Nathaniel Byfield, 1653–1733
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 Were this essay not to be published by a Learned Society, I would say that I have had a helluva good time with Nathaniel Byfield.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,
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.
* * * *
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.
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.
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.
On Byfield the man opinions have always differed. Baylies, the first historian to offer an assessment of Byfield’s character, had this to say:
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.
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.
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:
* * * *
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]
As Byfield’s defenders point out with justice, people active in public affairs are likely to make enemies and therefore unlikely to escape calumny.
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. . . .”
Disagreement among historians extends beyond assessment of Byfield’s character to such matters as where he lived at a given time
The chief, though not only,
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.
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 Shirley
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;
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.
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.
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.
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.”
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.”
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.
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.
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”
(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,
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.
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.
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:
In 1695 certain Bristol selectmen whom Byfield chose to characterize as Saffin’s creatures
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.
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,”
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.
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. . . .
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.
- £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. . . .
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.
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.
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.
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 & Council
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 &c
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;
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.
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.
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.
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,
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,’
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.
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.”
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.
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.
- (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.”
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.
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.
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.
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£?
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.
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.
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.
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.”
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.”
