37. Inscription on 1749 October Docket Book. Although the page is entitled “Superior Court,” it was used for the Inferior Court of Common Pleas, Suffolk. Courtesy, Social Law Library, Boston.


    “Immortality brought to Light”: An Overview of Massachusetts Colonial Court Records

    IT has been fashionable to describe the colonial period as “the dark ages of American law.”1565 Competent legal historians for this period have been hampered by a dearth of available primary source materials. Now that Massachusetts court records have been largely inventoried, after centuries of being “buried”1566 in courthouse basements, “some way will have to be found for getting scholars and colonial court archives together.”1567

    It is hoped that these articles on sources will encourage researchers to use the colonial court records of Massachusetts. They will provide scholars with a county-by-county survey of early court materials in Massachusetts, jurisdictional outlines of the courts, a glossary of commonly used legal terms, a guide to common law rules of pleading and procedure, and discussions of data contained in the court records for non-legal historians. There are also listings of relevant primary and secondary materials at four major research institutions in Massachusetts for colonial legal studies.

    The publication of these articles on sources is not the Colonial Society’s first attempt to lead researchers to court records. In addition to publishing the excellent early volumes of Massachusetts court records, one of the Society’s prominent early members must be credited with the conservation of a collection which has been variously described as “a legal and historical treasure”1568 and “the best single collection”1569 of colonial court records in the country. John Noble, Clerk of the Supreme Judicial Court of Massachusetts and Editor of Publications for the Colonial Society at the turn of this century, directed the conservation and indexing of these files between 1883 and 1907. Generally known as the Suffolk Files, the collection comprises minute books, extended record books, and 1,289 volumes of file papers, mostly from the Superior Court of Judicature. It also includes other miscellaneous papers from County Courts, the Court of Assistants, General Sessions, Common Pleas, and Admiralty. Located in the Office of the Clerk of the Supreme Judicial Court for Suffolk County, fourteenth floor, Suffolk County Court House, Boston, the Suffolk Files have adequately been described by Noble and other scholars.1570

    Discussing the custodial provenance of these papers and records in an 1897 article, Noble observed that “one of the [clerks] cared little for such accumulations of the past, the other cared much.”1571 Thus, Noble unwittingly explained why most of the Commonwealth’s colonial court records have received little custodial attention over the centuries, while several select collections have received considerably more. This fact was amplified by an incident more than half a century later. In 1954, Elijah Adlow, then Chief Justice to the Boston Municipal Court, was informed by the clerk’s office that there was desperate need for space and that the “rubbish” in “an old vault in the basement” should be burned. Adlow was then led “down into the dark, cavernous basements of the old building” where he discovered, much to his “amazement,” nearly thirteen thousand papers from the eighteenth and nineteenth centuries. Among these “crumbled and dust ridden sheets,” Adlow found a complete set of quarterly returns of the Suffolk County Jailer for the period 1770 to 1820, listing prisoners confined there during the entire Revolutionary period. There was a voucher written by Sheriff Frobisher certifying his outlays for lodging and “victuallying” the jury that tried Captain Preston and other participants in the Boston Massacre. There were also records of Justice of the Peace Stephen Gorham, minutes of the Court of General Sessions for Suffolk County, and complete files of the Town Court of Boston, a tribunal unknown to any of Adlow’s contemporaries.1572 The Adlow Collection is now at the Boston Public Library.

    It should be noted that “the old courthouse” to which Judge Adlow had referred was also the seat of the Supreme Judicial Court in Boston, the very same building in which John Noble had served as clerk over a half century earlier, and is still in use. Recently, and again in the same building, the Librarian of the Social Law Library, Edgar J. Bellefontaine, saved from destruction the file papers of the Suffolk Inferior Court of Common Pleas for the period 1730–1817. Beginning in 1976, the Social Law Library sponsored a four-year Project to organize and conserve the over 360,000 file papers, minute books, and extended record books. In so doing the Social Law Library publicized the need for preservation of such papers, which for centuries had been stored in precarious conditions in courthouse cellars throughout the Commonwealth.

    Also in 1976 the Honorable Edward F. Hennessey, Chief Justice of the Supreme Judicial Court, appointed a Judicial Records Committee composed of clerks, scholars, librarians, and archivists. The Committee was mandated to appraise the condition of the Commonwealth’s judicial archives and formulate enlightened records management and archival policies. A number of projects have been undertaken, including an inventory of records of the Superior Court and its colonial predecessors. That inventory, the relevant parts of which are published in this volume (see below, 531–540), identified court records throughout the state which “have been in storage, unused, for up to 350 years. . . . Many records are in such fragile shape that to use them without proper precautions would be tantamount to destroying them.”1573 There are now plans to collect and centralize all the pre-1859 materials in a special judicial archives section of the Massachusetts Archives building now under construction. Moreover, under the leadership of Chief Justice Hennessey, the Social Law Library’s professional conservation laboratory and its staff of conservators and archivists have been adopted by the Supreme Judicial Court as the nation’s only official court records preservation and management facility. Chief Justice Hennessey has thus committed the Supreme Judicial Court to continue this “Noble” enterprise.

    Scholarly Neglect in the Past

    With relevant records kept for centuries in the kind of “dark” basements to which Judge Adlow alluded earlier, it is understandable why the judicial history of the colonial period has been dimly understood for so long. Unfortunately, the lack of research into legal records themselves has led to erroneous explanations about law in the colonial period—erroneous explanations which exert enormous influence and which persist to this day.1574 Roscoe Pound popularized the misconception that under colonial conditions there was only “a rude administration of justice.”1575 The title of his famous book The Formative Period of American Law (Boston, 1938) (referring to 1775 to 1860) has become accepted in the lexicon of our legal history to mean that “[f]or most practical purposes American judicial history begins after the Revolution.”1576 Adjudication, asserted Pound, was left to “untrained magistrates who administered justice according to their common sense and the light of nature with some guidance from legislation.”1577

    Thus several generations of scholars were dissuaded from delving into serious studies of law during the colonial period.1578 Pound’s view became the established view, which to some extent still endures. Grant Gilmore, for instance, in his relatively recent book The Ages of American Law (New Haven, 1977), reflects a similar misconception concerning colonial legal studies:

    [T]here can hardly be a legal system until the decisions of the courts are regularly published and are available to the bench and bar. Even in the seaboard colonies, where the practice of law had, during the eighteenth century, became professionalized, there were no published reports; consequently there was nothing which could rationally be called a legal system.1579

    One of the first uses of court records is to test such theories against the true record of our colonial tradition. The work of George Haskins and others has taught us that to learn the facts of our colonial legal heritage we must unlearn such fictions as that there was “nothing which could rationally be called a legal system.”1580 Gilmore’s logic overlooks the work historians have done in tracing the development of colonial doctrines from “unpublished judicial opinions, lawyers’ notes, and, most commonly, records of pleadings, judgements, and other papers incorporated into official court files.”1581 Although decisions of the colonial period were not regularly published, they were regularly recorded. In all Massachusetts counties, clerks from the Superior Court of Judicature, Courts of Common Pleas, and Courts of General Sessions kept extended record books, sometimes called judgment books, in which clerks summarized transcriptions of parties’ pleadings and motions, the juries’ verdicts, and the courts’ judgments. In this context it should be noted that although there were no published court reports until after the Revolution, lawyers did, on occasion, prepare and circulate among themselves collections of local cases.1582 For more detailed information scholars are turning their attention to file papers to trace changing practice styles, which in turn substantiate changes in substantive law. The articles published in this volume often demonstrate the use of such records and the relative sophistication of the legal system they represent.

    Scholars like William E. Nelson are finding that important “formative” doctrinal developments of the nineteenth century actually had important antecedents before the Revolution. For example, the development of a generalized negligence theory in torts superseded the particularized and technical pleadings of the common law writ system. The “conventional explanation” for the demise of the writ system is that the nineteenth-century codification movement suddenly abolished the writ system’s forms of actions.1583 Specifically, scholars have identified the 1848 enactment of David Dudley Field’s New York Code of Civil Procedure as the “catalytic agent” which, almost “at one blow,” pronounced “the death sentence” on common law pleadings.1584 “Unfortunately, insufficient scrutiny of the writ system has taken place to justify this conventional explanation.”1585 In fact, Nelson’s study of common law pleadings in Massachusetts suggests that the reform was gradually modified over a long period and that, when the state legislatively abolished writ pleading in 1851, the reform was already realized in practice.1586

    Colonial records may also help to explain the development of the consideration doctrine in contract law. Some scholars, such as William E. Nelson and Morton J. Horwitz, have suggested that eighteenth-century common law courts discouraged competitive commercial transactions through an analysis of what in essence was consideration, whereby agreements were scrutinized for substantive equality of the exchange.1587 Such a mechanism for policing the fairness of exchanges may have protected the unsuspecting against bad bargains, but could have been a burden to the burgeoning business interests of the late eighteenth century. Horwitz has suggested that businessmen apparently “endeavored to find legal forms of agreement with which to conduct business transactions free from the equalizing tendencies of courts and juries. Of these forms, the most important was the penal bond.”1588 Such bonds “precluded inquiry into the adequacy of consideration for exchange”1589 and “allowed parties to determine their own damages free from judicial intervention.”1590 Except for this general overview of the use of penal bonds, we must await more detailed, empirical studies of court records to explain more fully the influence of penal bonds on the judiciary’s changing concern away from the adequacy of consideration to a non-protective inquiry confined to the presence of mere formal consideration. As David H. Flaherty has pointed out, for “the colonial era . . . civil litigation remain[s] almost unstudied.”1591

    Early court records can also help scholars to evaluate the impact or implementation of legislation. Two examples come to mind. Some scholars have speculated that the passage of the Stamp Act may have hindered the developing practices of young lawyers, and thus in some measure may have encouraged these young men to revolt—a difficult action in an otherwise conservative profession which teaches reverence for law, not revolution.1592 Young John Adams was anxious and annoyed by the whole affair:

    So sudden an Interruption in my Career, is very unfortunate for me. I was but just getting into my Geers, just getting under Sail, and an Embargo is laid upon the Ship. Thirty Years of my Life are passed in Preparation for Business. I have had Poverty to struggle with—Envy and Jealousy and Malice of Enemies to encounter—no Friends, or but few to assist me, so that I have groped in dark Obscurity, till of late, and had but just become known, and gained a small degree of Reputation, when this execrable Project was set on foot for my Ruin as well as that of America in General, and of Great Britain.1593

    What exact impact did the Stamp Act have on the careers of Adams and others, as well as on the courts generally?1594 Did fewer lawyers begin practice during the year the Stamp Act was in effect? How many fewer cases did Adams handle in court, or, for that matter, how many fewer cases were generally heard?1595 Given that geographically there were whig and tory strongholds within the colony,1596 did the Stamp Act affect lawyers and courts in different counties differently? Court records provide empirical data from which to make term-by-term, year-by-year, and county-by-county comparisons.

    Such examination of early court records is essential with respect to understanding the implementation, as well as all the implications, of various other legislative initiatives. The plight of Tory property demands such a look at litigation. The loyalists who fled Boston at the beginning of the American Revolution left their lands—and indeed their beloved homes—at the mercy of the very patriot leaders and neighbors who forced their departure. In 1779 the General Court passed two confiscation bills. The first was “An Act to Confiscate The Estates of Certain Notorious Conspirators.” (Acts & Resolves, v, chap. 48, 966–967.) Punitive in nature, it confiscated without any legal process the estates of twenty-nine notable loyalists.

    The second, less vituperative bill was aimed at a wider class of “certain persons commonly called absentees.” (Acts & Resolves, v, chap. 49, 969–971.) Ostensibly it aided the state’s coffers and creditors by establishing a judicial procedure for the condemnation and sale of Tory estates, under which the attorney general issued a complaint in the inferior courts of common pleas. In addition to interesting tidbits (John Adams’ country seat in Quincy, “Peacefield,” was a confiscated Tory estate), research in the court records has revealed, to one scholar at least, “an inside story of corruption, self interest and plunder in Massachusetts’ confiscation policy.”1597 Despite concepts of due process envisioned in the legislation, its implementation tells a rather sordid story. The lesson for historians is that public policy may be enunciated by the legislature but, as revealed by court records, can still be undermined by the judicial process.

    The Records Series

    Court records consist of three distinct record series: minute books, extended record books, and file papers. All students of colonial law should be aware of these record types, their relation to one another, and the kind of information which can be gleaned from them. The following generalized description is drawn from the Suffolk Common Pleas court records, since no chronological or colony-wide comparisons of clerks’ practices have been undertaken. In fact, as noted by the editors of the Legal Papers of John Adams, there is still “embarrassingly little knowledge of the way in which the Massachusetts courts regulated their business and conducted their trials.”1598

    38. Colonial Court records of the Inferior Court of Common Pleas, Suffolk. Illustrated are a minute book, a record book, and file papers. In other counties, colonial file papers are still in their original case rolls. Courtesy, Social Law Library, Boston.

    Clerks regulated their court business primarily through the use of minute books, and they constitute the only index to the file papers. Somewhat like the docket books of today, minute books recorded basic information about the court’s work load. Although a single minute book may sometimes cover a period of more than a year, they are organized by four terms most frequently held in January, April, July, and October. The first page for each term would indicate the day and month beginning the term, identify the sitting judges, and usually enumerate the first and second petit juries then serving.

    Civil cases are listed by ascending number in a typical plaintiff versus defendant fashion. Some clerks in some years meshed the continued actions of previous terms in the same numerical sequence, while other clerks in other years maintained separate continued action lists. It should be noted that the minute book number corresponds to the case number for that term and would be written on the back side of the writ. In the event of a continuance, the case papers were held and grouped with the cases for the next term; the old number was scratched out and a new minute book number assigned. Thus some cases with multiple continuances will have numerous scratched-out minute book numbers, by which one may trace the case back to earlier terms.

    In the right margin of the common pleas minute books, the plaintiffs’ attorneys are listed. The early books generally do not mention any pleas, while some of the nineteenth-century books do. Minute books do mention, however, the determination of cases in a shorthand, skeletal fashion. Also it was not uncommon for referees to be appointed, and clerks would indicate this in similar cryptic fashion. The left margin seems to have been kept clear for post-trial filings, most often executions and appeal bonds.

    On the last page of the term the clerk customarily indicated the date court adjourned, as well as special court business. It was not unusual for the clerk to note the swearing in of attorneys, or to take minutes of special motions, or to post new rules promulgated by the court. The last pages of the 1738 July term of the Suffolk Inferior Court of Common Pleas indicate that the justices entertained a number of oral motions for fees and costs. For example, “The Memorial of Robert Auchmuty and others, . . . relating to the allowance of their fees having been considered by the Court was not granted they being divided in their opinion concerning the same.” Perhaps impatient with such motions, the court ordered “that henceforth all motions for costs shall be made in writing & the like fee be paid to the court as for other complaints.” As their last act in 1738, the justices levied new fees, which were to be split between the court and the clerk, on “proving a deed in Court.”

    In addition, minute books provide much statistical and procedural information about the business of the court. They record the length of terms, the number of cases handled, the frequency of referring cases to referees, the number of continuances, court rules ordered by the justices, the frequency of appeals, and the levels of practice of particular lawyers.

    Although skeletal in nature, these minute books tell who was in court and how often. In fact, biographers are beginning to believe that court records are of “extraordinary value.”1599 A brief look at the lawyers and litigants on the final page of the 1758 minute book for the Suffolk Inferior Court of Common Pleas offers a remarkable example. In a few brief entries we find Jeremiah Gridley, tutor to such as John Adams, James Otis, and William Cushing, was involved as a plaintiff representing himself. Two signers of the Declaration of Independence, Robert Treat Paine and John Adams, are present in court as well. Paine was participating as a plaintiff in a minor civil case; Adams and Samuel Quincy were beginning distinguished careers at the bar as they were “admitted as Attorneys in Law in this Court to Act as Such and accordingly tooke the Oaths of an Attorney.” The session is presided over by Foster Hutchinson, brother of the royal governor driven into exile by the Revolution that Paine and Adams helped to start.

    39. Docket Book, Inferior Court of Common Pleas, Suffolk, 1758 October, showing the admission of John Adams and Samuel Quincy as attorneys on 6 November 1758. Note the signature of Ezekiel Goldthwait, Clerk, and the names of Jeremiah Gridley, Foster Hutchinson, and Robert Treat Paine. Courtesy, Social Law Library, Boston.

    Clerks also maintained extended record books. These are large folio volumes, sometimes called judgment books, and constitute the formal, official record of the courts’ actions on adjudicated cases. They are arranged in yearly volumes with plaintiff name indices and page reference numbers at the beginning of each book. They are not cross-referenced to the minute books or the file papers, since the order of entries is according to the courts’ final actions. They also do not reflect the flow of court business, as they record only adjudicated cases. They do, however, provide an important summary of each case and mention the parties’ names, places of residence, and occupations or professions. This is important demographic data, which is clearly set forth and easily coded for computer analysis. These records also summarize the legal written pleas and oral pleadings of the facts of the cases. They provide the courts’ final determination of cases and also indicate when executions were issued and whether appeal bonds were filed. This information overlaps that of the minute books to some extent, especially with respect to the end-of-term orders of the court.

    The Suffolk County Court of General Sessions displayed a respect for its records in its decision to replace the courthouse of 1764–1766 with a new building designed by Charles Bulfinch in 1810. In reaching its determination to build a new courthouse, the general sessions justices heard the following report, noted in the 1807 extended record book. “The Committee beg leave further to report that from the increase of population in the Capital and the accumulation of business in the Courts, it is no longer possible for the various courts to do their business in one small Court House (besides further provision ought to be made for public offices and for securing public papers.)”1600 As a historian of this Bulfinch building cleverly noted, “the corset could no longer hold the body.”1601

    The extended record books are the easiest records series to use since they are sturdy and well bound and generally complete. Many minute books are extant, but these quarto waste books are much more fragile. File papers, to be discussed below, are the most difficult to use but also the most promising. Except for the Suffolk and Essex Files, most extant file papers have been left exactly as they were soon after adjudication. It was the practice of clerks to fold file papers in tripartite, bundle and label them by term and year, and tie them with linen string into case rolls. Subsequent clerks stuffed these upright into the same cramped topless file tins in which they survive today. “As we take the court documents from their original packages,” Hiller B. Zobel has observed, “we literally unfold our history.”1602

    The Documents

    The documents have great intrinsic historical value. Catherine Menand, Chief Archivist of the Massachusetts Supreme Judicial Court, notes that “the sheer aesthetics of these early documents are important independent of their content and they provide a source of cultural and technological history.”1603 For example, documents were demanded at every stage in the legal process, but paper was often in short supply. By examining watermarks—the papermakers’ unique signatures or trademarks—one can trace the importation of paper as well as the establishment of local mills. Paper from England dominates the Suffolk County Inferior Court collection, but there is also paper from France and Denmark. A look at English and American watermarks shows the differences and disparities between old England and New England. Generally speaking, English watermarks are majestic crests, sometimes shield-shaped, with ornamental ridging and armorial bearing. Early American papermakers relied on simpler symbols, almost primitive when compared to their English counterparts. They pictured plows and Indians, doves, with and without olive branches, and eagles.1604 One telling watermark simply states “Save Rags”—a plea about the near-constant shortage of the raw material necessary for the manufacturing of rag paper.1605

    40. Watermark, Inferior Court of Common Pleas, Suffolk, 1790 OCT c. 288. Courtesy, Social Law Library, Boston.

    41. Watermark, Inferior Court of Common Pleas, Suffolk, 1797 OCT 88. Courtesy, Social Law Library, Boston.

    Watermarks are clearly visible only when paper is held to light. Thus they can sometimes hide, or heighten, historical ironies. For example, on 1 May 1776, two full months before the signing of the Declaration of Independence in Philadelphia, the Massachusetts General Court ordered that all legal papers, processes, and proceedings no longer mention the monarch’s lengthy title: “George the Third, by the Grace of God of Great Britain, France and Ireland, KING, Defender of the Faith, etc.” (See illustration below, 544.) Soon thereafter, in Suffolk County, either the clerks of court or lawyers unceremoniously scratched out, by hand, the foregoing title from writs and other formal papers and wrote in its place: “The Government and People of the Massachusetts Bay in New England.”1606 Massachusetts may have declared its independence from the mother country, but as the manuscripts are held to light, and English watermarks are overwhelmingly revealed, it shows that the colony’s legal process still very much depended on English paper.

    The records have other interesting physical features. Embossed filing stamps were not uncommon on bonds, indentures, and other documents. Designs on provincial filing stamps, for example, were derived from important economic resources and appear to have remained constant for long periods: a cheerful codfish with the motto “STAMP OF THE MASSACHUSETTS” on the tuppence stamp; a flourishing pine tree on the three-penny stamp with the motto “PROVINCE OF MASSACHUSETTS” 3 and a trim two-masted schooner with the motto “STEADY—STEADY” on the four-penny stamp.1607

    42. Embossed four-penny filing stamp, Inferior Court of Common Pleas, Suffolk, 1771 OCT c. 49. Courtesy, Social Law Library, Boston.

    43. Embossed tuppence filing stamp, Inferior Court of Common Pleas, Suffolk, 1761 JAN 128. Courtesy, Social Law Library, Boston.

    44. Heraldic embossed seal of Richard Jenneys “Notary & Tabellion Publick by Royal Authority . . . in Boston,” Inferior Court of Common Pleas, Suffolk, 1760 OCT 134. Courtesy, Social Law Library, Boston.

    45. Embossed three-penny filing stamp, Inferior Court of Common Pleas, Suffolk, 1755 OCT 173. Courtesy, Social Law Library, Boston.

    An amazing variety of intricate, rich, red-wax seals has survived on the surfaces of these documents. They provide visible and tangible evidence of a person’s stature and authority. Public officials frequently assumed a heraldic coat of arms as their seal, as did merchants and other wealthy and worldly persons. The papers bearing these seals provide excellent evidence documenting British mercantile connections within the empire. Decorative monograms, rebuses, unmarked tabs of paper, ink marks—even finger prints—were used by less eminent persons not entitled to coats of arms.

    The variety of such seals makes a most interesting study, and as with watermarks, understanding sometimes unveils otherwise hidden ironies. The embossed, heraldic seal of Richard Jenneys “Notary & Tabellion Publick by Royal Authority duly Admitted & sworn dwelling and Practicing in Boston” shows as his crest a hand clasping olive branches surmounted by an eagle erect.1608 Hugh Clark’s Short and Easy Introduction to Heraldry (London, 1788) defines these “technical terms” thus: “Hands signify power, equity, fidelity and justice”; the “olive tree is the emblem of peace and concord”; and the “Eagle is accounted the King of birds, and signifies magnanimity and fortitude of mind, who seeks to combat with none but his equals.” Another seal, the crest of a swan, according to Clark’s Introduction to Heraldry representing “Appollo’s bird, the emblem of sincerity,” ironically appears on Malachy Satter’s unpaid promissory note of 1778.1609

    Artistic engravings also adorn many of the merchant accounts entered as evidence in actions to recover unpaid bills. Patriot and silversmith Paul Revere was an engraver too. “He was especially fond of elaborate Chippendale borders and mantling and evidently copied the designs of English cards. [How unpatriotic!] . . . But few of Revere’s cards have survived to the present day. Of a dozen or more which he is known to have engraved, only five are to be found, four of them unique examples.”1610 Another of these rare Revere engravings, a billhead, has turned up in the Suffolk common pleas papers. It is a profile engraving of “O. Cromwell’s Head,” the symbol of Joshua Brackett’s well-known inn located on School Street.1611

    Other engravers, perhaps less renowned than Revere—even obscure to the point of anonymity—often applied their artistic skills to merchant billheads preserved in early court papers. Some engravings visually explain work processes and expound patriotic sentiments in the years immediately following the Revolution. The billhead of Eben Clough’s “Boston Paper Staining Manufactory” illustrates the basic steps in wallpaper making during the eighteenth century while, at the same time, proclaiming “Americans, Encourage the Manufactories of your Country, if you wish for its prosperity.”1612 The picture depicts the actual production processes of early wallpaper making. Catherine Lynn Frangiamore’s Wallpaper in Historic Preservation explains:

    [T]he gentleman wielding a large brush in either hand is laying on the ground color. Immediately to the left of the tablet describing the business, a printer with his left hand under the handle on a carved woodblocks raises a mallet with his right hand to strike a firm impression. The boy standing to his left prepares the color between each impression, spreading it on a pad. The man of the far left, with the assistance of yet another boy, is probably rolling and trimming paper in standardized lengths for sale.1613

    Of course the colonial and early republican court papers are primarily valuable for their contents, not their aesthetic character. An exhaustive survey of each and every document type, litigant, and legal plea is beyond the scope of this paper. But a sample from a single term should be enough to encourage further examination, especially with the other articles on sources as research aids. Take, for example, the 1765 July term of the Suffolk County Court of Common Pleas. Most of the actions are of first instance in the inferior court, although there is at least one judgment on appeal from a justice of the peace and several litigants suing on executions from earlier, yet unsatisfied, judgments.

    46. Billhead, engraved by Paul Revere, Inferior Court of Common Pleas, Suffolk, 1772 JUL Misc. Joy v. Brackett. Courtesy, Social Law Library, Boston.

    47. Engraved billhead illustrating the basic steps in making wallpaper. It encourages customers to buy American goods. See above, 490. Inferior Court of Common Pleas, Suffolk, 1801 APR c. 380. Courtesy, Social Law Library, Boston.

    Every court term saw luminaries involved in litigation. For instance, Samuel Adams was involved in several suits during the July term of 1765. In at least three separate actions he was acting in his official capacity as “a Collector of Taxes” for the years 1759 through 1763. Defendants in these actions were “Jack a free Negro,” and housewrights William Moor and Samuel Avery.1614 Each was in arrears for several years on their ratable “proportion of Province County and Town taxes,” which Adams’ declarations detailed in exact amounts. Adams’ attorney in each action was James Otis, Jr., that famous “flame of fire” who argued in the great Writs of Assistance Case of 1760. There is no evidence from the file papers that defendants Moor or Avery were represented by counsel, but “Jack” was represented by Samuel Fitch. Otis found authority for the actions “by force of an Act of this our Province made in the forth Year of our Reign entitled an Act to enable . . . Collectors of Taxes in the Town of Boston to sue for and recover the Rates & taxes given them to collect in certain Cases. . . .”

    File papers generally do not, in themselves, record the results of these suits, although in some cases there are jury slips indicating judgments. Scholars must turn to the extant extended record books and minute books. The papers do, however, provide important information from a number of perspectives. There is both personal and professional biographical significance. Thus, these records reveal a long-term professional relationship, as between the two famous patriots, tax collector Adams and lawyer Otis. Further, Otis’ reliance on legislation as authority on which to maintain the litigation may help to show the state of trial practice, as well as illustrate the general background, influence, and impact of this tax-related act. Adams’ actions and Otis’ arguments to enforce these taxes passed by the provincial legislature are in contrast to the revolutionary cry “no taxation without representation.”

    Government agents like Adams were not only plaintiffs, but sometimes defendants too. The “Proprietors of the East & West Wings so called the North half of the Township of Rutland in our County of Worcester” were sued in 1765 by Stephan Minot, administrator to the Estate of Jonas Clark, Esquire. It seems that Clark “by a Vote of the Proprietors was appointed and at their Special request became their Clerk . . . during [which] . . . time [he] faithfully served them in that Office and trust, duly attended their several meetings, kept their books & accounts & regularly entered all their Notes and orders and their Planns and Surveys and transacted their business abroad. . . .” Clark’s administrator claimed that he was never paid for the foregoing services, some of which were detailed in an attached account. Such details provide valuable insights into the administration of colonial government.1615

    Litigants throughout these records came from all counties, colonies, and points of the compass. Especially interesting are the cases relating to the sea. Boston’s waterfront swarmed with wharfingers, coasters, and shoremen, as well as boatbuilders, shipwrights, ship carpenters, caulkers, mastmakers, blockmakers, ropemakers, riggers, sailmakers, oarmakers, and carvers. All appeared in the court records, as do the mariners, sailors, officers, and pilots manning these ships. Their cases touched upon complex issues, issues as diverse as impressment, articling of underage seamen, wages, and cargoes lost to privateers and storms. Such cases connected Boston to points of call in Africa, South America, the Pacific Northwest, the East Indies, and China.

    The 1765 July term had several controversies related to seagoing and international commerce. Robert Robins, “Master of the Good Schooner called the Polley,” sued “Daniel Arthur of the City of Lisbon in the Kingdom of Portuagal Merchant” for breach of a written covenant.1616 The agreement was recounted in the declaration of Captain Robins’ writ of attachment and was drawn by another famous lawyer, Josiah Quincy. It described a trade route, import and export goods, and the voyage’s expected time and pay schedules. Robins claimed that the outward cargo of wine and fruit was delivered pursuant to the agreement to Boston via Halifax (“the wind not proving favorable”), but Daniel Arthur’s agents broke the agreement by not having a required cargo of fish ready to return to Lisbon. For this Robins asked judgment of four hundred pounds.

    “Landlubbers” in commerce appeared in court records too. “Historians would learn far more about economic life in Boston from an analysis of the civil court records of the Superior Court or the Suffolk County Court, than from almost any extant efforts at writing the economic history of this community.”1617 Currency shortages were not uncommon. Although some colonists tried counterfeiting, most relied on each other for liberal credit or were content with poor commerce. Despite signed bonds and promissory notes with compound interest, debtors were often dilatory, and creditors demanded payment in their formal “pleas of debt” filed in the Inferior Court of Common Pleas. If no bonds or promissory notes had been extracted from debtors, creditors often had detailed accounts of sales or services which corroborated their “plea of the case” claims. Such accounts accompanied the more formal legal papers and revealed much detail about colonial life.

    In addition to the accounts and inventories which preserved the external details of colonial life, other documents immortalized the personal sentiments, the spirit, and even the speech of litigants centuries dead. Depositions, now called affadavits, told harrowing tales of human travails. For example, the rambling deposition of John Martin Randell recounted his voyage, as boatswain, “on board the ship Ulysses . . . David Lamb Commander . . . some time in the Month of August 1798 Bound from Boston to the North West Coast of America, from these to Canton and back to Boston. . . .” It seemed that at the voyage’s very beginning the commander tried to dispel his cantankerous reputation “the first Night after we made Sail, When We Was about oposite the Ligh[t] House in Boston Harborer the Capt. Called All Hands, Officers and Men aft . . . and informed them that he had been formerly called a Tyrant, but now he was going to alter his conduct and behave better . . . and everything seemed to past. Harmonious until we arrived at St. Iago.” There the captain “left one half of the people go on shore at a time that they might buy some . . . stores. . . .” But the captain began to show how little he cared for his crew when one sailor, Charles Reed, did not return. “We went on board the Ship, all Hands were ordered to Supper, directly after Supper [the first mate] asked if all Hands were on board. . . . he was told that Charles Reed was left on Shore, [the first mate] then asked Capt. if he Should Send a boat on Shore for Charles Reed? No Sd the Capt. if My own Father was on Shore I would not send for him, . . . then the Capt. ordered . . . Charles Reed’s Chest and Baggage aft into the cabin to him which was done, and his Chest was Opened directly and things were all overhauled, and some Money was found in the Chest which the Captain took. . . .”

    During the passage from St. Iago to the Falkland Islands, “Our allowance of Provisions was . . . diminished daily, Until it became so Small, and our Duty so hard” that the crew began to complain. There were several savage episodes, including the beating of the carpenter “to Such a degree that he was all over Bloody, and brused very much, and almost out of his Sences . . .” merely because “the Bread-room door was loose. . . .” On another occasion, “While we were heaving at the Windlis the Hands were so exhausted for want of Sleep and refreshing, and some with sore throats that they could not Sing out While heaving and the Capt. said Why don’t you Sing . . . and then he called for his pistols . . . and walked forward within about Seven or Eight passes of where we were . . . and Stopt and cocked his pistols and he Leveled them at our Heads, and said if you don’t heave up . . . I will blow your brains out. . . .” Relations between Captain and crew deteriorated as the Ulysses “passed from the Falkland Islands round Cape Horn.” Randell’s deposition describes episodes on the voyage for eight pages. Finally, at one point, “the Capt. kept up his tirannical behavior to such a degree and being intoxicated by Liquor at the same time, that the whole crew were afraid for their lives, and two days before we came to anchor they were obliged to confine him, to save their own lives . . . ,”1618 Thus, the captain was imprisoned by his crew!

    There are many depositions among court documents which, like that of boatswain Randell, narrate misbegotten thoughts, words, and deeds. In litigation, as in life, we all must wonder what unknown witnesses are listening or looking on. One unknown court clerk must have been harboring such paranoid thoughts when he wrote, in large and florid pen strokes, the following inscription on the title page of the minute book for October 1748: “Immortality brought to Light” Court records do bring the “dark ages” of colonial law to light, and will immortalize men and women long since dead. But our clerk was concerned with judgment day in another court, the court of very last resort: “Guard well your Tho’ts” he added, “Our tho’ts are heard in h———.”


    James Willard Hurst has declared that “[t]he greatest difficulties for legal history lie in relating the formal operations of law—passing statutes, deciding cases, making administrative orders or rules—to the life that flowed outside the legal forms.” He called for a “hyphenate legal history: legal-economic history, legal-religious history, legal-class-and-caste history.”1619 In other words, legal history should no longer divorce doctrine from day-to-day living. In this context court records help reconcile law with the rest of life. They reflect not only the final solutions of judges and juries, but also the initial human problems of people suing over matters of personal concern. Much can be learned from cases involving common yeomen, carvers, coopers, confectioners, cordwainers, butchers, bakers, housewrights, husbandmen, tailors, weavers, hatters, periwigmakers, doctors, distillers, dancing masters, mathematical instrument makers, and myriad others who make up the mosaic of colonial life. Almost as if anticipating Hurst’s “hyphenate legal history,” John Noble noted 1897 that court records “are something of a study in government, economics, sociology, education, religion, politics, public and private life.”1620