THE PUBLICATION of these judicial records has been undertaken by the Society as a contribution to the legal and social history of the American colonies. Legal development is probably the least known aspect of American colonial history. Judicial opinions were not recorded in the English colonies, no year-books were issued, and the printed materials for legal and judicial history have been so scanty as to preclude the more cautious historians from dealing with this important side of colonial life; less cautious historians have indulged in generalizations for which slight support can be found in fact.
A few years ago, on the initiative of our associate Evarts Boutelle Greene, then President of the American Historical Association, a committee of that Association was appointed on legal history, and a conference held at New York. This committee recommended that a systematic effort be made to publish the abundant manuscript records of American colonial courts. Acting on that suggestion, the Council of the Colonial Society of Massachusetts cast about for a suitable contribution that they might make to so worthy an enterprise. Their choice fell upon a manuscript book of records of the Quarterly Court of Suffolk County, Massachusetts, covering the period between October 31, 1671, and April, 1680.
This manuscript record book, measuring 9 x 14⅝ inches, in the clear handwriting of the clerks of the court, Freegrace Bendall and Isaac Addington, is the property of the Boston Athenæum; and to the Trustees of that institution the Society is indebted for permission to publish. About one fifth of the book was set up in type some years ago by William H. Whitmore, with the intention of printing it as a Report of the Boston Record Commissioners; but for some reason unknown the enterprise was abandoned, and only a single pull of the proof, also owned by the Boston Athenæum, survived. This page proof, collated with the original manuscript, became the basis of the first one hundred and fifty pages of our text; the rest was typewritten from the original and collated with it before printing. Our associate Charles K. Bolton, Librarian of the Boston Athenæum, has afforded us every facility for this work; and has himself aided in the collation.
Since the entries of cases in the records are extremely brief, often giving little clue to the issues at stake and never to the reasons for the decision, it seemed wise to annotate the entries from the court files. Such papers of this colonial court as survived the Revolution and ravages of time are now part of the archives of the Supreme Judicial Court of the Commonwealth of Massachusetts. Some years ago the ancient dockets were unfolded and carefully mounted in books with protection of transparent silk, under the direction of the then Clerk of the Supreme Judicial Court of the County of Suffolk, our late associate John Noble. Numerous communications from Mr. Noble, based on these files, will be found in volumes I-XI of our Publications. The present Clerk of the Supreme Judicial Court of the County of Suffolk, John F. Cronin, Esq., graciously gave us permission to search the court files for this purpose; and the search was facilitated by his able assistant, Miss Madeleine Connors.
Although no documents can be found for the great majority of cases entered in these volumes, the documents that have survived for the minority are so numerous that a rigorous selection was necessary, in order to keep publication within reasonable compass. For this purpose the system adopted by Mr. George F. Dow, in his Records and Files of the Quarterly Courts of Essex County, a pioneer publication in this field, has been followed, and at various stages the Committee have had the advantages of Mr. Dow’s advice and guidance. The most interesting and important documents have been printed in extenso, in 8-point type.1 Excerpts have been made from others. The rest (excepting such formal documents as writs and returns) have been mentioned by title or reference number, and in many cases have afforded material for a running commentary on the case, which is printed in 10-point type, and enclosed with the selected documents in square brackets.
In the selection of documents to be printed, the Committee have endeavored to serve three distinct purposes. They have attempted to include everything that may throw light on the legal history of the colony. From this point of view the most important documents are the Reasons of Appeal to the Court of Assistants and the Answers to said Reasons drawn up by the other party. In the absence of all record of judicial opinions, these Reasons and Answers offer the principal clue to the reasons of decisions, and are full of significant information as to the kinds of law which the courts of the colony then took under cognizance.
The second point of view in the choice of documents has been that of social history, in its broadest sense. These court files of the colony are the best source we have of the life of the people. They include inventories of houses, estates, shops, and vessels; accounts of common doings such as eating and drinking, lovemaking and fighting; ordinary occupations such as seafaring, brewing, and tanning. The numerous sidelights on coastwise voyages to Maine, Nova Scotia, and the Southern Colonies, and on overseas trading to the West Indies, France, Spain, and England, add much to what we already know of Boston’s maritime activities. Although these records cover the period of King Philip’s War, which probably caused a greater drain of man power and money than any of the later colonial wars, “business as usual” appears to have prevailed in Suffolk County.
Finally, a number of documents have been printed simply because they record the common speech of the day. Depositions of witnesses, reports of conversations between litigious neighbors and combative seamen, are the nearest we can hope to come to the Yankee speech of the seventeenth century. Hence we have kept a sharp look-out for documents of that sort—the more illiterate the better; and have been amply rewarded with salty speech of the sea, idioms tart with Saxon monosyllables, coarse phrases bawled across back fences or hurled at passers-by in the twisty lanes of Boston: phrases the more biting because cursing and swearing, the lazy man’s substitute for language, were forbidden. If any there be who suppose that our New England Puritans were nice in speech, prohibitionists in principle, or ascetics in practice, a careful perusal of our documents may be a wholesome corrective.
The Editor of the Society’s Publications is not responsible for these volumes. They were largely edited as a sort of extra-curricular activity by the Chairman of the Publication Committee, who is to blame for that ample measure in which they fall short of the Society’s high standards of scrupulous accuracy in every detail. He took the precaution of submitting the copy for all annotated cases to Professor Chafee, who rejected certain documents as unimportant and included others, corrected the Chairman’s legal blunders, and amplified his notes from the point of view of legal history. Mr. Charles L. Lundin did most of the copying and collating, and acquired such experience as to be of very material assistance in the selection and annotation. Many corrections and comments have been furnished in reading proof by other members of the Publication Committee, notably by our associate Albert Matthews.
In printing both the original court book and the additional documents, we have followed the Society’s standard practice of reproducing the original as accurately as the limitations of ordinary type will allow. All irregularities of spelling, capitalization, abbreviation, and punctuation have been followed, with these exceptions:
The tilde has been replaced by the letter it represents. Thus pen̄y is spelt penny, and accōn, accion.
The l or li in the abbreviation for pounds is not crossed, as it often is in the manuscripts.
All tailed p’s, such as ꝑ, ꝓ, etc., are spelt out per, pro, etc., and superior letters in connection with such abbreviations are ignored.
Dots, colons, and other abbreviations under superior letters are not reproduced.
Freegrace Bendall, the clerk and recorder of the court at the beginning of the period covered by these volumes, had a peculiar habit of using an apostrophe after all plurals’, thus, as well as for the possessive case. This intrusive apostrophe has not been reproduced.
One of the abbreviations, which can be represented accurately with the character @, has been so reproduced. It probably means anno, “in the year,” following the date.
In recording jury decisions and entries of appeals, the clerk followed fixed formulæ. The formula of submitting the evidence to the jury is reproduced in full only in the first entry (Sheafe v. Hawkins, p. 1), and the formula of entering an appeal to the Court of Assistants is reproduced in full only in the record of the first case so appealed (Clark v. Nicholls, pp. 5–6). In all later cases, the ever-recurrent formulæ have been omitted, and the omission indicated. In the documents copied, the often elaborate endorsements and verifications are omitted.
In the manuscript court record, the date of each session, the lists of judges and jurors, the title of each case, and the executions, are entered in the margin. In printing, these marginal glosses have been brought into the center. The marginal titles for the entries of liquor licenses have, in general, been omitted to save space.
The Index is the work of Mr. Waldo Palmer. The Society’s Editor took the entire copy in charge when it was about half way through page proof, and saw it through the press.
Samuel Eliot Morison
For the Publication Committee