AS I explored various areas of eighteenth-century Massachusetts legal history, I ran into Nathaniel Byfield at every turn. It was this continual encountering of the man in the course of investigation of what I consider to be significant themes in the colony’s legal history that piqued my curiosity about him. “Byfield the ubiquitous” he seemed to me, with the paradoxical consequence that although the world of legal history has hardly been impoverished by Byfield’s absence, it may be enriched by his presence. To use a modern expression, Byfield was where the action was. Thus, however little that action owed to Byfield—he was, for example, certainly nothing so grand as a catalyst—still, if we follow him we arrive at it. And the journey is, or has been for me, most enjoyable. Were this essay not to be published by a Learned Society, I would say that I have had a helluva good time with Nathaniel Byfield. Under the circumstances, let us just say that it has been a most rewarding experience.
Nathaniel Byfield is a man mentioned by many, known, so far as I can tell, to none. History as written has not exactly ignored him,296 but it tends to touch him lightly, glance off, and settle on men believed, apparently, more worthy of the historian’s attention. This of course may be said of many figures in the past, and no doubt some of those richly deserve the obscurity they enjoy. And indeed, the historian who does concentrate on Nathaniel Byfield will wonder whether that should be her final verdict on him. For example, I intended at first to title this essay “Nathaniel Byfield, a Remarkable Unknown,” but feared for a time that the only effect of investigation would be to convert the man into an unremarkable known. But if that is the verdict, the fact is itself of considerable interest, for Byfield, was a man of prominence and eminence in his time, as you will see from a brief sketch of his life.
I quote first from the obituary notice which appeared in the Weekly News-letter, 14 June 1733:
His immediate descent was from the Rev. Mr. Richard Byfield, the laborious, faithful pastor of Long-Ditton in Surrey, one of the Divines in the famous Westminster Assembly. His mother being of the noted family of the Juxons. He was the youngest of one and twenty children, and one of the sixteen that have sometimes followed their pious father to the Place of publick Worship. He was born in 1653, arrived at Boston in New England in 1674, and conceiving a Love to this Country, resolved to settle here;—and accordingly married the following year, Mrs. Deborah Clark, by whom he had five children, three whereof died in infancy; the other two lived to be married,—the youngest to the late Honourable Lieutenant-Governor Tailer, who quickly departed, without issue; the other to Edward Lyde, Esq., by whom she had five children, two of whom dying young, three only are now surviving, a son and two daughters.
He lived with the Wife of his Youth till 1717, upwards of forty years; and the following year married Mrs. Sarah Leverett, youngest daughter of the Honourable Governor Leverett, with whom he lived till 1730, when he was again left a sorrowful Widower. He has left his grandson, Byfield Lyde, Esq. (son-in-law to His Excellency Governor Belcher) Heir to the Bulk of his Estate.297
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He was formerly a noted Merchant in this Place; and soon after PHILLIP’s War, had the Honour to be One of the Four Proprietors, and the Principal Settler of the Town of Bristol; where he lived their Head & Glory ’till the year 1724; when his advancing Age put him upon returning back to BOSTON, the Place of his first Settlement; and where he remain’d ’till he died.298
Byfield died on 6 June 1733. A funeral sermon, preached by the Reverend Charles Chauncey, was afterward printed in a volume which includes a preface by the Reverend Thomas Foxcroft, and a copy of the newspaper obituary notice.299 He was buried in the Granary Burial Ground, Boston.300
Byfield, who attained the rank of colonel, was elected a representative to the General Courts of Plymouth and of Massachusetts for several years, last in 1698, and served as Speaker of the House in Massachusetts.301 He was chosen for the Massachusetts Council twenty-one times from 1699 to 1728 and negatived six times, by Dudley, Shute, and Dummer.302 He served on the Court of Common Pleas, Bristol, for about nineteen years, on and off, from 1701 to 1724.303 He was Judge of Probate for Bristol for some twenty-two years.304 He was on the Court of Common Pleas for Suffolk County for the last couple of years of his life,305 and a justice of the peace for Suffolk.306 Last, and most important, he held a commission as Judge of Vice-Admiralty for approximately seventeen years.307 And his portrait was painted, not once but at least three times, by John Smibert. A man of prominence and eminence.308
The character of Colonel Byefield was not so elevated as to command the veneration of the people, or so low as to incur their contempt.309 Generally honest, he was capable of duplicity; his ambition was overweening, and his resentments implacable. Sometimes he exhibited the appearance of public spirit, and seemed to feel its impulse, although his frugality bordered on meanness. Of imposing manners, respectable talents, ardent passions, and an enterprising disposition, he always contrived to preserve a large share of the public respect, . . .310
The natural pietism felt toward a town’s “principal founder” by his descendant, and by the town’s historians and celebrants, has produced a very different character, one in which integrity of purpose, uprightness of spirit, benevolence, courage, honesty, patriotism, lack of affectation, devoutness, and the like are inevitably dominant.311 But this accent on the positive does not quite succeed in eliminating the negative, and it is plain, if only from the defensive tone of these accounts, that for one who would bestow unqualified praise on this man, the going is heavy. This unhappy truth emerges even from the sermon preached on Byfield’s death. It has been said that “when his long and useful life was ended, his character and public services called forth unqualified eulogium.” That is true of the Weekly News-Letter’s obituary notice and Foxcroft’s preface to Chauncey’s funeral sermon. It is not true of the sermon itself, a fact I find both remarkable and sad. Chauncey took for his text John I, 47 “Jesus saw Nathanael coming to him and saith of him, Behold an Israelite indeed, in whom is no guile,” and after some exegesis turned to Byfield, thus:
IT would be a great incongruity, just after a solemn discourse against guile and insincerity, if I shou’d allow my self, in saying any thing, either to flatter the dead, or deceive the living:
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I do not speak of Him, as free from infirmities. For who among men can Pretend to be without fault?
Byfield was, Chauncey continued, “an Israelite indeed,” without guile, free from “flattery and deceit.” He was, as well, of exemplary piety “which he discovered in a flaming zeal for his [Byfield’s, presumably] honour,” as well as in strict ritual “observance of all the institutions of the LORD JESUS.”
But I have no need to insist here, not doubting, your tho’ts were upon our NATHANAEL, while I was representing the Character in the Text: the application was so easie and obvious; and I would hope, unexceptionable: having carefully avoided saying any thing, but what I tho’t in justice belong’d to him.
BUT tho’ his open temper, and sincerely plain and undisguised manner of life, was that wherein he excelled: yet were there other things in him, which ought not to be passed over in silence.
Chauncey went on to the other things and managed a moderate amount of real praise, but even in this warmer half of the sermon there is a decided guardedness and, at one point, something very close to censure:
HE was upon principle, a man of charity; . . . constantly paying . . . such a proportion out of his estate; which whatever it was ordinarily, it once happened, within my knowledge, in the course of one year, to amount to some hundreds of pounds. . . . ’Twas his principle to do what he did, this way, in the time of his life; and therefore if he has not by his last will, made many charitable donations, he herein only acted according to his known settled Judgment, [last italics added]312
As Byfield’s defenders point out with justice, people active in public affairs are likely to make enemies and therefore unlikely to escape calumny.313 According to Munro, “for his career outside the limits of his adopted town, we have to rely mainly upon the records left by his political enemies.”314 That may be so; heaven knows he had enough enemies.315 But one wonders why his political, or for that matter, personal friends should not have left some records as well. The logical possibilities are, it would seem, historical accident and paucity of friends, I suspect the latter. I certainly wonder about the author of his epitaph, who saw fit to conclude with that most equivocal line: “Great while he lived, but greater when he died.”
Munro suggests an interesting contrast. For Byfield’s career beyond Bristol we have only the reports of his enemies; but “of Mr. Byfield’s course in Bristol, we have our own records to testify, and in them he always appears as an upright, public-spirited citizen, generous in his gifts to the town, an efficient friend and supporter of religion and education. . . .”316 The conclusion that Munro would like us to draw is, of course, that Byfield was in all likelihood the paragon outside Bristol that he was within the town. It is, however, also a possible deduction that Byfield was a kind of house (town) angel, street (province) devil. And then there is the dispiriting truth, which is simply that the Bristol town records merely skim the surface of life in Bristol. As we shall see, there is an abundance of evidence in other records that “Mr. Byfield’s course in Bristol” was quite as uneven as his course in the wide world beyond the town he founded.
Disagreement among historians extends beyond assessment of Byfield’s character to such matters as where he lived at a given time317 and the dates of his judicial service.318 And in truth the bare and basic facts about Byfield’s life are devilishly hard to pin down; as the material in the footnotes will reveal, I have not yet altogether succeeded in the pinning. As to Byfield’s political predilections and position on public issues, contrariety of opinion among historians was just about inevitable. The widest disparity is found in accounts of, and assumptions about, Byfield’s attitude toward royal government and the tightening of imperial control from the last days of the old charter through the first decades of the Province. Where did Byfield stand on charter revocation, on the Andros regime, on the Revolution of 1689? Where should we place him in the major political opposition of the early provincial years? Does he belong in the Dudley or Cooke faction? Depending upon whom you read, you may get a picture of Byfield as a member of the “charter party”319—I like that label for an admiralty judge!—or a Randolph/Andros man,320 a Cooke ally,321 or a Dudley friend.322
The chief, though not only,323 explanation for the tendency to place Byfield in all camps and on both sides of all questions is that, as my grandmother used to say, everybody is right. Byfield was unquestionably all over the lot. To see what that means, let us take a look at the 1690’s. Byfield was at that time undoubtedly of the Cooke faction, anti-Mather and anti-Phips. Thus, when it was enacted, in 1693, that no person might represent in the General Court a town in which he did not live,324 this measure was aimed at eliminating certain men who were, in Palfrey’s phrase, “friends to the old charter, or for other causes unfriendly to Governor Phifs”325 That last clause is important 3 Byfield, a Bostonian representing Bristol, was hostile to Phips. And on Byfield’s re-election in 1694, Phips properly refused to swear him in because of his non-residency in Bristol.326 But Byfield’s hostility to Phips, and for that matter, his alliance with Cooke, seem to have been “for other causes” than attachment to the old charter. According to Baylies, “It was the fortune of Colonel Byfield to have been accidentally” brought into political partnership with the Cookes, whose principled, patriotic aims happened to serve his goals: office and revenge.327 Certainly I see no evidence that Byfield cared a hoot for the old charter, much less that he was a charter member of the old charter party.
Byfield’s early and long service as judge of admiralty must warn us that he was hardly likely to have been as hostile to imperial control, to royal government, as his relationship with the Cookes suggests. And it is in the record of his appointments to that post that one finds confirmed a suspicion that Byfield, though an ally of the Cookes, was no Cooke. Byfield was originally Randolph’s nominee.328 Commissioned in March 1697/8, he took his oath in June 1699.329 But the newly arrived Governor, Bellomont, possibly more in sympathy with the old charter party than with Randolph, replaced Byfield immediately with Wait Winthrop.330 Bellomont, who died in 1701, was succeeded by Joseph Dudley, arch-enemy of the Cookes and still anathema to the old charter party. And Dudley labored mightily, and successfully, for the reappointment of Nathaniel Byfield.331 As well he might, since Byfield had supported him for Governor.332 Dudley in 1702 also appointed Byfield to the Court of Common Pleas and made him Judge of Probate for Bristol. In short, although certainly a Cooke ally in the 1690’s and forward, Byfield was also for much of that time on good terms with Dudley. Relations with Dudley deteriorated and in 1715 we find Byfield in London, trying, among other things, to have Governor Dudley removed,333 but in and around 1700, Byfield and Dudley were in alliance, mutually supportive of each in the other’s self-seeking endeavors.
In Byfield’s performance as Judge of Admiralty, we see much the same historiographic pattern. That is to say, one can conclude from the secondary literature either that he was a staunch upholder of the admiralty jurisdiction against popular attempts to destroy this prerogative court, or a subverter of efforts to enforce imperial legislation in admiralty. There is an interesting apparent contradiction, or at least inconsistency, in two accounts of Byfield as judge of admiralty: the first in John Schutz’ study of William Shirley334 and the second in Joseph Malone’s book Pine Trees and Politics,335 a witty, absorbing account, which deserves to be far better known than it is, of the enforcement of the White Pine Acts. Schutz has Byfield a conscientious admiralty judge, “the scarred veteran of countless disputes with Boston seamen,” whose activities against smugglers brought him much trouble in the form of personal actions entered against him in the civil courts. In particular, Schutz has Elisha Cooke, Jr., “self-appointed champion of the Boston smugglers,” harassing Byfield, and securing “several crippling judgments” against him.336 Malone, on the other hand, documents Byfield’s subversion of imperial enforcement of the White Pine Acts, including his practice of assessing court costs against the Surveyor-General in sterling, while accepting payment of fines in successful actions in devalued New England currency.337 As Malone points out, Byfield “was in more ways than one ill-suited to play the role of a defender of the royal prerogative, being a partner in land speculation with Dr. Elisha Cooke, the Samuel Adams of his day.”338 Again, everybody is more or less right. Byfield was apparently a land speculator,339 but not, so far as the records disclose, a smuggler; thus, he could be the terror of smugglers, His Majesty’s most conscientious and devoted judicial servant, while working hard to nullify the legislation—the White Pine Acts—which stood athwart his personal path to riches.
My own investigation of Byfield’s Admiralty career is unfortunately incomplete. As to the White Pine Acts, what I have seen supports Malone’s position;340 my evidence is slim, but then again it is supererogatory since Malone’s account is very convincing in itself. On the question of Byfield’s having been harassed by common law actions brought against him personally by smugglers, I have come across only one such case in the records thus far examined, and indeed Schutz cites only this one case.341 Cases involving the Acts of Trade go both ways, customs seizures being upheld in some cases, dismissed in others, but there is a fair amount of evidence that Byfield was, in this as opposed to the White Pine cases, a sturdy defender of the royal prerogative; in 1732, for example, he complained of the Province judges’ indifference to Act of Trade violations and of their “incroaching proceedings.”342
As a man who occupied high judicial office for many years, Byfield would presumably be of some slight interest to legal historians without more. But there is more, though a somewhat oblique more. The author of Byfield’s epitaph gives us a clue in his characterization of the recently departed as “the active.” Byfield was ceaselessly, relentlessly active. And since he was, pre-eminently, a man of law, his activity involved him in a significant segment of the legal history of his time. His being a “man of law” had two dimensions. The more obvious, his career as a judge, is perhaps the less important. More importantly, he was law-minded: that is, when circumstances involved him in controversy, or difficulty of almost any variety, his mind turned immediately to thoughts of legal action. And since he was also bloody-minded, he spent a good part of his life suing and being sued.343
Byfield, as noted, was a founder of the town of Bristol. He and three other men purchased a tract of land called Mount Hope from Plymouth Colony in 1680; Byfield’s partners in the original purchase were John Walley, Nathaniel Oliver, and Stephen Burton. Byfield and Walley proceeded to develop the area, Oliver having sold out to one Nathan Hayman immediately, and Burton being relatively inactive. In 1685 Plymouth Colony was divided into three counties, one of them Bristol, with Mount Hope, now the town of Bristol, as the shire town. If we peer behind the facade, the work-a-day facts of Bristol’s beginnings, we find stark drama: Feuding, fighting and fussing, allegation, recrimination, vituperation, neighbor against neighbor, undying enmity. If there was no blood shed, and none appears in the records, we may see this as a testimonial to the at least minimal efficacy of the legal system, a system put to the test again and again by the contentious inhabitants of Bristol.344 The main Bristol conflict, at its vital center, pitted Nathaniel Byfield and his partners against John Saffin and friends. Saffin is a figure of considerable interest to any who study Nathaniel Byfield. Although far better known than Byfield, he too is a man whose prominence in his own day is not reflected in the treatment accorded him by historians. Like Byfield, Saffin was judge, representative, councillor, and leading citizen. Again, like Byfield, he is an historical personage of no great personal appeal: self-seeking, avaricious, quarrelsome. The resemblance is striking.345 The feud seems to have begun almost immediately; perhaps there was a pre-Bristol history to it. The first sign I have found of rancor between Saffin and Byfield was in 1681. Byfield was one of the men appointed “rater,” that is tax assessor, of Bristol for that year. Saffin’s land was rated at £12.16.1; Saffin refused to pay, and after this and that, landed in “his majesties gayle att Plymouth.” In October 1683, Saffin brought an unsuccessful action “of the case” in Plymouth General Court against Byfield, Church, and Cary, the raters, alleging that “the said raters did . . . contrary to law and the liberty of an English subject, most unjustly and unreasonably rate or assess” his estate.346 Meanwhile, at this same October 1683 General Court, the real opposing forces lined up. The original proprietors, Byfield, Walley, Burton, and Oliver brought and won an action against Saffin for maintaining a fence on land which, they alleged, was theirs.347 This, however, was only one of many points in contention between the parties and, no doubt in the hope of settling everything at once, the parties abandoned more formal legal process and resorted to arbitration. In late 1683 or early 1684 Saffin on the one hand, and Byfield et al. on the other, submitted to arbitration “divers controversys differences and debates . . . touching and concerning the bounds between the meadows of the one party and the upland of the other party, and also concerning ways, stoppage of a water course erecting of a mill dam, tithe of land, removing of a fence exchange or sale of land or meadows for each partys convenience & Divers other matters & causes yet undertermined.”348 The parties gave bond “in the Penall sum of one thousand pounds in currant money of New England,” the condition of the bond being compliance with the arbitration award.349
Although the arbitrators sought to reconcile differences and parties, rather than to select a winner, Saffin appears to have been to a considerable extent vindicated.350 He had, however, perhaps more satisfaction from the arbitrators than from his adversaries. For in 1695—that is, well over eleven years later—Saffin brought against Byfield et al. an action of debt on the 1683 penal bond, alleging failure to perform “according to their obligation and the Award of the said Arbitrator which is to the damage of the plaintiff five hundred pounds. . . .”351 This action, entered in the Court of Common Pleas for Bristol County, was not prosecuted, the parties instead having recourse once again to arbitration. Saffin detailed the respects in which his opponents had, as he believed, failed to comply with the arbitrators’ directions.352 Byfield had a ready and spirited answer to all charges, and a few counter-charges of his own.353 The arbitrators once again seem to have split the difference, as it were, although this time, apparently, rather more in favor of Byfield and Walley than was the case in 1684.354 But by this time the particular matters in controversy between Saffin and Byfield et al. were the least of it; they were overshadowed by a nasty conflict over the general state and management of affairs in Bristol.
In 1695 Saffin wrote and distributed a tract called “The Original of the Town of Bristol, or a true narrative of the first settlement of Mount Hope Neck.”355 The Narrative is a sustained vitriolic attack on the original purchasers of Mount Hope, who were charged with, as Byfield later put it, “Promoteing of [their] owne interest to the irreparable Detriment (if not ruine) of the place.”356 Byfield’s answer, submitted to the second set of arbitrators, contained his defence, not only to his alleged failure to comply with the first arbitration award, but to the wide-ranging charges in Saffin’s Narrative.357 Byfield had a few colorful remarks to make about Saffin: “(in my opinion) he hath forfeited his Honor & Justice (if any he had)”358 . . . “nor have I ever had any Reason to have any good apprehension of him; but the contrary; and did always fear his comeing there would Ruine the place”359; “he quarrels with us because we did not make it a sheep pasture for the whole Towne, & so? have taken him in a partner with us; & one Reason why we Did not, was because we Remembered that ould (but true saying) that one scabby sheep will spoile a whole flocke.”360 “This gentleman dus also suggest, as if we were not capiable of paying our purchase without selling of Land; which he had little Reason to mention had it bin true when it is more then probable when he marryed Madam Lidgett, he was not worth one hundred pounds in the world.”361 Madam Lidgett, we may assume, was a wealthy widow.
It is not wrong to say, as Munro did, that judgment was in Byfield’s favor: At least the arbitrators found that Saffin “had un-groundedly and very unchristianly reflected upon and recriminated the said Major Walley, Captain Byfield and others the first purchasers of the said Mount Hope Neck,” and ordered that Saffin make and deliver to Walley or Byfield “A Retraction and Acknowledgement.”362
Saffin’s “Retraction” was lengthy, and from first to last of this tenor:
Whereas I . . . am enjoyned by an award of arbitration to make a retraction and acknowledgment in writing under my hand of supposed ill treatment, wrong and injury, offered to Major John Walley and Captain Nathaniel Byfield, by sundry reflections in a manuscript . . . which was made in behalf of the inhabitants of said town, who for divers years have complained and groaned under the grievances therein mentioned.
Now, in order thereunto, I do hereby own and declare unto all mankind, that if breach of promise to a person or people, in a matter of great concernment be no evil; if the chopping and changing of the town commons to the great prejudice of the town; obstructing and stopping up several ways leading to men’s lands (some of them that have been enjoyed above thirty years without molestation or disturbance.) to be tolerable and not a nuisance strictly prohibited by the laws of our nation, then I am exceedingly to blame in charging with evil in so doing.363
Would “handsome” be the mot juste? Surviving documents make it clear that Saffin was not alone in his judgment. We cannot know how pervasive these sentiments were, but we do know that some number of Bristol men considered Byfield and the others “cheats and worse” who failed to abide by their original agreement with Plymouth, who lured prospective settlers with promises never to be kept, who took the best for themselves without a thought for their fellows or their town.364 Byfield’s obituary, wherein it is said that having founded the town, “he lived their Head & Glory ’till the year 1724,” must have sent not a few Bristol eyebrows skyward.
Understandably, Byfield felt it necessary to account for the unpleasant fact that a number of townsmen had subscribed to Saffin’s Narrative. Some, no doubt, could be dismissed as “Saffin’s creatures,” but some others were less easily explained away. If we are to believe Nathaniel Byfield, Saffin persuaded “so maney as Seaven to signe his intolerable pampflett”365 by a mix of more or less unsavory means, including:
(which is worst of all) he went to Richard Smith the fry day before he went to the generall court in February last; who for some months had bin confined with a consumption; & when I was there in January last was given over by most as past Recovery, and watched with every night; to this man in this condition he applyed himselfe to have him sett his hand to his booke, who refused many times and said he was a dyeing man and desired to dye in peace with all men; that he had no reason to signe to any thing that did reflect upon the first purchasers; nameing Major Walley, & myselfe, that he persisted in the denyall till he was spent whereupon Mr Saffin proceeded to Read a subpeony to him; in that condition upon which the poor man being thus constrained signed the Booke & Dyed on Satter-day night the 29th day of February,366
It is reported by one Bristol historian that Byfield “acquired title to Hog Island, which Richard Smith had bought from King Philip, by seizing Smith and threatening him with death.” Smith obviously just could not win.367
Independent assessment of the merits of this major controversy over the settling and management of Bristol is beyond me. Nor have I yet been able to discover its ultimate disposition; there are a number of separate strands which would have to be traced and woven together before we had a complete picture, and that is not the present task. What I do know is that the controversy continued for some years after the 1696 arbitration award in Byfield’s favor. In particular, in 1702 one Bristol townsman petitioned the General Court for appointment of a committee “to make inquiry into the settlement of the said tract of land call’d Mount Hope, and how far the first purchasers have complied with their articles and agreements.” The petitioner, John Wilkins, alleged that the town had not been settled, nor the land divided, according to the articles entered into by the first purchasers.368 This action would have been something of an embarrassment to Byfield and Walley, for Wilkins was neither creature nor dupe of John Saffin, nor the victim of Saffin-applied duress. On the contrary, John Wilkins had himself been embroiled in a lengthy, involved battle with the Saffin faction, a battle which saw Wilkins hand-in-glove with Byfield and Walley. But the aspect of the Wilkins matter to which I wish to draw your attention at the moment is the involvement of the Massachusetts General Court. In fact, Wilkins turned to that body not only in 1702, when his complaint was against Walley and Byfield, but in 1696, when he stood with them against the Saffin bloc. To repeat, my interest in Nathaniel Byfield arose from the fact that in investigation of certain themes in the constitutional history of early Massachusetts, I tripped over the man at every step. One of those themes is the separation of powers, in particular, as central to that concept, the role of the General Court as an adjudicatory tribunal, the practice of bringing matters which we think of as “judicial” to the institution we tend to regard as a “legislature.” Under the first royal charter, the General Court of Massachusetts functioned as an omnicompetent body, a General Court indeed.369 Particularly to the point for present purposes, it was the “Supreame Court” of the colony. And even during the Provincial period, although not the active judicial body that it had been until 1686, the General Court did not go out of the business of adjudicating entirely. And the name Nathaniel Byfield keeps cropping up in this connection, as in so many. Here he is in the background of the two Wilkins matters; we shall find him a few years later a party in another action brought to the General Court.
The first Wilkins petition to the General Court is of special interest for a number of reasons, not least the probability that Byfield had a hand in its drafting. The background of the case is as follows:370
In 1695 certain Bristol selectmen whom Byfield chose to characterize as Saffin’s creatures371 levied a tax upon the inhabitants. Certain of those inhabitants, objecting to the tax as illegal, refused to pay it, upon which the selectmen seized some sheep. Wilkins then rescued the sheep and was for this brought before Quarter Sessions on a warrant issued by Saffin. Wilkins’ request for a jury was denied, and he was convicted by the bench on which Saffin and others sat. Wilkins decided to turn to the General Court. Both the language and the strategy of his petition are extremely interesting. Although the petition complains of judicial proceedings in the regular courts, it employs the language of grievance, rather than of appeal: “Articles” are “laid against” the judges, and that not for error below but for deprivation of the liberties of an English subject. What Wilkins did was to invoke the grievance machinery rather than the appellate process.
Before the revocation of the first Massachusetts charter, the laws of the colony provided that any person who felt that justice had not been done him in the regular courts of first instance and appeal might turn to the General Court.372 And people did turn to that institution in some numbers. Like Wilkins, they approached the court by way of petition, but these petitions were framed in the appellate mode, so to speak; the relief sought and, in meritorious cases granted, was reversal of the judgment below.
We do find the appellate-style petition in the Provincial period. But the revocation of the first charter had brought to a close the good old days when the General Court was unabashedly the “Supreame Court.” Under the second charter it was at least doubtful whether the General Court was to enjoy any adjudicatory role, and fairly clear that royal government would frown upon the exercise of judicial power by the House of Representatives, the popular branch of the now properly called “legislature.” Wilkins’ strategy was brilliantly, whether or not deliberately, contrived to get around this hurdle. The appellate machinery at this level might be creaky, even moribund; it might be less and less promising to address petitions to the General Court as the ultimate judicial body, less and less likely that one would procure in that institution an overturning of judicial action below. But the grievance machinery is quite another matter. A “grievance” is of course properly addressed to the representatives of the people. And those representatives need not hesitate to act on a petition for redress of grievances. Nor, indeed, did they hesitate. The House, voting “that the denial of a jury to any of his majesty’s subjects . . . is a grievance which ought to be animadverted on and redressed,”373 heard the whole matter and ordered finally: “That the said justices present at the denyal of a Jury, be admonished by His Honor the Lt. Governor in the face of this whole Court and shall repay the charge that the withinnamed Wilkins sustained by their Judgment, and reimburse him his Costs in prosecuting this Cause at this Court. . . .”374
In studying the history of separation of powers in Massachusetts, I have been impressed by the importance of the right to petition. The right to petition the representatives of the people for redress of grievances is close cousin to a right to appeal to those representatives for relief from injustice suffered in ordinary judicial tribunals. And what error cannot be viewed as injustice by a disappointed litigant! Thus, so long at least as the right to petition remains usefully ill-defined, it is the natural enemy of separation of powers. My conclusion from the records of adjudication in the General Court has been that the full implementation or flowering of the theory of separation of powers was retarded by the existence of an amorphous right to petition.
What we see in the Wilkins petition is the possibility of exploiting the ambiguity between the right to petition, in its classic political sense, and a right to appeal, in the classic judicial sense, to such an institution as the General Court. A subterfuge, in short, was available if needed, and it was needed more and more, as royal government made clear its disapproval of legislative justice. What we also see in the Wilkins petition is irony, for both the language and the strategy of the petition are irresistibly reminiscent of the Glorious Revolution and of the deep impulse to representative government which lay behind that Revolution. That impulse existed in Massachusetts as well as in England, and had from the start. And it was reinforced, in Massachusetts, by the events of 1688–1689 in England. And yet the kind of subterfuge we see in the Wilkins petition, the strategy of grievance, the language of liberties of an English subject, was necessary only because, in the era of the Glorious Revolution, Massachusetts saw not expansion, but restriction of representative government. The people may still have wished to have the General Court serve as Supreme Court, but it was not to be. From the perspective of popular government, the second charter was a disaster, a defeat from which the people were a long time recovering. They did recover, and adapt, this time. When, in the 1760’s and 1770’s, the people of Massachusetts believed that, once again, restrictions were being imposed upon popular government, they chose to rebel. The differences between the earlier and later periods are many and deep—although some would have chosen rebellion even in the first—but the Wilkins petition may serve to remind us of one unquestionably significant difference. “Liberties of an English subject,” and similar phrases, although of course in use for a long time, were quite newly in vogue in the 1690’s. As the eighteenth century wore on and imperial authorities chose to impress English ways upon the colonists, such language more and more became common coin. The language, as always, both reflected and reinforced attitudes, and by the 1770’s those English subjects who resided in Massachusetts were in no mood to tolerate anything short of the full measure of what they chose to consider their liberties.
The arbitrators of 1696 ordered Saffin to “endeavor the suppressing and calling in any copy or copys” of the Narrative.375 Saffin agreed to do this and to “cease all Animosityes . . . provided they allso will doe the like by them and live in Love and peace as Christians ought to doe.”376 The parties, however, seem not to have lived even “in peace,” much less “in Love,” for so much as ten minutes. In, I believe, late 1696, hostilities by way of legal process broke out.377 By 1699 Byfield had been a party in three lawsuits with his Bristol foes: He recovered judgment against John Saffin and against Saffin ally Captain Nathaniel Reynolds, I do not know the nature of the litigation in either case.378 The third suit was brought by the archetypical “Saffin creature,” one Nathaniel Blagrove. From this time Blagrove becomes chief antagonist, and the Byfield-Blagrove feud occupies center stage, providing the dramatic interest for the period 1698–1710 which had been supplied by the Byfield-Saffin feud for the years from 1683 to 1696.
Blagrove was one of the selectmen who levied the rate so obnoxious to John Wilkins. More significantly, he married the widow of one Nathan Hayman and became administrator of Hayman’s estate. Hayman was the man who bought Nathaniel Oliver’s interest in Bristol shortly after the original purchase of Mount Hope, and he is listed in the earliest town meeting records as one of the four proprietors. Blagrove, in this representative capacity, was to play a major role in Byfield’s life.
The beginnings are discernible in the great feud over affairs in Bristol. One of the charges levelled by Saffin and company was that Walley permitted the town’s water mill, of which he was major owner, to lie idle, and thus brought suffering upon the townsfolk, who needed its services. In Byfield’s response we see the involvement of Nathaniel Blagrove:
and now he [Saffin] quotes Mr. Blagrove to be an owner of the said mill; who then had nothing to doe with Capt Nathan Haymans estate for he tooke Administration But in February last & how farr an Administrator? may acte in such affaires I leave to the Gentlemen that understand the law. . . .379
Byfield’s modest disclaimer of legal expertise sufficient to justify comment on the duties of an administrator is heavy-handedly ironic. Given the identity of the administrator concerned, and later events, there is real irony here.
At this moment, that is, May 1696, quite another dispute was ripening between Byfield and Hayman’s administrator.380 Two years later it was in the courts. In 1698, in his capacity as Hayman’s administrator, Blagrove sued Byfield on a mortgage given by Byfield to Hayman on 27 July 1687, to secure a debt of £310. The mortgage set out a schedule of payment, viz.:
- £100 on 20 November 1688
- £100 on 20 November 1689
- £110 on 20 November 1690.
According to Byfield, when he offered Hayman the first £100 on 20 November 1688, Hayman would take no more than £20, saying that he would accept the £80 remaining when he and Byfield met, as they were expecting to do, in Boston sometime later. There is no explanation offered for this bizarre behavior, but, so far as I can tell, no challenge to Byfield’s account of it. In any case, Hayman and Byfield were fated never to meet in Boston; Hayman died on 27 July 1689, the second anniversary of his having taken the mortgage from Byfield, though I do not suppose that that is what killed him. There then appears to have been a lull, a period of some years during which Byfield stood pat. As he later explained, he did not come forward with the £80 remainder of the first payment, or indeed with the second and third payments as they came due, because there was nobody legally capable of receiving them. Hayman’s children were all minors; he had died intestate and no administrator was appointed for several years. When the eldest Hayman child, Nathan, Jr., reached his majority, Byfield tendered him the full amount owing, but he refused it. Then, when Blagrove took administration of the estate on his marriage to the widow, in 1695 or 1696, Byfield made the same tender to him; Blagrove, too, refused the money.
There is of course nothing bizarre about these refusals to accept payment. Blagrove and young Hayman were after bigger game. They were in a position to claim that Byfield was in default, thus to foreclose and force a forfeiture of the mortgaged land, worth far more than a few hundred pounds. Blagrove, bringing suit in the Superior Court in 1698, was awarded judgment. The Superior Court evidently found Byfield in default. But why did that mean forfeiture? Was there no equity of redemption in Massachusetts in the eighteenth century? Apparently there was, for, some months after Blagrove’s victory in the Superior Court, Byfield returned to that Court with a bill in equity begging to be allowed the equity of redemption, and succeeded. Blagrove sought a review of this decision, but the review did not change matters, and in the end Blagrove was compelled to accept Byfield’s payment of the underlying obligation, and to surrender all claim to the land. Now the mystery must be why, if the Superior Court was going to allow Byfield to redeem the land, it did not do so in the first place. Why a judgment of forfeiture and then, months later, a judgment of no forfeiture? The answer is not that common law and equity were administered in separate courts. There was no Court of Chancery in Massachusetts, and such equitable relief as might be obtained was available in the common law courts. Nor, in the ordinary course, did a litigant seeking such relief as the equity of redemption, or chancering of a penal bond, have to exhibit a separate bill in equity; the point of equity would be decided by the bench immediately after the decision of the common law issue, and without additional process. But here we have judgment of forfeiture in the Superior Court, with the land awarded to the mortgagee, and then a separate bill in equity brought later in the same Court. What happened? Did Byfield forget about the equity of redemption for a few months?
What happened goes far to explain behavior in years to come, on the part of Nathaniel Byfield, which is otherwise mystifying in the extreme. As Byfield put it:
the said Nathaniel Blagrove, having married the widdow, and having obtained the Administration of the estate of the said Nathan Hayman the elder and designing to defraud and defeat your Complainant of the Estate so mortgaged as aforesaid, well knowing the same to be of far greater value than the Debt or money due thereon and that there was then no Court of Equity to relieve your Complainant against the Strict Rules and Severity of the Common-Law has commenced several actions and suites. . . .381
When Byfield says “there was then no Court of Equity,” he does not refer merely to lack of a separate court, but to absolute unavailability of equitable relief of any kind, in any court, for a defaulting mortgagor. In the history of Massachusetts from the 1640’s to the Revolution, equitable relief from penalties and forfeitures was available to debtors in default on bonds and mortgages at every moment, at all times, except for one brief period. While the early Massachusetts attitude toward equity in the large is somewhat cloudy, there is no doubt whatever about this one aspect of equity; this society, as Colony and Province, expressed its abhorrence of penalties and forfeitures and provided machinery for the avoidance thereof.382 There was, nevertheless, a period during which the availability of equitable relief for mortgagors was uncertain, at best. The confusion of the inter-charter period and of the first years under the Province charter took its toll. From 1686 to 1698 first the President, then the Governor and Council, exercised equity powers. Thus relief from penalties and forfeitures was available, but considerably more difficult to procure than it had been before revocation of the first charter, when the court that heard the common law action was empowered to give such relief on the spot. The attempt to revest this power in the common law courts under the Province charter was hampered and delayed by successive royal disallowances.383 We can detect the mischievous consequence for mortgagors of all this in the law which was enacted 10 December 1698, to remedy the mischief: By “An Act for Hearing and Determining of Cases in Equity,” the General Court accomplished two things:
1) It provided prospectively that defaulting mortgagors were to be allowed to redeem their land, and
2) It provided that in any case tried since April, 1686, wherein a mortgagee, recovering an estate, entered into or obtained possession, the party to whom the right of redemption belonged might bring suit, by 10 December 1701, in the Superior Court or in an Inferior Court of Common Pleas. The Court, in such an action, was instructed to enter judgment agreeable to equity and good conscience, that is, in the usual case to allow the equity of redemption, and the mortgagee was required to take tender of the amount owing and to execute a deed of release and quit-claim.384
It would surprise me not at all to learn that Nathaniel Byfield engineered the passage of this act. It was certainly, for him, in the nick of time. At the time that Blagrove brought his action, default having been found, the mortgagee might take the land; and indeed Blagrove did enter into possession of the mortgaged land. Then came this remarkably convenient statute, and redemption for Byfield—or at least for his land.
But the significant fact about this enactment is that it did remedy a mischief, or, more precisely, that it eliminated something perceived as mischievous. The unavailability of the equity of redemption was anomalous in this society, contrary to the prevailing sense of justice. Equity and good conscience demanded that a mortgagor in default be allowed to redeem his property; that much was, and had been from the beginning, accepted. Thus in equity and good conscience Blagrove should have accepted Byfield’s payment of the underlying obligation. From Byfield’s perspective, Blagrove’s behavior was villainous, an unconscionable attempt to take improper advantage of accidental circumstances to impose the full rigor of the common law. Byfield may be said to have been the victor in this matter, since he did not contest the underlying debt, and the only real issue was forfeiture. But victory could only have deepened his conviction of Blagrove’s villainy, by confirming the unconscionability of his actions. The upshot was that victory no less than defeat left Byfield determined to “get” Blagrove. Two could play at the game of taking full advantage of the rigor of the common law, of blocking any equitable softening thereof. Byfield surely lay in wait for his opportunity; he may, indeed, have manufactured it. In any event, he had to wait only until 23 October 1702, when he was appointed Judge of Probate for Bristol County.
Judicial appointments in the Province of Massachusetts Bay were in the control of the Governor, with the advice and consent of the Council. The Governor, newly appointed in 1702, was Joseph Dudley. Byfield and Dudley were, as we have seen, in alliance at this period, with Byfield a supporter of Dudley for the governorship. Dudley in turn boosted Byfield for the vice-admiralty and appointed him to the Court of Common Pleas and, of special interest to us just now, Judge of Probate, Bristol. While Byfield loved all office and could never feel a surfeit of appointments, I cannot but feel that he yearned for this one particularly. For in this office he succeeded our friend John Saffin and was now in a position to take revenge on that worthy as well as on Blagrove. We have come to what I will call the affair Blagrove.385
Blagrove’s account of his administration of Hayman’s estate had been allowed by Saffin in June 1702. One of the six Hayman children, Mary, claimed that Blagrove had failed to settle on her the amount to which she was entitled, and in January 1704/5 she petitioned the new Probate Judge—Byfield—for an order directing Blagrove to settle her portion of the estate on her. On 17 March 1704/5 Byfield issued an order in which he noted that distribution to Mary “cannot be done until you have rendered an account of your administration. . . .” He ordered Blagrove to appear before him on 24 March and render such an account. Blagrove had, of course, accounted once, before Saffin, but when he appeared on 24 March, Byfield specified the respect in which he found the first account, allowed by Saffin, to be deficient: viz, that it failed to account for proceeds and improvement of the estate since Hayman’s death, consisting, apparently, of interest (£1010), rents and profits of houses and lands, and earnings and produce of vessels. Blagrove, given time to prepare his answer, was ordered to reappear before Byfield on 7 May 1705.
Correspondence between Blagrove and William Brattle, husband of Elizabeth, another Hayman daughter, thus Mary’s brother-in-law, confirms that as of March 1704/5 Blagrove had not distributed Mary’s portion to her, and more than suggests that he would have some difficulty coming up with the full amount immediately. Blagrove complains of Mary’s “snappish” (?) manner toward him, and of her behavior in the whole matter, but he does not claim to have paid her what was due. Brattle, answering Blagrove, quotes Mary as saying “that whenever she asked you for her money you made her cry. . . .” Brattle notes also that he has retained Paul Dudley, well known lawyer and son of the Governor, “to serve in the thing [for Mary] if there should be any need.”
Blagrove did not appear before Byfield in May, and, so far as I can tell, did nothing. Byfield, of his own motion, brought an action of debt on the administration bond, in the Inferior Court of Common Pleas for Bristol, for the amount of the bond, £6,000; this was, of course, a penal bond, and the £6,000 was the penalty rather than the debt. The obligation of the bond was to John Saffin or his successor in the office of Probate. Byfield assigned as breach of the bond that Blagrove had not rendered an account according to law; Blagrove entered a number of pleas in abatement and a plea of performance of the condition, that is, that he had not breached.
The case was heard by jury, and a verdict returned for the plaintiff for £6,000 and costs. The Court, finding against Blagrove on the pleas in abatement, entered judgment for that amount. Blagrove appealed to the Superior Court of Judicature, on which appeal, after six pleas in abatement, he reached the merits, as follows:
that he hath allready accounted for his administracon &c: to John Saffin Esqr, . . . who Examind allowed and approved of the said account and order’d the same to be registred as of record appears, and the law of the Province fol: 6: directs that any person aggrieved at any sentence order &c. may have an appeal to the Governor & Council386
To which Paul Dudley, now attorney for Byfield, answered, in part:
. . . 2: whatever the Judge of probate will Doe or have an administrator to doe yet the Administrator must look to it that he administer according to law and If he dos not t’will not Exscuse him or his Bond to say that what he did was by the opinion & Consent of the Judge of probate &—for the Judge gives no security for his office But the Administrator must give Bond: & 3. the Common law is not to be Controwled By the proceedings of the Court of Probate of wills &c387
What you must note here is Blagrove’s attempt to get this matter before the Governor and Council. That body was invested by the Province charter with jurisdiction over Probate;388 by statute it sat only on appeal from rulings of the County Probate judges.389 Blagrove, aware that only a common law action of debt on the bond could result in enforcement of the penalty, insisted that the proper procedure here was appeal, by anyone aggrieved by Saffin’s ruling—that is, his allowance of Blagrove’s account—to the Governor and Council. Dudley’s response was a defense of common-law jurisdiction, a defense, really, of the supremacy of the common law, which “is not to be Controwled by the proceedings of the Court of Probate of wills. . . .”
It is not clear from surviving documents whether any Hayman children were behind the move for a second account by Blagrove. As Samuel Sewall caustically pointed out to Byfield, four of the Hayman children were satisfied with Blagrove’s administration of the estate.390 And Mary’s original complaint was simply that Blagrove had failed to distribute her portion to her, not that he had improperly accounted, not, that is, that her portion was actually greater than, by Blagrove’s reckoning, it appeared to be.391 Perhaps it was Paul Dudley, acting first for Mary, then for Byfield, who thought of the new strategy; or perhaps it was Nathaniel Byfield. In any event, a splendid technique of harassment had been hit upon.
The case went to the Superior Court jury, who brought in a confirmation of the judgment below; the bench, evidently ruling against Blagrove on the pleas in abatement, entered judgment for Byfield. Blagrove, now under the crushing burden of a judgment for £6,000, plus costs, moved that the bond “be Chancered down to Its Just debt & damage.” The Superior Court denied this motion, and, on 23 October 1706, issued execution for the full penalty. The winning argument on the point of equity appears to have been that the Court had no power to chancer a bond to “the just debt and damages” but only to a sum certain; what we have here, it seems, is the distinction between the money bond and the performance bond. In the former, the bond secures an obligation to pay a sum certain, a debt. Thus, when equity stepped in to chancer the bond, it was in no doubt of the amount to which the bond was to be chancered. However, in the case of a bond securing some performance other than payment of a debt—building a house or administering a decedent’s estate—a court of equity had no way to determine the sum to which the bond might be chancered and no recourse but to enforce the penalty.
Now in England by Lord Nottingham’s time (in the mid 1670’s) this difficulty had been largely obviated; what chancery did, in the case of the performance bond, was simply to relieve against the penalty on condition that the defaulting party pay damages, to be assessed by a jury, either on issue (quantum damnificatus) joined in an action on the case, or on writ in covenant for damages.392 There might, of course, still be cases in which damages were impossible of ascertainment; there always are such cases, and recovery in any contract action may be defeated, or severely limited, by the incalculability of damages. But in most cases a jury will be able to assess damages, to arrive at a more-or-less compensatory figure. And, by the latter part of the seventeenth century, where compensation was possible, equity would intervene to prevent the imposition of a penalty. As a result, in England by Lord Nottingham’s time (and in his words) “a penal bond to secure the performance of covenants is not much better security than a mere covenant, as equity now orders the matter.” This was, a fortiori, true of the penal bond to secure payment of a debt.
For the latter, that is the money bond, by the mid 1670’s relief against penalties might be had in the common law courts; defendant was granted a perpetual imparlance unless the plaintiff would accept a tender of principal, interest, and costs. Apparently the common law did not go so far as to relieve against penalties on a performance bond, but in 1696–1697 a statute stepped in to do the job: It was enacted that after plaintiff in such a case alleged the breach, or breaches, the jury was to assess the damages for each breach; judgment might be entered for the whole penalty, but on payment of the damages found by the jury and costs the action was to be stayed (4 and 5 Anne, c. 3). An act of 1705 addressed the money bond penalty problem, allowing the court to discharge an obligor who paid principal, interest, and costs (8 and 9 Will. III, c. 11).
As we have seen, the common law courts in Massachusetts did enjoy the power to chancer penal bonds, and this was a power exercised regularly, but I do not know whether it was done in the case of performance bonds. And in any event, the administration bond adds a new dimension and an additional obstacle. In the ordinary performance bond, there would seem to be no reason why the court might not send the damage issue, by one mechanism or another, to the jury. But in the case of the administration bond such a course might well involve serious encroachment upon the jurisdiction of the Probate Courts. There might be, and indeed there was in Massachusetts, a case in which all that was necessary for the calculation of damages had been done in Probate: that is to say, what was left to be done was mechanical.393 But Blagrove’s refusal to account blocked such a determination by Byfield, and I suspect that the Superior Court was loathe to hand over to a common law jury that which was properly a matter for a court of probate. On this point, Blagrove did try to take advantage of the fact that Byfield had brought suit before a jury, arguing that either damages were readily ascertainable, the issue “having pass’ed the consideration of the Jury,” or if they were not, it was only because the loss had not yet occurred. If the former, chancering of the bond was appropriate; if the latter, the suit was premature. Nevertheless, and despite Blagrove’s cry that if administration bonds were not to be chancered, few would care to take on the duties of an administrator, the Superior Court, “of the opinion that the Bond would not Admitt of a Chancery,” denied the motion.394
Ah! sweet revenge. Byfield seems to have gone Blagrove one better, trapping him in the jaws of the common law in a fully functioning system, where such equitable relief as the Provincial lawmakers thought appropriate was available, without the kind of undue, adventitious advantage Blagrove had earlier attempted to capitalize on. But appearances here may be deceptive. It is true that Byfield did not have the advantage that Blagrove had of legal suspension of equity; but Byfield may have had his own way of suspending the rules. While it is possible that the Superior Court’s refusal to chancer the bond was fairly and squarely based on a rule that performance, or at least administration, bonds cannot be chancered, it really seems to have been a highly partial, improperly based ruling in Byfield’s favor by Byfield’s friends. Three judges sat on the Superior Court in this case: Byfield’s great friend, John Walley, Byfield’s friend and nephew-in-law to be, John Leverett,395 and Samuel Sewall. Walley and Leverett voted to let the penalty stand. Sewall thought it should be chancered. Thus one suspects that the theoretical “availability” of equitable relief to Blagrove was illusory, that even if “the rules” supported chancering of administration bonds, as a practical matter Blagrove was not more likely to have his bond chancered than Byfield had been to obtain the equity of redemption in 1698 from courts which were not empowered to grant it. The suspicion of partiality must deepen on discovery that opinion in Massachusetts overwhelmingly supported the chancering of administration bonds. The House of Representatives was prepared to adopt the rule either judicially or legislatively; the Council believed it to be law.396 Byfield and his friends stood alone.
Byfield, not one to overlook a slight, took offense at Sewall’s conduct of the case, and wrote to him in this vein:
by all which it seems very apparent that the said Admin is guilty of Perjury: and yet nothing was said to him in Court, of his having done amiss: but my self (who as Judge of the Probat of Wills &c. in the behalf of Orphans, and in pursuance of the Law, and my Oath, appeared there to Answer the Apeal) was very much discountenanced by your Hon, to my great dissatisfaction,’397
What we see from Sewall’s answering letter, in which he defends himself against this “groundless and injurious charge,” is the intensity and implacability of Byfield’s hatred of Blagrove, and his desire not merely to win the case but to destroy his adversary:
As to not speaking to Mr. Blagrove of his Perjury, he was not in Court to such purpose. You might have pursud him Criminally, if you had pleasd, But he was in Court as an Apellant in a Civil Action, to be Tried by a Jury;. . . . And I am of the Opinion, it was no Extravagant favour granted Mr. Blagrove, who is now Representative for Bristol that he was admitted to speak a few words to clear his Credit. Which proceeded not from the Court, but his almost irresistible Importunity. If an Indictment of Forgery has been found against him by the Grand Jury; yet Mr. Brattle’s Letter ought not to have been read once, much less left upon File; it containing only Hearsay, and insinuating a very hainous Crime. Madam Brattle should have been present face to face. And therefore it seemd unreasonable to have the Letter read over agen whenas no Release was produced in Court; nor that Sum chargd in the Account.398
Equity could not, or would not, relieve Blagrove from the rigor of the common law; did he have no option then but to hand £6000 (plus) over to Byfield? It might seem that two jury trials of the issues of fact, consideration by two separate benches of the issues of law, and a hearing of the point of equity would qualify as due and full process, one’s day in court, and then some. But Blagrove’s tenacity was not inferior to that of his adversary; he persevered, and for almost three more years the affair dragged on, occupying the time and attention of the Province’s lawmakers and executive officials. Blagrove turned first to the General Court; he petitioned that body in November 1706, reciting his grievances and praying that “the Law mentioned (as he Humbly conceives) being sufficient to relieve him; the writt of Execution may forthwith be superceded, and the Judges of the Superiour Court be Ordered at their Next sitting to Chauncer the said Bond to the Just debt and damages, before another Execution issue; or that some other Effectual Care be taken without delay That Your Petitioner may be Judged according to the rules of Equity & good Conscience, and not by the Utmost rigour and Severity of the Common Law.”399
The House of Representatives acted favorably on the petition, and sent to the Council, for concurrence, an order superseding the execution and commanding the Judges of the Superior Court to chancer the bond.400 The Council, in its capacity as upper house of the legislature, non-concurred,401 and the House tried first one, and then another, slightly different tack, the Council again refusing to go along.402 Agreement was finally reached on 2 December 1706 on an order that execution be suspended to 31 May 1707, and that Blagrove meanwhile account to Byfield. Should Byfield approve the account, he was to acknowledge satisfaction of the judgment for £6,000. Should Byfield refuse to allow the account, Blagrove was to appeal to the Governor and Council and on their settlement of the case, which was to operate as a discharge of the judgment, Byfield was to acknowledge satisfaction.403
The Blagrove affair brings us yet again to the subject of adjudication by the General Court; as an instance of legislative adjudication, it was unique. The particular twist was that the matter involved Probate. As we have seen, anyone aggrieved by an order of a Judge of Probate might appeal to the Governor and Council—but such an order there must be! Blagrove had failed earlier to force his adversaries to take that route; now he himself could not take it, for he was aggrieved not by an order of a Judge of Probate, but by the verdict of a common law jury and the ruling of a common law court on a motion for equitable relief. Blagrove, looking upward from a final ruling of the Superior Court, thus had to turn to the General Court, not to the Governor and Council in its executive capacity. And, while the Governor and Council, along with, it appears, everybody but Byfield and friends, were in sympathy with Blagrove, the Governor and Council were not very happy about adjudication by the General Court—that is to say, they did not, by and large, approve of the interference of the lower, popular branch in the administration of justice.404 And the first order which the House of Representatives sent up for concurrence was at the extreme of such interference. There were instances in which the General Court intervened in judicial matters without actually adjudicating.405 But in ordering the Superior Court to chancer the bond, the House was certainly adjudicating. The Council’s reluctance to go along with this is exactly what, having studied the history of this subject, I would expect. Now consider the order that the Council did find acceptable. Indeed it originated as a Council order and went down to the House for concurrence. Blagrove was to account to Byfield, who might either
- (1) approve the account and acknowledge satisfaction of the judgment for £6,000, thus bringing the dispute to an end, or
- (2) refuse to allow the account, thus issuing an order in Probate from which the aggrieved party could appeal to the Governor and Council.
This was, from the Council’s perspective, a happy solution, since it promised to relieve Blagrove without involving the Council in approval of adjudication by the lower house. But, as perhaps you have by now realized, there was a catch. As we follow the story to its conclusion, we see that, in the end, whatever the desires, even commands, of the Council, Byfield’s cooperation was essential. And Byfield was unlikely to cooperate in a scheme to save the man he had determined to destroy.
Let us see what actually happened. Blagrove did account; when, predictably, Byfield refused to allow the account, Blagrove appealed to Governor and Council. The matter was considered fully, at numerous Council meetings in May and June 1707, all interested parties being heard. The Council, taking into consideration certain items that they felt Blagrove should have accounted for, and on the other hand, outlays for which he should receive credit, made the necessary calculations and appropriate adjustment and arrived at a sum owed the estate; they ordered Blagrove to distribute that amount to Hayman’s children. Blagrove was also to pay Byfield £5.6.0 for his own expenses. Byfield, for his part, was ordered to discharge the £6,000 judgment, and to acknowledge satisfaction thereof in writing upon Blagrove’s compliance with the conciliar directive. Blagrove did as he was told. But Byfield dug his heels in; he would neither accept the £5.6.0 from Blagrove nor acknowledge satisfaction of the £6,000 judgment. And for good measure he levied execution on Blagrove’s land. Now what?
On 14 June the Council ordered that a letter be sent to Byfield “to acquaint him of the just resentment of the Board of his refusal to observe and perform the said Decree and Order of the Supream Ordinary, and that they expect and require him forwith to pay due observance thereto as he ought without further excuse or delay.”406 On 23 June Byfield, who happened to be present before the Council, asked to be heard on the Blagrove matter. He was heard, as was Blagrove. We get the flavor of the proceedings from this item, entered in the Council Records on the following day:
Upon consideration of the unmannerly & rude behaviour of Nathaniel Byfield, Esquire, yesterday to his Excellency the Governor & the Board & his peremtory refusal to obey their order to him directed as Judge of Probate
Advised that his Excy be desired to suspend the said Nathaniel Byfield Esquire from the exercise of those civil offices that he holds under this Government.407
Byfield went off the Court of Common Pleas, and of Probate. But he was still Judge of Admiralty; indeed, his presence in the Council Chamber on 23 June was for the purpose of presenting the Queen’s Commission for that post.408 One could wish one had been there, too, to see Byfield taking the oath of office as Judge of Admiralty, and then, from this height, turning the full measure of his arrogant scorn on the Governor and Council for their attempt to get him to cease his harassment of Blagrove.
The Blagrove affair thus brings us to another theme in the constitutional history of Massachusetts, that is, the independence of the judiciary. Byfield was removed from office for refusing to obey an order of Council. The question would be whether this removal is appropriately to be considered, in the jargon of judicial independence, “arbitrary,” as opposed to “for cause,” and thus accounted an instance of executive interference with judicial independence. There were Council orders and Council orders; some no judge would be obliged to heed, others would be binding. In the Land Bank controversy of the 1740’s, the Governor and Council issued an order to all judges that they refuse to receive Land Bank bills in judicial proceedings. A number of justices of the peace, refusing to obey, were removed from office. But, as one of them hotly insisted, surely this was an arbitrary removal, for executive proclamation of this sort was no law that the judges must follow.409 Similarly, in 1772, Joseph Greenleaf was removed from the office of J.P. for ignoring a Council order to appear before that body and to answer charges laid against him. In this case, since the Governor and Council did have the power to remove judicial officers, it would seem that Greenleaf’s refusal to appear constituted cause for removal—unless perhaps, as Greenleaf argued, he was not obliged to obey because there was no complaint laid against him and certified in a legal manner by Governor and Council, for anything done in his official capacity contrary to duty or injurious to the subject.410 Byfield’s case is, however, suigeneris, for Byfield was in the position of a lower court judge refusing to obey an order of the higher court issued in the exercise of its appellate jurisdiction, an order of “the Supream Ordinary.” A removal for this would not appear to be arbitrary, or, therefore, in violation of the independence of the judiciary. Or would it? Obviously this is a complex issue.
No records have been discovered which reveal the final disposition of Byfield’s action on the administration bond; we are left assuming that Blagrove did, after all, have to pay the £6,000. However, it should be stated that, despite appearances, it cannot be that Byfield was out to pocket a large sum of money to which he was not, on any conceivable respectable theory, entitled. The disposition of the sum awarded, the £6,000, was certainly a problem, and one that Blagrove made argumentative use of:
That Judgment could not in the case at barr be Enter’d up for more than was due; for that the children Could only claime their severall equal parts of their fathers Estate, and the Judge could distribute no more, that as for the Judge himself he neither had, nor ought to pttend to any benefitt by ye penalty, who was but the medium or Instrumt of the suit, what then was to be done with the surplus, or exorbitant part of this penal 6000£?411
What, indeed? But I cannot think that even Byfield thought it should go to Byfield, save in trust for the Hayman children. Then again, who knows what evil lurks in the hearts of men?
Byfield’s story features repeated instances of the use of law by persons whose aim it was not so much to settle a particular dispute as to injure an enemy. But unless this impurity of motivation itself taints the process, only when we get to the Byfield-Blagrove matters, do we begin to think we may have to do with abuse, rather than use, of law. The question that the Byfield-Blagrove feud raises, in this context, is whether it may be an abuse, or perversion, of law merely to insist on its benefit. Since we begin, appropriately enough, with mortgage foreclosure, consider the classic villain of the screen serial as, twirling his mustaches, he forecloses on the widow and orphans: a moral leper to be sure, but surely not an abuser of the law. When society, through its law, approves the morally outrageous, then it is no perversion of the law to take advantage of it.
Blagrove’s case is perhaps more doubtful, since, but for accidental circumstances, the law he took advantage of would not have been the law. What he attempted to do was condemned by society not only through moral consensus, but through law, or it had been, before external forces threw the world out of joint, and it would be again as soon as the society, still leaping hurdles placed by those same external forces, could put the world right. Does one abuse the law of the society of which one is a member by seeking the law’s benefit at a moment when one knows the law to be the very opposite of that which the society thinks the law should be?
In the particulars, the Blagrove-Byfield mortgage situation was aberrational in the extreme; more abstractly, however, it is very like the situation arising every day in a system which features the institutional as well as theoretical separation of law and equity. And it points up just how bizarre the separation of law and equity is. The founders of the Bay Colony integrated law and equity, that is, granted equitable power to the judges of the common law courts. Explanations of this innovation tend to point us rather vaguely in the direction of simplification (at times with overtones of “simple” as in “primitive,” or, occasionally, “simpleton”). That is not wrong, and there were other, prudential reasons for the move.412 But I would suggest that the real question is why on earth any people who had experience with the separation of law and equity, finding themselves with the opportunity to integrate them, would not do so. Separation is understandable historically, but is it something one would adopt full-blown if one were creating a legal system from the ground up? Practical considerations aside, who would deliberately institute a system in which something called “the law” is authoritatively declared inequitable and unconscionable?
Among other things, the separation of law and equity must teach curious lessons; how can it fail, for a start, to engender some contempt for a “law” which, in its enforcement of rights and redress of wrongs, is understood to have no interest in right and wrong? I would like to suggest that this effect is a function of the transformation of equity from a means of affording relief where general rules work special hardship in particular cases, to a system of general rules. All people may understand the need for generality in law; considerations not only of efficiency but of fairness exert pressure in that direction. Tensions with the concern for justice in the hardship case are inevitable, but acceptable, and equitable relief in such cases will not bring the law into disrepute. Imperfect it may be, but some imperfection is inevitable when legitimate goals compete. Once equity has, however, developed rules no less general—or fixed and determinate—than those of “the law,” distinguished from the latter only by the essential fairness of the equitable rules, we have quite another situation. We now have, whatever we call them, two systems of law side by side, one good, one bad. Equity is no longer merely saying that, for example, a given litigant whose illness kept him from appearing in court may have another chance; it is saying that mortgagors whom “the law” has found in default may redeem their land by payment within a certain time of the underlying obligation. If that is a good thing to say, why does the law not say it? If it is a good rule, why is it not a rule of law? And what do we think of a law that pronounces a forfeiture of the land?
The separation of law and equity has as well some potential for affecting negatively the relations between parties to a lawsuit. It is desirable that a legal system go beyond the classic, but minimal, goals of peace-keeping and resolution of particular controversies, that it operate if possible to dissipate or at least to reduce the tensions and animosities which threaten the peace and produce controversies. If law cannot guarantee that people will “Live in Love . . . as Christians ought to doe,” it might play a part in advancing society toward that goal. Judging by our (atypical?) sample, Massachusetts law was conspicuously unsuccessful in this respect. Particular issues were usually settled, and disputants dissuaded from mayhem, but that was it. Interestingly, arbitration was not, in this, superior to formal court proceedings; both failed utterly to soar above lowest-level effectiveness. But the system was at its least successful, actually counterproductive, sowing seeds of bitterness and of future conflict, when it gave one party the opportunity to insist upon the full measure of a law which society had stamped “against equity and good conscience.”
In order to keep the concept usefully meaningful, we should probably conclude that what Blagrove did was not an abuse of law. On the other hand, if my suspicions about Byfield are correct, that is, if Walley and Leverett refused to chancer Blagrove’s administration bond only because they were Byfield’s friends, then we have here a clear case of abuse of law. It is most interesting that the method was the same in both cases, that is, denial of equitable relief. Blagrove, I have said, was able to do what he did because the world was out of joint. But Byfield’s action was in 1704, after the world had been put right. Byfield’s success may be thought of as a fluke; in almost every case involving a penal bond, chancering would be automatic. The administration bond just happened to be the one case doubtful enough so that Byfield’s friends on the bench could, without bringing open disgrace upon themselves, refuse the chancery. But I think there was more to the matter than just a fluke, that it made a difference that Massachusetts’ integration of law and equity was administrative rather than conceptual. In an analogous situation today, a court will refuse to enforce a liquidated damages clause in a contract which amounts to a penalty. That is the law. But the law in Massachusetts enforced a bond according to its terms, penalty and all. Only equity, although administered in the same proceeding, could reduce the judgment to “the just debt and damages.” It was, however routinely granted, conceptually special relief, and as such inevitably precarious. The administrative integration would have avoided the phenomenon discussed earlier, of contempt for law bred by having to turn to a separate system to find equitable, conscionable treatment. But the lingering of a conceptual separation would have made it likely enough that on occasion, the law would operate in all its by this time anomalous and anachronistic rigor. Byfield struck on just such an occasion.
For obvious reasons the law/equity problem in Massachusetts did not present the aspect of rivalry between two systems that it wore in England. Students of Massachusetts history have assumed that the only such jurisdictional rivalry in the Province was that between the common law and Admiralty, a natural assumption since that is the only one we ever hear of. In this rivalry Byfield, so many years Judge of Admiralty, played an important part. And now we see in the Byfield materials another jurisdictional clash, or something very like it, between the common law and probate. The common law won.
As we saw in the matter of Hayman’s estate, Blagrove’s insistence from the first that the appropriate forum was probate was unavailing. There was no mechanism by which he could keep Byfield from bringing a common law action of debt on the administration bond. Moreover, as Paul Dudley argued for Byfield, it mattered not at all to the common law that a Judge of Probate had approved the administrator’s actions. Given a failure to live up to obligations imposed by the common law, the approbation of a Judge of Probate was meaningless. Dudley proclaimed the supremacy of the common law, and that supremacy was vindicated by the later proceedings before the Council. This “Supreame Ordinary,” with unquestioned jurisdiction over Blagrove’s appeal from Byfield’s refusal to accept his final account, was nonetheless powerless in the face of the common law judgment for £6,000. The Council could itself allow Byfield’s account, but only Byfield could acknowledge satisfaction of the judgment. When, ordered to do so, he refused, the Council was impotent; its petulant, foot-stamping response, dismissal of Byfield from office, was more degrading to the Council than injurious to Byfield, and certainly not very helpful to Blagrove. On the other hand, it should be noted that the Council did not take the one course of action which would have helped Blagrove, that is, concurrence in an order of the House of Representatives commanding the Justices of the Superior Court to chancer the administration bond. The Council’s opposition to lower house adjudication may be viewed cynically as an attempt to retain the administration of justice as an aristocratic preserve. But it also reflected a concern for the integrity of the common law, to a degree because this was thought to be identical with its administration by men of “the better sort.”
One consequence of the affair Blagrove may have been an end to the alliance between Joseph Dudley and Nathaniel Byfield. Certainly Byfield came to view his once-friend, the Governor, as an enemy. It has been said, rather vaguely, that this was owing to Byfield’s having been “reproved” by Dudley in Council; one source seems to locate the reproof in the Hayman proceedings.413 And from what we have seen, it is not unlikely that Dudley did retort sharply to Byfield’s “rude and unmannerly behavior.” But that was 1710, and the evidence we have of active Byfield-Dudley hostility comes from 1714–1715. In those years Byfield, having been chosen for the Council, was negatived by Governor Dudley. And in 1715 Byfield went to England to urge Dudley’s removal from the governorship, and, it is said, to procure that office for himself.414 Still, the affair Blagrove may well have marked the beginning of the end of good relations between Byfield and Dudley.415
If the break with Dudley was a consequence of the Blagrove matter, it must, I think, be accounted the major consequence. Byfield’s loss of office, although not a trivial matter, and for such a man, and in the circumstances, embittering, was nevertheless shortlived. William Tailer, taking over as acting governor in November 1715, in December appointed Byfield Judge of the Inferior Court of Common Pleas, Bristol, and of Probate, Bristol. Byfield resigned from Common Pleas in 1724, and (I think) as Judge of Probate only in 1729, to be succeeded by, of all people, Nathaniel Blagrove! But in 1728 he was put on the Commission of the Peace for Suffolk and once again commissioned Judge of Admiralty. And then, in 1731, Governor Jonathan Belcher appointed Byfield to the Suffolk Court of Common Pleas. All these posts he held until his death. So Byfield did not suffer over-much in the great cause of destroying Nathaniel Blagrove. Massachusetts was, after all, a society in which merit was assured recognition. Part of Byfield’s merit was that he trained his descendants to marry the right people. Governor Tailer was Byfield’s son-in-law, and Governor Belcher the father-in-law of Byfield’s grandson. If Governor Burnet was linked to Byfield by ties of kinship, the ties have not yet come to light.
If age slowed Nathaniel Byfield, the records fail to reveal the fact; assuredly it did not mellow him. Thus the records of the last decades of his life show him suing and being sued, presented by the grand jury for imposing extortionate fees as Judge of Admiralty, making life miserable for those of His Majesty’s officers who attempted to enforce the White Pine Acts, and generally being the fellow we have come to know, if not more so. In fact, the record of contention continues beyond his life-time; the last case was brought against Byfield’s executors in 1740, six and a half years after his death.416 That action, in covenant, arose out the marriage contract between Nathaniel Byfield and Sarah Leverett, by which Byfield had agreed that his wife-to-be might dispose testamentarily of property worth a stated sum, and that in the event of her dying intestate, he, Byfield, would bequeath that sum to Sarah’s Leverett kin. Sarah having died intestate, Byfield naturally made no such bequest. Byfield’s executors, by their attorney Robert Auchmuty, pleaded tender of the sum before the date of the writ, therefore no breach. And the tender appears, in fact, under threat of suit to have been made; it was, however, made in Province bills, while plaintiffs claimed, successfully, that the sum was owed in sterling. Execution issued on a judgment against Byfield’s executors in March 1740/41; with satisfaction of the judgment recorded, in August 1741—eight years after his death—the law closes its books on Nathaniel Byfield.
Notoriously, the biographer falls victim to the attractions of her subject, and objectivity suffers. The danger for Byfield’s biographer is somewhat special, for the lure of the man is in his rascality; one becomes interested, then engaged, finally enthralled, by the defects rather than the excellences of one’s subject. The peril then resides in the temptation to exaggerate those defects, to play up the lurid; it lies in the likelihood that one will present a distortedly negative, rather than affirmative, portrait. In Baylies’ judicious words, “The character of Colonel Byfield was not so elevated as to command the veneration of the people, or so low as to incur their contempt.”417 While I cannot revise that estimate upward so to speak, not for the world would I convey the impression that it is too high, too mild an indictment. Nathaniel Byfield, obviously no saint, was not a bad man; his faults rather leap to the eye, but my experience is that the more one knows the more inclined one is to think of Byfield as merely, if substantially, flawed. This is conspicuously true of the affair Blagrove. To one who knows the details, but not the background, of that incident, Byfield will appear in the worst light; in particular, without knowing of the Byfield-Blagrove feud, and especially of Blagrove’s suit on the mortgage in 1698, one will not understand that it was Blagrove, rather than £6,000, that Byfield was after. It may seem hardly a favor to Byfield to portray him as vengeful rather than venal. But at least, having identified revenge as the motive, we can go on to note that there was considerable justification for Byfield’s thirst for revenge. Blagrove had, as it were, asked for it. In short, we do justice to our subject, and that is more rather than less important with a subject who needs all the justice he can get.
Once upon a time historians of Massachusetts exhibited a tendency to concentrate on the beginning and the end, according short shrift to the middle. Founding and Revolution hypnotized us, and we leaped merrily from John Winthrop to John Adams. There were a lot of other people named John—or Nathaniel—in between of whom nobody ever heard. The tendency was entirely understandable, not only because of the obvious powerful attraction of those dramatic eras, but because Massachusetts history, from 1629 to 1776, does legitimately present itself as two histories: there was a sharp break between colony and province. The break was nothing like absolute of course. A heritage is never entirely lost. Moreover, we have yet to explore, much less understand, the workings of historical memory in this setting. Nevertheless, it is reasonably consonant with the history itself, therefore not inappropriate, to focus on one period as if the other had never been. And of course, historians being people, the bulk of attention will go to the more exciting years of each period.
In consequence Massachusetts had its Dark Age. Moreover, continuities were missed which might have had important explanatory potential. Today, of course, the general history of this period is brightly illuminated. But the legal history is not. There the Age remains Dim, if not Dark. Byfield, in a small but not derisory way, helps by having lived a long time at, as it were, the right time. He was also a ceaselessly, relentlessly active man of law, in both the saddle and the ring to his last moment. Not even for his besotted biographer does Nathaniel Byfield assume the proportions of a major figure, but he is legitimately a figure in Massachusetts legal history.
And indeed, for all who enjoy seeing illustrated the sweep of history and the seamlessness of the historical web, Byfield’s story seems made to order. When we first meet him, he is suing and being sued in the old County Courts, and the Court of Assistants, that judicial stronghold of the early colonial magistracy. In the last action, that against his executors in 1739, suit was brought by Andrew and Peter Oliver. John Winthrop meet John Adams! To His Majesty’s Surveyors of the Woods, desperate for a Judge of Admiralty inclined to aid them in enforcing the White Pine Acts, it was maddening that Byfield “had discovered the Fountain of Youth.”418 But how nice for the rest of us.