Zechariah Chafee, Jr.
According to an act of the General Court of May 20, 1643, dividing the Bay Colony into four “sheires,”2 Suffolk embraced the towns of Boston,3 Roxbury, Dorchester, Dedham, Weymouth, Hingham, Braintree, and Nantasket (Hull). By 1670, through the subdivision of towns, it had come to include Medfield and Milton as well.4 As our old school geographies would have said, Suffolk was bounded on the north by Middlesex County (from which it was divided by the Charles River),5 on the north and east by the Atlantic Ocean, on the south by Plymouth Colony and Rhode Island, and on the west by the wilderness. The population of Boston in 1680, according to the estimate of W. S. Rossiter, was 4,500.6 Probably the other nine towns included almost as many more. A safe estimate of the total population is between 7,000 and 10,000.
The Suffolk County Court was one of the inferior quarterly courts (as distinct from the “Greate Quarter Courts,” which meant the Court of Assistants) which were established by the Great and General Court at the session of March 3, 1635/36.7 Subsequent enactments respecting this and the other county courts are printed as a revised statute in the General Laws and Liberties of the Massachusetts Colony (1672), which declares (pp. 35–36):
Also there shall be County Courts held in the several Countyes, by the Magistrates living in the respective Counties, or any other Magistrates that can attend the same, or by such Magistrates 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 appointed by the General Court (at the nomination of the Freemen of the County) to be joyned 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, not extending to Life, Member or Banishment, (which with Causes of divorce, are reserved to the Court of Assistants) and to make and constitute Clerks and other needfull Officers, and to Summon Juryes of Inquest, and Tryals out of the Towns of the County; Provided no Jurors shall be warned from Salem to Ipswich, nor from Ipswich to Salem and the times and places for holding the County Courts shall be as followeth
- Boston the last tuesday of the second Month [April],
- The last tuesday of the fifth Month [July].
- The last tuesday of the eighth Month [October],
- And the last tuesday of the eleventh Month [January],
These terms were not strictly observed, the autumn session being often in November.
The term “Magistrates” in this act, as in Bay Colony usage generally, meant primarily the Governor, Deputy-Governor, and twelve Assistants, annually elected by the freemen on the last Wednesday in Easter Term (the day before Ascension).8 There were two other classes of magistrates, who in another act9 are called “Associates”: magistrates by special appointment, and “persons of worth” nominated (according to an act of 1650) in town meetings, and appointed to the magistracy by the General Court.10 The Suffolk Court, sitting in the colonial capital, could usually muster more than a quorum of Assistants; as may be ascertained by comparing the names of those on the Bench at the beginning of every session with the list of annually elected Assistants in W. H. Whitmore, The Massachusetts Civil List (1870), pp. 24–25. Besides the Suffolk Court, there were six other county courts in the Bay Colony during the period covered by these records: that of Middlesex County, meeting alternately at Charlestown and Cambridge; that of Essex County, meeting alternately at Salem and Ipswich; that of Hampshire County, meeting alternately at Springfield and Northampton; that of Norfolk County,11 meeting alternately at Salisbury and Hampton; that of Pascataqua County, meeting alternately at Dover and Portsmouth (New Hampshire); and that of Yorkshire (the annexed Province of Maine), meeting at York. In 1674, the General Court organized the County of Devonshire for that part of Maine around the Kennebec River.12
Osgood has correctly summarized the jurisdiction of the County Courts as follows:13
Their criminal jurisdiction was analogous to that of quarter sessions in England, and in that capacity they performed a great variety of functions. They appointed commissioners to hear small causes, trustees of public legacies, persons to lay out highways, a master of the house of correction, searchers of money, and viewers of fish. They confirmed the nomination of military officers, apportioned charges for the repair of bridges; they licensed innkeepers, and packers of sturgeon, and punished violation of licenses; they ordered the removal of obstructions on highways, punished idle persons, punished excess of apparel, compelled restitution of overcharge by merchants, determined rates of wages in case of dispute, provided for the poor; they admitted freemen who were church members, fixed ministers’ allowances, saw that they were paid, inquired into the publication of heretical doctrines, punished heretics and profaners of the Sabbath, saw that Indians were civilized and received religious instruction, did all varieties of probate business, punished those who carried on unlicensed trade with the Indians. Full provision was made for appeal to the court of assistants.
Although the County Court was the usual court of first jursidiction, there was also a series of Commissioners’ Courts in every town for causes not involving a debt or damage greater than forty shillings. A Commissioners’ Court consisted of a single magistrate, or, in towns where no magistrate resided, three commissioners appointed by the General Court and sworn into office before a County Court. The Boston Commissioners’ Court, by exception, consisted of seven commissioners, and had jurisdiction over cases not exceeding ten pounds. The Commissioners’ Courts could not commit to prison, and in any case appeal lay from them to the Court of Assistants; and in some instances the case could be transferred to the County Court.14
Strangers who could not conveniently await a regular session of the County Court had the privilege, by an act of 1639, of requesting the summons of a special court consisting of three magistrates. The Strangers’ Court could hear and try any cause, civil or criminal, triable in the County Court.15
In every town there was a clerk of the writs authorized to issue summonses to witnesses and defendants, to apply attachments, to grant replevins, and to take bonds.16
Immediately superior to the County Court was the Court of Assistants, consisting of the Governor, Deputy-Governor, and the other annually elected Assistants or Magistrates. The Court of Assistants was the institutional ancestor of the Superior Court of Judicature of the Province of Massachusetts Bay, and of the Supreme Judicial Court of the Commonwealth; it also had the functions of an upper house of the legislature and a governor’s council. For judicial business it met regularly twice a year, on the first Tuesday of March and the first Monday of September, to hear and determine appeals from the County Courts, and to exercise original jurisdiction in “all Causes of divorce,17 all Capital and Criminal Causes, extending to Life, Member or Banishment.”18 Fortunately, an entry book of the Court of Assistants, beginning with the session of March 3, 1673/74, and covering almost the entire period of this volume, has been preserved. It was printed under the supervision of our late associate John Noble, as Records of the Court of Assistants of the Colony of the Massachusetts Bay (Vol. I) in the year 1901. This volume is an indispensable companion to ours for tracing the fate of appeals from the Suffolk County Court; frequent references to it will be found in our notes. The entry book of the Court of Assistants for the years 1671, 1672, and 1673 has been lost; but many of the cases have been reconstructed, as it were, from the Suffolk files, and were printed as part of volume III of the Records of the Court of Assistants, in 1928.
The Supreme Court of the Colony was the General Court, consisting of Governor, Deputy-Governor, Assistants, and the annually elected deputies of the towns. Since 1634, the General Court had been, as the revision of 1672 still declared,19 “the chief Civil Power of this Commonwealth.” Its principal business was legislation, and it was little fitted by composition or temperament to deal with judicial matters. Capital cases were regularly appealed from the Court of Assistants to the General Court in case of a disagreement between bench and jury, or in case of dissent of two magistrates out of five, three out of seven, or a like proportion.20 By virtue of its position as the “chief Civil Power,” the General Court had the right to order a new trial on writ of review if convinced that justice had not been done in one of the lower courts, or to hear an appeal itself.21 Any inferior court could certify to the General Court for “resolution” a difficult question which arose during the course of a case, but had to leave out the names of the parties.22 Several answers to such questions were printed among the supplementary Laws and Orders of the General Court,23 and one of them is cited by a litigant in one of the cases now published.24 Also, three suits in these volumes were dismissed by the County Court until the General Court had resolved a question.25 The General Court had the power to hear any case in the first instance, and in the early days of the colony this right had not infrequently been exercised in political cases such as that of Anne Hutchinson. However, in 1642, the General Court enacted that “all causes between Party and party, shall first be tryed in some Inferiour Court.”26 In the period covered by these volumes, the General Court showed little disposition to interfere with the ordinary course of justice in the lower courts, although several instances will be found of its ordering a review or entertaining an appeal.27 One petition for the settlement of an estate was granted,28 but the General Court referred two others to the County Court for action.29
The possession of these various judicial powers plainly made the General Court much more than the legislative body it is today. Like the assemblies in other colonies, in many respects it was really a court. This should be no cause for surprise, for Charles H. McIlwain, in his High Court of Parliament, has shown that legislative and judicial powers were intermingled in the English Parliament, where even yet the House of Lords is the final court of appeal. The case of Deane v. Hubbard30 reveals in a very interesting way the seventeenth-century theory of the nature of the General Court. A suit was brought by the assignee of a bill of exchange issued in connection with the illegal sale of Indians into slavery in the Azores. The defendant produced the record of a supersedeas issued by the Court of Assistants, forbidding payment, and the County Court granted a non-suit. The assignee in appealing contended that this order deprived him of his rights under title Bills of the General Laws, making bills assignable. Instead of arguing, as a lawyer would today, that the judges in the Court of Assistants should not disregard legislation, he treated the supersedeas and the statute as of the same nature—both being acts by courts—and then argued that the Court of Assistants could not override the action of a superior court, the General Court.
In the period covered by these volumes, the practice of law was far from being recognized as a profession, or even a reputable calling. Much of the early prejudice against lawyers as a class, which characterized the founders of New England, still survived; and the conduct of some of those who are repeatedly found acting as attorneys in these records was certainly not such as to remove those prejudices. Thomas Lechford, almost the only man of legal training in early Boston who did not serve on the bench, was practically frozen out by the refusal of the courts to permit him to practise;31 and this prohibition was embodied in Article 26 of the Body of Liberties of 1641:
Every man that findeth himself unfit to plead his owne cause in any Court shall have Libertie to imploy any man against whom the Court doth not except, to helpe him, Provided he give him noe fee or reward for his paines. This shall not exempt the partie him selfe from Answering such Questions in person as the Court shall thinke meete to demand of him.
As attorneys willing to practise for pure love of justice were not easy to find, the practice grew up of litigants or defendants going to some magistrate for his advice and opinion before the cause came to trial. The Reverend Nathaniel Ward, the “simple cobler of Agawam,” who had practised law in London for some ten years before he entered the ministry, rightly denounced the propriety of this arrangement. After he had argued against it in his Election Sermon of 1641, an effort was made to forbid this practice of private consultation with judges. But, as Winthrop records, nothing was then done; partly on the ground that if the magistrates were forbidden to give legal advice, “we must then provide lawyers to direct men in their causes.”32
As population increased, society became more complicated, and trials at law more numerous, the want of professional attorneys became more evident. Accordingly, Article 26 of the Body of Liberties was omitted from the revision of the statutes made in 1648.33 Hence from that year it was legal to employ paid attorneys in the Massachusetts Colony; and in the revision of 166034 it was made unlawful for any person “to aske Counsel or advice, of any Magistrate, or Commissioner in townes, in any case wherein afterwards, he shall or may be Plaintiff, before such Magistrate or Commissioner.” Apparently the number of lawyers and their influence increased more rapidly than the rulers desired, for in 1663 it was enacted by the General Court, “That no person who is an usual and Common Attorney in any Inferiour Court, shall be admitted to sit as a Deputy in this Court.”35 Sanction was also given to attorneys by a statute of October, 1673, making it lawful for any person to sue in any court “by his lawful Attourny Authorized under his Hand and Seale.”36 (Thus these seventeenth-century lawyers usually sued in their own names as attorneys, and not in their clients’ names alone as is the practice today.)
Of course it must not be assumed that all the attorneys mentioned in the cases in these volumes correspond to the lawyers of today. As Judge Bond has pointed out with respect to Maryland during the same period,37 no sharp line could yet be drawn between attorneys in fact and persons who earned a regular livelihood by appearing in court for litigants. Many men of means, especially Englishmen with property or mercantile interests in the Bay Colony, doubtless employed agents to manage their affairs, and these agents would occasionally represent their employers in court as an incidental part of their work.38 Again, a person who was ill or absent on a voyage would naturally appoint a member of his family or a friend as attorney in fact to represent him in a prospective lawsuit. Thus a wife who appeared as attorney for her husband in 1674/5 should not be regarded as a precursor of the woman lawyers of today.39
There can be no question, however, that many of the attorneys in the cases which follow, do correspond to the lawyers of today. The names of Hudson Leverett and others keep recurring with varying principals. The technical arguments in many of the Reasons of Appeal and Answers show that they were written by men accustomed to legal problems. A good example of such refined distinctions is the petition of the negress Hannah, convicted of stealing a box of surgical instruments;40 she was obviously incapable of the ingenious reasoning urged on her behalf. Despite the absence of any recognized bar and of any systematic professional training, the Bay Colony probably contained many a man who might have been described, like Benjamin Mussey, as “a Subtle Lawyer.”41
One case probably combines both types of attorneys and shows a lawyer representing an agent; Hudson Leverett sued as “subAttourny to William Merrit Attourny of Thomas Taylor of Newyorke.”42 In another case the County Court appointed an attorney to represent it in a criminal appeal.43
Conveyancing, a phase of the modern lawyer’s work no less important than appearing in court, was also well developed. There is abundant evidence of the existence of skilled conveyancers in the complex form of the documents reprinted in these volumes—powers of attorney,44 leases,45 a deed creating a right of way,46 an indenture dividing an estate,47 an agreement to give a deed,48 partnership articles,49 a bond given on dissolution of a partnership,50 bonds given by the purchasers of a brewery and an interest in a mill,51 the discharge of a judgment debt,52 as well as the numerous charter-parties, bills of lading, and other maritime instruments. The trust deeds for the benefit of creditors executed by Broughton in 1659 are said to have been “made by the aduice and Councell of one whose Judgment in the Law was accoumpted a bond.”53
Hence, by the year 1671, when these records begin, paid attorneys were a recognized, but hardly a reputable, class. No educational or moral requirements were made of them; and they were not sworn in at the bar of the court, or in any way licensed or regulated. No one of the several persons who are found practising before the Suffolk County Court during the decade covered by these volumes had had, so far as we know, any legal training; and only one, Elisha Cooke, had had even a liberal education. Thomas Hutchinson observes that Hudson Leverett, whose name frequently appears as an attorney in these pages, “maintained but an indifferent character,”54—a statement amply supported by the accounts here given of Leverett’s rash, indiscreet, and dangerous speeches in court, his sword-waving, misappropriation of linen, and precipitate flight downstairs chased by an irate householder.55 The same statement might be made of Benjamin Gibbs56 and several of Leverett’s other colleagues. Indeed, Peter Goulding was forbidden by the court to appear as an attorney or draw up any writings for others,57 and Richard Wharton, a man under bonds for good behavior, was similarly punished for fomenting litigation.58 It was not until about 1730 that Jeremiah Gridley succeeded in imposing professional standards on the Suffolk bar.59
The magistrates, except for the training derived from their experience in official duties, were as innocent of legal education as the attorneys; and we know less about their legal ability because they decided cases without writing opinions, whereas the attorneys revealed their knowledge of law in drafting Reasons of Appeal and other documents. The only member of the bench during our period who is known to have had any legal education was Richard Bellingham, who died at the age of eighty on December 7, 1672. Governor Bellingham had been “bred a lawyer” in the reign of James I, had served as Recorder of the Borough of Boston in Lincolnshire in the following reign, and had represented that borough in the Parliament of 1628. He had played a leading part in the compilation of the first published Body of Laws in the Colony, that of 1648. Yet, as Hutchinson writes, Bellingham, “like some much greater lawyers, made his last will and testament in such a manner, that after some years’ dispute, the general court thought it necessary to supply the defects of it, by making a disposition of the estate themselves.”60 The great Bellingham will case begins in these volumes.
The material in these pages must dispel the view that Massachusetts remained until after 1700 in a period of rude, untechnical, popular law. Before the colony was half a century old, its courts are shown busy with trusts for the benefit of creditors and their annulment for fraud, difficult questions of inheritance, and complex mercantile transactions afloat and ashore.
These pages also throw light on another interesting problem, the relative contributions of the English common law and the Bible to Massachusetts law in the seventeenth century. Two divergent views have been expressed on this question. Professor Charles J. Hilkey says:61 “The colonists did not consider English law binding. The statutes passed by the General Court were to them the positive, and the Scriptures the subsidiary law.” This view is largely shared by Paul S. Reinsch.62 Both these writers consider that the English common law remained largely an alien system until the middle of the eighteenth century and was then received into the colonies by professionally trained lawyers and judges in somewhat the same way as Roman Law was received into Germany after the close of the Middle Ages. On the other hand is the position stated by Professor Theodore Plucknett:63
Indeed, it is easy to exaggerate the scriptural element in early Massachusetts law; . . . even at this early date , and in spite of the talk about “judicial laws of Moses,” there had been a voluntary reception of a good deal of common law, freely modified to meet local conditions.
Doubtless the division between these two schools of thought is a matter of varying emphasis rather than a sharp clash. Both sides would agree that the English common law had some influence during the seventeenth century. Both would recognize that its institutions and rules were not completely adopted; for instance, Massachusetts did not have three distinct common-law courts and a court of chancery. Both sides know that the Bible had some authoritative value. The difference lies in the relative importance which is attributed to the common law and to the Bible. There is considerable justification for the opinion of Hilkey and Reinsch that when the Massachusetts statutes failed to cover a situation, the colonists did not resort much to the English law in order to fill up the gaps and did make some use of the Bible for that purpose. On the other hand, the recent publication of the Laws and Liberties of 1648 has made it plain that the English common law had a decisive influence upon the language and form of the colonial statutes. When once the common law has been recognized as the chief basis of legislation, the small use which was made of it in supplementing legislation possesses less significance than Reinsch and Hilkey thought.
Two other points have some bearing on this controversy. First, although the rules of English law were not followed so closely as a vocal minority in the colony wished, the very argument of the authorities in reply was not drawn from the Bible, and might have come from English lawyers. It was pointed out that corporations like the City of London had “diverse customs and by-laws different from the common and statute laws of England,” and that a similar freedom of divergence to meet local needs was permissible for the Massachusetts Bay Company.64 Secondly, whatever the theocratic inclinations of the colonists, they were too canny to treat with contempt the charter on which they depended for all their governmental powers and in which the King expressly authorized the General Court to make laws “not contrarie to the lawes of this our realme of England.”65 Occasional violations of this charter provision and more frequent forgetfulness of it in irresponsible colonial talk and writing cannot obscure the importance which it must have had for every thoughtful magistrate and member of the General Court.
The cases published here furnish no decisive solution of this problem, but it is interesting to review the part which the different sources of colonial law played in the legal discussions here reprinted.
Statutes. The numerous references to the statutes, which have been separately indexed, show that the Laws of 1660 and 1672 were very accurately known to litigants and their attorneys. These men also displayed lawyerlike skill in setting off one statute against another, e. g., in construing together the titles on Wills and Dowries in Patten v. Dyer.66 They realized especially the importance of the preamble to the General Laws and Liberties—“our Magna Carta.”67 In two prosecutions for criminal negligence68 the accused men argued vigorously that there was no “express Law of the Country” applicable, under which their liberty or property could be taken in accordance with the preamble. On the other hand, it is difficult to find any express statute to support some of the prosecutions for minor offenses, and many of the torts for which damages were given do not appear to be defined by the General Laws.
English law and law books. The references to English law, other than as embodied in the Laws and Liberties, are not numerous. This must be due in part at least to the scarcity of law books. The frequency of English law books in Maryland is noted by Judge Bond,69 as indicated by inventories and references in documents. Massachusetts Bay must have been far more scantily equipped. Among the numerous inventories of personal effects in these volumes, only one law book is mentioned—in the list of Captain Scottow’s property seized by the Indians in Maine—and even then nothing is said of its author or subject.70 Although the General Court voted in 1647 to purchase two copies of each of the following: Coke on Littleton, Coke on Magna Carta, Coke’s Reports, Books of Entries, New Terms of the Law, and Dalton’s Justice of the Peace,71 the only one of these cited in these pages is Coke on Littleton.72 The only other law book specifically named is the volume combining the treatises of Malynes and Marius on the Law Merchant, which is extensively cited in a case on bills of exchange.73
Despite this apparent ignorance of legal treatises, English law books of another important type must have been in the possession of the colonists, to judge from internal evidence. The colonial knowledge of legal forms for conveyances and other documents has already been mentioned.74 Some of this may have been derived from manuscript deeds, leases, etc., which the settlers brought with them from England, but it is probable that they also used books of legal forms. An interesting line for future investigation lies in the comparison of the leases, bonds, and other documents which appear in the records of seventeenth-century Massachusetts with the various English form-books of the period; in this way a scholar might ascertain which particular book or books existed in the Bay Colony at this time.
In many ways besides their knowledge of law books, the Maryland lawyers described by Judge Bond seem further advanced than their Massachusetts contemporaries. The Maryland lawyers were sworn and admitted to the bar. They reason more like lawyers today and are much concerned over the same kind of problems:—Was the Provincial Court the exact equivalent of the Court of King’s Bench? How was appellate procedure to be reformed? Should judicial dissents be recorded? Although Maryland writs were in English as was true in Massachusetts, they were frequently called by a Latin title. In comparison, Massachusetts attorneys seem unlearned. Latin is used only three times in these pages to describe writs,75 and it rarely occurs in other connections, the most interesting example being a maxim possibly taken from Coke.76 Indeed, there must have been far less use of technical legal phrases of any kind in the Suffolk County Court than in the plays of Shakespeare. However, one attorney refers to that mythical person “John of Styles.”77
Despite the scarcity of the small change of English law, some of its fundamental principles were stressed by litigants. The unlucky Ashton thrice insisted on “the liberty of an English subject.”78 Patten argued that a County Court order setting off real estate in fee to the widow of an intestate conflicted with the law of England making his land descend to his heirs.79 It may be significant that both Ashton and Patten were natives of England. This was hardly true of the Douglas claimants who cited Coke, as well as the Bible and a statute, to show that intestate real estate should go to them as heirs on the father’s side.80
No English statute or judicial decision is cited in these volumes.
An additional English source for the colonial laws and procedure has been suggested by Professor Goebel.81 He thinks that the colonists borrowed largely from the law prevailing in English local courts, such as county courts and recorders’ courts in London and various boroughs, with which, coming from the middle strata of English society, they would naturally have had more experience than with the King’s courts. His material, drawn from Plymouth Colony, has several resemblances to that in these volumes. Professor Goebel’s conclusions have not yet found general acceptance, but they should provoke further study of English local courts. It is interesting in this connection to recall that Governor Bellingham had been Recorder of Boston, England.
The Bible. The arguments in these pages cite the Bible on several points. It would be unsafe, however, to conclude that this supports Hilkey’s statement that “the Scriptures were an infallible guide for both judge and legislator.”82 The Bible was thoroughly known by everybody, so that it was natural to quote it for illustrative purposes in the course of a discussion. It is often so used in arguments to a jury today, and of course was much more intimately entwined in popular thought in the seventeenth century. Scriptural passages appear in judicial opinions in England, where the Bible was surely not a source of law. Thus the English Chancellor, Lord Ellesmere, in the reign of James I began an opinion: “The law of God speaks for the plaintiff, Deut. xxviii. 30,”83 and then passed rapidly to the Year-Books. Some of the Scriptural references noted below seem to be thrown out persuasively in the same way, rather than considered as authoritative legal rules.
The most frequent citations are in support of the contention that a transaction ought to be proved by two witnesses.84 Other Biblical references are used in urging that liability for goods purchased should be denied under oath;85 that a tanner should perform his contract like him “that sweareth to his own hurt, and changeth not”;86 that a stranger should receive justice in the courts;87 and that an accused negress should be released from prison so that she can serve her mistress’s business “a Cording to the Law of God and the King.”88
In the following instances it seems plain that the litigant endeavored to use the Bible as an authoritative source of law, in reliance on the preamble to the General Laws and Liberties forbidding life, liberty, or property to be taken unless under “some express Law of the Country . . . ; or in case of the defect of a Law, in any particular case, by the word of God.” When a co-owner of the ketch Recovery was prosecuted for perjury and subornation of witnesses, Captain Bonner argued in support of conviction that though no particular statute speaks of these offenses, yet “the word of god is cleere for the punishment of such,” citing chapter and verse.89 When a debtor wished to pay in goods, his creditor insisted on having money; because “in defect or want of a Law the word of god is to be our Law, which saith By Soloman, that mony answers althings.”90 The preamble was also invoked by Stuart and Ludden when prosecuted for causing the death of a sailor on a sloop, who was killed by the sudden fall of the boom.91 After insisting that no statute made them liable on this manslaughter charge, they cited a verse from Numbers about accidental death to show that the law of God did not make them guilty. The reply to their appeal countered with a reference to Exodus, and contended that the law of God did not acquit them completely but only saved them from capital punishment. This is the only case in which the litigants on both sides matched Biblical texts against each other after the manner of a theological controversy. One would expect such a practice to be very common if the Bible were actually treated by the magistrates as a collection of authoritative legal rules. Usually, however, the opponent meets the Scriptural citation by a reference to a statute or by general arguments.
Another statute which expressly mentions the law of God is title Usury, which was unsuccessfully cited together with Leviticus in defense to a large claim on a book account.92 Indeed, serious doubt is thrown upon the authoritative force of the Bible as law by the fact that about half the litigants who relied on Scriptural quotations lost their cases.
The most interesting case on the legal effect of the Bible is Holowells v. Butler.93 A claimant to decedent’s property relied on the rules of inheritance laid down in the Book of Numbers. His opponent replied that this part of the Bible was an unsafe basis for Massachusetts law, since it provided for a complete redistribution of land every fifty years, which would upset the title of every purchaser of real estate.
Judicial decisions as precedents. One of the most important sources of law today consists of the principles declared by judges in their decisions. This was already true in seventeenth-century England. But this doctrine of the binding force of precedents could have little vitality in Massachusetts so long as few books of reports of English cases existed there, and while the decisions of its own courts were not printed and were not explained by judicial opinions. Still, this book shows a few instances in which a litigant argues that out of fairness the court ought to be consistent and abide by a principle which had been applied in an earlier decision.94 Perhaps not much importance should be attached to Cooke v. Broughton,95 where trustees insist that a trust deed held valid in a prior proceeding ought not to be nullified later; this probably exemplifies the doctrine of “the law of the case” or res adjudicata rather than the doctrine of precedents. An illustration clearly in point is Darvall v. Dudson,96 involving the possession of a ship seized as a prize in the Dutch War, where a petition alleged “many presedents,” not only from maritime cases but also from a recent decision reprinted in this book,97 which held it legal for the owner of land to retake possession. In Rawson v. Briggs,98 an action for imprisoning the plaintiff’s servant for debt before execution, the plaintiff cited “Major Savage’s Case” where possession was not disturbed before judgment. In Brattle v. Knight,99 a creditor who was denied an attachment against an insolvent estate undergoing administration for the benefit of all the creditors, mentioned in his Reasons of Appeal that this denial was contrary to the practice of the County Court and instanced the case of another estate. When fined for contempt on the ground that he had made improper reflections on the County Court, he petitioned for relief, saying that to bring the County Court a precedent of its own recent action was no reflection upon the court, and that similar objections had been made in other appeals without being considered an offense to the judges concerned. In Woody v. Harrison,100 the unsuccessful litigant cited a resolution of the General Court three years before in answer to a question certified by the County Court. The statute made such a resolution binding upon the County Court in the particular case which gave rise to the question;101 but here the resolution was urged as material in a different case which happened to involve a similar issue.
The most disagreeable characteristic of the colonists which is revealed in these pages is their unwillingness to end a lawsuit. They never knew when they were beaten. The loser in the County Court sought reviews and appeals as long as he could, and when these failed he started suit all over again from a different angle. Magistrates and juries encouraged these pertinacious contestants by constant disregard of previous adjudications which ought to have settled the issues forever.
The most conspicuous illustration of this evil is the interminable controversies following the protracted voyage of the ketch Recovery, where the claims and counterclaims of Peck the stay-at-home part owner, Lawton the supercargo, Captain Bonner, able seaman Ireland, and Ashton the English passenger present rapidly changing variations, and successive arbitrations and compromises took place only to be flagrantly disregarded. The scene ranges from the gallop of Lawton and Ashton along the Mersey sands after the vessel in which Captain Bonner was blithely sailing away from Liverpool without them,102 to Ashton’s flight into Plymouth Colony and his struggle with the Rehoboth constable at the inn on the Ten Mile River.103
In Clarke v. Bridgham,104 a widower sued for money said to have been received by the defendant from the plaintiff’s late wife. He lost. Next year he brought an action of review and won. The defendant appealed, and then died. The plaintiff sued the executor on the former judgment, and the jury found for the defendant. Clarke also engaged in a prolonged controversy over his wife’s estate with her son by a former marriage.105
Fathergon Dinely, the administrator of John Dinely, went through a series of actions trying to evade the payment of John’s debt to Cornelius Steenwyck, of New York, whose Massachusetts agent was Davis. Occasionally Dinely brought a cross-action to attach Steenwyck’s local property. He also tried to get back a bit of his own by stealing hay from Davis’s barn. The last entry in the litigation shows an apparently undeserved defeat for the New Yorker.106
Another dragged out controversy concerned the settlement of the Buckmaster estate.107
Especially shocking is the outcome of Holowells v. Butler.108 After Butler’s right to an inheritance had been established by the County Court and confirmed by the General Court, a new jury took it away from him, and the Court of Assistants gave him no relief.
Although the evidence is not sufficient to support a charge that the colonists in general were as over-eager to begin lawsuits as they were stubborn about ending them, it is somewhat startling to see the son of Major John Pynchon of Springfield bringing an action in 1673 for the value of a horse borrowed in 1646.109
Occasionally litigious suitors were punished under the barratry statute,110 and attorneys who fomented actions were virtually disbarred.111 However, little could be accomplished to end the evil so long as magistrates and juries violated the elementary principle of res adjudicata. Little attention was paid by them to the need of certainty in the law. A litigant vainly pointed out the bad results of their vacillating disregard of previous decisions in the same controversy:112
Now if yt Deed, which ye Court accepted of as good & vallid in Law soe many yeares since, upon which there hath beene such transactions and Ingagemts shall now by ye same Court be condemned as in vallid; then wee appeale unto all men to judge what or condition here is, & what sad consequences will follow; we shall be at an uncertainty what is vallid & what is invallid, what is Law & what not Law.
We cordially sympathize with Humphry Hodges who was fined ten pounds for vilifying the courts in the course of the Recovery litigation by declaring in the town house: “What one Court doth another undoeth.”113
One of the most striking features of the civil litigation in these volumes is the frequency of the Action on the Case.114 For example, in the first twenty-four cases where the form of action is specified, nineteen are case, one trespass upon the case, three debt, and one molestation. Any other portion of the book selected at random would show a similar preponderance of actions on the case. An examination of contemporaneous English reports shows no such frequency.115 Still more important is the fact that the term “case” is applied in this Massachusetts litigation to suits which would surely not be actions on the case in England. This maybe illustrated by three typical situations. (1) A sealed instrument in England gave rise to an action of covenant or of debt and never to an action on the case. In this book actions on sealed instruments are frequently called case.116 It is true that a suit on a sealed instrument was occasionally called debt, but there is no apparent differentiation between debt and case. For instance, the first two cases on page 4117 are suits on bonds; one is called debt and the other case. No instance of an action of covenant on a sealed instrument has been noted in these pages. (2) Case was employed to recover the possession of real estate.118 Ejectment would have been the appropriate form of action in England, but the word “ejectment” does not appear in any of these Massachusetts suits. In the very first case,119 an action of the case was brought to get possession of real estate under a mortgage. (3) A final illustration is found in instances of trespass to real estate. Here the English form of action appears to have been more familiar to the colonists, for the word “trespass” is occasionally used in such situations, but rather loosely. Some suits for the disturbance of the possession of real estate are definitely called actions of trespass.120 Elsewhere suits for this wrong appear as trespass upon the case, or actions of the case for trespass.121 Sometimes the word “trespass” is not used at all and the action is “case,” although it would clearly have been trespass in England. Thus case was brought for breaking up the plaintiff’s land and removing a landmark;122 for cutting and carrying away the plaintiff’s grass under pretense of title;123 for carrying off grass and setting up new landmarks.124 In addition to these various uses of case for actions which would have been of an entirely different nature in England, the term is used without discrimination for numerous situations which in England were dealt with by standardized forms of action on the case, like assumpsit and trover. Thus actions on the case were brought to recover the value of personal property;125 for taking away personal property;126 for detaining a chest of gold dust;127 for money had and received; Clarke v. Bridgham, pp. 99–100, 131–133; Davie v. Noys, pp. 459–460; Chadwick v. Manning, p. 470; Proutt v. Scarlett, pp. 792–793. for work done and goods delivered;128 and for breach of express contracts.129
As already indicated, other forms of action besides case are sometimes mentioned. Debt is the next most common, and suits on debts are called case or debt without any apparent reasons for the distinction. The occasional occurrence of trespass has been mentioned. Replevin appears in a few instances.130 Slander is sometimes given as a form of action;131 but similar suits are elsewhere called action of the case for slander,132 or action of the case for high defamation.133 An action of assault and battery was brought.134 A form of action unfamiliar in the English reports is the action of unjust molestation in Kelly v. Blower,135 which would have given rise to an action on the case in England, and indeed in these pages suits for the same tort are elsewhere called case.136
A natural explanation of the undiscriminating descriptions of the forms of action in these colonial cases as compared with the English situation is supplied by the wording of the Massachusetts writ of summons. In seventeenth-century England the plaintiff who wanted to begin an action at law had to choose from among a large number of writs the particular kind appropriate to his claim. Each type of writ was in stereotyped Latin wording. For example, the writ for case differed widely from the writ for debt or for covenant. Specimens of these writs are reprinted in the 1677 edition of Fitzherbert, New Natura Brevium, and the English translations which became official in the reign of George II are reprinted in Tidd’s Practical Forms. The English writ in any suit thus contained some Latin key words which would immediately indicate the form of action to the clerk of the court. In marked contrast with these numerous technically worded Latin writs was the simple summons worded in English which was used in colonial Massachusetts during the time of the cases here published. Its statutory form, addressed to the defendant instead of the sheriff as in England, ran as follows:137
To [I. B] Carpenter, of [D.] You are Required in His Majesties Name to appear at the next Court, holden at [B.] on the day of the month next ensuing; to answer the complaint of [N. C.] for withholding a debt of due upon a Bond or Bill: or for two Heifers &c. sold you by him; or for work, or for a Trespass done him in his Corn or Hay by your Cattle, or for a Slander you have done him in his name, or for Striking him, or the like; And hereof you are not to fayle at your Peril. Dated the day of the Month.
This same form of summons was used in all civil suits (except replevin), regardless of the nature of the claim. There were no technical key words to indicate the form of action automatically, and the writ merely set out the basic facts which must have been in many instances rather informally stated. This form of writ is surprisingly modern. The title Attachments, Summons138 required the plaintiff’s case to be “briefly specified in the Warrant,” unlike the stereotyped English writ, which might leave the defendant in doubt as to the real nature of the claim against him. Colonial defendants were insistent upon the observance of their statute.139 Later on, the Massachusetts writ became more technical and less informative. The writ prescribed by the statute of 1783 was directed to the sheriff:140 “We command you, that you summon A. B. [the defendant] . . . to appear and then and there . . . to answer to D.E. [the plaintiff] . . . in a plea of,——” etc.
The probable relation between these three types of writs and the classification of forms of action now becomes plain. Any writ in England was earmarked by its technical form. The Massachusetts writ of 1783 definitely specified the form of action in the vacant space after “plea of.” Unlike both types, the colonial writ between 1670 and 1680 was a recital of the facts without any key words, so that it did not readily lend itself to pigeon-holing. The clerks, Freegrace Bendall or Isaac Addington, on looking at the writ, would merely get a pretty good notion of the nature of the claim. Once in a while some such word as “debt,” “trespass,” or “slander” would catch their eyes and be set down in the record as the form of action, but ordinarily these clerks would describe the action as “case” and let it go at that.
Pleadings in the trial court must have been largely oral. It is true that some references to written pleadings are found in the statutes before 1660. The Body of Liberties of 1641141 says that if the plaintiff files a written declaration the defendant shall have liberty and time to give in his answer in writing. A statute of 1647 orders that all plaintiffs or their attorneys in civil actions shall file a written declaration at least three days before court opens, whereby the defendant may have time to answer in writing.142 Although this statute gives a vigorous recital of the evils of oral pleadings, which caused defendants to complain that they knew not what to answer to or what witnesses to summon until they appeared in court, the statute of 1647 must have been either a dead letter or a nuisance, for it was, like the 1641 provision, omitted from the two revisions which were in force during the period of these volumes.
These Suffolk County Court records indicate that the attempt to require written pleadings had little effect in establishing such a practice. The statement of the plaintiff’s case in the summons probably served in most cases to give sufficient information to the defendant about the nature of the claim against him. Written declarations are found in only a handful of cases, in five of which they are reprinted.143 It may be significant that all except one of these cases occur as late as 1679. We find a written answer or pleas in only two cases;144 these are reprinted. The word “plea” is sometimes used in a broader sense to describe the plaintiff’s statement of his case.145 Demurrers do not appear to be mentioned although the phrase was known in the colony during this period, as is shown by a statute on Attorneys in 1673.146 The absence of controversies about pleadings, which were so frequent in contemporary English cases, may be due to the wise statutory provisions in title Attachments, Summons, that “no . . . Pleading . . . shall be abated, arrested or reversed upon any kinde of circumstantial errours or mistakes, if the person and cause be rightly understood and intended by the Court.”147
In England, pleadings were in Latin until 1731, but such written pleadings as we find were, of course, in English. The same reform was made by a Cromwellian statute of 1650 in England, so that the Puritans on both sides of the ocean were in advance of the time.148
Other interesting points on civil procedure are a suit in forma pauperis;149 several instances of objections to the misjoinder of two cases of action in one writ;150 a group of trials in the defendant’s absence;151 the vacating of an erroneous judgment by the court which gave it.152
Attachment was the usual method of beginning a suit. This helps to explain the ease with which attachments are obtained in Massachusetts today as contrasted with the practice in New York. Although the form of attachment given in the General Laws and Liberties of 1660 and 1672 directs only the defendant’s body and goods to be taken, an attachment reprinted here153 mentions lands as well as goods, and the marshal’s return shows that land was attached. Other attachments are reprinted in full.154 In one case155 the attachment and summons were attacked as defective. In another, a constable was sued for making a false return to an attachment.156
Executions were also levied on land157 contrary to the practice in England where land could be taken to meet a judgment only in very limited ways.158 An order to the marshal to deliver the possession of land is found in one case.159 On petition of the defendant an execution was respited.160 A marshal was fined for levying an execution unlawfully.161
Executions against the body are numerous.162 The statement of Reinsch163 that imprisonment for debt was not in use, except when property was concealed, is not borne out by the cases. Probably he was led to say this by the provisions of title Arrests,164 but then, as so often today, creditors must have easily circumvented statutory restrictions on imprisonment for debt. One debtor recovered twenty pounds for illegal imprisonment.165 The obduracy of creditors twice finds picturesque expression in the threat that a debtor should rot in jail till dice were made of his bones.166 Sometimes debtors were given the opportunity to earn money to pay off their obligations.167 In one case a master prayed for the release of a servant imprisoned by a creditor.168 Another case shows that debtors were sold.169
The losing party frequently instituted an action of review. The statutes170 allowed this if there was any new evidence or other new matter to plead, but it seems to have been often done for no reason except the desire for a second chance before a different jury. Ordinarily the reviews here included were in the County Court, but in one instance the Court of Assistants was asked to review its own decision.171
Appeals to the Court of Assistants are very frequent, often after an action of review in the County Court. The usual documents are the Reasons of Appeal and the opponent’s Answer to them. These documents form our most useful sources for views of law. In one case172 the appellee filed a replication to the Reasons of Appeal. Sometimes the appellant also filed a petition or declaration duplicating the Reasons of Appeal.173 In one case the appellee filed a petition duplicating his Answer.174 The Court of Assistants enforced the statutory requirement that the party appealing must sign his reasons.175 In several amusing pages the attention of the Court of Assistants is called to the statutory provision that the Reasons of Appeal must not reflect on court or parties by provoking language.176 For violation of this provision Captain Thomas Brattle was removed from his office as commissioner in Boston and fined £100.177 In criminal appeals the Answers to the Reasons of Appeal were sometimes written and signed by the clerk of the County Court,178 but in a barratry appeal the Court appointed an attorney to represent it.179 When Dowden appealed from his conviction for beating Hudson Leverett, the latter filed a petition in the Court of Assistants for restoration to possession of the real estate which had given rise to the controversy.180
Contrary to modern practice, the appellate court did not usually send the case back to the lower court for a new trial, although in one instance a review by the County Court was ordered.181 Ordinarily the Court of Assistants retried the case itself, with its own jury. No jury was used in one case where the appeal was limited to an issue of law.182
Jury trials appear to have been a matter of course in the County Court in both civil and criminal cases. Occasionally the fact that a jury trial was claimed in a criminal prosecution is expressly mentioned,183 and in one prosecution the accused failed to claim a jury.184 A jury trial was asked for contempt of court.185 Five civil cases were submitted to the bench by the parties,186 and in one suit the jury left the issue of damages to the bench.187
Eleven jurors tried a civil suit by consent of the parties.188 A juryman in the Court of Assistants who had appealed from a conviction for illegal sales of liquor was tried by his eleven associates, who acquitted him.189
The scope of the jury’s powers is discussed in several cases. The medieval employment of the jury as witnesses190 possibly survived in popular thought, for when a defendant in a suit for obstruction of a right of way alleged that the wrong had not been proved by two witnesses, the plaintiff replied: “I have sufficiently proved ye Same by more then 12 Wittnesses who were the Last Jury.”191 Perhaps, however, he only means that the jury took a view of the illegal fence. In one verdict which was reversed the jury assessed damages by capricious methods not unfamiliar today.192 Jurors had the statutory privilege of asking advice of any man in open court, but an appellee successfully argued that they were not bound to do so and could bring in a special verdict instead.193 Although one litigant contended that the jury’s oath to give a verdict according to the evidence and the laws made “Jurys . . . as Well Judges of Law as the Majestrats,”194 his argument proved unpersuasive, and we frequently find juries leaving legal issues to the bench through the ingenious device of a special verdict in the alternative. Thus in an action by a husband upon an ante-nuptial contract with his wife, the jury brought in a special verdict finding specified damages for the plaintiff if man and wife had power to make bargains with one another, and if not for the defendant with costs. The magistrates on perusal of this case and verdict decided for the defendant.195 Other special verdicts allowed the bench to determine whether deeds were legally valid,196 whether a kidnapped sailor was liable to pay passage-money,197 the powers of executors and administrators,198 whether evidence was sufficient to prove a promise,199 whether a tenant was discharged from the obligation to pay rent by the landlord’s breach of covenant (a confused special verdict)200, and other legal issues.201 The statutory power of the bench to determine matters of equity could also be handled by a special verdict.202
One of the most interesting controversies in this whole collection concerns the right of a juror to disagree with his eleven colleagues.203 Jacob Jesson was less successful in asserting his independence as a juryman than his contemporary Bushell in England. The dispute is narrated in the New England Quarterly by Mr. C. L. Lundin.204 The related problem of the attainder of juries appears in three cases,205 one of them part of the protracted litigation growing out of the voyage of the Recovery.
In England during the seventeenth century the rules of evidence were still in process of formation,206 and it is only natural that we should find them operating in the Bay Colony in a still more elementary fashion. Yet, we can already detect the germs of several modern rules, and there was considerable insistence on a few principles, particularly the desirability that the main issues should be proved by at least two witnesses. A statute expressly required this or its equivalent in capital cases,207 and litigants repeatedly urged that a similar rule should apply in trials of less serious offenses and in civil suits.208 This argument relied on Scriptural texts as well as on the analogy of capital cases.
The common-law rule that the parties to a civil suit were incompetent to testify was probably in force, although it is not expressly mentioned. However, the defendant was allowed to disclaim liability under oath both in civil cases209 and in criminal prosecutions for the sale of liquor to Indians, in accordance with the statutory provision.210 One man on trial for this offense refused to take the oath.211 When witnesses other than parties were interested in the result of a case, objection to the use of their testimony was occasionally made.212
Instead of the oral testimony used in the English common-law courts, a statute of 1650 required the testimony of witnesses to be .submitted in writing.213 Although this statute was not actually embodied in the revisions of 1660 and 1672, title Records, Recorders, Clerks in these revisions required every judgment given in any court to be recorded in a book, “and all the Evidences (which are to be given in, in Writing, in fair and large papers) shall be kept.” This statutory requirement appears to have been generally observed because the testimony of the witnesses in these cases always seems to be in the form of a deposition. However, another statute, title Witnesses, required that when the witness lived within ten miles of the court, his deposition should not be used unless he were also present in court to be further examined about it. The material in these pages contains no indication of the cross-examination of witnesses. An order of 1674 recites the confusion caused by the use of the same deposition in several cases, and requires copies to be put in.214 A deposition in perpetual memory is mentioned.215
Many money claims were based upon the account books of merchants, and several cases discussed at length the proper methods for the proof of such books.216 Proof of the handwriting of the drawer of a bill was submitted in Dinely v. Steenwick217 by a witness who testified that he knew Dinely’s handwriting exceeding well and declared that the signature was his hand. The rule requiring that when a document was introduced, it must be proved by the evidence of the attesting witnesses, appears in several cases.218 A bond executed in England219 was proved by the deposition of the attesting witness taken in England. Two cases discuss the situation where an attesting witness is dead or refuses to appear.220
Hearsay evidence was loosely admitted221 as in England at this time, but occasionally objections were made to its probative value.222 In some of these cases the evidence might be proper today as reports of admissions by parties, but present-day courts would not permit the use of admissions made during negotiations for a compromise, as in Cooke v. Oliver.223 Two important exceptions to the modern hearsay rule are illustrated by the testimony of old men as to neighborhood reputation concerning an alleged public way,224 and the use in bastardy proceedings of the mother’s declarations in travail about the identity of the father.225
Character witnesses appeared for the defendant in a bastardy prosecution.226
The best evidence rule is suggested by a litigant’s insistence that a bill of exchange be produced and not merely described.227
Samuel Bennett, a key witness who went back on his testimony, and was said to be ready to “Swear any thing for a pint of Liquor,” was disabled from testifying in any case whatever.228
The Puritan has been described as “always a consistent and thoroughgoing opponent of equity,”229 but the material in these cases indicates that the relations were not quite so unfriendly. Although there was no separate Court of Chancery as in England, an early statute embodied in the General Laws and Liberties, title Jurors, Juries, provided: “If there be matter of apparent equity, as the forfeiture of an Obligation, breach of Covenant without damage, or the like, the Bench shall determine such matters of equity.” This statute is specifically cited in one of our cases.230 References are often made to equity as something to be observed by the courts.231 Of course, the word “equity” was sometimes used rather loosely as synonymous with justice rather than in the technical sense to describe a system of legal rules distinct from those of the common law. Perhaps this is true of the cases just cited and also of the phrase in the preamble to the General Laws, that no man shall be deprived of life, liberty, or property, “unless it be by virtue or equity of some express Law of the Country.” This phrase is specifically relied on in Cooke v. Broughton, where the plaintiff objects, “Now noe such Law or equity of it hath yett beene produced; & therfore or Estate & others ought not to be so taken from us.”232 However, in Hutchinson v. Paine,233 involving an equitable defense to a bond, “equity” is clearly used in the technical sense.
Still more important is the fact that the Suffolk County Court and the Court of Assistants are frequently shown giving relief which in England could have been obtained only from the Court of Chancery. The best illustration is furnished by the practice of “chancering”234 bonds. A bond is an instrument under seal which promises to pay a definite sum of money, subject to the condition that the promise is to become void if the signer of the bond performs a specified act. For instance, in the first case of the sort here published,235 three men who owed a debt of £90 gave their creditor a bond for twice that amount (£180), conditioned on the payment of the debt on a day named. They failed to perform this condition by paying £90 at the time appointed. An English court of common law would have given the creditor the full £180, because the debtors had expressly promised that sum in case of default. However, the debtors could file a bill in the Court of Chancery, which would disregard the form of the bond and look at its real purpose to secure the payment of the original debt; consequently the Chancellor would cut down the creditor’s recovery to his actual loss—the principal of the debt with interest for the delay—and forbid him to collect more because it would be unconscionable for him to insist on his pound of flesh.
The striking feature of these colonial cases is that the County Court did not follow the English common-law courts in enforcing the letter of the bond, but carried out the fair bargain between the parties as the Court of Chancery would have done. Thus in the case just described the court chancered the bond to £100, which comprised the £90 debt and £10 for interest. A large number of other cases of chancering are indexed under “Bonds.” A few of these are especially interesting because they show the procedure employed. In Leverett v. Wincoll236 the jury brought a verdict for forfeiture of a bond for £300. At the defendant’s request the court heard both parties and chancered the forfeiture to £86 for reasons given in detail. In Clarke v. Holmes237 the defendant neglected to ask for chancering in the County Court, and the verdict of the jury there for the full amount of the bond was confirmed by the jury in the Court of Assistants, but the bench in the Court of Assistants chancered the bond and greatly reduced the amount of the execution. Several petitions for chancering bonds are reprinted at length.238 In Porter v. Appleton239 we find the Court of Assistants chancering an arbitration bond, then setting aside its judgment and chancering it again for a lower amount.
The Massachusetts courts also recognized defenses to bonds which would not have been available in an English common-law court.240 In Hutchinson v. Paine,241 an action on a bond, the defense was that the terms of this sealed instrument had been modified by a subsequent unsealed agreement, which in England would have been wholly irrelevant in a common-law court. Yet the jury in the County Court treated it as a complete defense. On appeal, the jury in the Court of Assistants brought in a special verdict, leaving to the bench the equitable issue presented by the unsealed agreement (in accordance with the Jurors statute quoted above); the bench found the equitable defense good and upheld the decision for the defendant below. During the discussion in this case other equitable defenses to sealed instruments were mentioned, payment and fraud. The same case discusses the assignability of bonds under statute. In another bond action242 we find equitable principles urged on behalf of the plaintiff. The defendants maintained that the bond was not proved since one attesting witness was dead and the other refused to appear. The plaintiff replied that the debt was justly due and that the defendants were endeavoring to make the court a patron of “their so great a peece of injustice & fraud.”
Orders similar to injunctions, though not called by that name, were given in several cases. In Deane v. Hubbard243 a supersedeas was issued to prevent the payment of a bill of exchange connected with an illegal transaction. During the settlement of an estate the tenant of a house was directed to pay no rent without order of court.244 The Court of Assistants gave Hudson Leverett an order somewhat resembling an injunction for possession or a writ of assistance.245 Roger Ross,246 who was prosecuted for letting his well lie open so that people were exposed to danger, was ordered to make it safe or fill it up within a week, a rough equivalent of our injunction to abate a public nuisance. Several orders in criminal cases directing a man and woman to keep away from each other under penalty of a whipping247 recall recent injunctions against illicit association.248 In one case one such order was disobeyed by a man and a maid; he forfeited his bond and the girl’s father was heavily fined.249
Sequestration appears in one case. An order was given to sequester all the property which Edward Naylor, a well-known reprobate, had received from his wife.250 Possibly she had petitioned for divorce,251 and the order was made in consequence.
Something very like specific performance of contracts occurred in several cases. Thus a defendant who had agreed to convey land was ordered to execute and deliver a sufficient deed or pay the plaintiff twenty pounds.252 Another verdict called for a warranty deed or £100.253 The lender of a Mercator’s draft obtained a verdict that the borrower return a good Mercator’s draft or pay a sum of money.254 In an action of debt for 5,000 feet of pine boards to be delivered in Boston, the jury found for the plaintiff 5,000 feet of pine boards to be delivered in Boston in twenty-four hours, or in defect a sum of money.255 Other verdicts resemble specific restitution in equity for torts. A man who had placed a fence across a passageway under the plaintiff’s house was to remove the fence for a specified distance and in default thereof to pay twenty pounds.256 A defendant who wrongfully kept the plaintiff out of possession of his half-interest in a vessel was to deliver one half the vessel or pay £70.257
Doubtless the analogy between the cases described in the preceding paragraph and English Chancery decrees must not be pressed too far. The Chancellor usually ordered the defendant to perform, and allowed no alternative except to go to prison for contempt. The Massachusetts verdicts, allowing an alternative money payment, come nearer to Coke’s theory that a promisor has the option of performing or paying damages.258 In the Mercator’s draft case the sum of money clearly represented the plaintiff’s estimate of the value of the article, and the verdict thus resembled an English judgment at law in an action of detinue. The pine boards case may be explained as an application of the statute, title Payments, “That all Contracts . . . shall be satisfied in kinde according to Covenant. . . ; Provided that in such cases where payment in kinde is not made according to the Covenant, all just damages shall be satisfied (together with the Debt) for not paying in kinde according to bargain.” The money alternative in this case may represent the value of the boards and compensation for delay rather than a penalty for disobedience of the order to perform.
In the land cases we have no way of knowing whether the money alternative represented the value of the land which the defendant failed to convey. If so, these cases may also fall under the Payments statute and resemble judgments for damages coupled with an opportunity to perform the promise. On the other hand, if the money alternative exceeded the value of the land, it may well have been a penalty for disobedience of the order to convey. There was no absolute rule in England that imprisonment was the only penalty for disregard of the orders of Chancery. The early subpoenas specified a money penalty,259 and the earliest English decree for specific performance does not describe the penalty at all.260 At all events, the conclusion seems warranted that the Massachusetts courts felt the necessity of doing more to compel specific performance and restitution than an English law court would do, even though the colonial courts did not give precisely the same relief as the English Chancery or impose so much pressure to bring about obedience to orders.
Trusts were not unknown in Massachusetts at this time. Cooke v. Broughton261 is a complex case growing out of a deed in trust for creditors drawn by a skilled conveyancer, which was eventually set aside and which involved the trustees in protracted claims for reimbursement of outlays and other litigation. Another trust of land is mentioned262 and a trust of personal property.263 Feoffees under a charitable trust for the Roxbury Free School sued to obtain possession of part of the trust property.264 Executors in trust sued for an accounting of a vessel.265 The technical phrase “to the uses” appears only once, perhaps in connection not with a trust but with an agency.266 In three cases it is not certain whether the relation was trust or bailment, probably the latter.267
Thus these records offer considerable evidence to support the conclusions of other writers268 that the absence of a Court of Chancery did not prevent the existing Massachusetts courts from granting relief of an equitable nature. Most of the cases cited by these writers were in the General Court; these volumes prove that the County Courts also had and exercised equitable powers. However, their powers were apparently insufficient to satisfy the needs of litigants, for in 1685 a statute was enacted, which declared that experience had shown that in many cases where there was matter of apparent equity, there was “no way provided for releife against the rigour of the common law” except by application to the General Court where great delays were suffered because of the pressure of public affairs; consequently the magistrates of each County Court were empowered to act as a Court of Chancery.269
We pass now from procedural topics to substantive law, and begin with the treatment of torts.
Slander was the commonest tort to appear in these cases. Most of the statements for which action was brought charged the plaintiff with some offense,270 such as perjury, theft, drunkenness, or treason. Other attacks on personal reputation involved unchastity271 and venereal disease.272 A few statements affected business interests, questioning the plaintiff’s credit,273 or alleging that he adulterated the wine he sold.274
An action for libel275 is the only case which suggests any of the numerous modern defenses for defamation. Captain Scottow, in command of a Maine fort during King Philip’s War, was charged with dereliction of duty by a petition sent to the General Court from several settlers on the Maine coast. Scottow brought “an action of the case of defamation” against the petitioners, who obtained a verdict below. In their successful answer to Scottow’s appeal, they urged in effect that their petition to the General Court was a privileged communication which they were in duty bound to make.
The nature of the remedy given for slander is very interesting. As an alternative to the payment of damages the slanderer was often ordered by the jury to make an acknowledgment of the untruth of his statement. Usually this retraction was to be made in open court, but in one case it had to be repeated in a public town meeting.276 In an instance where the slander occurred in Stonington, Connecticut, the defendant was ordered to file a written apology in the Suffolk County Court and also to furnish proof that he had made a similar acknowledgment of his wrong at Stonington.277 Obviously a public retraction does much more than money to restore the plaintiffs reputation.278The law of Continental Europe permits the court to require an apology from the defamer.279 The similar remedy in the Suffolk County Court may have been borrowed from the practice of the English ecclesiastical courts.280 Unfortunately, this sensible course of ordering a public retraction is no longer available in Massachusetts;281 our ancestors were more enlightened than ourselves.
Defamatory utterances sometimes gave rise to prosecutions as well as to tort actions. Although the English criminal law in the latter part of the seventeenth century did not include spoken defamation,282 slander had been a crime in England when Massachusetts was settled,283 so that it is natural to find it punished by the colonists, especially as some of the persons defamed occupied official positions. Thus Hoare and Rogers were fined for abusing the clerks of the market, and Hoare in addition had to pay ten pounds to the clerks or make a retraction in open court.284 This shows that torts and crimes still overlapped. Reviling ministers was more than slander, it was heresy by statute.285 Veering was sentenced to a whipping and public disgrace for abusing his wife, his minister, and church members; but by petitioning and making an acknowledgment in open court he got off with a heavy fine and a bond for good behavior.286 Wharton, a notorious attorney, was convicted under the heresy statute for accusing three of Governor Bellingham’s executors, including the same minister, of altering the Governor’s will. He was put under bonds for good behavior and for his appearance to prosecute this charge against the executors.287 Later he was committed to prison for repeating his charge in open court.288 When the time came for Wharton to prosecute his charge, he refused, and the court put him under much heavier bonds.289
Libel, unlike slander, is a generally recognized crime still punishable in Massachusetts.290 But modern conceptions of freedom of speech make it impossible to bind over libellous writers to keep the peace,291 as was done by the colonists to two men who set up libels at their victim’s door,292 and to Dr. Couch, who made verses reproaching Governor Bellingham and the ministers.293 Stretton and Kemble were admonished for writing defamatory letters at the dictation of Alice Wright.294
Negligence overshadows all other torts today, but the law on this subject did not take shape until the nineteenth century.295 Before then the minds of judges and lawyers seem confused on the question of liability for unintentional injuries to the person or property of another, and it is not wholly clear whether they thought that compensation had to be given although the defendant was wholly without blame for the accident. Still, the earlier English reports occasionally mention negligence. Thus in one of Coke’s books which the General Court bought in 1647,296 Coke, writing in 1601, speaks of an action on the case against a shepherd who negligently let sheep be drowned. It is not, therefore, unexpected to find suits for carelessness in seventeenth-century Massachusetts, but six suits within ten years in Suffolk County is a surprisingly large number when we recall the scarcity of negligence cases in the English books of the time.
All these actions involved marine accidents. A seaman was sued for his carelessness in keeping no watch aboard a vessel which caught fire and was totally burned; the jury found for the seaman.297 Captain Harbour was found liable for running down with his sloop a fishing shallop at anchor.298 A bricklayer was unsuccessfully sued for building a hearth on a ketch so badly that damage was caused by fire.299 Negligence in the performance of a contract was also involved in another case. The owner of goods shipped from England on the ketch Diligence sued Palmer, the master, for cargo damages caused, so the plaintiff said, either by unseaworthiness of the ketch or by “Negligence of the Said master & Seamen.” An old seaman who was a passenger on the voyage testified that the ketch had gone through “the dreadfullest Storme that ever J was in Since J was borne,” giving vivid details which doubtless persuaded the jurors to find Captain Palmer not liable.300
Captain Chantrell of the ketch True Love was less fortunate. One dark night off Cape Cod he ran down the fishing shallop Hopewell at anchor with the loss of two fishermen’s lives, the shallop, and all the gear. There were ugly rumors of a bowl of punch aboard the True Love. Criminal proceedings were instituted before the Court of Assistants, which sentenced Captain Chantrell and his crew to an admonition, and left the victims to their civil remedies. Accordingly, the master of the fishing shallop brought an action on the case against Chantrell for the value of the shallop, gear, and fish, with an added claim for the loss of the use of his vessel at the height of the fishing season; and recovered over forty pounds.301
Then followed one of the most interesting cases in this book, despite its disappointing brevity. The widow of Snelling, one of the drowned fishermen, sued Captain Chantrell for causing the death of her husband with the loss of all his property, whereby she and her children would be thrown on the town.302 Here is an early instance of an action for wrongful death. The English courts refused to entertain such actions. All sorts of senseless reasons were given, for instance, that it was impossible to place any value upon the life of a man. The true reason was that homicide was a crime, and private suits for crime might lead to the suppression of prosecutions. In crimes other than homicide a private suit was permitted after a prosecution had been instituted. In the case of homicides, the English law gave a peculiar remedy for the benefit of the heir or widow of the dead victim, called an appeal; the defendant in such a proceeding had a right to claim trial by battle. As late as 1818 this privilege was asserted, to the great discouragement of the bereaved family. Parliament consequently abolished the appeal in 1819, and England thereafter gave no opportunity to obtain compensation for wrongful death until the number of fatal railroad accidents excited public opinion and brought about Lord Campbell’s Act in 1846, which provided a statutory action for the widow or children of the victim against the negligent killer. All of the United States, including Massachusetts,303 have such a statutory remedy. But these statutes sometimes fail to cover all kinds of wrongful death, and the courts still deny compensation unless a statute is applicable, thereby causing outrageous denials of justice.304
The only Massachusetts statute on compensation for wrongful death at the time of the widow Snelling’s suit was limited to deaths on defective highways and bridges, for which the town, if previously notified of the defect, had to pay a fine of £100 to the parents, spouse, children, or next of kin of the victim.305 Consequently, Mrs. Snelling had to rely on some common-law right. The argument against such a right, that civil suits would tend to suppress prosecutions, did not apply to her because the Court of Assistants had already entertained a prosecution and expressly referred the parties damnified by the collision “to their legall advantages.”306 If the jury had only decided in the widow’s favor, we should have a telling precedent for liability for wrongful death without any statute. Unluckily, the jury found against the widow and gave no reasons for the verdict. We do not know whether the jurors consciously followed the English doctrine denying ordinary civil remedies, or whether they now thought there was no negligence, although a short time before these same jurors had held the master liable for the property losses growing out of the disaster. The widow Snelling did not appeal, perhaps because she was too poor, so that we have no Reasons of Appeal or Answer to reveal contemporaneous thought on civil actions for wrongful death.
Even though no civil action lay, the family of the dead victim might hope for compensation as a by-product of a successful prosecution for criminal negligence. This possibility was of no use to the widow Snelling, for the prosecution of the careless captain and crew led only to admonitions. Another case throws more light on this remedy. Stuart, the master of a sloop, and Ludden, probably a seaman, were prosecuted for their carelessness in rigging tackle so that the boom fell, killing Williams and wounding Pegg. The County Court sentenced the defendants to pay £20 to the widow Williams and £10 to Pegg. On appeal, the sentence was reversed, perhaps because the Court of Assistants thought negligence not proved. Both sides presented interesting arguments, relying on statutes, common law, and the Bible. One argument by the defendants was that the injured persons should have brought civil actions.307
The unsoundness of this contention that the victims of negligence should not be compensated in the course of a criminal case appears to be established by several prosecutions for criminal negligence which did not result fatally. Hurlo had to pay for curing an Indian whom he had accidentally wounded.308 Fuller, a servant, on accidentally shooting another servant, Barnes, was sentenced to take care of the surgeon’s bill, compensate Barnes for his permanent injuries, and pay Barnes’s master for the loss of services. If Fuller’s master refused to bear this heavy expense, Fuller was to be sold to cover it.309
Newcomb, who sank a boat in Boston harbor, was ordered to compensate the victims of the collision besides paying a fine to the county. His sentence was confirmed on appeal, despite his interesting argument.310 Newcomb afterwards obtained contribution from a joint wrongdoer.311
The close relationship then existing between torts and crimes is illustrated in a different way by other negligence prosecutions, where the court merely levied a fine for the benefit of the county and left the victim “to his due course in law” against the wrongdoer.312 Some cases of criminal negligence make no reference to compensation of the injured persons.313
Many torts besides slander and negligence are represented in these pages. Indeed, it is possible that the absence of standardized writs and the cheapness of litigation promoted a greater variety of tort actions than in the English common-law courts.
Among torts to property, trespass to real estate and the misappropriation of chattels have already been discussed.314 Other cases on chattels involved wounding or killing horses;315 sheep worried by dogs;316 destroying leather;317 the improper retention of a drifting boat and an anvil;318 the bucolic controversy over Waldron’s cattle;319 the removal of household goods to avoid seizure by the Indians;320 and breaking open a chest so that clothes, account books, and documents were lost.321 Miscellaneous injuries to real estate included disturbance of a right of way;322 polluting a well;323 and letting a vessel break a wharf-railing.324 Henry Ashton, after his adventurous voyage on the Recovery, got into further difficulties by occupying a house which was said to be given to the owner’s sureties to indemnify them; they sued Ashton unsuccessfully for taking away their security.325 A different kind of loss of security appears in suits by creditors against the keeper of the jail for permitting prisoners to escape.326
Personal injuries were asserted, such as assault and battery,327 false imprisonment,328 and the novel tort of unjust molestation, which was rather indefinite in its nature and sometimes described injuries to property.329 Another queer tort was telling the prison-keeper to make the plaintiff work.330
Intermediate between injuries to property and person are wrongs involving the plaintiff’s family and servants. A father recovered for the seduction of his daughter,331 a master for the detention of a negro slave boy,332 and other masters for the abduction or detention of Indian servants.333
The conveyance of land and houses was required, by a statute of 1652 continued in the revisions of 1660 and 1672,334 to be made only by deed in writing; yet livery of seisin after 1652 appears in four cases.335 Entails were permitted by statute, and are occasionally mentioned.336 The only references to future interests other than entails are to a deed of gift creating a remainder after a life-estate, and to a testamentary perpetual charge on land for the benefit of Harvard College.337
The statutes, title Conveyances, Deeds, and Writings, required deeds to be recorded, contrary to the practice in most parts of England,338 and made unrecorded deeds invalid unless the grantee was in possession. Such land records were used in court in one case.339 Leverett v. Bullis340 is a complicated real property case which discusses the effect of this statute and also the rights of a purchaser who paid for land without taking title.
Contracts to sell land appear in other cases. In one341 the seller gave a bond to convey, and in another342 he did not convey all he had promised. Suits for something like specific performance are discussed under Equity. Gilbert v. Greenleafe343 contains the interesting argument that the Massachusetts law required “contracts for houses or land” to be written and under seal. This was in 1675 before the English Statute of Frauds.344 No colonial statute nullifying oral contracts for the sale of land has been found, and probably the argument was trying to stretch the statutory requirement345 that writing was necessary to convey land.
Possession was naturally important among early settlers, and the statute on this subject was much discussed in two cases.346
Other interesting real estate cases concern a settler’s right in town commonage,347 a grant by the inhabitants of a town,348 a seller’s refusal to give up documents connected with the land sold,349 a sale by a married man without release of dower,350 and a seller’s failure to give a good title.351
Among numerous disputes between landlord and tenant, one concerned permissive waste,354 and another the ever-present desire of a tenant to stop paying rent when his landlord has broken a covenant in the lease.355
Several cases of decedents’ estates involve real property problems, especially Salter v. Checkley,356 which discusses principles of the construction of deeds, the statute on Conveyances, and the law of cotenancy.
The orders of the County Court for the settlement of estates occur too frequently for detailed discussion. Many of them resemble the activities of a modern probate court, although the procedure was more informal in the seventeenth century. In order to facilitate settlement, officials were appointed who are unknown to our practice, such as committees, overseers, and assistants to elderly widows who found their own duties too burdensome.
Wills were simpler than today in their provisions, though often more detailed in describing the shares of the legatees. The Glover will charges real estate with an annual payment of five pounds to Harvard College forever.357 Devout preambles are an interesting feature of several of the wills here reprinted.358 Nuncupative wills (orally made in the presence of witnesses) are frequently mentioned.359 In one case the court orders a distribution which it finds was the “mind of decedent as shown by testimony.”360 Obviously the proof of the contents and execution of wills was loose. No formalities for execution seem to have been prescribed by law. The statutes361 merely talk about “wills” without saying that they must be in writing or signed or witnessed. The wills here reprinted were signed, but two were not witnessed. Glover’s will has one witness, and the widow Ward’s has four. This absence of formal requirements is natural when we recall that the first English statute to require wills of land to be signed and witnessed was enacted in 1677,362 well on in the period covered by these cases; and that wills of personalty might be unwitnessed in England until 1837.363
The distribution of intestate property was left almost as indefinite as the matter of wills by the Massachusetts statutes of our period. They provided that the County Court at the intestate’s last residence should have power to assign “such a part of his estate” to the widow “as they shall judge just and equal” and also to assign “to the Children or other Heires” their several portions.364 Nothing is said to show what rules should be employed to determine who were heirs. The statute goes on to give the eldest son a double portion, and distributes the rest equally among the other children. Many cases in this book365 show the statutory rule in operation, the eldest son taking a double portion and daughters sharing equally with the younger sons.366
The same rule of division among children continued in Massachusetts until 1789 and also prevailed in Connecticut. The origin of this marked departure from English law raises interesting problems.367 In England the children shared equally in an intestate’s personal property, and normally all his land descended to his eldest son by primogeniture. However, some regions had other customs as to the descent of land. Notably in parts of Kent by the custom of gavelkind all the sons of the intestate shared his land equally, but the daughters still received none unless they had no brothers. Gavelkind was sometimes, though not always, an incident of tenure by free and common socage,368 which prevailed widely in Kent and was less burdened with feudal incidents than tenure by knight-service and other military tenures. The Long Parliament abolished military tenures and other antiquated feudal burdens.369 This reform was partially re-enacted after the Restoration, and all tenures were turned into free and common socage.370
What bearing has all this on the provision of the Massachusetts Bay charter of 1628/9, by which the King granted part of New England to the incorporators “To be houlden of us . . . as of our Mannor of Eastgreenwich, in the County of Kent, in free and common Soccage, and not in Capite, nor by Knightes Service”?371 Did the charter mean to introduce gavelkind? Probably not. The general establishment of free and common socage in England under Charles II did not end primogeniture. The mention of the manor of East Greenwich adds nothing, unless it can be shown that gavelkind was a custom of this Kentish manor, a question that deserves investigation. References to this manor, a favorite residence of the Tudor sovereigns, were common in sixteenth-century royal grants of English lands in order to make it absolutely plain that they were free from the burdens of military tenures; and the phrase would be naturally used in colonial charters for the same purpose. It is significant that the East Greenwich clause in the Virginia charter of 1606372 did not prevent primogeniture in Virginia until Jefferson brought about its abolition.
At all events the Massachusetts colonists did not observe primogeniture, but neither did they observe gavelkind. They differed from gavelkind by letting daughters share with sons and by giving the eldest son a double share, a sort of compromise with primogeniture. They also departed from English law by combining the land and personal property of the intestate in one indiscriminate mass. The charter provision probably contributed to the express statutory prohibition of feudal burdens.373 Whether it also influenced the descent of land is uncertain. One of the cases in this book cites the free and common socage clause of the charter on a question of inheritance.374
The indefiniteness of the colonial statute as to intestate distribution was not likely to create trouble when the only claimants to the decedent’s property were his widow and her children. After the County Court had decided what she needed, everybody would usually be, as one case says, “well Satisfied.”375 The court appears to have performed simple divisions wisely. For example, we find it making special provision for a feeble-minded daughter.376
Nevertheless, friction sometimes occurred. Widows often married again in a short time, women being scarce, and this was likely to produce controversies between the new husband (who legally took over his wife’s property) and his step-children or other relatives of his predecessor.377 And the mother-in-law problem was not unknown.378 Even mothers sometimes had grounds for complaint against their own children. The widow Burnell had to excite considerable judicial pressure to make her son readmit her to her old home and provide adequately for her support out of his father’s estate.379
The interests of minor children were sometimes safeguarded by an order that the widow or her new husband should give a bond that the children would receive their shares either when they came of age or on termination of the widow’s life interest. These bonds served somewhat the same function as a modern testamentary trust.
Distribution among heirs became especially difficult when there were no children. Thus in the long litigation over the Patten estate380 the decedent’s brother, claiming to be heir by English law, objected to the decisions of the County Court as unduly favorable to the widow and to Beale, an informally adopted nephew. An interesting question arose, whether the power of the County Court, under the statute, to set off part of the decedent’s estate to the widow was limited to personal property so that she could get no real estate except her dower. The power was held to include real estate, contrary to English law. The General Court then partitioned the rest of the land between the English heir and Beale, but their controversy continued in a new form.
Other interesting litigations over intestate or testate property were Holowells v. Butler,381 in which rules of heirship were quoted from the Bible in an effort to prevent a widow from leaving her husband’s property to her side of the family; the Douglas settlement,382 involving the question whether the property which a deceased child had inherited from his father should descend only to his father’s relatives or also be shared by his mother’s relatives; Leverett v. Bullis,383 about the Paddy estate, regarding the powers of an executor and the rights of a second husband who had spent much money upon the property and upon the support of his step-children; Clarke v. Lamb,384 concerning the powers of an administrator to lease real estate during the minority of the heirs; Middlecott v. Scottow,385 raising the question whether one person may be appointed administrator when a will names another as executor; and the division of property under the Glover will.386 Several important cases of estates raising problems of Conflict of Laws are discussed under that topic at the end of this introduction.
The insolvency of a living person does not appear to have been handled in bankruptcy or any other proceeding for the benefit of all his creditors, but the insolvent estate of a decedent was ratably distributed in several cases.392 Much care was taken to protect all creditors, even non-residents, as is pointed out in the later discussion of Conflict of Laws. Brattle v. Knight393 is an interesting action on a joint bond where one co-obligor had died insolvent.
Sellers were sued by buyers because of defective qualities of the articles purchased, such as bad gold,394 and servant girls whose criminality or pregnancy was concealed.395 In one case the buyer refused to pay for malt which made them sick that drunk the beer,396 but another was forced to pay for anchovies warranted merchantable in spite of an old-fashioned Yankee trick by the seller.397
This topic needs only brief discussion, because several of its aspects have been treated elsewhere in this Introduction. Various types of agreements here reprinted are mentioned under Sources of Law and Maritime Affairs. Land contracts are discussed under Real Estate, and book-accounts under Evidence. Actions on bonds and debts and suits equivalent to general assumpsit are considered under Forms of Action, and suits resembling specific performance under Equity. Foreign transactions appear under Conflict of Laws.
Contracts were commonly in the form of bonds,398 for example, an agreement to build a house.399 Like building contracts today, this provides for payment by instalments as successive portions of the work are completed.
Arbitration agreements were frequent, but the awards were often not faithfully observed.400
There are several instances of partnership agreements, and Henchman v. Rock involved a bitter suit for accounting between partners.401
The extensive maritime commerce of the Bay Colony and its active fisheries naturally produced much litigation. The Recovery, the Good Hope, the Willing Mind, the Endeavor, the Diligence, the pinke Lenham, and many another vessel sail picturesquely across these pages. Our former associate John Noble has reviewed in our Publications the history of admiralty jurisdiction in the colony.402 In 1668, the General Court had enacted an elaborate code on “Maritime Affaires,”403 which is frequently cited in the cases in this book.
The Court of Admiralty had jurisdiction over most of the English maritime controversies, but no truly distinct court for this purpose existed in Massachusetts until after our period. The Provincial Charter reserved admiralty jurisdiction to the King, and during the eighteenth century the Crown set up admiralty courts for Massachusetts and other colonies.404 At first admiralty powers were exercised by the various courts of the Bay Colony, the Suffolk County Court included as occasion required. This situation is illustrated by the disposal of the prize Providence in 1673.405 In January, 1673/4, early in our period, the General Court ordered “all Cases of Admiralty” to be heard by the Court of Assistants without a jury unless otherwise thought best; but expressly permitted other courts to entertain suits by mariners and merchants “upon any matter or Cause that depends upon Contract, Covenant, or other matter of common Equity in Maritime Affaires” in accordance with “the known Lawes of this Colony.”406 This wide exception must have kept the statute of 1673/4 from seriously abridging the jurisdiction of the county courts, and many subsequent maritime disputes occur in these pages. However, a few cases refer to this statute or to the jurisdiction of the English Court of Admiralty. Two of these were brought a few days after the statute was enacted.407 The ship Expectation, captured by the Dutch but recaptured by the English off Nantucket before any condemnation, was claimed by Dudson, “pretended master,” and also by Melyen, the former owner. The General Court left Dudson to his “libertye to fitt the said ship for England,” where all persons concerned could have a full hearing in some of his Majesty’s courts.408 Apparently Melyen and his friends took possession of the Expectation when there was nobody aboard, and in consequence were thrown into prison. Thence they petitioned the General Court for an early trial in the Colony at common law or otherwise, so that they could prove their right to the ship at once instead of undergoing the delays and hardships of being sent to England for trial. On the same day, perhaps because of this controversy, the statute was passed, and shortly afterwards Melyen and his associate Darvall sued Dudson in the Suffolk County Court. Both suits were dismissed because they were most proper for the cognizance of the new Admiralty Court. Dudson and the notorious Richard Wharton409 brought an unsuccessful counter-suit against Darvall for unjust molestation and high defamation, because he had a constable seize some goods in their warehouse.410 The final outcome is unknown.
At the same session of January, 1673/4, the County Court made arrangements for supplying the seamen of the Saint Katharin with provisions until the Court of Admiralty acted.411
Several seamen of the ship Griffin sued Captain Lemoigne for not sharing prize money fairly, and also state that he had prosecuted them “at a Court of Admiralty or Court of Assistants.” They recovered the unusually large verdict of £5000.412 Later the plaintiffs were arrested for assaulting Captain Lemoigne and taking his sword, belt, and hat, which they had to deliver into court forthwith.413
Suits were brought in the County Court for failure to deliver merchandise in good condition,414 for seamen’s wages,415 against a kidnapped seaman for passage-money,416 and for abuse of passengers.417 The master of a vessel was sued for fraudulently taking to himself the wages of a runaway seaman.418 The remains of a burned ship were sold to pay wages.419
Collisions and other marine accidents have been discussed under Negligence. In one of these cases a litigant seems familiar with the admiralty rule for distributing damages,420 and in another execution is levied upon a vessel.421
Innumerable questions were raised by the voyage of the ketch Recovery.422 Other interesting voyages are those of the Good Hope from North Carolina,423 of an unnamed shallop to the Maine coast and the Bay of Fundy,424 of the Endeavour to the West Indies with an iron-gray horse,425 of the Blessing to Martinique and France,426 and of the Thomas and Mary from the West Indies.427
Certain maritime topics do not occur. There is no instance of general average, which is the oldest principle of sea law, or of maritime liens or of insurance and bottomry; and salvage appears only once and incidentally.428 But we find mention of fractional shares of vessels,429 protests,430 surveys,431 demurrage,432 and portage (or portledge).433
Bills of exchange appear frequently in this book, and their assignability had been sanctioned by a statute437 which also made specialty debts assignable.438 Promissory notes, which were not yet definitely established in England, appear occasionally. Mention is sometimes made of an instrument now unfamiliar, an obligatory bill,439 defined in Bouvier’s Law Dictionary as a promissory note with a seal.
The colonists appear to have had a good understanding of the principles of the law merchant with regard to negotiable instruments. One case repeatedly cites the valuable contemporary treatises by Malynes and Marius in dealing with a peculiar instrument which created complex relations among the payee, the drawer, and the drawer’s principal.440 Other cases contain examples of acceptance;441 protest and notice of dishonor,442 including a protest in France;443 suits by an assignee,444 one of which raised the question whether payment to the assignor was a defense against the assignee;445 equitable defenses of fraud and want of consideration;446 and a suit for failure to give security for the payment of a bill.447 In a very interesting case448 the assignee of a bill issued in an illegal transaction was denied recovery against the drawer (or possibly the acceptor) because the Court of Assistants had issued an order against payment; but the assignor was directed to repay the price of the bill to the assignee who bought in good faith. In Paige v. West449 it was held that the attachment by the payee’s creditor of funds in the drawer’s hands gave the drawer no defense against the payee.
Instruments payable in merchandise are not valid bills or notes today, but they were usual in the colony.450
A letter of credit is mentioned in one case in which the issuer had failed to pass bills in accordance therewith.451 Jesson, the obstinate juryman, sued Bushell for failure to draw bills in Jesson’s favor, but lost.452
As might be expected from the statute, title Payments,453 judgments as well as contracts were frequently payable in merchandise. Thus rent in a lease and several judgments were payable in fish.454 One judgment was payable in provisions and another in boards.455 Bills and notes payable in merchandise are discussed elsewhere.456 West Indian accounts were often figured in pounds of sugar, and Virginian accounts in tobacco.457
Although the General Court had set up a mint to coin silver money of the colony, and had provided that no other coin except English should be current money,458 many other kinds of money occur in the cases: pieces of eight,459 gilders and stivers—wampum value,460 or simply wampum,461 French livres,462 markes and nobles,463 sterling money of Barbados.464
The Bay Colony was no home of laissez faire doctrines. Its statutes show almost as much governmental attention to industry as in modern legislation,465 and several cases let us see these statutes in operation. The industries and occupations affected include the practice of medicine,466 tanning,467 making pipe-staves,468 raising cattle,469 and baking,470 and the exportation of gunpowder471 and money472 out of the colony. The statute against selling at an excessive price, brought about by King Philip’s War, was enforced in one case.473 Several ship carpenters gave an interloper who had never served his time a long ride on a pole. Their defense in court that they “understood such things were usuall in England” got them let off with small fines.474
One other industry was extremely active in the Bay Colony. The Puritans had no aversion to strong drink. In one instance we find the County Court granting the petition of the inhabitants of an island for the establishment of a place to supply them with liquor. The number of licenses issued in Boston seems considerable for a town of 4,500. At the same time, the conditions under which liquor was sold were carefully regulated. Perhaps no single topic occupies more space in these pages. In addition, licenses were required for the sale of coffee and chocolate and for cook-shops to dress victuals.
Capital offenses hardly appear here because they were tried in the Court of Assistants.475 In two instances men were bound over by the Suffolk County Court to appear before the Court of Assistants on capital charges of atheism and blasphemy.476 One prosecution for blasphemy took place in the County Court.477
Serious offenses which were not capital are abundant in these pages. Besides slander, libel, and negligence, discussed under separate headings, we find many instances of stealing, including the theft of surgical instruments,478 and of burglary or breaking and entering. There are isolated occurrences of obtaining money by fraud,479 fraudulent use of a deed,480 embezzlement,481 burning an award,482 pound breach,483 smuggling,484 and attempted suicide.485 Election frauds had already begun, for one man was accused of stuffing the ballot-box,486 and another of being a “ringer” at a town meeting.487 Some of these offenses fell within an express statutory prohibition, but in a few instances it seems likely that the court was trying a common-law crime without legislative authorization.
The same can be said of some of the minor offenses noted, although others constituted statutory crimes. Interesting examples of trivial offenses are: abusive language and disorder,488 gaming,489 night-walking,490 card-playing,491 singing and fiddling at midnight,492 high asseverations and profane wishes against oneself,493 nailing up one’s own shop windows (just the opposite of breaking and entering),494 and suspicious speeches about a fire likely to happen in Boston.495 Taking tobacco within twenty poles of a house was forbidden by statute496—obviously to prevent fires. Clarke and Phillips were fined for “taking tobacco” in the streets of Boston,497 and Phillips paid an additional fine because he reviled a grand-juryman who reproved him for smoking.
The statute “Provoking Evils,” enacted during the disasters of King Philip’s War for the express purpose of averting further divine wrath, attempted to end various fallings from grace, including “the evil of pride in Apparrel, both for Costliness in the poorer sort, and vain, new strange Fashions both in poor and rich, with naked Breasts and Arms, or as it were pinnioned with the Addition of Superfluous Ribbons, both on Hair and Apparrel.”498 Two girls in these records were prosecuted for exceeding their rank in their apparel.499
Although scolds, by a statute of May, 1672, were to be “Gagged, or set in a Ducking stool, and dipt over Head and Ears three times in some convenient place of fresh or salt water,”500 no instance of this penalty appears. In two cases of scolding, before the statute was enacted, Mrs. Murphy was merely whipped with ten stripes and Elizabeth Arnold got off with a fine.501 In 1673, the Camble girl was charged with pernicious lying and making disturbance among the neighbors, but as her father testified that she had been “corrected privately,” the court dismissed her with an admonition.502
Public nuisances often seem not to be covered by any specific statute, but they were involved in several cases. Freegrace Bendall, the Clerk of the Court, was fined five pounds for suffering his wreck to lie in the channel, and ordered to remove the obstruction within a fortnight; and Robbinson was prosecuted for casting ballast in the channel at inconvenient places in violation of a statute.503 The Braintree selectmen were ordered to remove a widow from a house “that endangereth her life,” and the Boston selectmen to look after a dangerous wharf when an attempt to prosecute the owner had failed.504 Rose was presented for letting his well lie open, and ordered to make it safe within a week under penalty of five pounds; and Atkinson was similarly treated for “letting his Cellar dores lye open & his Cellar often halfe full of water dangerous for passengers.”505
Punishments imposed during this period by the Court of Assistants and the General Court have been reviewed in our Publications by Mr. John Noble.506 These volumes add abundant material about punishments in the County Court. Some of the Bay Colony penalties seem brutal to us, but they were no harsher than those in seventeenth-century England, and several offenses were treated more leniently by the colonists. The most significant fact is that the colonists seem to have made very little use of the favorite modern method of punishment by long terms of imprisonment. They got rid of the worst offenders by executions (not a matter for the County Court); the others they usually subjected to some short and sharp penalty and then turned them loose or else sold them into service. To imprison thieves and other rascals for years, as we do, would have cost the taxpayers dear, left the prisoners’ relatives without support, and kept men idle when the community wanted man-power. Consequently, most offenders were let out after they had paid their fines and damages to the victim, or had been whipped or otherwise disgraced. The frequent use of bonds for good behavior served somewhat the same purpose as probation today. A few offenders were sent to the House of Correction,507 and one aged man spent two years in jail for drunkenness, until his forgiving wife obtained his release.508 And it must be remembered that confinement until a fine was paid might last for some time. The thrifty colonists occasionally guarded against that expensive possibility by authorizing the jail-keeper to sell the prisoner to service in any part of His Majesty’s dominions509—a punishment which might be worse than death.
Pecuniary punishments might run as low as ten groats for fighting or excessive drinking,510 but the fines were usually much more, and court fees were added. Thieves and other perpetrators of crimes against property were also required to pay treble damages to their victim. Where restitution was possible, it was ordered and usually went as part of the treble damages.511 In one case a public sale of the offender’s property was held to enable treble damages to be paid.512
This overlapping of criminal penalties and compensation for torts also appears in orders to an assailant to pay the medical expenses of his victim,513 and in the cases of criminal negligence elsewhere discussed. In several cases the court expressly authorized the victim of a crime to bring a civil action against the defendant.514 Considerable care was evidently taken to prevent the victims of theft from receiving back their property without the permission of the court, and several persons were prosecuted for such misprision of felony,515 which today is almost totally ignored by the authorities.
Disgraceful punishments, now happily obsolete, were common. Several burglars and breakers-in were branded with “B,”516 with the loss of an ear thrown in for one man who chose Sunday for his misdeeds ,517 but the “A” made famous by Hawthorne does not occur in these pages, although some of the cases show the fact of adultery. The pillory518 and the stocks519 exhibited offenders for the instruction or amusement of their fellow-citizens, who could also watch Read and Richardson sitting at the gallows with a rope around their necks,520 or Veering, Jay, and Sarah Scott standing on a stool two feet high in the market place with papers on their breasts describing their misdeeds in detail.521 It must have been as good as a circus parade to the hard-working people to see women stripped to the waist and whipped at a cart’s tail through the streets.522 And sentences of ordinary whippings were too frequent to enumerate, the number of stripes being defined with precision and occasionally directed to be “severely laide on.”
More subtle penalties were sometimes used. Atherton, who had wounded an Indian with his sword, was forbidden to carry this dangerous weapon while in the colony.523 Jay was disfranchised for vilifying General Winslow.524 When Robbinson was presented for railing and using wicked expressions, the court disenabled him from crying anything “as a publique Cryer.”525
Offenders (as well as paupers) might be ordered to depart from town or from the colony.526 Thus Hull, accused of theft, changing his name, and other crimes, was sent back to Barbados which he had left without a ticket.527 Sometimes these orders were given in what would now be considered a high-handed fashion. When Owen was imprisoned on suspicion of attempting to fire a house in Boston, the evidence proved insufficient to convict him, but all the same he was considered a very vicious, ill-disposed person and told to leave Boston immediately and not return within ten miles of the town.528
Indians could be tried for crime in the ordinary courts and their conduct was the subject of much legislation,529 especially that concerned with keeping them away from liquor. The noble savage ran chiefly to petty crimes, like breaking into a Braintree house and there drinking and spilling nearly a barrel of cider.530 For this the Indian was sentenced to be whipped with thirty stripes (much over the usual white man’s allotment), to pay treble damages and court fees, and to stay in prison until the sentence was performed. A few days later the keeper of the prison complained that the cider-owner had not looked after the Indian, i. e., was not paying his board in jail. The court then ordered that if nothing was done soon, it was in the power of the keeper to sell the Indian into service. Another Indian, who came into Bennett’s house against his consent, demanded drink, and then threw stones at Bennett and pulled him by the hair, was sentenced to have his “haire cut round close off from his head,” with thirty stripes and court fees besides, and more whipping if afterwards found in Boston.531 Such were the blessings of civilization to the former lords of the soil, who in forty years’ time had lost their land, their dignity, and even their names, so that they were tried for the most part under the nicknames given them by their white dispossessors—James, Frank, Jasper, Zachariah.
Criminal procedure plays a much smaller part in these pages than civil procedure, and only a few points need mention. The present Massachusetts law facilitating arrests on suspicion,532 which are illegal in many states, may be related to the practice shown in the case of Richardson, who was bound over on suspicion of breaking open Pynchon’s warehouse.533 One accused man who jumped his bail before trial had his property sequestered to compel his return.534 The right to jury trial has been discussed under Juries, and the trial of nonresidents under Conflict of Laws.
Law-enforcement agencies were primitive. The old custom of hue and cry appears in several cases.535 Probably private citizens were more active tan now in the apprehension of offenders, because everyone knew his neighbor; and crime was more a matter of general concern. There were no town or state police, of course, and the chief burden of supplementing private citizens fell upon the constables. One finds indications that some of these constables were of the type of Dogberry and Verges. One constable let his prisoner escape from him on the Charlestown ferry, and the other passengers appear to have aided the prisoner rather than the constable.536 The Medfield constable complained that two small boys had run off with his official staff.537 This black staff, five feet long, tipped at the upper end for about five inches with brass,538 was a very important article, and a constable was almost helpless without it. For instance, there was much to-do about the staff in the arrest of Ashton by the youthful deputy constable in Rehoboth over in Plymouth Colony.539 Even prisons were none too secure, for escapes are mentioned several times.540 Among miscellaneous interferences with criminal justice, Hurd advised a fellow-prisoner not to confess the burning of a barn,541 White went back on his vital testimony before the grand jury about another man’s being drunk,542 and Williams dissuaded a delinquent from giving himself up to justice in obedience to a warrant.543
Marriage in the Bay Colony before 1680 was solemnized only by magistrates. Whatever the power of the ministers, they failed to make use of this method of influencing human lives which priests have found so effective in other periods. The statutes also provided for publicity by banns and entry of the marriage in the town records within a month.544
Early marriages were the common practice in the Bay Colony. The statutes made it a crime for a man to endeavor to “draw away the Affection of any Maid . . . under pretence of Marriage” before obtaining the permission of her parents or governors (or in their absence of the nearest magistrate), but if a child were unreasonably denied “timely or convenient marriage,” she could complain to the authorities and seek redress.545 Since runaway couples could not resort to a friendly clergyman, an elopement had even more serious consequences than today. We find William Hawkins conveying Hannah Hoppin away by night without her friends’ consent and sending her to Barbados, where she is reported to be with child;546 Benjamin Scott drawing away the affections of Prudence Gatliffe without her parents’ leave;547 Timberlake carrying off a pregnant widow with the help of Starkey.548 Isaac Gross abducted Mary Mirack, a servant girl who was also with child, and called her his wife upon the journey. Gross was heavily fined, and Elizabeth Edsall, who assisted in hiding the girl, was put under bonds.549
Husbands who had left their wives in England were an especial source of trouble in the colony, and were frequently ordered to depart for home at the earliest opportunity, as a statute required.550 Mr. Atherton argued in July, 1676, that though he had been long away from his wife, his business was not yet done and so he could not go home; but he was ordered to return to her before the next session of court. Three sessions later, in April, 1677, he was still around, “there having been several oppertunities since which hee hath omitted.” The court collected twenty pounds on his bond and told him to go by the next ship or pay twenty more.551 Mr. Tipping was charged with “making Sute to some maids or women in order to marriage, he having a wife in London.” He denied the suit, but admitted the wife, and was ordered to sail.552 The most entertaining of these errant husbands was Henry Jackman, who purported to be a single man and attempted marriage with several, besides carrying a flaming firebrand at midnight past a barn and hay stack. He was sentenced to be whipped with twenty stripes, pay witness fees and costs, and return to his wife by the next ship. He came into court drunk to get his whipping, and so he was given five stripes more for good measure.553
Cases of domestic quarrels are numerous, and some households went to pieces. Rolfe was charged with having two wives, but was acquitted.554 John Smith went away from his wife with Patience Rawlins, whom he passed off as married to him.555 Conversely, a wife was ordered from Boston to join her husband in Taunton;556 and Mrs. Drury vainly alleged her husband’s impotence as an excuse for living apart.557
In other situations the court struggled hard to keep a man and a woman apart. Walter Hickson and Mrs. Samuel Bedwell, for keeping company and being too familiar, both sat in the stocks two hours, and were threatened with ten stripes apiece if thereafter found alone together.558 Such an order had little effect upon Joseph Belcher and Waitstill Spur. Upon their continuing to see each other at the girl’s house, the court made him pay £20 and fined the girl’s father £10.559
Even newly wedded couples did not always escape the rigors of the law. When the birth of a child within thirty-two weeks after the ceremony indicated that they had “sat down to meat before grace”—if Fielding’s phrase may be applied to civil marriages—then, besides paying a fine, the couple had to stand up together at church or in town meeting and publicly acknowledge their sin, or else be whipped ten stripes by the constable.560
Harsh as this treatment now seems, it had a social value in emphasizing the vital importance of public marriage. The settlers had brought over from England the custom of privately contracted unions effected by the parties themselves without any ceremony whatever. Such “hedge marriages” were probably valid by English common law. The custom persisted in most of the colonies, and common-law marriages are valid in about half the United States today, notwithstanding the effect of this laxity upon morals and upon property rights. It is absurd to require deeds and important contracts to be written and recorded, and yet allow valuable dower rights and other marital claims to rest on nothing but oral testimony, often fabricated and always liable to injure purchasers who bought land assuming the previous owner to be a bachelor. Massachusetts was one of the first states absolutely requiring a ceremonial marriage (civil or religious). The Puritans performed a permanent service to the Commonwealth by insisting that engagement and wedlock should not be indistinguishably blended but ought to be separated by a definite and public event sanctioned by the presence of an authoritative person. Nothing but sharp punishments could have wrenched the Massachusetts settlers out of their lax habits of common-law marriages and de facto unions consummated in the comfortable belief that a ceremony would follow some day or other. Henceforth no doubts would arise as to what was marriage and what was not, even if there were a good deal of the latter.
That life among the Puritans was far less “drab” than it is pictured by some of our bright young authors, is shown by these and many other cases, like the careers of the Widow Thomas561 and of Sarah Blacklock,562 who called forth a colonial version of the writ de ventre inspiciendo;563 the premature divorce of Wharton and Mary Gridley;564 and the incidents of merry wives “founde sitting in other mens Laps with theire Armes about theire Necks,”565 or John Gill’s wife enjoying herself “in company of severall men at the house of Arthur Keyne, drinking and dancing.”566 Several other light ladies and their lovers enlivened the streets of Boston.567 One man gallantly attempted to help his mistress escape from prison.568 A master was found guilty of wanton conduct toward his serving maid, and she was declared free from her indenture.569 Bastardy, which affected both morality and taxes, was the subject of numerous proceedings, in which paternity was proved by the mother’s declarations in travail570 or by her oath in court.571 The Indians and the negroes, as might be expected, did not fail to follow such examples set by the whites.572
Care must be taken not to draw exaggerated inferences from the court cases as to the prevalence of licentiousness among the Puritans. In the assessment of the morals of a community, the indecency that is punished is far less significant than what goes unpunished because no one seriously objects. The situation in the Bay Colony doubtless resembled that in Plymouth, where Governor Bradford declared: “Hear . . . is not more evills in this kind, nor nothing nere so many by proportion, as in other places; but they are here more discovered and seen.”573 Prying neighbors and active magistrates ferreted out these offenses and prosecuted them. Wrongdoers had much less chance than nowadays of escaping public attention. Consequently, these cases may represent a very considerable portion of the total immorality in Suffolk during our period, and are not merely a small sampling from a large mass of indecency, mostly undetected or lightly passed over. On such an assumption, the cases here reported are not so numerous as to form a dark picture. After all, legal records always stress the seamy side of a period. Happy marriages do not often get into court.
Although church and state were united in the Bay Colony, these records offer few data to justify the term “theocracy,” often applied to the Massachusetts form of government until 1685. A few matters came before the Suffolk County Court which no judge would touch today, such as supplying a preacher for a church574 or punishing absences from church. The latter charge was frequent,575 and sometimes called forth amusing excuses. George Fairebank appeares to have been “an occasional sitter” like Samuel Pepys, for he stayed away from his regular church in Medfield and said he went often to Dedham and other places.576 The Medfield preacher was also neglected by Jonathan Adams, who owned in court that he worshipped God but did not frequent the public assembly.577
Quakers were frequently in trouble for going to their own meetings instead of to church.578 Nicholas Moulder, whose participation in civil litigation indicates wealth, appears to have been a leader among the Quakers.579 Meares, when charged with presence at a Quaker meeting, said he only went in to hear them as he was on his way to the North Church, but once in he stayed.580 Most of the Quakers got off with admonitions and costs. Even the flare-up of public antagonism during King Philip’s War581 seems to have produced no real severity. A few Quakers went to prison but were released by the Deputy-Governor’s order.582 Caiman, a recent and unwelcomed settler in Boston, was told to leave the colony, and Joan Hyde, a vagabond Quakeress, was released from prison and allowed to return to Rhode Island whence she came.583 Another example of mild persecution for the expression of religious opinions, probably of an Anabaptist, sort, occurred when Stephen Harding and Pardon Tillinghast came up from Providence to Mendon “to Seduce people to theire corrupt opinions.” The two Rhode Islanders were merely warned away and charged with costs.584
We must not be too complacent in condemning our ancestors for their treatment of Quakers and other dissentients from the ideals of the Bay Colony. Our ideals are different, but strangers who do not accept them are still unwelcome. After all, the sentences of Calman, Joan Hyde, Harding, and Tillinghast were a small matter compared with the deportation from Massachusetts to Spain, in 1919, of a law-abiding philosophical anarchist of the school of Tolstoi and Kropotkin, who had been in the United States seventeen years, had a son born in this country, and owned a house here.585
Occasional prosecutions for vilifying ministers have been discussed under Slander and Libel. This is no longer a crime unless it amounts to criminal libel, but a recent local proposal would exclude from Massachusetts any motion-pictures which contain reflections upon clergymen.
The other offenses in these pages which can be attributed to ecclesiastical influence are still crimes in Massachusetts, long after the separation of church and state. The blasphemy law of 1646, which Barefoote and Reade were charged with violating,586 has not yet disappeared from the Massachusetts statutes, though it no longer carries the death penalty; two prosecutions have been instituted under this law since 1926, one of them in Suffolk County.587 Sabbatarian laws are still in force, though they no longer extend over Saturday evening.588 The gates were locked on Boston Neck between Boston and Roxbury as soon as it grew dark on Saturday so as to stop all travel from Roxbury and back.589 Sabbath violators prosecuted in these pages include some sailors who hoisted their sails that day, as though mildew did not work on Sundays.590 Fast days, now obsolete, were kept similarly free from ordinary activities.591
Disturbances of church services, sometimes still punishable as a breach of the peace, often took an amusing form. One case reveals a long-standing controversy between the Braintree minister and some of his parishioners.592 Three women were fined for “hunching Rebecca Bully” during public worship in South Church.593 Margaret Brewster came into the same church during service “in a disguised manner with her face blacked her haire dishelved [sic] about her Shoulders, ashes on her head and sackcloth on her Shoulders.” Such religious zeal was too much, even then. She and her two female companions, all of them probably Quakers, were stripped of sackcloth and everything else down to the waist, and whipped out of town.594
It is the least attractive side of the churches that is disclosed in these records, as might be expected. Evidences of devotion and learning, of self-sacrifice and patient up-building of Christian communities in the wilderness, must naturally be sought elsewhere than in lawsuits. Still, these pages do give us one glimpse of Puritan ministers at their best. Eliot, the apostle to the Indians, and Daniel Gookin, the historian, were run down while crossing Boston harbor to visit their converts interned during King Philip’s War. Apparently the collision was actuated by spite because these two ministers were befriending the Christian Indians against the violence of public opinion excited by war-fever.595
The subject of conflict of laws or private international law concerns the problems which arise when a suit in one state involves citizens or residents of another state, or property or transactions in another state. In such situations it is necessary to decide whether to apply the rules of law in force at the place of suit or those of the other state. Two independent nations need not be involved. It is enough that each political unit concerned has the power of making laws different from those of the other unit. When the legal units are small, like our forty-eight states, problems of conflict of laws are likely to occur often. Although the colonies were subject to the English Crown, which could theoretically supervise their legislation, there was enough practical independence to make the inhabitants of another colony in some sense foreigners. Indeed, the existence of a single political sovereignty in the English Crown does not prevent each portion of the Empire from being a separate legal unit for the purposes of judicial proceedings. Thus Ireland, which England controlled much more firmly than the American colonies, was treated as in a different legal jurisdiction by an English judge during our period.596 The nearness of the colonies to each other, frequent migration of settlers, and constant commercial intercourse, especially by sea, brought about a good many cases in the Suffolk County Court involving residents of or transactions in other colonies. It was also not unusual to have litigation about inhabitants of England and other countries, or acts on the high seas and in distant ports.
The laws of the various colonies were not yet sufficiently developed to present many sharp clashes between Massachusetts law and that of the other colony or country incidentally involved in a controversy. Still, it is interesting to collect the cases here published in which non-residents, foreigners, and transactions outside Massachusetts played a part.
Non-residents of Massachusetts were allowed to sue in the courts, and indeed a special court was authorized to assure justice to strangers.597 The repeal of this statute in 1672 allowed strangers to sue in the ordinary courts;598 this coincided with one stage of the prolonged controversy growing out of the voyage of the ketch Recovery.599 In Gydeon v. Gibbs,600 a non-resident plaintiff makes a fervent appeal for justice in reliance on the scriptural command “that the same Law should bee for the Stranger and sorjourner as for the Issraellits.” Non-residents were also subject to suit, and the frequent New England practice of attachments upon the property of non-residents was already in operation.601 An attachment against a non-resident was nullified because neither his person nor any goods were in the jurisdiction.602 When the defendant was merely a resident of another county in Massachusetts, the difficulty of reaching him in the Suffolk County Court was less serious, and the method employed is illustrated by the case of Captain Price.603 Strangers in Massachusetts who violated the criminal law of the colony were, of course, liable to prosecution.604 A stranger’s excuse of ignorance of the law relating to the sale of liquor to Indians proved of no avail;605 but a similar request for clemency by a stranger who killed a sheep late on Saturday night led to a light punishment.606 Ignorance of the law was successfully urged as a defense by Calloe, a sailor who found a box floating in Boston harbor and took silver from it. He excused his failure to cry it as lost property by saying that it was not usual in his country to cry flotsam and jetsam. On returning the property he was acquitted.607 The frequent occurrence of foreign names in these pages indicates that persons who were not British subjects were fairly numerous in Massachusetts and took their share in litigation.
Acts outside of Massachusetts were involved in a considerable number of cases. Thus we find suits for breach of a Rhode Island contract;608 for New York debts, one debt involving the period of Dutch rule;609 on English bonds;610 and on a bill of exchange drawn in France on a drawee in London who accepted but did not pay.611 An agent who had been appointed by the Suffolk County Court to manage Rhode Island land belonging to a Massachusetts decedent was sued by the heirs and executors for an accounting of the profits from the land.612 Alleged wrongful acts on the high seas or on foreign soil are not uncommon in connection with voyages.613 Suits were freely allowed for foreign torts, for example, carrying off Indian servants in Rhode Island,614 and the misappropriation of merchandise in New York involving seizure by the Dutch in war.615 In an action for slander in Connecticut, the defendant was ordered to make a public retraction in Connecticut as well as in Massachusetts.616 In some prosecutions, the crimes originated outside Massachusetts. Rebecca Littlefield was convicted for having an illegitimate child which was begotten in Plymouth Colony,617 and Curle for fraudulently carrying goods from England to New England.618 Several men were prosecuted for deserting the service of the United Colonies, but it does not appear where the desertions took place.619
Only one instance is found of a suit on a foreign judgment. This was brought by the assignee of a New York judgment obtained during the Dutch occupation of New York.620
The estates of decedents affected persons outside of Massachusetts in several cases. The most interesting is Swift v. Smith,621 brought by the heirs of a Massachusetts decedent against a man in possession of Narragansett land, now in Rhode Island but then claimed by Connecticut, which was alleged to be part of the estate. The case indicates the possibility of differences between the inheritance laws of Connecticut and Massachusetts. In settling the Matthews estate622 mention is made of land at Block Island, probably referring to Rhode Island territory claimed for a time by Massachusetts. The insolvent estates of Massachusetts decedents were often subject to claims by nonresidents, whose interests were adequately safeguarded by court orders.623 The property of non-resident decedents, as for instance that of a Jamaican, and of an Englishman who died at sea,624 was sometimes administered in Massachusetts as provided by statute. Alford v. Endicott625 brings in administration proceedings in England and Maryland.
Runaway servants from other colonies must have been common, and article VIII of the New England Confederation in 1643 embodied a rudimentary fugitive slave law.626 It also required the Commissioners to make agreements and orders about receiving persons “that remove from one Plantation to another, without due Certificates.” This article was applied by the Suffolk County Court in the numerous proceedings about Hannah Bumpas, who was returned to Plymouth.627 Although the New England Confederation did not include New York, the court ordered the return to that colony of Cornish, who had obtained a discharge from his master through duress during the Dutch occupation.628 The converse situation of a servant who ran away from Massachusetts to another colony produced an attempt to bring back an Indian squaw from Connecticut, and depositions were taken in that colony.629
Ashton v. Gibbs630 involved the co-operation of the authorities of Plymouth Colony and the Bay Colony in the recapture of a man who was escaping civil arrest by going into Plymouth Colony.
All these cases indicate that the difficulties of conflict of laws were not particularly serious during the period covered by these volumes. In only one case, Swift v. Smith,631 is there a suggestion that differences between the laws of the various colonies were of significance.