its elements the form and symmetry of
a rational system.
Narrow as has been the sphere of these labors, I cannot
400 JUDICIAL HISTORY. [Ch. 13.
better conclude this work than by borrowing the eloquent
language of Mr. Burke, when speaking of the history of
the English law. " What can be more instructive than
to search out the first, obscure and scanty fountains of
that jurisprudence which now waters and enriches whole
nations with so abundant and copious flood to observe
the first principles of RIGHT springing up, involved in su-
perstition and polluted with violence ; until by length of
time and favorable circumstances, it has worked itself into
clearness, the laws, sometimes lost and trodden down in
the confusion of wars and tumults, and sometimes over-
ruled by the hand of power ; then victorious over tyranny ;
growing stronger, clearer, and more decisive by the vio-
lence they had suffered ; softened and mellowed by peace
and religion ; improved and exalted by commerce, by so-
cial intercourse, and that great opener of the mind, ingen-
uous science ?"
INDEX.
Accounts, 56. Barnard, 138.
Acknowledgment of Deeds, 38, 60. Barnstable Co., 318, 371.
Actions, 48, 56, 61, 62, 63, 105, 107, Barratry, 50.
108, 110, 135, 136, 153, 190. Barristers, 189, 200.
Adams, 201, 238. Baxter, 126, 372, 375.
Addington, 132, 242, 270, 319. Bayard, 126.
Admiral, 17. Beadle, 42.
Admiralty. See Courts, 30, 68, Beans, voting by, 20.
159, 172. Belcher, 280.
Advocate General, 185. Bellamont, 93, 154.
Alborrow, 127. Bellingham, 50, 76.
Allen, 126, 376. Berkshire Co., 318, 392.
Almy, 156, 365, 370. Berry, 155, 345, 351.
Andrews, 107. Bills of credit, 118, 267, 280, 323.
Andros, 94. Bisbee, 218.
Angier, 201. Bliss, 201, 382.
Appeals, 27, 28, 29, 32,40, 98, 168, Blowers, 201, 239.
171, 173. Boardman, 337, 343.
Appleton, 101, 107, 345, 346, 347. Bollan, 186, 220.
Arnold, 127, 355, 356. Books. See Law.
Artillery, Anc. & Hon. 123, 259, Book-Debts, 56.
267, 274. Boston, Court for, 39.
Ashley, 381, 393, 394, 395. Boston Massacre, 297.
Assistance, writs of, See Writs. Bourn, 156, 201, 345,353,372,373.
Assistants. See Courts, 12,15,17, Bradbury, 185.
18, 19, 20, 42. Bradford, 127, 355, 363.
Associates, 31. Bradstreet, 50, 80, 81, 82, 85, 100,
Attaint, 46. 113, 132, 134.
Attorneys, 50, 51, 52, 53, 87, 88, Brattle, 156, 209.
89, 104, 189, 201. Breck, 192.
Attorney General, 87, 88, 99, 103, Bristol Co., 318, 365.
134, 141, 203. Brockholst, 126.
Atwood, 176. Brock, 379.
Athearn, 377. Bronson, 365.
Auchmuty, 173, 176, 177, 183, 184, Brown, 126, 164,242, 313,345,
186, 200. 346, 349, 354, 365, 368, 395.
Bacon, 375, 395. Bulkley, 85, 103, 120.
Baldwin, C. C. 385. Bullivant, 51, 87, 88, 89, 104, 127.
Bank, 118, 157, 334. Burgess, 58, 82, 119.
51
402
INDEX.
Burnett, 173.
Burrill, 345, 349, 351.
Burning, Punishment by, 194.
Bunker, 379.
By-laws, 39.
Byfield, 127, 176, 178,267, 319, 365.
Calef, 379.
Carr,35.
Cart wright, 35.
Cases, Allen v. Bliss, 62.
Atkinson v. Williams, 64.
Bennett's, 57.
Bell's, 194.
Blaidsdell v. Colcord, 47.
Broadbent v. Col man, 110.
Broadbent v. Woodcock,
108.
Byfield v. Lidget, 135.
Cooke v. Paige, 90.
Corey Giles's, 142.
Colcord's, 59.
Ela v. Clement, 63.
Frissell v. Usher, 136.
Goffe v. Green, 134.
Graves', 57.
Hawes', 57.
James v. Lechmere, 202.
Jynks', 58.
Jones', 58.
Johnson v. Vial, 64.
Keith v. Church, 62.
Lattimer v. James, 67.
Lake v. Perry, 67.
La Tour v. Bayley, 68.
Liscomb v. Bowers, 190.
Matson v. Thomas, 186.
Nelson v. Brooks, 90.
Oliver Thos. wife's, 57.
Osgood's, 142.
Palmer's, 57.
Petit's, 57.
Plastow's, 57.
Pynchon v. Driscoll, 62.
RadcliiPs, 56.
Scott's, 58.
Baffin v. Lawrence, 69.
Somersett's, 202.
Sewall v. Winthrop, 153.
Shapleigh v. Gunnison, 63.
Shrimpton's, 58.
Stoughton v. Perry, 153.
Cases, Stevens', 58.
Tyler v. Chandler. 49.
Wedgwood's, 57.
White v. Patridge, 61.
Woodcock v. Keith, 68.
Woodcock v. Broadbent,
135.
Cazeneau, 200, 236.
Chancery. See Court, 28, 158.
Chandler, 157,201,386,388.
Chambers, 337, 341.
Charters, 11, 12, 14, 16, 81, 83, 84,
85.
Checkley, 51, 88, 92, 102, 104, 134.
141,148,204.
Cheever, 157.
Chipman, 200, 234.
Choate, 345, 351.
Church, 365, 367, 370.
Clark, 127.
Clapp, 355, 357.
Clergy, 15, 21, 50, 191.
Clergy, Benefit of, 194.
Clerk of writs, 40.
Coffin, 376, 378, 379.
Coggan, 51.
Colcord, 47, 59, 60.
Colony, 9, 10.
Commissioners. See Courts, 17,
24, 31, 35, 37, 39, 40, 186.
Common Pleas. See Courts.
Company, Plymouth 10, 11.
" London, 10.
Complaint, 135.
Confession of Judgment, 69.
Constables, 43, 331.
Contempt, 70.
Conway, 333.
Cooke, 81, 134, 154, 179, 180, 241,
263, 319, 328.
Corey, 142, 148.
Corn, voting by, 20.
Costs, 33, 46, 47, 69, 91.
Cothill, 127.
Cottle, 377.
Cotton, 19, 22, 355, 357, 364.
Councillors, 85.
Counsellors. See Mandamus.
County. See Courts.
Courtland, 126.
Courts, 26, 96.
INDEX. 403
Courts, Assistants, 26, 29, 133. Dowse, 337, 341.
Associate, 354. Dudley, 19, 20, 73, 74, 80, 81, 85,
Boston, 39. 92, 103, 105, 1 14, 126, 204, 242,
Chancery, 26, 34, 98. 151, 283,319,326.
1 66. Dukes County, 31 8, 375.
Commissioners, 37,98. Dummer, 173, 319, 324.
Common Pleas. 30, 97, 133, Dwight, 381, 384, 393.
151, 155, 166. Edson, 355, 364.
County, 26, 30, 31, 87, 88. Elections, 15, 51.
General, 12, 14, 15, 23, 26. Endicott, 10, 11, 15, 51, 77, 82.
Governor and Council, 94. Equity. See Courts.
Great Quarter, 29. Essex County, 318, 344.
Justices of the Peace, 97, Fales, 366.
151, 170. Farnham, 200, 223.
Magistrates, 26, 36. Farwell, 103, 104, 1 05, 126.
Military, 26, 35. Fees, 87, 88, 99.
Monthly, 12, 14. Fire, great, 261.
Over and Terminer, 58, 89, Fitch, 173, 186, 200, 232, 336.
140, 257, 259. Forma Pauperis, 49, 90.
Pleas and Sessions, 85, 88. Foster, 132, 164, 319, 322, 337, 343,
Probate, 85, 95, 187. 355, 359.
Quarterly Sessions, 97, 151, Foxcroft, 337, 339, 341.
169. Freemen, 15, 19, 20, 80.
Selectmen, 38. Frye, 345, 353, 354.
Sessions, 30, 32. Fullam, 337, 341.
Strangers, 26, 33. Freeman, 375.
Superior, 85, 89, 97, 151, Gardner, 225, 337, 379.
155, 166. General Court. See Courts.
Craddock, 11, 13, 184. General, Major, 17.
Cranston, 173. General Sessions of the Peace.
Crimes, 27, 28, 29, 31, 36, 37, 38, See Courts.
49, 56, 171. Gibbeting, 194.
Crocker, 372. Gibbs Henry, 345, 352.
Curwin, 141, 146, 242, 274, 345. Gidney, 85, 123, 126, 127, 141,
Cushinff, 156, 163, 164, 185,242, 147,345.
287, 298, 314, 345, 352, 354, Goffe, 164, 309.
355,359,364. Goff, 11,
Dana, 200, 201, 233. Gookin, 81, 281 .
Danielson, 382. Gordon, 333.
Danforth, 80, 81, 152, 157, 201, 241, Gorham, 201.
247, 337, 342. Gould, 90.
Davenport, 173,206, 207, 242, 279. Governor, J2, 13, 14, 16, 17, 18,20,
Davis, 365, 372,375. 23, 71.
Deeds, 38. Governor, Deputy, 12, 18.
Default, 69. Governor and Company, &c. 11 .
Delegates, 17. Governor and Council. See Courts.
Deputies, 17, 18. Graham, 103, 104, 126, 127.
Dexter, 320, 335. Greaves, 57, 156, 242, 291, 337, 341.
Divorce, 30. Green, 127, 134, 319, 334.
Doane, 372. Green leaf, 345, 354.
Dowry, 38. Gridley, 163, 200, 21 1 , 236, 320,334.
404
IN npx.
Habeas Corpus, 90, 152, 195.
Hair, 82.
Hampshire County incorporated,
318.
Hartwell, 386.
Hatch, 319,334.
Hathorne, 67, 242, 271, 345.
Hawes, 57.
Hawley, 185, 201, 229, 380, 383.
Hawthorn, 23, 40, 161.
Hayman, 104,337,339.
Haynes, 74.
Hearne, 218.
Hibbins, 45, 58.
Hicks John, 85.
Higginson, 345, 348, 352.
Hill, 320, 335.
Hinkley, 126.
Hinks, 126, 127.
Holten, 354.
Hood, 173.
Hooker, 19.
Hopkins, 201.
Hovey, 201, 238.
Howard, 354.
Hubbard, 156, 157, 177, 365.
Humfrey, 50, 73.
Humphrey, 10.
Hussey. 379.
Hutchinson, 157, 160, 163, 164, 173,
242, 280, 304, 311,319,320,
325, 332.
Indictment, 49, 142.
Inferior Court. See Court.
Jeffries John, 156.
Jeofails, statute of, 48.
Jones Margaret, 58,
Johnson, 11, 364.
Judges not to be counsel, or vote,
when, &c. 41.
Judgment, confession of, 69.
Jurisdiction of Courts over foreign
parties, 61.
Jurors who might be, 15.
refuse to serve 195, 302.
Juries, 43, 44, 45, 46, 47, 85, 97, 108.
Juries, in what trials dispensed with,
30, 173.
Justices of the Peace, 36. See
Courts.
Jynks Esther, presented, 58.
King, 104.
Kirk Col. 95.
Kent Benja.,200, 232.
Lawyers. See Attorneys Barris-
ters.
Law Books, 1967.
Langdon, Timo. 201.
Laighton Thos. 67.
Lawrence, William, 337.
Lechford Thos., 53, 54.
Lechmere Thos. ,173.
Lee Joseph, 158, 337, 342, 343.
Leonard, 187, 201, 237, 365, 366,
368, 369.
Leverett, 79, 242, 273.
Libel, 135, 171.
Licenses, 32.
Lidget Charles, 103,124.
Limitation of suits, 56.
Lincoln, 157.
Lindall, 345, 350.
Liturgy used, 80.
Lisle Daniel, 187.
Little, 218. '
Lothrop, 126, 355, 356, 357, 371.
Lowell, 201, 235. 345.
Lynde Benja., 156, 163, 186, 191,
242, 275, 296, 345.
Lynde Joseph, 337, 338.
Lynde Simon, 88, 103, 123, 257.
Lyde, 319, 324.
Magistrates, 31, 34, 37. See
Courts.
Mclntosh, 365.
Maine, 247.
Major General, 17.
Mandamus Counsellors, 161, 164,
195,227,229,314,334.
Mansfield Isaac, 201.
Marriage how solemnized, 37.
Marsh, 393, 394.
Marshall, 43, 87, 89, 134.
Marston, 351.
Mason, 85, 126.
Marston, 345.
Masters, 88, 92, 104.
Mather, 382.
Maverick, 35.
Mayhew, 376, 377, 378.
Menzies John, 176.
Merchants' Courts, 33.
INDEX.
405
Middlesex Co. incorporated, 318.
Military Courts. See Courts.
Monckton Col. 360.
Monthly Courts. See Courts.
Mompesson Roger, 176.
Morton, 55, 354.
Nantucket Incorporated, 318.
Nelson Philip, 101.
Newton, 104,205.
Newman, 377, 378.
Newberry Walter, 127.
Neutrals, French, 361.
Nichols Richard, 35.
Nicholson Francis, 126, 128.
Niles Samuel, 320, 335.
Noddles Island, 36.
Nowell John, 101.
Nowell Increase, 82.
Norton, 376.
Nonsuit, when to be entered, 69.
Noyes, 345, 348.
Nurse Rebecca, 144.
Nutting John, 174.
Oaths, how administered, 48, 99.
Oaths of Attorneys, 89.
Oliver Andrew, 157, 345, 352, 354.
Oliver Peter, 160, 162, 163, 164,
242, 300, 355.
Oliver Daniel, 201.
Oliver Thomas, 57.
Orne, 345.
Otis James, 163, 185, 186, 194,
200, 212, 221, 375.
Otis Joseph, 355, 356.
Otis John, 374, 375.
Outlawry, 57.
Overing, 208.
OyerandTerminer. See Courts.
Paine Nathaniel, 173, 365, 367.
Paine Stephen, 365, 370.
Paine Robert T. 185, 201.
Palmer John, 103, 121, 126.
Palmer Thos. 319, 324.
Parsons, 380.
Palmer Edward, punished, 57.
Parker, 371.
Papers, voting by, 20, 21.
Peck, 366, 366.
Peine fort, &c. punishment, 142.
Partridge, 382, 383.
Pelham, 50.
Pemberton Samuel, 320, 335.
Pepperell Wm. 333.
Petit Thos. punished, 57.
Phipps Gov. 81, 100, 133, 140, 245.
Phipps Spencer, 173.
Phillips Samuel, 101.
Pickering, 354.
Phillips John, 175,337.
Pickman, 345, 352.
Phillipse Frederick, 126.
Pierce, 345. 346.
Plastow Josias punished, 57.
Pleading, 48, 52, 62, 63, 189, 190,
196, 260.
Plymouth Co. incorporated, 318.
Poems the first published, 80.
Pomeroy, 381.
Powers of attorney, 189.
Pope Edward, 201.
Porter, 201, 380, 381, 382.
Pratt Benj., 224.
Practice, 42, 188.
Province Kings, 85.
President Dudley, 85.
Prescott Benja., 156.
Probate Jurisdiction, 30, 32. See
Courts.
Process, to be in King's name, 24,
43.
Prohibition, writs of, 158.
Provost Marshall, 89, 100.
Punishment, 193. See Crimes.
Puritans, 10.
Putnam James, 201, 237.
Pynchan John, 85, 126, 128, 380,
382, 384.
Pynchon Joseph, 156, 381.
Pynchon Wm. 200, 234, 381.
Quarterly Sessions. See Courts.
Quincy Edmund, 156, 242, 281.
Quincy Josiah, 185, 201, 216.
Quincy Samuel, 200, 216.
Radcliff Philip, 56.
Randolph, 89, 96, 99, 105, 108, 127,
128, 185, 188, 189.
Randall, 85.
Rawson Edward, 83, 85.
Records to be kept, 43.
Read John, 138, 206, 207.
406 INDEX.
Reed William, 1 184, 200, 236, 319, Shay's Rebellion, 390.
333. Shirley Gov., 138, 173, 183, 186,
Rehearsal published, 211. 219.
Remington Jona, 242, 288, 341. Sheriff, 89, 99, 103.
Remington John, 337. Skrimpton Col., 58, 59, 103, 122,
Representation of towns introduc- 126.
ed, 17, 18. Shute Gov., 119, 181.
Richards John, 88, 134, 141, 146, Silver Scheme, 157.
152, 154, 241, 255, 318. Skiff Benja., 376.
Richards Joseph, 157. Slander, actions &c. for, 57, 107,
Rice, 386, 387. 191.
Richardson Amos, 51. Slavery, 202.
Rogers J. D., 201, 305. Small causes. See Courts.
Ropes Nathl., 242, 312, 345. Smith Richard, 127.
Roswell Sir Henry, 10. Smith Thomas, 373.
Ruggles Timothy", 199, 226, 386. Smith John, 134.
Rum, actions for sale of, 105, 110. Smith Benja., 376, 378.
Russell Richard, 40. Smith Ebenezer, 376.
Russell Chambers, 163, 184, 242, Solicitor General, 187, 215.
299, 337, 341. Southcote Thomas, 10.
Russell James, 337, 338, 344. Special Justices, 155, 336.
Salem Plantation begun, 11, 18. Speaker of H. Rep. chosen, 23.
Salaries, 160, 161, 162. Spry, Judge, 175.
St. Lawrence, 218. Sprague John, 127, 201.
Saltonstall Richard Sir, 11. Steele Thos., 336, 386, 388.
Saltonstall Nathl., 85, 101, 146, Stevens Henry, punished, 58.
345. Stoddard John, 290, 381.
Saltonstall Richard, 156, 242, 289. Stoddard Anthony, 319, 327, 336.
Saffin John, 242, 267, 268, 365. Stone Capt., 44.
Sargeant Peter, 58, 141, 147, 319. Stoughton Wm., 81, 85, 87, 88, 89,
Sarson, 376, 377. 103, 106, 114, 126, 132, 141,
Sargeant N. P., 185, 201, 234. 145, 152, 241, 242, 318.
Savage Samuel P., 337. Strangers. See Courts.
Scott Roger, presented, 58. Strong Simeon, 201.
Seal of Colony, 103. Suffolk Co., incorp., 318.
Secretary of Colony how chosen, 17. Sullivan, Judge, 185.
Secretaries of Colony, &c., 82, 271. Simmer, 377.
Sedgwick Thomas, 201. Superior Court. See Courts.
Selectmen 38. See Courts. Swift Samuel, 200, 236.
Sergeant. See Sargeant. Tasker, 345, 352.
Sessions. See Courts. Tenure of office of Judge, 138.
Sever, 355, 357, 364. Thacher Oxenbridge, 222.
Sewall Samuel, 135, 141, 146, 148, Thacher, 371, 372.
149, 152, 241, 258, 318. ' Thaxter Samuel, 155.
Sewall Stephen, 156, 242, 293. Torrey, 364.
Sewall David, 185. Townsend Penn, 319, 323.
Sewall Jona., 186, 201, 211, 214. Tobey, 366.
1 When preparing the body of this work, I had hoped to learn something
of the life and character of Mr. Reed, but found myself disappointed in being
able to furnish any further notice of him, although it was promised in the work.
INDEX.
407
Treat Robert, 126.
Tilton, 377, 383.
Treasurer annually chosen, 17.
Trowbridge Edmund, 164, 212,
214, 242, 308.
Thomas Nathl., 88, 92, 242, 277,
354, 355, 356, 364.
Trail Robert, 174.
Turner, 364.
Tyng Jona., 85, 337, 339.
Tyng Edward. 85, 126.
Tyng John, 126, 337, 339, 343,
Usher John, 85,88, J06, 125, 126,
Upham Joshua, 201.
Vane Henry, 19, 74.
Valentine John, 186.
Vial Samuel, 365.
Voting, mode of, 20.
Wager, suit to recover, 190.
Walcott, 345, 350.
Walley John, 127, 242, 266.
Wainwright, 345, 350.
Ward, Rev. Mr., 22.
Wadsworth, 364.
Ward, 157, 386, 389.
Warren, 355.
War, how declared, 35.
Washburn John. 82.
Watson John, 51, 88, 92.
Watts Samuel, 319, 328,
Webb Christopher, 88, 92, 104.
Wedgwood John punished, 57.
Weldon, 218.
Welles Samuel, 319, 332.
Willis Benja., 364.
West John, 96, 104, 124, 127.
Wharton Richard, 85, 88.
Whitcomb Simon, 10.
White, Rev. Mr., 10.
White Samuel, 158, 201, 231.
Whiting, 395.
White John, 280.
Willis, 365, 370.
Wilson, Rev. Mr., 21.
Wilder, 386, 387, 389.
Willard Samuel, 386.
Willard Abel, ,201, 226.
Williams Israel, 381,385.
Williams Ephm., 381, 384.
Williams Thomas, 382.
Williams Seth, 157, 365, 370.
Williams Elijah, 381.
Williams James, 370.
Williams William, 393.
Winslow Pelham, 201, 238.
Winslow Thomas, 373.
Winslow Isaac, 355, 356.
Winslow Edwd., 319, 332.
Winslow, arrested, 340.
Winslow John, 355, 359.
Winthrop John, 11, 14, 19, 50, 71,
Winthrop Wait, 85, 88, 126, 127,
141,146, 152, 175, 241,252,
132, 318.
Winthrop Fitz John, 85, 126.
Winthrop Adam, 132, 319, 322, 324.,
Wise John, prosecuted, &c., 105. '
Witchcraft, 45, 58, 140, 148, 153,
245, 250, 257, 259, 260.
Worthington John, 201, 228.
Worth, 377.
Worcester Co. incorp., 318.
Woodbridge, 393.
Writs, Clerks of, 40.
Writs, forms of, 43, 48, 168, 188,
190, 194.
Writs of assistance, 186, 211, 222,
293.
Young Sir John, 10.
Young John, 126.
F
67
W38
Washburn, Emory
Sketches of the judicial
history of Massachusetts
.-
v-
