Lay Judges: Magistrates and Justices in Early Massachusetts

    SO accustomed have we become to professionalism in the law, and to the standards which that concept implies, that we tend to forget that in many civilized societies much of the administration of the law has been and still is performed by laymen. Today we expect our judges to be learned in the law and to pass the scrutiny of bar associations before they take their places on the bench. We expect our lawyers to have graduated from college and an approved law school, to have passed rigorous tests administered by bar examiners, and to have received certification as to character and experience. Even administrative officers and members of governmental commissions are expected to have some professional experience, often legal experience.

    But the time is not far back—certainly in my recent professional lifetime—when a person could be certified for legal practice by having read law in the office of a well-known lawyer. If one goes back somewhat further, into the nineteenth century, such training was even more customary,237 and professionalism was absent to the point that laymen such as artisans and day laborers could be found sitting on the higher courts of our states.238 No doubt such men would be lost in the intricacies of modern tax or corporate practice; perhaps they were deficient in knowledge of the technicalities of pleadings, demurrers, and special motions. But in their time—especially in New England—they were highly competent. I once knew a justice of the peace in my adoptive home town in Maine who, at 75, was more conversant with contracts and criminal law than are most present-day law school students. He could spot a defect in a deed or an option as readily as he could a lame cow. He was a farmer, who had little formal education beyond elementary high school, and his example leads me back to the seventeenth century.

    When, twenty years ago, Professor John Dawson attempted to define “professionalism” in connection with lay lawyers and judges, he turned to such general tests as specialized training and the application of a “substantial part of [one’s] time and energy . . . to the task at hand,” usually on a paid basis.239 The professional judge he contrasts with the “lay” judge, who takes part in the judicial process irregularly and as a sideline, with unplanned regularity, so that training in legal techniques is not a qualification for his work.240

    These general distinctions provide at least a background which has relevance for the beginnings of the legal profession in Massachusetts. In the 1630’s and 1640’s the colonists had no great liking for lawyers, that is, for professionals. Thomas Lechford, who came to the Bay Colony in 1638, partly to find clients, was formally rebuked for “pleading” with a jury “out of court.”241 At one time it was supposed that lawyers were not needed in the colony because its law was “rude, untechnical . . . popular,”242 but the drafting of documents and pleadings by Lechford reveals a heavy reliance on English legal devices, techniques, and forms of conveyancing.243 Thus we know that the Bible was not the “infallible guide” for judge and legislator, as some have supposed.244 We now know that the enacted laws of the colony were, in many areas, highly sophisticated and far more temperate and “modern” than contemporary seventeenth-century law in England. In some directions the colonists relied on common-law rules, on English statutes, on local customs; in other directions they were distinctly innovative, especially in areas involving civil liberties, and their attitudes about punishments were far more lenient than many have believed. One has only to go through the provisions of the Code of 1648 to find extensive adoption of English law and practices—to say nothing of technical terminology such as barratry, escheat, nonsuit, reversions, and remainders. But in doing so, one must bear in mind that this Code—though drafted and supervised by men who had had experience in the law and its administration—was basically the product of laymen working on committees of the General Court towards particular ends and purposes, namely, a compilation of existing laws and the reasons therefor.

    Undoubtedly there was a dislike of the professional lawyer in the colony, but it may be suggested that it had little to do with Puritanism or Congregationalism. To those first colonists the aversion and distrust were in large measure an English importation, like so much other intellectual and practical baggage they brought with them. Their social and intellectual backgrounds continue to have special significance for our understanding of the beginnings of an indigenous American law.

    The opposition to professionals—judges as well as lawyers—became intensified in England during the Puritan-dominated Interregnum that followed the execution of Charles I in 1649. That there had grown up a skepticism concerning the legal procedures even before the Civil War is illustrated by considerable evidence. For example, there was the important tract of Francis Bacon, written shortly before the 1630 emigration and proposing law reform to the end that uncertainties, varieties of opinion, delays, and evasions in the law might be removed.245 John Winthrop, while still in England, had drafted a bill for presentation to Parliament requesting a reduction in the number of practicing attorneys.246 In England, neither existing legal procedures nor professional lawyers had been entirely successful in providing men with needed protection against the arbitrary power of the Crown, and that fact was not forgotten—indeed was to be emphasized—when the colonists reached Massachusetts and began to press for a code of laws and a bill of rights.

    It was against such a background, particularly preceding the English Civil War, that the early colonists were copying to a great extent the types and forms of law and institutions with which they were familiar, and which they and their leaders had found appropriate to the New World. The habit of mind of most colonists remained emphatically hostile to the legal profession.247 Thus John Cotton, the Boston minister, referred to lawyers as unconscionable advocates who “bolster out a bad case by quirks of wit and tricks and quillets of law.”248 Moreover, under Article 26 of the Body of Liberties of 1641, attorneys were permitted to plead causes other than their own, but all fees or rewards were disallowed.249 Instead, it was a common practice for litigants who needed advice to consult privately with one of the magistrates.

    In early Massachusetts Bay, as Professor Thomas Barnes has demonstrated, there were among the leaders of the colony men trained professionally in more than one area of the law, even persons admitted to the Inns of Court in London—for example John Winthrop, the Governor, and his son, as well as three of the first Assistants: namely, Isaac Johnson, John Humfry, and Roger Ludlow.250 Others, like Richard Bellingham, who had held the important legal office of Recorder of Boston in Old England, had studied law;251 and Nathaniel Ward, who drafted the first American bill of rights, known as the Body of Liberties of 1641, and who had been admitted to one of the Inns of Court before taking holy orders, stated that he had “read almost all the Common Law of England, and some Statutes.”252 A few colonists owned copies of manuals for justices of the peace, such as that of Dalton; others had abridgements of the English statutes.253

    The chief leaders of the colony, including those just named, were among the members of the Court of Assistants of the Massachusetts Bay Company as it had been in London. The company was similar to other English trading companies of the time. Analogous to a modern business corporation, it was a joint stock company headed by a Governor, a Deputy-Governor, and a board of eighteen Assistants. All were elected by the stockholders of the Company, known as “freemen.” It was prescribed by the Company charter that the officers and board-members, together with freemen, were to meet annually in what was called the General Court for purposes of elections, for admitting new freemen, and for enacting ordinances both for the Company and for the colony which it was authorized to establish. Each month, or more often if necessary, the officers and the Assistants were expected to meet in executive session of the Court of Assistants to take care of routines and on-going business, much like the directors of the modern corporation.254

    That the Massachusetts Company, like other trading companies of its day, was an association for commercial purposes is clear. It had been organized for profit and expected to send out colonists and planters to the New World and to be governed from England by the officers and shareholders. Nevertheless, the Massachusetts enterprise had attracted a number of well-to-do Puritans who had broader and more significant objectives in mind—political and religious—which soon displaced the commercial purposes of colonization. By a deft maneuver it was decided to transfer the management of the Company from London to New England and there to merge it with the government of the colony.255 This was voted at a meeting of the General Court in 1629, and John Winthrop was elected Governor of both the Company and of the overseas colony, which had been sanctioned by royal charter. Hence, when the Governor, the Deputy-Governor, and ten of the Assistants arrived in New England, they constituted not only the governing members of the Company but of the colony as well. They were legally in charge of the enterprise, its settlement, and its administrative structure. Indeed, until the admission of a large group of freemen in 1631, they were co-equal with the General Court, in the sense that on these shores the membership of both bodies was identical.256 In spite of their broad powers, one of their most important acts—one which is vital for this discussion—was a declaration at their first meeting, on 23 August 1630, that six of their ten members be given powers of English justices of the peace.257

    The declaration of 23 August 1630 was one of the first tangible steps in the deliberate transformation of what had been a chartered trading company in England, into a body politic in Massachusetts Bay—a transformation which began soon after arrival on these shores, when familiar English institutions were introduced as part of the framework of government. At least three of the Assistants had been justices of the peace in England—notably, John Winthrop, the Governor, and formerly Lord of the Manor of Groton in Sussex. Few could be more aware than he of the legal and administrative importance of the justices of the peace in England.258 Initially, however, the power of an Assistant (now also called a magistrate, at least while he held office), was far greater than that of an English justice of the peace. When they sat singly, the parallel is very clear. But when they sat together as the Court of Assistants, these magistrates—for the first five or six years—exercised judicial powers “as broad as those of the three great English common-law courts, as well as of Chancery, the High Commission, and the Court of Star Chamber.”259

    After the General Court was technically separated from the Court of Assistants as a result of the admission of new freemen in 1631, its powers were not noticeably different from those held previously, except that it again became responsible for electing the Assistants as well as the Governor and Deputy-Governor. However, the General Court’s membership, insofar as freemen were concerned, was restricted to those who had been formally admitted to one of the colony churches, with the result that there was now a drastic limitation on the franchise. When in 1634, as a result of the famous Watertown protest over taxes,260 the General Court not only became a wholly elective body but, resuming the powers granted it under the charter, became again the chief organ of government, its business included what today we would refer to as legislative, along with judicial and administrative functions. Thus the General Court enacted laws and ordinances for the colony, answered petitions, authorized licenses, and supervised as well as made grants of land. Yet many of these matters were also dealt with, and normally in the first instance, by the Assistants, meeting separately as a court or as an executive board during the recesses of the General Court. Hence the magistrates continued to be virtually, and sometimes solely, involved in the enactment of laws and in the decision of cases, while they also performed most of the practical administrative work of the colony. Professor Herbert Osgood has written that the “continuous executive work of the colony was done as fully by the governor and assistants . . . as it was by the King and council in England.’261 After 1636, however, the powers of the Court of Assistants—but not the powers of the Assistants themselves—were narrowed by the creation of new courts of first instances—the county courts—so that the Court of Assistants had original jurisdiction primarily in civil suits involving more than £10, in cases of divorce, and in all capital and criminal cases extending to life, member, and banishment.262 The Court of Assistants also heard appeals from the new county courts.263

    It was in the new county courts that the weight of the magistrates’ authority was particularly felt. Frequently joined with them were other “lay” judges, less experienced but dependable freemen who were designated pro tem by the General Court. By the end of the 1640’s the jurisdiction of these two groups of lay judges sitting together in the county courts extended to all criminal and civil causes not expressly reserved to the Court of Assistants. Typically, what came before the county courts were actions for assault, battery, debt, defamation, drunkenness, fornication, Sabbath-breaking, theft, and trespass.264 Another feature also stands out insofar as these lay judges were concerned. Like the English justices of the peace, whose example set precedents, the county courts also had extensive administrative jurisdiction which can be summarized as follows:

    They appointed persons to lay out highways. They confirmed the nomination of military officers and apportioned charges for the repair for bridges. They ordered removal of obstruction on highways. They licensed innkeepers and others. They punished idle persons; they determined prices and wages when necessity required regulation. They fixed the allowances of ministers and saw that they were paid—and they oversaw the education of Indians as well as their relations in trade and otherwise with the colonists.265

    Thus the ruling group of magistrates that comprised the Assistants were not only lay judges but were, for the most part, persons of practical experience and capacity as well. As indicated, most of them had been born or trained to responsibilities of administration or business, and several had served in positions which gave them knowledge of local customs as well as of the law of the special or national courts in England. Hence, in addition to their new positions as magistrates, set apart by divine law as “Gods vpon earthe,” they came from backgrounds which placed them in a position similar in many respects to that of the English gentry, to whom deference was customarily paid. The majority of freemen—and most other inhabitants as well—likewise accepted, for the most part, the “due forme of Goverment” under which they lived.

    One among several reasons for that acceptance was that the leaders of the colony did little violence to inherited traditions with which the inhabitants were familiar. Moreover, nearly all the colonists, and especially those from rural areas in England, had experienced self-government at the command of the Crown, enforced chiefly through local justices of the peace. The repairing of highways and bridges and the scouring of ditches were among the endless duties which they had been expected to perform. Misdemeanors and failures to perform required duties—even the elastic concept of nuisance—were regulated in detail, so that enforcement by criminal process, conformable to what they had known, was readily accepted. It was only when the magistrates progressively introduced discretionary penalties for major offences, when the certainty of English practice appeared undermined, and when traditionally accepted sentiments were disregarded that the judicial work of the magistrates evoked strong criticism. Hence followed not only the well-known episode culminating in Winthrop’s treatise on arbitrary government,266 but the continued pressure for the preparation of the bill of rights known as “The Body of Liberties” (1641),267 and eventually the carefully drafted and unique code, known as the Lawes and Libertyes of 1648.268 What occurred in this period was a remarkable change in attitude, one that needs special emphasis because the change seems to have escaped the attention of most scholars. Whereas in contemporary England efforts to protect civil liberties and individual rights from the usurpations or overbearing acts of the Crown were based upon so-called immutable concepts embodied in the traditions of the common law, in the colony the protection of individual rights through the rule of law was guaranteed by legislative enactments, as in the “Body of Liberties” of 1641 and in the Code of 1648. In part, the reason probably lies in the colonists’ respect for the written customs of Old England, but even more in their early recourse to lay and church covenants. English statutes of the Elizabethan and Stuart periods rarely had such protective purposes but, instead, were typically harsh and largely regulatory, even when they affected individual rights of the poor and the wayward. Lord Coke’s magnificent efforts had failed, judges had been manipulated, and Parliament was eventually prorogued. Yet in the colony the recognition and growth of a rule of law were the result of laymen whose legal experience was, at best, narrow and specialized. Much as the colonists revered the rule of law, as had their forebears, only infrequently did they become embattled over the relationship between government and the individual. And when questions about excessive power of government did arise in the colony, there was no recourse to professional lawyers (persons comparable to Coke), but rather to compromise and debate among persons who were laymen and who produced the statutory solutions referred to.

    As earlier stated, it was at the first meeting of the Court of Assistants held on these shores, on 23 August 1630—only a few weeks after their arrival—that six of the ten members of that body were given “like powers that justices of the peace hath in England for reformacion of abuses and punishing of offenders.”269 Two men, the Governor and the Deputy-Governor—at the time, respectively Winthrop and Thomas Dudley—were “alwais” to be justices; the other four only “for the present tyme.”270 The latter four were Sir Richard Saltonstall, nephew of the Lord Mayor of London and reputedly a former justice of the peace; Isaac Johnson, a wealthy landowner in Rutland and a son-in-law of the Earl of Lincoln; John Endicott, former governor of the plantation that had preceded the arrival of Winthrop’s group and Roger Ludlow, who had been admitted to the Inner Temple and who, later, had led the emigrating contingent from the West of England.271 The basis for the selection of the six is not clear, since, as indicated, the remaining four were well-known and competent persons.272

    In any event these ten Assistants, as well as others later elected to that office, were all denominated “magistrates,” which was an alternative title for justices of the peace in England, and they soon were serving as judges at all levels of the Colony’s judicial system.273 Many had had genuine—though specialized—legal experience.274 Governor Winthrop had served in the Court of Wards and Liveries and had been admitted to Gray’s Inn.275 Dudley is said to have “learned much skill in the law.”276 Bellingham had been Recorder of Boston in England and is said also to have been a justice of the peace.277 John Humfry was a member of Lincoln’s Inn and had been an attorney in the Court of Wards and Liveries.278 Isaac Johnson, a Cambridge graduate, was a member of Gray’s Inn.279 Roger Ludlow, Oxford educated, had been admitted to the Inner Temple, as already noted.280

    6. John Endicott (1589–1665), Governor, Magistrate, Member of the Court of Assistants. From a portrait by an unknown artist. Courtesy, Massachusetts Historical Society.

    7. Simon Bradstreet (1603–1697), Governor, Member of the Court of Assistants, Member of the Council for the Safety of the People and the Conservation of the Peace. From a portrait by an unknown artist. Courtesy, Commonwealth of Massachusetts.

    It was one thing to bring from England a system of nonprofessional judges; it was another thing to retain it, enlarge it, and thus keep its principles. The latter would not have occurred unless the system had worked and had been acceptable to the colonists. What is remarkable is not that lay judges were able to perform their judicial, administrative, and legislative tasks but—to reverse Dr. Johnson’s remark about the talking dog—that they performed them so well. Further, it should be emphasized that those Assistants who were “lay” judges, and whose powers were far broader than those of English justices of the peace, were elected, not appointed. We know how much of the English legal tradition was cast aside in favor of innovative practices and ideas that looked towards the new horizons which could nurture an indigenous local law. In other words, we know how, through the process of reason, logic, and evaluation of experience, the magistrates—and the electorate as well—were able to free themselves from the fetters of tradition.281 Yet in doing so the magistrates, in particular, have been criticized for entrenching the kind of oligarchy they purportedly wished to move away from.

    Entrenched they were, and it is a curious and singular feature of the early Massachusetts judicial system that so much control was exercised by the magistrates who dominated nearly every court of the colony. Yet to establish themselves in this way was one aspect of their overriding concern to create through their own activities the “Citty vpon a Hill” which had been the goal of emigration and settlement. However one may wish to characterize these leaders as a group, they were comparable to the ruling class of Virginia after the Revolution—in the words of Henry Adams “equal to any standard of excellence known to history. Their range was narrow but within it they were supreme.”282

    Another interesting and important feature of the system should be noted. In England it would have been unusual, except in a case reserved for the full bench, for a judge of that time to sit on one court to hear a case and on another court to hear an appeal from what he had already decided. Yet in the early years in Massachusetts Bay this is exactly what could and did happen. A magistrate sitting on a county court might hear a case for the first or second time, then again on appeal as a member of the Court of Assistants, and finally on appeal to the General Court. This type of rehearing was one of the issues in the Negative Vote conflict between deputies and magistrates in the 1640’s, but the magistrates won out.283 It has been a continuous subject of criticism until the present day, both because it seems “elitist” and oligarchical to some, and also, perhaps, because it does not comport with our customary appeals practices in state and federal courts. Nevertheless, despite occasional flare-ups between 1630 and 1650, the practice—an offshoot of the lay judges concept—not only persisted but thrived for the rest of the century, presumably because it accorded with the general sentiments of the community. Why?

    When one looks at the record of continual reelection of almost the same slate of magistrates to office year after year—an office which made them available for judicial service as single magistrates, in the county courts, in the Court of Assistants, and in the General Court—one is bound to appreciate that the electorate placed trust in the judgment of these men, whether laymen or persons having some basic learning in the law.284 The colonists approved of the system. The same is substantially true of those freemen, regularly appointed upon nomination of the towns, to sit alone on commissioners’ courts,285 with full powers of magistrates when they sat with the Assistants as regular lay judges in the county courts. It is unlikely that, in the latter situation, the colonists failed to understand the importance of using non-professional laymen to provide and enlarge the magistrates’ corps of experienced personnel, especially for the lower and trial courts. Uniformity of administration, with attendant discouragement of judicial separatism, was thereby fostered. The existence of that interlocking hierarchy, Joseph Smith has observed, was responsible for the “many common attributes . . . found in the administration of justice in the purlieus of Boston, in the forests of York, and on the banks of the Connecticut.”286

    To involve laymen in the judicial system, men who were responsible not only to the electorate but to the communities they served, provided further cohesion within the colony beyond that fostered by the churches and by the general “due forme of Goverment.”287 To the seventeenth century there was little new about this form of self-government at the King’s command. In various aspects it had been in operation for hundreds of years. From at least the early thirteenth century it had become usual to associate, by special commissions and on a regular basis, two royal judges with four knights of the shire—the latter, of course, laymen—to hold the possessory assizes.288 In his Memoranda de Parliamento of 1305 Maitland estimates that only a very small number of the judges who served throughout England at that time were royal judges from the central courts.289 For minor crimes, misdemeanors, and administrative duties, generation after generation of local gentry had been deliberately used and received greater and greater practical training. Far more striking was the heavy burden placed upon the county gentry, especially with the expansion of the duties of justices of the peace in statute after statute under Elizabeth.290 Moreover, since the later Middle Ages the House of Commons had begun to object to professionalized lawyers, and demands in Parliament seem to have led to an increase in the power of lay judges so that local affairs would be handled by local and nonprofessional men.291 Hence new duties were continually being heaped upon these lay judges. Single justices of the peace were given specific powers for small causes and minor misdemeanors, as was the case with commissioners in the colony; sitting as a quorum of two or more they had far more extensive powers on criminal matters in Quarter Sessions based on their presumed superior knowledge of the law.292 It is extraordinary how much of English local government could be, and was, carried on through the forms of criminal trial—not only offences which were designated as crimes, but misdeeds, malfeasances, and nonfeasances of local officers and communities.293 The parallel to practices in the Bay Colony is striking and deserving of detailed comparisons.

    In the Collected Papers of Maitland is a telling and relevant passage which illumines not only the work of the lay judges referred to, but the English habit of mind formed by close familiarity with that work. In his essay on “The Shadows and Silences of Real Life,” he wrote:294

    . . . Englishmen have trusted the laws; it were hardly too much to say that they have loved the law; but they have not loved and do not love lawyers, and the law that they have loved they did not think of as lawyers’ law. The most learned barrister . . . will find it hard to get so high a reputation among country folk for speaking with the voice of the law, as that which has been enjoyed by many a country squire whose only juristic attainment [emphasis supplied] was the possession of a clerk who could find the appropriate page in [a manual for justices of the peace].

    If this were true of the period of which Maitland was writing [1888], it was especially so of men in seventeenth-century England, and even more of those early colonists who adopted English traditions of lay judges to govern them and to preside over the judicial system of Massachusetts Bay.

    Byfield beneath in peaceful slumber lies;

    Byfield the good, the active and the wise;

    His manly frame contained an equal mind;

    Faithful to God, and generous to mankind;

    High in his Country’s Honors long he stood,

    Succored distress and gave the hungry food;

    In justice steady, in devotion warm,

    A loyal subject, and a Patriot, firm;

    Through every age his dauntless soul was tried;

    Great while he lived, but greater when he died.

    Epitaph, composed by Rev. Mather Byles295

    Portrait of Nathaniel Byfield painted by John Smibert, collection of Mr. and Mrs. S. Vagnino. Photo courtesy of R. H. Love Galleries, Inc., Chicago.