Court Records as Sources for Historical Writing
COURT records are obviously the most useful kind of source material available to historians of the law. They are also, perhaps, the most promising untapped body of sources for historians of American social, economic, and institutional history. As Zechariah Chafee wrote, court records:
have great value for historians, especially those who are seeking to learn how the colonists lived, acquired and managed property, and engaged in quarrels. An old author or newspaper often tells us disappointingly little about some of the most important features of human conduct at the time. The writer knew that such matters would be taken for granted by those for whom he was writing. In an old lawsuit, however, much less was taken for granted. The facts of everyday life had to be presented in the complaint or the testimony of witnesses, so as to let the judges know the nature of the dispute.1621
Moreover, a surprising quantity of material is often readily available to historians without travel or other great expense. Much valuable data, for example, is often available at a law library associated with a historian’s university or at other nearby law libraries. Much manuscript material has been microfilmed by the Genealogical Society of Utah and can be obtained at the Society’s more than 150 branch libraries.1622
This brief essay is designed to provide historians with a basic guide to the use of court records. First, it will take note of the kinds of data contained in court records that non-legal historians might find interesting. Second, the essay will provide an introductory sketch of the rules of pleading that a historian must understand in order to make use of court records. Finally, the essay will take note of certain major bibliographies that exist for New England court records.
Data Contained in Court Records
The Civil War in seventeenth-century England established a principle to which Anglo-American jurisdictions still adhere, that government may not coerce individuals either through bodily imprisonment or property seizures unless the government action is subject to review in an ordinary court of common law. The only exception to this principle occurs when martial law is imposed through suspension of the writ of habeas corpus.
From the seventeenth until the nineteenth century, when England and America lacked the large-scale bureaucracies they possess today, this principle meant that government generally acted against a person by commencing either a civil or a criminal proceeding in a court of law.1623 Court records are accordingly the best source for studying the activities of government over that two-century period. Even today, when government bureaucrats often act on their own initiative without seeking the aid of a court, the fact that their actions are subject to judicial review makes court records a good source for learning the rules to which the executive branch of government is supposed to adhere.
Obviously the historian of some institution of government, such as seventeenth-century municipality or an office such as that of sheriff, will find court records an invaluable collection of sources. There are also other ways in which institutional historians can find court records helpful. On occasion, for instance, court records will illustrate the impact of political acts, such as the Declaration of Independence, made by the highest levels of government. Thus court records tell us that “at the moment of their association, the United States necessarily became a body corporate” having “no superior from whom that character . . . [was] derived”1624 and that the commissions of certain local judges which, in October 1776, had not yet been “alter’d agreeable to the Act of Independency established by the Congress,” were void.1625
A deeper understanding of the functioning of the courts, derived from study of court records, can give historians new perspectives on significant historical events. New England court records make it plain, for example, that juries in the eighteenth century had power to determine law as well as fact in the cases that came before them.1626 Knowledge of this power of juries, together with knowledge of eighteenth-century rules of jurisdiction, pleading, and procedure, gives a new perspective on the pre-Revolutionary struggle between American Whigs and the British imperial government in New England. It enables historians to see that the imperial government had legal limits on its power and that its enforcement failures may have stemmed more from those limits than from any incompetence on the part of imperial officials.1627
Court records can be equally valuable for economic historians. Records contain considerable data about the kinds of money in circulation, the value of that money, and the value that litigants and, at times, a court or a jury place upon various commodities. Court records also reveal how law has been used to promote economic growth. Massachusetts records, for example, provide detailed information about the construction of the roads, canals, railroads, and mills that constituted the foundation on which the Commonwealth’s nineteenth-century economy was erected. Some court records may even provide information about the quality and quantity of economic growth occurring during some period in the past, as the work of J. Willard Hurst on the Wisconsin lumber industry suggests.1628
Finally, the value of court records to social historians must not be overlooked. At least in New England, manuscript records normally contain information about the social rank or occupation of the litigants—information which makes it possible, for instance, to examine changing patterns of deference in seventeenth- and eighteenth-century society.1629 If a researcher has information from outside court records about the religious affiliation of individuals, the records also can be used to examine the relationship between Congregationalists and dissenters—to learn, for example, whether dissenters served as court officials or jurors and whether dissenters found themselves involved in litigation with Congregationalists.1630
Common Law Rules of Pleading and Procedure
Institutional, economic, and social historians can put old court records to significant use. But in order to do so they must know enough law to interpret the records properly. In particular, they must know common law rules of jurisdiction, pleading, and procedure which, until the second half of the nineteenth century, constituted the skeleton around which court records were constructed.
The basic pattern in the American colonies was for three types of court to exist in any one geographical entity. One was the equivalent of the Court of General Sessions of the Peace in England, which had jurisdiction within a single county to engage in a wide variety of administrative activities and to hear all but the most serious criminal matters. A second court in a given locality typically would possess the jurisdiction of the Court of King’s Bench in England to hear disputes between individuals and the most serious criminal cases. Sometimes, as in Massachusetts, the jurisdiction of King’s Bench would be divided among two courts, with jurisdiction over serious crimes and appellate jurisdiction over civil disputes being reserved for the higher court and original typical jurisdiction over civil disputes reserved for the lower court. The third court in most localities was the one-man court of the justice of the peace, which heard petty civil and criminal cases. In addition, chancery courts existed in some colonies, together with admiralty courts prior to the Revolution, and various federal courts thereafter.1631
48. Wax Seal from His Majesty’s Superior Court of Judicature for the Province of New Brunswick, found on documents delivered to the Massachusetts Courts in October 1758. Suffolk Files, Cabinet Collection No. 143101. Restored, Kathryn M. Carey. Courtesy, Supreme Judicial Court.
This essay will focus on pleading and procedure in the Court of General Sessions and in courts having original jurisdiction over civil disputes. Most of what is said will be applicable, however, to proceedings before justices of the peace, who tended to mimic procedures of the higher courts, and to proceedings in nineteenth-century federal courts, which were required to follow the essentials of state procedure. Only admiralty and chancery courts followed procedures substantially different from those about to be described.
Most of the administrative business of General Sessions is recorded in a straightforward manner that a historian with no legal training can readily understand. Whatever difficulties occur in understanding court records that deal with matters such as poor relief, road construction, local finance, licensing, and location of mills is just as likely to stem from not comprehending the technology or social reality of the past, as from not understanding its law. The technology involved in the construction and operation of mills can, in particular, be quite difficult to penetrate. Perhaps the only necessary warning to the historian who is about to use administrative records of a Sessions Court is to beware of assuming that all the orders issued by the Court were, in fact, carried out. Many court orders were simply never obeyed.
Criminal business also tends to have been recorded in a readily comprehensible manner. Many of the common crimes of the seventeenth, eighteenth, and nineteenth centuries remain common and familiar today: homicide, rape, assault, theft, drunkenness, contempt of authority, and violation of license laws. Nor should a historian have any difficulty comprehending the meaning of adultery, sodomy, fornication, drunkenness, profanity, and breach of the sabbath, even though such activities rarely result in criminal prosecution today. Only a few technical concepts need to be mastered before using criminal records. One is the distinction between murder and manslaughter: the former is an intentional homicide committed with premeditation and deliberation, whereas the latter is an intentional homicide committed on the spur of the moment.1632 A second important concept is that of robbery, which is a taking of an item of value through the use of force. A third concept is burglary, which is the breaking and entering of a dwelling house in the nighttime with intent to commit any crime, whether it be theft or rape, therein. Burglary is to be distinguished from the lesser crime of breaking and entering, which may be deemed to occur if a structure is entered in the daytime, is not a dwelling house, or is entered without any specific criminal intent.
The prospective user of criminal records requires warning that some of the language contained in pleadings will be fictitious in nature and ought not be taken literally. Consider, for example, a prosecution brought in colonial Massachusetts against one Anna Donham, accused of “being a person of ill fame, Character and conversation and having a wicked and diabolical intent to corrupt and debauch the morals of divers of his majesties subjects and to excite them to commit lewdness, Fornication and adultery with her.” She was accused more specifically of permitting an unknown man “to lay her down on her back on the floor of” a barn they had entered together and then “to lay himself upon her Body and to continue in that posture for the space of a quarter of an hour.” She was charged with similar behavior on other occasions, but she was not accused of having sexual intercourse with any man. The allegations against Anna Donham should not, however, be taken too literally. At the time of the events in question, her husband was “drawing near death.”1633 If she had had sexual intercourse with the unknown man, she would have been guilty of adultery—then and there a capital offense. Juries, however, generally refused to allow people to be executed for adultery; instead of returning a verdict of guilty of adultery, they would usually find a couple guilty only of lying together without having intercourse. In the Donham case the prosecutor simply obtained an indictment for an offense for which he might get a conviction. There is every reason, however, to believe that, despite the language of the indictment, she was guilty of adultery if she was guilty of anything.
There is also little reason to believe the other allegations about Anna Donham’s intent and about her engaging in similar activities on other occasions. Such allegations were mere surplusage that the prosecution need not prove in order to obtain a conviction: the crime of lewdness is established merely by showing that a married person lay in an embrace in a secret place with a person of the opposite sex not his or her spouse. Indeed, it is quite common for criminal indictments to contain surplus, often ritualistic language, especially in assault cases, where exaggerated allegations of physical violence are not uncommon.
The departures from social reality that have been noted are, however, insignificant ones that should not make it difficult for historians without legal training to use criminal and administrative court records. In civil litigation, on the other hand, the allegations appearing in the court records depart further from actual facts. The reason is that, until the procedural reforms of the mid-nineteenth century, civil litigants had to fit their cases within one of the common law forms of action. Each form of action was a precise pigeonhole broad enough to encompass only one type of case that a plaintiff might decide to bring. Under the common law writ system, a plaintiff had little flexibility in choosing the form of action he would bring. He had to bring the form appropriate to his claim, and he had to squeeze the facts of his case into the appropriate pigeonhole by casting those facts in the terminology proper for his chosen writ.
By the end of the seventeenth century ejectment had become the most common writ used to litigate title to land. In ejectment a plaintiff was required to allege that he had the legal right to possession of the land and that John Doe, a person who had leased the land from him, had been ousted from possession by Richard Roe, who had acted on behalf of the defendant who, in turn, was now in possession of the land. The allegations of a lease to John Doe and ouster by Richard Roe are benchmarks of the writ of ejectment. Nonetheless, the historian should not take Doe and Roe seriously, for both were fictitious persons; the real essence of the writ of ejectment was merely that the plaintiff was the rightful possessor of the land in question but that the defendant was occupying it adversely to him.1634
Another writ commonly used to litigate title to realty was the writ of entry. The basic allegation of the writ of entry was the existence of some recent, specified flaw in the defendant’s title: for example, that the defendant had purchased from some individual who had forcibly ousted the plaintiff from the land. Entry came in many varieties. In Maitland’s words:
there is one applicable to almost every conceivable case in which a tenant has come to the land by some title in which a recent flaw can be pointed out—we hear e.g. of a form of action as a writ of entry “sur disseisin in the per” a writ of entry “sur disseisin in the per and cui.” In 1267 the Statute of Marlborough . . . in effect abolished the restrictions on the formation of writs of entry—but it only did this by adding to their number. If since the unlawful entry the land had passed through several hands a writ of entry “in the post” might be used—the demandant might allege that the tenant only had entry post (after) a disseisin committed by someone without showing how the land had passed from the disseisor to the tenant.1635
Other actions for recovery of land that might occasionally be found in court records were writs of novel disseisin, mort d’ancestor, and dower and even writs of right. Another fairly frequent proceeding was the common recovery, a procedure used to bar what was known as an entail. An entail was a device by which a landowner granted land to a particular family line and attempted to prevent that family line from conveying the land outside the line. The common recovery was the device used by the person in the family line holding the land to convey the land to another. The procedure was for the purchaser of the land to bring a collusive suit, usually in ejectment, against the seller who, in fact, did not have a good title to sell. The seller would allege, however, that he did have a good title and he would call upon a fictitious person, typically John Doe or Richard Roe, to warrant his title. After the fictitious person had made the warranty, the seller would then default and the court would find that the purchaser had a full and complete title to the land. The person who held the right to the land following failure of the entail was effectively deprived of his rights by the common recovery, since he was permitted to sue only the fictitious person who had falsely warranted the defendant’s title for damages resulting from the false warranty.1636 Until entails were abolished legislatively after the American Revolution, common recoveries were not unusual in most American jurisdictions.
One final writ that was also commonly used to litigate title to real estate was the writ of trespass. But before this use of trespass can be understood, it is first necessary to understand the three main functions of this writ.
The first purpose for which a plaintiff would normally use the writ was to recover damages for a bodily injury. Such writs were adorned with formulary allegations, such as that a defendant “with Force and armes an assault on the Body of the Plantf Did Make and . . . with a Certain Club Did Strike the Plant on the Head and Beate him Down to the Ground and Drew Much Blood so that Life was Despared of.”1637 If a plaintiff won a suit founded on such a writ, a historian could be confident that the defendant had struck the plaintiff on the head with a club, but beyond that much is merely formulary allegation. The allegation of force and arms, for example, had to be made in order for a court to have jurisdiction over a writ of trespass, and hence the allegation will be found even in writs in which no armed force could conceivably have been used, such as in carriage collision cases or in cases involving the equivalent of modern medical malpractice. Another fictitious allegation made in every writ of trespass, including a portion of the above writ not quoted, was that the defendant acted “against the peace.”1638 This also was required for the old royal court jurisdiction in trespass. Some of the other allegations, such as the one that the defendant drew much blood or that the plaintiff’s life was despaired of, did not have to be pleaded in order for the court to have jurisdiction to hear the plaintiff’s suit, and thus their presence in the writ cannot be accounted for on the theory that they had to be there. But neither can the historian be confident that the allegations were true, since a plaintiff did not have to prove them in order to recover a verdict in his favor. The allegations are probably best understood as having been placed in the writ by the plaintiff’s lawyer when he was not yet fully cognizant of the facts of the case. Since the lawyer could offer in evidence only facts which had been previously pleaded, a lawyer who was drafting a pleading had to include whatever facts he might be able to prove at trial even if it subsequently happened that little of what he alleged had actually occurred.
A second form of trespass was the quare clausum fregit form—trespass for breaking and entering the plaintiff’s close or parcel of land. In such a writ, a plaintiff in addition to formulary allegations claimed that he was in possession of land and that the defendant entered and interfered with his possession, as, for example, by cutting and taking away crops growing on the land. This second form of trespass could be used in effect to litigate title if the defendant instead of denying that he took the goods pleaded that he did take them because they were growing on his land. Then a jury would determine whether the land on which the crops were growing belonged to the plaintiff or the defendant—a determination that for most purposes would resolve the question of title.1639
The third variety of trespass was the writ de bonis asportatis—for taking and carrying away the plaintiff’s goods. Again this variant of the writ will contain ritualistic allegations that the defendant acted with force and arms and against the peace of the king or later of the state, even though the only force required was that involved in physically taking possession of the plaintiff’s goods.1640 Again, the historian should be aware that a judgment in favor of the plaintiff does not necessarily establish the truth of every fact alleged in the recorded pleading. A plaintiff might, for example, have alleged the theft of 100 bushels of corn valued at $1.00 each and the jury might have returned a verdict for only $50.00, suggesting that only 50 bushels were taken or that each of the 100 bushels taken was worth only $ .50. Normally there is no way of knowing from pleadings alone what the precise facts of a case actually were, although a guess can be hazarded if a historian knows from other sources that a bushel of corn was worth, for instance, $ .50 at the time of the verdict.
Trespass was not the only writ available by which a plaintiff could recover damages from a defendant who was in wrongful possession of the plaintiff’s goods. Another form of action available for that purpose was trover, which lay when a defendant had come into possession of goods lawfully but then retained them unlawfully. Trespass de bonis asportatis, it will be recalled, lay when a defendant came into possession of goods unlawfully. Hence trover did not contain a fictitious allegation that the defendant had acted with force and arms and against the peace. Instead, the plaintiff in trover always alleged fictitiously that he had “casually lost” his goods, that the defendant had subsequently “found” them, but that the defendant had refused to return them.1641
If a plaintiff wanted to recover, not damages for the taking of his goods, but the goods themselves, he would bring either a writ of replevin or a writ of detinue. In both writs, a plaintiff had to allege and prove that he was entitled to possession of goods that were in the possession of the defendant at the time of the commencement of suit. In addition, in replevin he had to allege that the defendant had wrongfully taken the goods in question. In detinue, a plaintiff could recover the goods even if they had come into possession of the defendant lawfully and he had merely retained them unlawfully. Detinue, however, unlike replevin, would not lie to recover fungible goods like cattle or grain. It was available only to recover goods capable of being specifically identified.1642 If fungible goods were merely unlawfully retained by a defendant, a plaintiff’s only remedy was a suit for damages by way of a writ of trover.
Various forms of the writ of trespass on the case, or simply case, lay to recover damages for torts or wrongful conduct by defendants. The special quality of the action on the writ of case was that it lay when no other writ was available to a plaintiff, but he nonetheless could allege facts for which he ought to have a remedy.1643 As a result, most varieties of the writ of case that were used to recover damages for torts contain little in the way of fictional pleading. In case, plaintiffs usually alleged only facts that the law required them to prove or that they hoped to prove. Hence a jury verdict in a plaintiff’s favor in a writ of case usually indicates that the facts pleaded in the writ were true.
It is impossible to do more than mention the most common varieties of the writ of case for tort. One was case for defamation, where a plaintiff alleged injury to his reputation. Another was case for malicious prosecution. A third was case for negligence. A fourth was case for an indirect injury to a property right, such as the right to operate a mill. All of these forms of case, together with many others, usually contain straightforward allegations of fact which a historian with slight legal training should have little difficulty comprehending.
So far, attention has focused on actions for recovery of land and goods and actions for what modern lawyers label tort. In addition, a whole series of forms of action existed to recover for what modern lawyers would label breach of contract. These contract actions, which contain a great deal of technical and often fictitious pleading, accounted for the overwhelming bulk of litigation in most American jurisdictions. To use court records effectively, historians must come to grips with them.
Among the most ancient and least frequently used actions was the writ of covenant. Covenant lay when a defendant, in a written instrument to which he had attached his seal, promised to perform some act, other than giving some item of fixed value such as money, for the plaintiff and subsequently failed to perform. A plaintiff in covenant thus had to allege and prove the execution of a sealed instrument, the promise to perform some act of no fixed value such as building a house, and the breach of the promise.1644 Covenant was thus a straightforward form of action with little fictitious pleading. It applied, however, only to contracts of uncertain value executed with the formality of a seal and few such contracts were so executed at any time in American history. Writs of covenant, therefore, appear only occasionally in American court records.
Another ancient action was the writ of debt on a bond. A bond, like a covenant, was an instrument to which a defendant had attached his seal, but unlike an instrument sued upon in covenant, a bond contained a promise to pay to the plaintiff something of fixed value, usually money. Bonds, unlike covenants, were often used by businessmen to formalize contracts, and court records therefore reveal a good deal of litigation over bonds.
When a contract simply called upon a defendant to pay a sum of money, an action of debt on a bond was simple. A plaintiff merely pleaded execution of the bond under seal, the promise to pay the money due, and the nonpayment. Unless the defendant could prove that he did not execute the bond (in Latin, non est factum, or, as commonly translated into English, that it was “not his act and deed”), the court gave judgment for the plaintiff for the sum stated in the bond. If the defendant claimed that he rightfully owed less than the sum stated in the bond, the common law court which had heard the action of debt could not reduce the damages to the rightful sum. In England, a defendant had to bring a separate action in the High Court of Chancery to obtain a reduction of damages. In America, this particular equitable power was sometimes given by statute to common law courts. Nevertheless, once a defendant had lost an action of debt on a bond, he could obtain a reduction in damages only by petitioning a court with the appropriate equitable power to “chancer the bond.”
Businessmen often used bonds, not to secure payment of a sum of money, but to secure performance of a promise of uncertain value. They sought, that is, to have a bond and the action of debt on the bond perform the work of a covenant and of the action of covenant. The method they used was to make the bond conditional. They did this by executing a bond under seal for a specified sum of money and then placing a provision on the back of the bond declaring it void if a specified act was performed. For example, a building contractor might promise to pay $10,000 unless he completed a specified construction job by a specified date. Indeed, a borrower might enter into a bond to pay $10,000 unless he returned the $5,000 he had borrowed plus interest to the lender by a specified date.
Suits on conditional bonds produced court records of considerable complexity. Such records begin like all records of debt on a bond, with the plaintiff alleging the execution of the bond under seal, the promise to pay the sum due, and the nonpayment. But the defendant, instead of pleading non est factum or admitting his liability, would “pray oyer” of the condition of the bond—that is, he would ask to have the condition heard in open court. The condition on the back of the bond, which often details a business transaction of interest to economic historians, would then be read into the record, after which the defendant would plead performance of it. If he proved his plea, the case would end, but if he failed to prove it judgment would be given for the plaintiff subject to the defendant’s right to pray chancery of the bond. Normally defendants did petition the court to chancer the bond. When they did, further proceedings were held to determine the actual value of the act the defendant had failed to perform. Court records generally indicate at least the outcome of those proceedings.1645
The action of debt was available not only against a defendant who had executed a bond under seal, but against any defendant who was indebted to a plaintiff for a fixed sum. The writ was commonly used against defendants who had become indebted to plaintiffs by virtue of statutes, such as the customs laws, imposing penalties for their breach. Such statutes typically divided the penalty among several persons, such as an informer, a public official, the crown, or later the state. Any person eligible to receive a portion of a penalty could bring the action of debt. In such actions, court records will usually describe the statute that was breached as well as the nature of the breach. Writs of debt were also commonly used to revive judgments which were not otherwise enforceable in the jurisdiction in which the writ was brought. Debt was also available for other purposes, but for reasons not germane to most users of American court records, its use for those purposes had become obsolete prior to the founding of the American colonies.1646
The writ that made debt obsolete and became the principal vehicle for the litigation of matters of contract in America was assumpsit, a variety of the action of case. Some court records will refer to the action as assumpsit; other records will refer to it simply as case. Assumpsit, in turn, came in many varieties, and often a plaintiff joined several varieties together in one pleading, thereby saving to himself the possibility of proving that his transaction lay within whichever variety the evidence at trial fit best.
The variety of assumpsit that had superseded debt by the early seventeenth century was indebitatus assumpsit. Translated this meant that the defendant, having become indebted to the plaintiff, assumed the obligation to pay what was owed. The allegation of a subsequent promise to pay was a fictitious one that the plaintiff did not have to prove at trial. Thus, indebitatus assumpsit lay whenever a defendant had become indebted—that is, whenever the writ of debt lay. Because plaintiffs found indebitatus assumpsit more advantageous procedurally, they brought it instead of debt.1647
Indebitatus assumpsit itself had several varieties known as the common counts, which encapsulated the common sorts of ways in which one individual became indebted to another for a fixed sum. The common counts were (1) for money had and received to the defendant for his use, (2) for goods sold and delivered to the defendant, (3) for work done for the defendant, (4) for money lent to the defendant, and (5) for money paid by the plaintiff to a third party to the use of the defendant. At least by the nineteenth century, most American jurisdictions permitted plaintiffs to join these common counts, which overlapped, together alternatively in a single action. Thus a historian who finds in court records an action of assumpsit for $5 for money had and received, $5 for money lent, and $5 for money paid to the use of the defendant should recognize that only one $5 transaction between the parties had occurred and that the plaintiff’s lawyer, unsure of the category into which the facts would fit, was pleading the three common counts in the alternative so that he could prove whichever count turned out to be easiest to prove at trial.1648
Another variety of assumpsit was special assumpsit, which lay whenever a defendant had made an express promise to make a payment or perform an act. The most common form of special assumpsit was assumpsit to recover on a promissory note, where the plaintiff had to plead and prove that the defendant had executed the note, that the note had been given in return for some valuable “consideration,” that the plaintiff had demanded payment, and that the defendant had refused to pay.1649 Special assumpsit also lay to enforce labor contracts. Two other frequent forms of special assumpsit were assumpsit on an account annexed to the writ, which lay when litigants had been keeping an account on sheets of paper which a plaintiff could attach to his writ, and assumpsit on a book account, which lay when the account was being kept in a book which could not be attached to the writ, but could be introduced in evidence at trial. These last two forms of special assumpsit were distinct from indebitatus assumpsit for goods sold and delivered and from older, medieval actions of account that occasionally appear in American court records.1650
Two other forms of assumpsit known by the names quantum meruit and quantum valebant appear frequently in American records. They were brought when a defendant was indebted for an amount of money that was not fixed or precisely ascertainable. Quantum meruit lay when a plaintiff had performed services for a defendant and was seeking to recover as damages as much as he merited or deserved to have. Quantum valebant lay when a plaintiff had delivered goods and sought to recover as much as they were worth.1651
The forms of action outlined above were by far the most common ones used in American courts prior to the procedural reforms of the mid-nineteenth century, after which plaintiffs were generally required merely to plead the facts they expected to prove at trial. A few words must still be said, however, about pleas available to defendants. Defensive pleas were essentially of three sorts. First were dilatory pleas which led merely to a dismissal of a plaintiff’s action, but normally did not bar him from reinstituting the action. Examples of dilatory pleas are pleas to the jurisdiction—that the plaintiff has brought his suit in the wrong court—and pleas in abatement, which allege some technical defect in the writ, such as that the plaintiff has misspelled the defendant’s name. A second possibility open to a defendant was a demurrer. In order to interpose a demurrer, a defendant had to admit the truth of all the allegations contained in the plaintiff’s writ. By his demurrer he contended, however, that even if all the plaintiff’s allegations were true, the law did not give him the remedy he sought. A defendant’s third option was a plea in bar. A plea in bar could take the form of a general denial, such as a plea to a writ of assumpsit that the defendant never promised, which had the effect of denying all the facts alleged by the plaintiff and submitting the case to the jury. Or a defendant could plead specially—that is, assert some new fact which he contended should bar the plaintiff’s recovery. If a defendant pleaded specially, the plaintiff could reply to his plea, the defendant could rebut the replication, and so forth.1652
A historian who is familiar with the common writs used by plaintiffs and with the basic options open to defendants should have little difficulty reading court records in a knowledgeable fashion. If more detailed information is needed, the following sources are suggested:
Fifoot, C. H. S. History and Sources of the Common Law: Tort and Contract (London, 1949).
Still the best available collection of source materials on the history of tort and contract and on the development of the writs of trespass, case, and assumpsit. Some thoughtful commentary is appended to the sources.
Horwitz, Morton J. The Transformation of American Law, 1780–1860 (Cambridge, Mass., 1977).
Essentially a study of change in substantive American law, this book relates substantive change to change in the forms of action, especially in the fields of tort and contract.
Konig, David T. “Editor’s Introduction,” in Plymouth Court Records, 1686–1859 (Wilmington, Del., 1978), i, 141–183.
A useful summary written by a historian for other historians. It concerns the various common law forms found in the Plymouth, Mass., court records.
Maitland, Frederic W. The Forms of Action at Common Law (Cambridge, 1936).
This is the classic work on the forms of action, describing in less than a hundred pages how they developed and were used over time. A glossary of common writs is appended to Maitland’s text.
Milsom, S. F. C. Historical Foundations of the Common Law (2d edition, London, 1981).
Revises much of Maitland’s earlier work on the forms of action, especially in regard to the fields of tort and contract. Milsom’s is a large and deep book.
Nelson, William E. Americanization of the Common Law, 1760–1830 (Cambridge, Mass., 1975).
Like Horwitz’s, a study of substantive legal change over the period in question. Chapter 5 is the most detailed study yet published of how common law pleading worked in an American jurisdiction, and how it came to be abolished.
Shipman, Benjamin I. Handbook of Common-Law Pleading (St. Paul, Minn., 3d ed. by Henry W. Ballantine, 1923).
A detailed one-volume treatise on the rules of common law procedure as they stood at the end of the nineteenth century. The book was aimed primarily at an audience of law students seeking to learn the rules, and often fails to address historical questions.
Simpson, A. W. B. An Introduction to the History of the Land Law (Oxford, 1961).
The best up-to-date summary of the English law of real property and of the property writs. Third impression was in 1973.
Bibliographies of New England Court Records
William Jeffrey, Jr., Early New England Court Records: A Bibliography of Published Materials (Cambridge, Mass., 1954).
A reasonably up-to-date list of published New England materials, with a brief statement of the contents of each. Two items not in print when the bibliography was prepared are David T. Konig, ed., Plymouth Court Records, 1686–1850, 16 vols. (Wilmington, Del., 1978–1982), and Joseph H. Smith, Colonial Justice in Western Massachusetts, 1639–1702: The Pynchon Court Record (Cambridge, Mass., 1961). Cf. William Jeffrey, Jr., “Early American Court Records—A Bibliography of Printed Materials: The Middle Colonies,” University of Cincinnati Law Review, xxxix (1970), 685–710.
David H. Flaherty, “A Select Guide to the Manuscript Court Records of Colonial New England,” American Journal of Legal History, xi (1967), 107.
An annotated list. Flaherty has also done a comparable list for Virginia. See David H. Flaherty, “A Select Guide to the Manuscript Court Records of Colonial Virginia,” American Journal of Legal History, xix (1975), 112.
Catherine S. Menand, The Records of the Suffolk County Inferior Court (Boston, 1981).
A guide to the Papers of the Suffolk County Inferior Court of Common Pleas in the custody of the Social Law Library, Boston, Massachusetts. Available at the Social Law Library, Boston, Massachusetts.
Michael S. Hindus, Inventory and Guide to the Records of the Massachusetts Superior Court and Its Predecessors (Boston, 1977).
An inventory of the location and contents of all major Massachusetts trial court records. Available at the Social Law Library, Boston, Massachusetts.
Kathryn M. Carey, Catherine S. Menand, Supreme Judicial Court Records Preservation Laboratory (Boston, 1981).
An archival and conservation analysis of the pre-1800 records of the Massachusetts courts. Available at the Social Law Library, Boston, Massachusetts.
1 Edmund S. Morgan, The Birth of the Republic, 1763–1780, Revised Edition (Chicago, 1977), 4.
2 Roscoe Pound, The Spirit of the Common Law (Boston, 1921), 113. See also Pound, The Formative Era of American Law (Boston, 1938), 3–8.
3 “The Body of Liberties of 1641” from The Colonial Laws of Massachusetts, W. H. Whitmore, ed. (Boston, 1889).
4 See Charles Warren, A History of the American Bar (Boston, 1911), 73.
5 See Dennis R. Nolan, Readings in the History of the American Legal Profession (New York, 1980), 2.
6 Barbara A. Black, “Community and Law in Seventeenth-Century Massachusetts,” Yale Law Journal, xc (1980), 246, reviewing David T. Konig, Law and Society in Puritan Massachusetts (Chapel Hill, 1979). This is not to say law was always the only, or dominant, form of social control, but that it was always a substantial form of social control. Daniel Boorstin put it particularly well. “The Colonists, though not lawyers, were of a decidedly legalistic turn of mind. . . .” Daniel J. Boorstin, The Americans: The Colonial Experience (New York, 1958), 20.
7 See George Haskins’ seminal book, Law and Authority in Early Massachusetts (New York, 1960), 1–8. “Few others equaled [Massachusetts Bay’s] contribution to theology, letters, and education; none paralleled its early achievements in government and law.” Ibid., 1.
8 Lawrence M. Friedman, A History of American Law (New York, 1973).
9 S. E. Morison, “Preface,” The Colonial Society of Massachusetts, Publications, xxix (Boston, 1933), ix.
10 See Stanley N. Katz’s bold and stimulating “The Problem of a Colonial Legal History” in Colonial British America, Jack P. Greene, J. R. Pole, eds. (Baltimore, 1984), 457–484; and David H. Flaherty’s excellent “Introduction” to his Essays in the History of Early American Law (Chapel Hill, 1969), 8–17.
11 As Flaherty puts it, “The field is not barren . . . yet it has not yielded a bountiful harvest.” Ibid., 14.
12 Stephen Botein, Early American Law and Society (New York, 1983), 1. See also S. E. Morison, Colonial Society of Massachusetts, Publications, xxix, ix.
13 See Stanley N. Katz, “The Problem of a Colonial Legal History,” 478. Katz believes contemporary ideological disputes could also be “diversions from the main task of understanding the past.” Ibid. Cf. Charles M. Andrews, The Colonial Period of American History (New Haven, 1938), iv, 222–223, n.1.
14 Stephen Botein, Early American Law and Society, 1.
15 See George L. Haskins, Law and Authority, x–xiii; James W. Hurst, Law and the Conditions of Freedom (Madison, 1967), 4–9; David T. Konig, Law and Society, xiii.
16 Cf. Perry Miller, “Errand into the Wilderness” from Errand Into the Wilderness, P. Miller ed. (New York, 1956); The New England Mind (Boston, 1953), ii, 130–131; and The Life of the Mind in America (New York, 1956), 99–116. Cf. Lawrence M. Friedman, “Heart Against Head: Perry Miller and the Legal Mind,” Yale Law Journal, lxxvii (1968), 1244–1259, reemphasizing the need to study legal ideology in a social context.
17 This, of course, does not denigrate the need for “conventional” legal expertise. “The fact that many ‘legal scholars’ do not explore extensively the social background and context of legal conflict leads some to think that their works say nothing about ‘law and society.’ The tendency is to put these books in their place: excellent reference books on rules, not roles. But even the narrowest of these works may contribute substantially to one’s understanding of the role as well as the rule.” Barbara A. Black, “Community and Law in Seventeenth-Century Massachusetts,” Yale Law Journal, xc (1980), 245–246.
18 The Massachusetts Judicial Records Committee has been aided by the National Historical Publications and Records Commission. See Robert J. Brink, “Boston’s Great Anthropological Documents”; Hiller B. Zobel, “The Pompeii of Paper”; and Robert S. Bloom, “Judicial Records—The Foundation of a Statewide Records Preservation Program”; all in Boston Bar Journal, xxii (Sept. 1978), 6–33. The Plymouth Court Records Project, funded by a number of grants, was carried out in association with the Pilgrim Society. See William E. Nelson’s “Introductory Essay,” Plymouth Court Records 1686–1859 (ed. David T. Konig), i, 3–138.
19 David H. Flaherty, Essays, 29. As Flaherty observes, “[T]he fact remains that few court records have ever been employed in analytical and general studies. Quantifying methods can now be used to great advantage. . . .” Ibid., 32. See also David H. Flaherty, “A Select Guide to the Manuscript Court Records of Colonial New England,” American Journal of Legal History, xi (1967), 107.
20 Perry Miller, The Legal Mind in America (New York, 1962), 17.
21 See Anton-Hermann Chroust, The Rise of the Legal Profession in America (Norman, Oklahoma, 1965), 2 vols.; Charles Warren, A History of the American Bar (Boston, 1911). Paul Hamlin’s Legal Education in Colonial New York (New York, 1939) did use extensive original sources. See also David H. Flaherty, Essays, 16; Morton J. Horwitz, “The Conservative Tradition in the Writing of American Legal History,” American Journal of Legal History, xvii (1973), 275.
22 See Gerard W. Gawalt, The Promise of Power: The Emergence of the Legal Profession in Massachusetts 1760–1840 (Westport, Conn., 1979); John P. Reid, In a Defiant Stance (London, 1977); Maxwell Bloomfield, American Lawyers in a Changing Society, 1776–1876 (Cambridge, Mass., 1976); Stephen Botein, “Professional History Reconsidered,” American Journal of Legal History, xxi (1977), 60–79; Dennis R. Nolan, Readings in the History of the American Legal Profession (New York, 1980); and Daniel H. Calhoun, Professional Lives in America: Structure and Aspiration 1750–1850 (Cambridge, Mass., 1965). On the great influence of Hurst, see Robert W. Gordon, “J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society Review, x (1976), 9–56.
23 George L. Haskins, “Lay Judges: Magistrates and Justices in Early Massachusetts,” below, 39–40.
24 See David T. Konig, Law and Society, xiii.
25 The “practicing” limitation excludes colonists with legal backgrounds who acted as magistrates and legislators, but who probably never took clients in the Bay Colony, including John Winthrop, formerly of Gray’s Inn and Inner Temple, Richard Bellingham, Recorder of Boston, England, and Reverend Nathaniel Ward, formerly of Lincoln’s Inn. In an odd way, it is also hard to overlook that lecherous, alcoholic bon vivant, “proud and indolent” Thomas Morton with his “Maypole at Merry-Mount (Wollaston).” He certainly had a legal background, and claimed to be “a gentleman of Cliffords Inn.” He was also described as “a kind of pettiefogger of Furnefells Inn” by a rather prejudiced Governor Bradford. See Anton-Hermann Chroust, The Rise of the Legal Profession, 72; Samuel Eliot Morison, Builders of the Bay Colony (Boston, 1930), 16–17. Morton’s “practice” seemed to involve selling guns and liquor to the Indians for furs. As Morison observed, some of us have “met more spiritual descendants of Thomas Morton than of John Winthrop.” Ibid., 19.
26 Winthrop was an English justice of the peace at eighteen and held court leet for his father at little more than twenty. Ibid., 53; Edmund S. Morgan, The Puritan Dilemma: The Story of John Winthrop (Boston, 1958), 15–16. He also was admitted in the Court of Wards and Liveries, as was John Humfry. See G. W. Robinson, John Winthrop as Attorney (Cambridge, Mass., 1930). There is some question whether Winthrop was a member of Gray’s Inn, Inner Temple, or both. Morgan says he was admitted to Gray’s Inn in 1613 and took up bachelor residence in Inner Temple. Edmund S. Morgan, The Puritan Dilemma, 15, 23. The Dictionary of American National Biography (New York, 1960), x, 408 says that Winthrop was “admitted” at Gray’s Inn 25 October 1613 and at Inner Temple in 1628. That explanation is probably correct. Some lawyers were members of one inn, but “migrated” to another. The name of Winthrop’s uncle, Emmanuel Downing, appears next to Winthrop’s entry in the Inner Temple register in 1628/29. Downing was also an attorney of the Wards, and Winthrop was probably joining his uncle’s chambers. Winthrop’s eldest son, John, joined Inner Temple in 1624/25. I owe this information to the kind help of J. H. Baker. Cf. E. Alfred Jones, American Members of the Inns of Court (London, 1924), 219–220, Wilfrid R. Prest, The Inns of Court Under Elizabeth I and the Early Stuarts, 1500–1640 (London, 1972), 208.
27 Ward practiced and studied law in London for nearly ten years before entering the ministry. Ibid., 221. See Charles Warren, A History of the American Bar, 59; Massachusetts Historical Society, Proceedings (Boston, 1878), 3.
28 See George L. Haskins, “Lay Judges: Magistrates and Justices in Early Massachusetts,” below, 53. See J. P. Dawson, A History of Lay Judges (Cambridge, Mass., 1960), 3–4.
29 See George L. Haskins, “Codification of the Law in Colonial Massachusetts: A Study in Comparative Law,” Indiana Law Journal, xxx (1954), 1; George L. Haskins, Samuel E. Ewing, 3d “The Spread of Massachusetts Law in the Seventeenth Century,” Pennsylvania Law Review, cvi (1958), 413; George L. Haskins, “Influence of New England Law on the Middle Colonies,” Law and History Review, i (1983), 238; Thorp L. Wolford, “The Laws and Liberties of 1648,” Boston University Law Review, xxviii (1948), 426. As to law reform in England, see Donald Veall, The Popular Movement for Law Reform 1640–1660 (Oxford, 1970), 97–240; G. B. Nourse, “Law Reform Under the Commonwealth and Protectorate,” Law Quarterly Review, lxxv (1959), 512–529; Stuart E. Prall, The Agitation for Law Reform During the Puritan Revolution 1640–1660 (Hague, 1960). The law reform movement in England had an interest in the codification of customary law and in establishing a relatively pluralistic and local basis of justice, but its development and character were quite different from anything in the Bay Colony. It was politically more democratic and more radical in its objectives. See Donald W. Hanson, From Kingdom to Commonwealth: The Development of Civic Consciousness in English Political Thought (Cambridge, Mass., 1970), 300–301, 332–339; Gerard Winstanley, The Law of Freedom in a Platform (London, 1652—reprinted 1941 with Introduction by Robert W. Kenny).
30 John D. Eusden, Puritans, Lawyers and Politics in Early Seventeenth-Century England (New Haven, Conn., 1968), 177.
31 Ibid., 174. In Massachusetts, this conviction included notions of recording judgments for use as precedents. As early as 1639, the General Court enacted that
Whereas many judgments have bene given in our courts, whereof no records are kept of the evidence and reasons whereupon the verdit and judgment did passe, the records whereof being duely entered and kept would bee of good use for president [precedent] to posterity, and a releife to such as shall have just cause to have their causes reheard and reviewed, it is therefore by this Court ordered and decreed that thenceforward every judgment, with all the evidence, bee recorded in a booke, to bee kept to posterity. Records of the Governor and Company of Massachusetts Bay in New England (Boston, 1853), i, 275 (1639). See Edwin Powers, Crime and Punishment, 437. Nevertheless, while what might be called the first statutory compilation to be printed in Massachusetts, Lawes and Libertyes, appeared in 1648, there were no printed reports of Massachusetts cases until 1804. See Laurence M. Friedman, A History of American Law, 282–283. The General Court sent to England for two copies of Cokes Reports in 1647. See below, xxxi, note 7.
32 George L. Haskins, Law and Authority, 125–136.
33 “In their respective religious and civil spheres, the Cambridge Platform and The Law and Liberties represented the culmination of an extraordinarily creative period during which the colonists applied conscious design to received tradition. . . .” Ibid., 136. Nevertheless, “little has been done to interpret the Hebraic laws of early New England within a wider context of religious theory and practice.” Stephen Botein, Early American Law and Society, 2. This includes possible talmudic influences.
34 Daniel J. Boorstin describes Chafee’s Introduction as “brilliant.” The American: The Colonial Experience, 381. See also Edwin Powers, Crime and Punishment in Early Massachusetts: 1620–1602 (Boston, 1966), a documentary history limited to the punishment of crime.
35 See Morris Cohen, “Legal Literature in Colonial Massachusetts,” below, 245.
36 In 1649 it became “unlawful for any person to ask a counsellor advice of any magistrate in any case wherein he shall be a plaintiffe,” despite the observation by the magistrates that “we must then provide lawyers to direct men in their causes.” Records of the Governor and Company of Massachusetts Bay (Boston, 1853), iii, 168. See also Edwin Powers, Crime and Punishment, 434. In the 1660 version of the Massachusetts statutes, this provision was essentially reenforced by adding the words “shall or may be plaintiff.” Massachusetts Colonial Laws (Boston, 1887), 141. To whom would a plaintiff now turn for legal advice? The presence of a practicing bar was acknowledged by a 1663 statute that “No person who is an usuall and common attorney in any inferior court, shall be admitted to sitt as a Deputy in this [General] Court.” Records, iv, 87. In 1673, it was enacted “that it shall be lawful for any person by his lawfull attorney . . . to sue in any of our Courts for any right or interest. . . .” Records, iv, 563. The barratry statute of 1656 also took a backhanded notice of legal practice by prohibiting attorneys from fomenting reckless or vexatious litigations. Ibid., 825 Massachusetts Colonial Laws, 9.
Perhaps the most interesting statute was the order in 1650 that “whereas this Commonwealth is much defective for want of laws for maritime affairs . . . the said laws printed and published in a book called Lex Mercatoria shall be perused and duly considered and such of them as are approved by this court shall be declared and published to be in force in this jurisdiction.” Records, iii, 193. This reference to Gerald Malynes’ great commercial law text, Consuetudo, vel, Lex Mercatoria, follows closely on the General Court’s order to England in 1647 for the importation of two copies each of Coke’s Reports, Coke’s First Institutes (“Coke upon Littleton”), [Rastell’s] “Newe Tearmes of the Lawe,” Coke’s Second Institutes (“Coke upon Magna Carta”), Dalton’s Justice of the Peace, and [Coke’s] “Book of Entryes” “to the end we may have the better light for making and proceeding about laws. . . .” Records, iii, 212. These enactments hardly evidence a lack of interest in law or legal development.
37 See Anton-Hermann Chroust, The Rise of the Legal Profession, i, 77–79; Charles Warren, A History of the American Bar, 69–74; Edwin Powers, Crime and Punishment, 528; F. W. Grinnell, “The Bench and Bar in Colony and Province (1630–1776) in Commonwealth History of Massachusetts (New York, 1928), ii, 161–164; Henry E. Clay, “The Development of the Legal Profession in the Bay Colony at the Commonwealth—the First 200 Years,” Massachusetts Law Review (Summer, 1981), 115, 116; Nathan Mathews, “The Results of Prejudice Against Lawyers in Massachusetts in the 17th Century,” Address Before the Bar Association of the City of Boston, 9 December 1926, Boston Bar Journal (1926), 73–94.
38 See F. W. Grinell, “Bench and Bar,” 161–164; Nathan Mathews, Results of Prejudice, 80–87 (revocation of charter), 88–89 (witchcraft). “Thus ended the Puritan Commonwealth—a result virtually, and I think literally, due to the absence of an educated Bar.” Ibid., 87.
39 See above, xxx, note 5 and accompanying text.
40 Barbara Black, below, 71, note 5.
41 As to the retention of Paul Dudley, William Shirley, and Robert Auchmuty in Byfield’s later legal affairs, see ibid., 87, 101, 103. There is every reason to suppose similar use of counsel in earlier cases.
42 See David T. Konig, Law and Society, xi–xiii, 89–116; Zechariah Chafee, Jr., Colonial Society of Massachusetts, Publications, xxix, xxxvi–xxxvii.
43 Ibid., xxxvi.
44 See Marcus W. Jernegan, “The Province Charter (1689–1715)” in Commonwealth History of Massachusetts (New York, 1928), 11, 1–28.
45 See Anton-Hermann Chroust, The Rise of the Legal Profession, i, 77–79.
46 See Charles R. McKirdy, “Massachusetts Lawyers on the Eve of the Revolution: The State of the Profession,” below, 329–330, 334.
47 Charles Warren, A History of the American Bar, 73.
48 Ibid., 72. See Anton-Hermann Chroust, The Rise of the Legal Profession, 77–83.
49 See Charles Warren, A History of the American Bar, 72–73.
50 See Zechariah Chafee, Colonial Society of Massachusetts, Publications, xxiv–xxvi.
51 Anton-Hermann Chroust, The Rise of the Legal Profession, 79.
52 See Records and Files of the Quarterly Courts of Essex County (1636–1683) (Salem, 1911–1921), iv, 198 (1669), vii, 416 (1680). See also Edwin Powers, Crime and Punishment, 438. Cf. Anton-Hermann Chroust, The Rise of the Legal Profession, 80–81. One individual, Hudson Leverett, did have a pretty bad record, but Chroust is much too facile in assuming that lack of a “liberal education” and formal legal education necessarily created technically incompetent and dishonest attorneys. Ibid., 76–77, 80. While we who teach in formal law schools might wish to believe this is true, elitist prejudice is another possibility.
53 Zechariah Chafee, Jr., Colonial Society of Massachusetts, Publications, xxv.
54 Ibid., xxv. Chafee states that “by the year 1671, when these records begin, paid attorneys were a recognized, but hardly reputable, class.” Ibid., xxvi.
55 Ibid., xxvi.
56 Ibid., xxvi.
57 Cf. Anton-Hermann Chroust, The Rise of the Legal Profession, 73–75; Charles Warren, A History of the American Bar, 68–69.
58 See Stanley N. Katz, “Looking Backward: The Early History of American Law,” University of Chicago Law Review, xxxiii (1966), 867, 870–873; Stephen Botein, “The Legal Profession in Colonial North America,” Lawyers in Early Modern Europe and America, Wilfrid Prest, ed. (New York, 1981), 129–130.
59 Zechariah Chafee, Colonial Society of Massachusetts, Publications, xxix, xxviii.
60 Ibid., xxviii–xxxv.
61 For example, the actual state of the seventeenth-century legal system must be central to John M. Murrin’s famous thesis that the eighteenth century saw the “Anglicization” of that system. See page xxxix, below.
62 See David D. Hall, “Understanding the Puritans” in Colonial America: Essays in Politics and Social Development, Stanley N. Katz, ed. (Boston, 1971), 31. “It was Calvin, to be sure, who taught the Puritans their legalism, but the political situation in which they found themselves encouraged the development of this legalism beyond the point where he had stopped.” Ibid., 43. See generally Perry Miller, The New England Mind: From Colony to Province (Cambridge, Mass., 1953) 19–67.
63 See Robert J. Brink, “‘Immortality Brought to Light’: An Overview of Massachusetts Colonial Court Records,” below, 471; William E. Nelson, “Court Records as Sources for Historical Writing,” below, 499; Michael S. Hindus, “A Guide to the Court Records of Early Massachusetts,” below, 519 and Catherine S. Menand, “A ‘magistracy fit and necessary’: A Guide to the Massachusetts Court System,” below, 541.
64 See Barbara Black, “Nathaniel Byfield, 1653–1733,” below, 104.
65 See Douglas L. Jones, below, 153–154, and sources cited. There was also severe inflation. Ibid., 154. See “An Overview of Massachusetts History to 1820” in the companion volume to this book, Medicine in Colonial Massachusetts, The Colonial Society of Massachusetts, Publications, lvii (1980), 3–19; James A. Henretta, “Economic Development and Social Structure in Colonial Boston” in Colonial America, Stanley N. Katz ed. (1971), 450–465; Marcus W. Jernegan, “The Province Charter (1689–1715)” in Commonwealth History of Massachusetts, ii, 1–28; and Bernard Bailyn, The New England Merchants in the Seventeenth Century (Cambridge, Mass., 1955), 143–197. The colony was “buffeted by demographic and social changes.” See Adam J. Hirsch, “From Pillory to Penitentiary,” Michigan Law Review, lxxx (1982), 1128.
66 The Colonial Society of Massachusetts, Publications, lvii, 5–11.
67 Even the bizarre, traumatic Salem witchcraft trials of 1692–1693 have been blamed in part on the dislocation surrounding the revocation of the First Charter. See David T. Konig, Law and Society, 169–185. The Second Charter arrived in Boston on 14 May 1692. On 2 June 1692 Governor Phips and his council commissioned the infamous special court of “oyer and terminer,” without waiting for the newly authorized legislature to convene, which alone had the necessary powers under the Charter to create courts. Ibid., 170. By 22 September 1692 the last of the terrible executions had occurred. Ironically, witchcraft accusations in Andover were halted by a defamation suit. Ibid., 184.
The causes of the “witchcraft outbreak” remain the focus of a torrent of scholarly work beyond the scope of this conference, but a high rate of social change doubtless contributed to the kind of anxiety that, in the same year, sent sixty armed men from Gloucester into the woods to “intercept a spectral force of French and Indians.” Ibid., 167. It is ridiculous to blame the prosecutions on the lack of “trained lawyers of courage and force to challenge the legality of the special court,” cf. Anton-Hermann Chroust, i, 77, and equally unavailing to blame the trials on the colonial legal system. The witch proceedings were terminated by Governor Phips in May 1693 never to occur again. The King’s Privy Council refused to approve the General Court’s effort in the 1692–1693 session to place witchcraft back on the list of capital crimes. The recantation of Judge Samuel Sewall, read for him by the Reverend Samuel Willard during a service at the Old South Church on 14 January 1697, a day of fasting and prayer designated in memory of “the late tragedie,” marked the end of an era. Judge Sewall stood silently in the church as the recantation was read. It is sobering to recall that the “Second Charter” period, with its legal and professional growth, began with such a symbol. See Edwin Powers, Crime and Punishment, 455–5095 John Demos, “Underlying Themes in the Witchcraft of Seventeenth-Century New England,” Colonial America, Stanley N. Katz ed. (1971), 113–133; Demos, Entertaining Satan: Witchcraft and the Culture of Early New England (New York, 1982); Paul Boyer, Steven Nissenbaum, Salem Possessed: The Social Origins of Witchcraft (Cambridge, Mass., 1974). As to the considerable extent of colonial witchcraft persecutions at other times and places, see E. W. Taylor “The Witchcraft Episode (1692–1694),” Commonwealth History, ii, 29–62.
68 John M. Murrin, “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts” in Colonial America, Stanley N. Katz ed., 415 (Katz’s summary).
69 Ibid., 416.
70 Ibid., 421–425.
71 Ibid., 448.
72 See ibid., 4485 Daniel J. Boorstin, The Americans, 195–205.
73 See the sources cited in note 2, xxv, above, and the articles of David H. Flaherty and Charles R. McKirdy, below. In the “companion” volume to this book, Medicine in Colonial Massachusetts 1620–1820, The Colonial Society of Massachusetts, Publications, lvii (Boston, 1980), the editors set out criteria for establishing true “professionalism” among doctors, such as “how doctors in eighteenth-century New England identified themselves,” how they “differentiated themselves from other healers,” their development of professional education, what doctor-patient relations were “expected,” and “what colonial doctors exploited from their own past.” Ibid., 32. It is obvious that comparative study of these two professional developments, legal and medical, would be most fruitful, and it is hoped that the publication of these two “companion” volumes will encourage such study.
74 There were approximately 1,500 blacks, slave and free, in Boston in 1750. See Sherwin L. Cook, “Boston: The Eighteenth Century Town,” Commonwealth History, ii, 229. There was also racism. In 1723 the Boston Town Meeting voted to recommend to the General Court an act for the restraint of “Indians, Negroes and Mulattoes” that prohibited, among other things, their possession of firearms, visits from slaves, street gatherings, and loitering. They would be required to bind out their children at four years of age to a white master. Ibid., 227–228. Slaves were sold in Boston in 1746. Ibid., 228. There is an obvious contrast here to the Puritan statute of 1647 limiting bond slavery. See Anton-Hermann Chroust, The Rise of the Legal Profession, i, 52.
75 Douglas L. Jones, below, 190. James A. Henretta has observed that, in 1687, “the distribution of political power and influence in Boston conformed to . . . a wider, more inclusive hierarchy of status, one which purported to include the entire social order within the bonds of its authority. But the lines of force which had emerged on the eve of the American Revolution . . . now failed to encompass a significant portion of the population. . . . Society had become more stratified and unequal. Influential groups, increasingly different from the small property owners who constituted the center portion of the community, had arisen at either end of the spectrum.” Colonial America, Stanley N. Katz ed., 462–463.
76 David H. Flaherty, below, 193.
77 Ibid., 240.
78 Ibid., 241.
79 Neal W. Allen, Jr., below, 275.
80 Ibid., 287.
81 Ibid., 309.
82 Ibid., 312.
83 Morris L. Cohen, below, 253.
84 Ibid., 253–254.
85 Ibid., 256–261.
86 Ibid., 256.
87 This argument certainly was not missed by John Adams. See Daniel R. Coquillette, below, 412–416.
88 See Diary and Autobiography of John Adams ed. L. H. Butterfield (Cambridge, Mass., 1961), i, 210–211, in, 275–276. For an old man’s recollection of the famous day of his youth, see John Adams’ letter to William Tudor, 29 March 1817, in John Adams, Works, Charles Francis Adams ed. (Boston, 1817), x, 244–245.
89 See Charles R. McKirdy, below, 337–358. (Appendices III and IV.)
90 See David Flaherty’s review of William Nelson’s Americanization of the Common Law in the University of Toronto Law Journal (1976), 116. James Henretta has argued that the Revolution was “in reality the completion of a long process of social evolution, simply speeded up and given a positive articulation by the war. . . . Except for the disruptions caused by the war itself and the Loyalist emigration . . . most of the changes . . . represented the culmination of previous trends.” James A. Henretta, The Evolution of American Society, 1700–1815, An Interdisciplinary Analysis (Lexington, 1973), 169. See also Flaherty, “Review,” 116–117; Stanley Katz, “Looking Backward: The Early History of American Law,” Chicago Law Review, xxxiii (1966), 884.
91 John P. Reid, “A Lawyer Acquitted: John Adams and the Boston Massacre Trials,” American Journal of Legal History, xviii (1974), 189, 191.
92 Ibid., 191. See also Erwin C. Surrency, “The Lawyer and the Revolution,” American Journal of Legal History, viii (1964), 125.
93 George Dargo, Law in the New Republic (New York, 1983), 7.
94 “[The changes] affected some legal institutions and not others, and some areas of American Law more than others.” Ibid., 7. Dargo has argued that the Revolution had a “deep, abiding, and immediate impact on American public law,” ibid., 8 (emphasis supplied), but that in terms of private law the changes were much more gradual—although eventually very important. “What is striking, in fact, is the strong continuity of private law in the revolutionary era.” Ibid., 8. This view is quite compatible with that of Morton J. Horwitz, set out below, lii.
95 See Daniel R. Coquillette, below, 376–382, 395–400; Charles R. McKirdy, below, 339–358, [Appendix IV].
96 Ibid., 318–323. See also Daniel R. Coquillette, below, 395–400.
97 See John D. Cushing, “The Judiciary and Public Opinion in Revolutionary Massachusetts,” in Law and Authority in Colonial America, George A. Billias ed. (Barre, Mass., 1965), 173–182, 185, n.19.
98 Ibid., 182. These efforts included careful charges to the grand juries which explained “the social compact and its violation by Great Britain.” Ibid., 174.
99 See George Dargo, Law in the New Republic, 48–59, for an excellent description of the “sudden increase of lawyers” and the new “private” law schools.
100 See John M. Murrin, “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts,” 446–448.
101 John P. Reid, “A Lawyer Acquitted,” 191.
102 “Both sides were dedicated to following the forms of law but both were prepared to manipulate those forms for their own advantage. It was the forms of law and the idea of legality that mattered, for they kept the situation from escalation into violence; manipulation was a matter of strategy not of abuse.” Ibid., 194.
103 See Reid’s analysis of John Adams’ personal view of the Tea Party. “Adams was a lawyer, a conservative lawyer, and it is significant that . . . he found, as did so many other whigs, that constitutional legality was at times determined by political necessity.” John P. Reid, In a Defiant Stance, 99. The political pressure on the entire Massachusetts legal system by the years 1769–1771 was so great that Hiller B. Zobel has concluded “[I]n cases involving political subjects, the Massachusetts judicial system . . . was under such powerful pressure from both sides that a fair trial was, without extra legal assistance, unlikely, if not impossible.” Hiller B. Zobel, “Law Under Pressure: Boston 1769–1771” in Law and Authority in Colonial America, George A. Bellias ed. (1965), 204. See also Michael S. Hindus, Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767–1878 (Chapel Hill, 1980), 33–36.
104 Ibid., 65, 67.
105 “What had appeared to be utopian plans for a large prosperous, well-trained legal profession before the war became a reality in the postwar period.” Gerard W. Gawalt, The Promise of Power, 36.
106 George Dargo, Law in the New Republic, 48.
107 Ibid., 59. The extremely high growth rates in the legal profession recall the very rapid expansion of the Inns of Court in the period 1500–1600, when the annual rate of admission quadrupled. The growth rate continued to be high until the Civil War. See Wilfrid R. Prest, The Inns of Court, 1–70. Morton Horwitz, in a different context, suggests that we should be alert to recapitulation of English experience, but no major comparative studies of the rate of growth of the legal profession and the causes and consequences have ever been undertaken. Cf. Morton Horwitz, Transformation of American Law, 1780–1860 (Cambridge, Mass., 1977), 17.
108 See Daniel J. Boorstin, The Americans: The Colonial Experience, 195–205.
109 Charles R. McKirdy, 328.
110 In particular, McKirdy draws on W. E. Moore’s The Professions: Roles and Rules (New York, 1970) and B. Bledstein’s The Culture of Professionalism (New York, 1978) to isolate and describe five characteristics that measure “professionalism:” 1) full-time earning occupation, 2) need for useful, theoretical knowledge and requirement of formal education, 3) group “identity” by members, 4) “service” orientation, and 5) autonomy from outside control. These factors compare closely with those set out by the editors of our companion volume, Medicine In Colonial Massachusetts, 1620–1820, The Colonial Society of Massachusetts, Publications, lvii, 32.
111 John Adams was an elitist, but one who looked to academic performance and formal professional requirements to block the nepotistic careers of the sons of the leading tory families, as well as to eliminate “pettifoggers.” See Daniel R. Coquillette, below, 395–400. Among McKirdy’s most interesting Appendices is his “Appendix II—Professional Choices of Harvard Graduates: 1642–1760.” Before 1684, and the “Intercharter Period,” there was but one “law” career choice. During the 1685–1691 “Intercharter Period,” there were four. But during the 1692–1760 “Second Charter Period,” there were seventy-six Harvard graduates who ultimately would call themselves “lawyers,” with twenty-seven alone in the ten-year period 1751–1760. While this was still well behind the clergy (the most popular choice) and medicine (nearly twice as popular as law), it was a most impressive indicator as to the growing prestige of the profession and its expectations for education. See Charles R. McKirdy, below, 333–336 (Appendix II).
112 See John P. Reid, “A Lawyer Acquitted,” 191–194; and Daniel J. Boorstin, The Americans: The Colonial Experience, 191–205. As Reid observed: “[I]n the functioning of eighteenth century constitutional legality, local institutions defined the meaning of ‘law’ as much as did imperial institutions.” John P. Reid, In a Defiant Stance, 72.
113 See Janice Potter and Robert M. Calhoon, “The Character and Coherence of the Loyalist Press” in The Press and the American Revolution, Bernard Bailyn, John B. Hench eds. (Boston, 1981), 231. On the peculiar influence of classical studies on the American colonial mind, including minds as distinct as John Winthrop and John Adams, see Richard M. Gummere, The American Colonial Mind and the Classical Tradition (Cambridge, Mass., 1963). See also Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass., 1967), 23–24; Stephen Botein “Cicero as Role Model for Early American Lawyers: A Case Study in Classical Influence,” Classical Journal, lxxiii (1977–1978), 314–318; Charles F. Mullett, “Classical Influences on the American Revolution,” Classical Journal, xxxv (1939–1940), 93–94.
114 See Perry Miller, The Legal Mind in America (New York, 1962), 20–21, 31–32, 41–43; Felix Gilbert “Intellectual History: Its Aims and Methods,” Historical Studies Today, eds. Felix Gilbert, Stephen R. Graubard (New York, 1972), 141–158; Patrick Gardiner, The Nature of Historical Explanation (London, 1952), 115–139. See also William E. Nelson’s original essay “The Eighteenth-Century Background of John Marshall’s Constitutional Jurisprudence,” Michigan Law Review, xxvi (1978), 893, 900–901, 917–924.
115 See Daniel R. Coquillette, “Legal Ideology and Incorporation I: The English Civilian Writers, 1523–1607,” Boston University Law Review, lxi (1981), 1–2, 3–10; “Legal Ideology and Incorporation II: Sir Thomas Ridley, Charles Molloy, and the Literary Battle for the Law Merchant, 1607–1676,” Boston University Law Review, lxi (1981), 317–320, 371.
116 Of course, in focusing on ideology, one must not forget the historical context. Thus, even as John Adams struggled for good civil law precedents in the case of the Liberty, Sewall v. Hancock, 1768–1769, “[a]n ensuing riot drove the customs commissioners to Castle William in Boston Harbor, where they remained until the troops which they had urgently requested were garrisoned in Boston.” See L. Kinvin Wroth, “The Massachusetts Vice-Admiralty Court” in Law and Authority in Colonial America, George A. Billias ed., 53.
117 See John M. Murrin, “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts,” 446–448.
118 Morton J. Horwitz, Transformation of American Law, 4–9.
119 “And while Americans always insisted on the right to receive only those common law principles which accorded with colonial conditions, most of the basic departures were accomplished not by judicial decision but by local statute. . . .” Ibid., 5. Massachusetts statutory policy during the Second Charter period remains a great area for future research. See above, xlv.
120 According to Horwitz, “ . . . American judges before the nineteenth century rarely analyzed common law rules functionally or purposively, and they almost never self-consciously employed the common law as a creative instrument for directing men’s energies toward social change.” Morton J. Horwitz, The Transformation of American Law, 1.
121 William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge, Mass., 1975), 143. As to Murrin’s thesis of “Anglicization,” Nelson states: “[O]ne cannot explain developments in Massachusetts law . . . as a consequence of adherence to English law. . . . [B]y the last third of the eighteenth century each society was pursuing its own independent course even on those occasions when the courses seemed superficially to be parallel.” Ibid., 10. See also William E. Nelson, “The Legal Restraint of Power in Pre-Revolutionary America: Massachusetts as a Case Study, 1760–1775,” American Journal of Legal History, xviii (1974), i, 13–26, 32.
122 The research in Dispute and Conflict Resolution is based on the Plymouth Court Records project, edited by David T. Konig and described above, note 7, xxiv. Nelson’s critics, predictably, argue that there was more “rugged individualism” in pre-Revolutionary colonial society than he represents and less communal bliss, and that Nelson exaggerates the changes wrought by the Revolution. See David Flaherty’s review of Americanization of the Common Law in the University of Toronto Law Review (1976), 110–113, in which Flaherty also criticizes Michael Zuckerman’s Peaceable Kingdoms: New England Towns in the Eighteenth Century (1970). Much more work is obviously required, of the type undertaken by David T. Konig in the Essex records and by Nelson himself in the Plymouth records, before any of these questions will be finally answered. See David T. Konig, Law and Society in Puritan Massachusetts, Essex County, 1620–1602 (Chapel Hill, 1979).
123 William E. Nelson, below, 467.
124 Ibid., 428. William Blackstone, Commentaries on the Laws of England (Oxford, 1765–1769), in, *87, *42.
125 William E. Nelson, below, 433.
126 Ibid., 467.
127 As Robert W. Gordon astutely suggests: “One of the aims of the recent work of Morton Horwitz, William Nelson, and John Reid has been to identify the characteristics of ‘modern’ law . . . by reference to what they see as the ‘pre-modern’ law of the eighteenth century. But reconstruction might do more for us than that: it might demonstrate an actual continuity between the old system and our own.” “Historicism in Legal Scholarship,” Yale Law Journal, xc (1981), 1049–1050. See also David H. Flaherty, “Review,” University of Toronto Law Journal (1976), 110, 115–117.
At the very least, “[w]e should know more than we currently do about ‘stable, preindustrial communities’ in order to comprehend the distinctiveness of ‘modern’ legal systems; that is, we must know what modern law is not.” Stanley N. Katz, “The Problem of a Colonial Legal History,” 481, 482.
128 This suggestion, as with so many helpful comments, comes from Russell K. Osgood. Katz also points out that “we have never clearly worked out the process by which legislation and adjudication became distinguishable activities in the colonial period.” Ibid., 482.
129 Not only was there the trauma of the “Great Awakening” in the early 1740’s, but also the local religious setting became far more diverse. In a critique of Michael Zuckerman’s Peaceable Kingdoms, supra, John Murrin calculated that “by 1760, fifty-four percent of the total population of Massachusetts . . . lived in towns possessing permanent dissenting congregations of Anglicans, Quakers, Baptists or Separates.” John Murrin, “Review Essay,” History and Theory, xi (1972), 245–272. See also David Flaherty, “Review,” University of Toronto Law Journal (1970), 111, 113; and William Nelson’s fascinating description of “Hanover and Pembroke: The Quaker Towns” in Dispute and Conflict Resolution in Plymouth County, 58–68.
130 Preface, “An abstract of the Laws of New England” in Governor Thomas Hutchinson, A Collection of Original Papers Relative to the History of the Colony of Massachusetts-Bay (Boston, 1769). As to the violent sack of Hutchinson’s Boston mansion, see Bernard Bailyn, The Ordeal of Thomas Hutchinson (Cambridge, Mass., 1974), 35.
131 See Frank E. Manuel, Shapes of Philosophical History (Stanford, 1965), 137; Arthur Marwick, The Nature of History (New York, 1970), 227–279; Edward H. Carr, What Is History? (New York, 1961), 3–35; W. H. Walsh, An Introduction to Philosophy of History (Atlantic Highlands, N.J., 1951), 169–187.
132 Grant Gilmore, “The Age of Antiquarius: On Legal History in the Time of Troubles,” University of Chicago Law Review, xxxix (1972), 484. As to the “invention” of legal history and “historical” schools of jurisprudence, see Donald R. Kelley, “Guillaume Budé and the First Historical School of Law,” The American Historical Review, lxxii (1967), 833–834; Donald R. Kelley, Foundations of Modern Historical Scholarship: Language, Law, and History in the French Renaissance (New York, 1970), 53–148; T. G. A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge, 1957), 8–17.
133 Stephen M. Fuller, “Some Contemporary Approaches to the Study of Legal History and Jurisprudence,” Tulsa Law Journal, x (1975), 576.
134 Felix Gilbert, History: Choice and Commitment (Cambridge, Mass., 1977), 452.
135 See Michael S. Hindus, Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767–1878 (Chapel Hill, 1980), 34–37. See also Hiller B. Zobel, “Law Under Pressure,” 203–205.
136 See Robert W. Gordon, “Historicism in Legal Scholarship,” Yale Law Journal, xc (1981), 1018–1024; Morton J. Horwitz, “The Historical Contingency of the Role of History,” ibid., 1057.
137 O. W. Holmes, Jr., The Common Law, M. Howe ed. (Boston, 1963), 5. See Grant Gilmore, “The Age of Antiquarius,” 480–481.
138 Morton J. Horwitz, “The Historical Contingency,” 1057. Erich Auerbach defines this insight as “[W]hen people realize that epochs and societies are not to be judged in terms of a pattern concept of what is desirable absolutely but rather in every case in terms of their own premises; when people reckon among such premises not only natural factors like climate and soil but also the intellectual and historical factors; when, in other words, they came to develop a sense of historical dynamics . . . when, finally, they accept the conviction that the meaning of events cannot be grasped in abstract and general forms of cognition. . . .”
Erich Auerbach, Mimesis, the Representation of Reality in Western Literature (W. Trask, Trans, Princeton, 1953), 391. See also Donald R. Kelley, Foundations of Modern Historical Scholarship, 301–309.
139 Robert W. Gordon, “Historicism,” 1017. See Darret B. Rutman, “The Mirror of Puritan Authority,” Law and Authority in Colonial America, George A. Billias ed., 149–152.
140 Grant Gilmore, “The Age of Antiquarius, 487. “If legal history does not tell us how things ought to be, it can at least tell us that they need not be the way they are.” Adam J. Hirsch, “Pillory to Penitentiary,” 1269. Arthur Marwick and Felix Gilbert have expressed the same idea in a broader context. “We cannot escape from history, our lives are governed by what happened in the past, our decisions by what we believe to have happened.” Arthur Marwick, The Nature of History (New York, 1970), 319. “But, after all reservations have been made, we ought to remain aware that the man who acted and was acted upon in the past is the same man who acts in the present, and that the past is one way—and not the worst way—of acquiring the right and the criteria to judge the present. Our willingness to see the past as a whole, our willingness to take a stand, constitutes our card of identity.” Felix Gilbert, History: Choice and Commitment (Cambridge, Mass., 1977), 453.
141 Clifford K. Shipton, “The Locus of Authority in Colonial Massachusetts,” in Law and Authority in Colonial America, 147.
142 “Our recent preoccupation with the relation of law to the interests (primarily the material interests) of individuals and groups has led us to overlook the significance of legal institutions for the nature of man and his quest for a moral order.” Daniel J. Boorstin, “The Humane Study of Law,” Yale Law Journal, lvii (1948), 960, 975.
143 Note-Book kept by Thomas Lechford, Esq., Lawyer, Archaeologia Americana, vii (Cambridge, Mass., 1885) [hereafter, Note-Book], 155; Aspinwall Notarial Records (Boston, 1903), 5; Records of the Governor and Company of the Massachusetts Bay in New England, N. B. Shurtleff, ed. (Boston, 1853) [hereafter, Massachusetts Records], ii, 2325; Records and Files of the Quarterly Courts of Essex County Massachusetts (Salem, 1911), i, 37, 89, 101 et passim. I am grateful to my colleague, James H. Kettner, for his helpful criticism of this paper and for many kindnesses in guiding my feet in “right paths.”
144 See especially S. E. Prall, The Agitation for Law Reform during the Puritan Revolution, 1640–1660 (The Hague, 1966) and D. Veall, The Popular Movement for Law Reform, 1640–1660 (Oxford, 1970).
145 David Grayson Allen, In English Ways: The Movement of Societies and the Transferal of English Local Law and Custom to Massachusetts Bay in the Seventeenth Century (Chapel Hill, 1981), 209. George Lee Haskins, in his Law and Authority in Early Massachusetts: A Study in Tradition and Design (New York, 1960), especially Chapter X, 163–188, first emphasized the English local dimension in early Massachusetts law.
146 T. G. Barnes, “Law and Liberty (and Order) in Early Massachusetts,” The English Legal System: Carryover to the Colonies (Clark Library, Los Angeles, 1975), 63–89. Lechford appreciated the breadth of that jurisdiction: “And they themselves say, that in the generall and quarter Courts, they have the power of Parliament, Kings Bench, Common Pleas, Chancery, High Commission, and Star-chamber, and all other Courts of England. . . .” Plain Dealing: or Newes from New-England (London, 1642) (Wing L810) [hereafter, Plain Dealing], 26.
147 The Colonial Laws of Massachusetts, W. H. Whitmore, ed. (Boston, 1889) [hereafter, Whitmore], 39.
148 The other two were Richard Bellingham (Lincoln’s Inn, no date of call, but was recorder of Boston, Lincolnshire) and John Humphrey (Lincoln’s Inn, called 1623) 5 both were Assistants, or magistrates, in Massachusetts.
149 Winthrop’s Journal, J. K. Hosmer, ed. (New York, 1908) [hereafter, Winthrop], ii, 36.
150 The Book of the General Lawes and Libertyes Concerning the Inhabitants of the Massachusets, T. G. Barnes, ed. (San Marino, Calif., 1975) [hereafter, Lawes and Libertyes]. Introduction, 10, note 15.
151 Quoted in Darrett B. Rutman, Winthrop’s Boston: Portrait of a Puritan Town 1630–1640 (Chapel Hill, 1965) [hereafter, Rutman], 233.
152 H. E. Bell, An Introduction to the History and Records of the Court of Wards and Liveries (Cambridge, 1953), 30–31.
153 Quoted in Rutman, 233–234.
154 The Lord Coke his Speech and Charge (London, 1607) (STC 5491).
155 Lawes and Libertyes, Introduction, 5.
156 Note-Book, vii–ix; Trumbull’s introduction to a new edition of Plain Dealing (Boston, 1867), xi–xiii. Even if Thomas was no relation to Sir Richard Lechford, that the latter’s name is indifferently spelled Lechford or Leechford indicates that Thomas’s name should be pronounced with a long “e.”
157 Note-Book, 182.
158 Miscellanea Genealogica et Heraldica, J. J. Howard, ed. (London, 1868), i, 54–55.
159 Plain Dealing Proheme
160 John Cotton, The Way of Congregational Churches Cleared (London, 1648) (Wing C6469), 71.
161 The author, who has spent a quarter-century studying the Star Chamber from 1596 to 1641, has had access to all known, extant materials on the Case of Prynne, Bastwick, and Burton.
162 William Laud, Works (Oxford, 1854) [hereafter, Laud], iv, 130.
163 William Prynne, Canterburies Doome (London, 1646) (Wing P3917), 101. Peter Heylyn, Laud’s chaplain, who is usually a good corrective to Prynne’s animus towards Laud, agrees substantially with him on this, and adds some details. Cyprianus Anglicanus (London, 1668) (Wing H1699), 295.
164 Laud, iv, 132.
165 Ibid., 131.
166 Star Chamber registrar’s rough book of orders and decrees, Bodleian Library: MS. Rawlinson C. 827, f.6v.
167 Ibid., f.39.
168 Laud, iv, 131, Massachusetts Records, i, 377. C. E. Banks, Topographical Dictionary of 2885 English Emigrants to New England, 1620–1650 (Philadelphia, 1937), 39 and 103, lists a Ferdinando Adams of Barking, Essex, and one of the same name of St. Katherine’s parish, London; both settled in Dedham, Mass.
169 Note-Book, 47, Lechford to the Reverend Hugh Peters, 3 January 1639.
170 Ibid., 48.
171 Trumbull makes the case for this in his introduction, Note-Book, xiii.
172 Note-Book, 275.
173 Sheffield City Library: Wentworth-Woodhouse MSS., Letter-books, 5–11. I am grateful to Dr. David Postles, the Sheffield City Library Archivist, for his search—in vain—of the card-index to the Wentworth Letters, post-1631, for Lechford’s name.
174 Massachusetts Records, ii, 206, 11 November 1647.
175 Note-Book, 182; Plain Dealing, Title page.
176 Wilfrid R. Prest, in The Inns of Court under Elizabeth I and the Early Stuarts, 1590–1640 (London, 1972) has dealt extensively with the development of “barristers”; see also, his “The English Bar, 1550–1700,” in Lawyers in Early Modern Europe and America, W. R. Prest, ed. (New York, 1981), 65–85. See also, J. H. Baker, “Counsellors and Barristers,” Cambridge Law Journal, xxvi i (November 1969), 205–229; W. C. Richardson, A History of the Inns of Court (Baton Rouge, 1977); and E. W. Ives, The Common Lawyers of Pre-Reformation England (Cambridge, 1983), 36–89.
177 C. W. Brooks, “Litigants and Attorneys in the King’s Bench and Common Pleas, 1560–1640,” Legal Records and the Historian, J. H. Baker, ed. (London, 1978), 53, and C. W. Brooks, “The Common Lawyers in England, c. 1558–1642,” Lawyers in Early Modern Europe and America, W. R. Prest, ed. (New York, 1981), 42–64.
178 J. H. Baker, “Solicitors and the Law of Maintenance 1590–1640,” Cambridge Law Journal, xxxii (April, 1973), 56–80.
179 T. G. Barnes, “Star Chamber Litigants and their Counsel, 1596–1641,” Legal Records and the Historian, J. H. Baker, ed. (London, 1978), 25.
180 The author is grateful to Marcus A. McCorison, Director and Librarian of the American Antiquarian Society, for making a xerox copy of the entire Lechford MS. available to him. J. Hammond Trumbull’s choice of title, Note-Book, was unfortunate. The MS. makes very clear that “scrivener’s entry book” would have been more appropriate; save that the instruments are given in extenso, it resembles with respect to entries and fees three scrivener’s waste-books of Robert Glover, 1611–1617, in the Public Record Office: Wards 9/351. Trumbull’s and the other editors’ transcription in the 1885 edition leaves something to be desired, both with respect to canons of transcription and accuracy; a comparison of their text on 46–47 with the plate below (the passport for the Sparrow) will indicate that “Virtute litterarum” in the MS. has been rendered—quite impossibly—as “Virtute harum.” That the editors gave no indication in the 1885 edition of the existence of extracts at the rear of the MS. was inexcusable. The author intends to undertake a critical edition of the MS. at some future time, with an apparatus dealing with the legal matter in it.
181 Thomas Powell, The Attourneys Academy (London, 1623) (STC 20163), 170.
182 Of the 57 pleadings, Hatt is named in 4 ex parte the plaintiff and 29 ex parte the defendant; other named attorneys accounted for 5 plaintiff and 11 defendant; pleadings in which no attorney was named, 1 plaintiff and 7 defendant.
183 British Library: Addition MSS. 31116 (Whitaker’s diary of the Long Parliament) f.128, petition of the city of London to the Commons, 20 July 1643. Hatt was the son of Giles Hatt of Leckhampstead, Berks., and was admitted to Gray’s Inn in 1629, but not called to the bar; his son, also John, was called in 1651, Register of Admissions to Gray’s Inn, 1521–1889, J. Foster, ed. (London, 1889), 188 and 2385 The Pension Book of Gray’s Inn, 1560–1660, R. J. Fletcher, ed. (London, 1901), 381; Four Visitations of Berkshire, W. Harry Rylands, ed. (London, 1908), ii, 142.
184 Note-Book, 441.
185 Scriveners’ Company Common Paper, 1357–1628, with a Continuation to 1678, F. W. Steer, ed., London Record Society (London, 1968), 4.
186 AAS: Lechford’s MS. scrivener’s book, 241.
187 Massachusetts Records, i, vii.
188 Note-Book, 1.
189 Ibid., 437.
190 Ibid., 119.
191 Symboleography, first published in one part in 1590 (Beal T500a), was very popular; Lechford would probably have possessed it, possibly the last edition of both parts bound in one volume, printed in 1622 (STC 25275).
192 Note-Book, 74, Augustin Clement to John Tinker.
193 Note-Book, 46–47 and AAS: Lechford’s MS. scrivener’s book, 29. See illustration on page 22.
194 AAS: Lechford’s MSS., 241, has an entry-example of the proper style. It was possible that the engrossed instrument carried the full style; it was also possible that the Massachusetts Governor preferred to omit the red-flag of “Franciae” against the Sf arrow encountering a French warship.
195 Note-Book, 85.
196 Plain Dealing, 69.
197 The handiest, most learned, and historically most accurate brief introduction to the sixteenth and seventeenth centuries’ developments in pleading is J. H. Baker, An Introduction to English Legal History, 2nd. ed. (London, 1979), 71–74.
198 Edward Coke, A Booke of Entries (London, 1614) (STC 5488) was a great advance over the older printed literature of this sort, which began with William Rastell’s Collection of Entries, first published in 1566 (Beal T448) with numerous editions to 1670. It was probably Coke’s Entries which the Massachusetts General Court ordered purchased in two copies, along with other law books, to “have the better light for making & proceeding about lawes . . . ,” Massachusetts Records, ii, 212, 11 November 1647. The Second Part of West’s Symboleography (Beal T500D, T500d, T500e)—usually bound up with the First—supplied a great many pleadings in English-bill, for Chancery, Star Chamber, and the like.
199 Woodcock v. Davis (Lechford ex parte defendant), Note-Book, 367–372.
200 Cockerell v. Cockerham and Jones v. Leeke, respectively, Note-Book, 80 and 427.
201 Note-Book, 82–83.
202 Ibid., 163–166.
203 Ibid., 166–168.
204 Records of the Colony of New Plymouth: Judicial Acts, 1636–1602, N. B. Shurtleff, ed. (Boston, 1857), 13.
205 Note-Book, 339.
206 Ibid., 356.
207 Lang v. Upham et al. and Winslow v. Askew, respectively, Note-Book, 338 and 365.
208 Note-Book, 215.
209 Ibid., 179.
210 Ibid., 88.
211 Massachusetts Records, i, 275–276.
212 Ibid., 270.
213 Note-Book, 182–183.
214 Winthrop, ii, 37–38.
215 Whitmore, 39.
216 Note-Book, 325.
217 Plain Dealing, 31. See also, Note-Book, 227, 231, 237–238, and 256.
218 Note-Book, xx. Whitmore, 21, says Lechford was “starved into returning to England.”
219 Plain Dealing, 69.
220 In the suit in equity by Lechford for the plaintiffs, William and Elizabeth Cole v. Francis Doughty (September 1639), for relief upon a bond as surety and for other testamentary matters, Lechford noted the following fees and charges: 6s. 8d. for the bill (it is a big one); copy, 3s. 4d; copy of the deed in question, 4d.; entering the action, 1s. 6d.: total 11s. 10d. plus a fee of 6s. more, for a grand total of 17s. 10d., upon which he received 7s. with 10s. remaining (apparently, he was willing to forego 10d.). AAS: Lechford’s Ms., 110.
221 Note-Book, 234.
222 Ibid., 67, 102, 127, 236, and 237. For Spanish tobacco, see Jacob M. Price, France and the Chesapeake (Ann Arbor, 1973), i, 4 and 182.
223 Note-Book, 317 and xxiv. It should be noted that just after Lechford complained in July 1640 of no preferment, “writing petty things,” and so forth, and also of having “not yet here an house of my owne to put my head in, or any stock going” (Plain Dealing, 69), he purchased his Boston house.
224 Margery S. Foster, “Out of Smalle Beginings . . .” An Economic History of Harvard College in the Puritan Period (Cambridge, Mass., 1962), 54 and 88.
225 The author will not stake his scholarly reputation on the origins of the Theorem, beyond noting that in 1849 two of the earliest Gold Rush lawyers were one Mulford and Stephen J. Field in Marysville, Yuba County, California. If neither made a million—and Field was very nearly gunned-down by an irate judge—at least Field ended up on the United States Supreme Court.
226 Plain Dealing, 37. Lechford wrote this in a disquisition in May 1640 intended for, but perhaps never given to, John Winthrop, stressing inter alia the importance of converting the natives, which he argued could only be done by a church the polity of which was wider than a congregation.
227 Plain Dealing, 55.
228 Massachusetts Records, i, 310.
229 Plain Dealing, 77.
230 Ibid., Proheme.
231 Note-Book, xxiv.
232 Ibid., 89, June 1639.
233 Plain Dealing, 17.
234 Ibid., 77.
235 Ibid., Proheme.
236 John Cotton, The Way of Congregational Churches Cleared (London, 1648), 71. We have only Cotton’s word for when Lechford died: this quotation is completed by “yet put out his Book (such as it is) and soon after dyed.” This would point to a death date in late 1642 or perhaps 1643. A search of the Prerogative Court of Canterbury wills (Public Record Office, Probate) failed to turn up a will probated there, which would indicate that he either died intestate or devised only a modest personal estate. Time did not permit a search of PCC act books (for administration on an intestacy), other probate jurisdictions, or parish registers.
237 A. H. Chroust, The Rise of the Legal Profession in America (Norman, Oklahoma, 1965), ii, 220–221, 224ff.
238 Ibid., 39–41. This practice, which began in the nineteenth century, still persists in Vermont today in the Superior Courts, where two of the three judges can be laymen. See Boston Globe, 18 July 1982, 32; 21 August 1983, 65. See also David Margolick, “Vermonters Consider the Case of Laymen Judges,” New York Times for 27 October 1983, A24. In the assize courts in Italy today six of the eight judges are laymen. M. Cappelletti et al., The Italian Legal System (Stanford, 1967), 79ff.
239 J. P. Dawson, A History of Lay Judges (Cambridge, Mass., 1960), 3.
240 Ibid., 4.
241 See T. Barnes’ essay “Thomas Lechford and the Earliest Lawyering in Massachusetts, 1638–1641,” in this volume, above, 3–38.
242 P. S. Reinsch, “The English Common Law in the Early American Colonies,” Select Essays in Anglo-American Legal History (Boston, 1907), i, 370.
243 Barnes, “Thomas Lechford,” 17–29.
244 C. J. Hilkey, “Legal Development in Colonial Massachusetts,” Columbia Studies in History, Economics and Public Law, xxxvii (1910), 68.
245 F. Bacon, Law Tracts (London, 1741), 3, 9.
246 For this and other bills drafted, see Winthrop Papers (Massachusetts Historical Society, Boston, 1929–1947), i, 295–310, 371–374, 418–419.
247 See Barnes, “Thomas Lechford,” above, 5–7. See also G. L. Haskins, Law and Authority in Early Massachusetts (New York, 1960, 1977), 186.
248 Quoted in J. H. Smith, Colonial Justice in Western Massachusetts (Cambridge, Mass., 1961), 199.
249 The Colonial Laws of Massachusetts, ed. W. H. Whitmore (Boston, 1889), 39.
250 Barnes, “Thomas Lechford,” above, 6–7. See also summaries in Haskins, Law and Authority, 106, and footnotes 69–72.
251 Winthrop Papers, ii, 55, note.
252 N. Ward, “The Simple Cobbler of Agawam,” Publications of the Ipswich Historical Society, xiv (1905), 66.
253 Haskins, Law and Authority, 278–279, notes 90–92.
254 See generally, Records of the Governor and Company of Massachusetts Bay, ed. N. B. Shurtleff (Boston, 1853–1854), i, 3–20; F. Rose-Troup, The Massachusetts Bay Company and its Predecessors (New York, 1930); Haskins, Law and Authority, 9.
255 Massachusetts Bay Records, i, 51–52.
256 Haskins, Law and Authority, 28–29.
257 Massachusetts Bay Records, i, 74.
258 See Winthrop Papers, 178, 195, 207.
259 Quoted from Haskins, Law and Authority, 32.
260 This episode is discussed in ibid., 29–30.
261 H. L. Osgood, The American Colonies in the Seventeenth Century (New York, 1904), i, 177.
262 Haskins, Law and Authority, 32–33, and footnote references.
263 Massachusetts Bay Records, i, 169, 325–326.
264 Haskins, Laws and Authority, 33.
265 Summarized in ibid., 33.
266 Winthrop Papers, iv, 468ff.
267 Colonial Laws of Massachusetts.
268 Edited by M. Farrand (Cambridge, Mass., 1929).
269 Massachusetts Bay Records, i, 74.
271 For Ludlow’s position, see Winthrop Papers, ii, 264; also, Dictionary of National Biography.
272 E. g. Simon Bradstreet, who had served as Steward to the Earl of Lincoln, and William Pynchon, one of the original Assistants and known as a competent administrator. On the latter, see Smith, Colonial Justice in Western Massachusetts, 7–8, 10; Haskins, Law and Authority, 260, footnote 71.
273 Haskins, Law and Authority, 27–28.
274 That is, apart from training and experience as a justice of the peace, as explained in the instances cited in the following footnotes.
275 Winthrop Papers, ii, 3; G. W. Robinson, John Winthrop as Attorney (Cambridge, Mass., 1930).
276 A. Jones, The Life and Work of Thomas Dudley (Boston, 1899), 25.
277 Winthrop Papers, ii, 55, note; R. E. Wall, Massachusetts Bay: The Crucial Decade (New Haven, 1972), 31–32.
278 A. P. Newton, The Colonizing Activities of the English Puritans (New Haven, 1914), 45; F. Rose-Troup, “John Humfry,” Essex Institute Historical Collections, lxv (1929), 293.
279 Johnson was also a wealthy landowner in Rutland, England, and was a brother-in-law of the Earl of Lincoln.
280 See above, 42, footnote 5.
281 Haskins, Law and Authority, chapter 11, and especially 220–221.
282 H. Adams, History of the United States of America (New York, 1889), i, 133.
283 The episode is discussed in Haskins, Law and Authority.
284 The relevant elected lists are printed in W. H. Whitmore, The Massachusetts Civil List (Albany, 1870), 21–22.
285 Commissioners’ courts were established in 1638 for the settling of small cases by appointed freemen in communities where no magistrate resided. See Haskins, Law and Authority, 34, especially footnote 67. Also Massachusetts Bay Records, i, 239, 317; ii, 208, 279.
286 Smith, Colonial Justice in Western Massachusetts, 200.
287 This expression is frequently used to describe the early government of Massachusetts. It first appears as a term of John Winthrop. See Winthrop Tapers, ii, 293. See also Haskins, Law and Authority, chapter 4.
288 A. B. White, Self-Government at the King’s Command (Minneapolis, 1933) passim; G. L. Haskins, The Growth of English Representative Government (Philadelphia, 1948), chapter 3.
289 F. W. Maitland, Memoranda de Parliamento (London, 1893), xcix.
290 E. P. Cheyney, A History of England (New York, 1926), ii, chapters 37–41.
291 See W. Notestein, The English People on the Eve of Colonization (New York, 1954), chapters 19, 20.
292 Haskins, Law and Authority, 76.
293 S. and B. Webb, English Local Government (London, 1906–1908), i, 308; Haskins, Law and Authority, 76, 174–178.
294 F. W. Maitland, Collected Papers (Cambridge, 1911), i, 476–477.
295 See, James P. Lane, Historical Sketches of the First Congregational Church, Bristol, R.I., 1680–1872 (Providence, 1872), 37–38.
296 See, e.g., Lane, Historical Sketches; Francis Baylies, An Historical Memoir of the Colony of New Plymouth, 2 vols., 4 parts (Boston, 1830); Emory Washburn, Sketches of the Judicial History of Massachusetts From 1630 to the Revolution in 1775 (Boston, 1840); Wilfred H. Munro, The History of Bristol, R.I.: The Story of the Mount Hope Lands, From the Visit of the Northmen to the Present Time (Providence, 1880); Celebration of the Two-Hundredth Anniversary of the Settlement of the Town of Bristol, Rhode Island, Sept. 24th . . . 1880 . . . , compiler William J. Miller (Providence, 1881) (hereafter Bicentennial); Mark A. DeW. Howe, Bristol, Rhode Island: A Town Biography (Cambridge, 1930); George L. Howe, Mount Hope: A New England Chronicle (New York, 1959).
297 “An Account of the Deceased,” Weekly News-Letter No. 1533, With Amendment, Boston, 14 June 1733. This account is endlessly repeated, sometimes mis-quoted, but nowhere improved upon. Lane, Historical Sketches, 38–40, has some additional material on Byfield’s wives. See also, The Heraldic Journal, 4 vols. (Boston, 1865–1868), ii, 126–127.
298 The “Bristol” of which Byfield was “Principal Settler” has been since 1747 Bristol, Rhode Island. Byfield took the oath of freemanship in Plymouth on 5 June 1684, Records of the Colony of New Plymouth in New England, 1620–1602, 12 vols. ed. Nathaniel B. Shurtleff (Boston, 1855–1861), vi, 130. His name does not appear in the Index of Freemen in the volume of the Massachusetts Records where it should be if he had become a freeman of the Bay Colony between 1674 and 1684. See Records of the Governor and Company of the Massachusetts Bay in New England, 1628–1686, ed. Nathaniel B. Shurtleff, 5 vols, in 6 (Boston, 1854), v (1674–1686), 611–616 (hereafter Massachusetts Records). He is recorded as having taken the oath of allegiance in Boston in 1678. See Records of the Suffolk County Court, 1671–1680, with Introduction by Zechariah Chafee, Colonial Society of Massachusetts, Publications, xxix–xxx (1933), ii, 962.
299 Charles Chauncy, Nathanael’s character display’d. A sermon preach’d the Lord’s Day after the funeral of the Honourable Nathanael Byfield, esq; late judge of the vice-admiralty, and one of His Majesty’s council for this province. Who died at his house in Boston, on the 6th of June, 1733. In the 80th year of his age. (Boston [?] 1733).
300 Munro, History of Bristol, 66; Lane, Historical Sketches, 37. The tombstone, no longer discoverable, bore the Byfield arms, with the name “Lyde,” below, 105, and the Byles epitaph, above, 56, note 1, Lane, Historical Sketches, 37.
301 In 1689 he was elected to the Plymouth General Court, but did not take his seat, Baylies, Historical Memoir, ii:iv, 101. He was elected representative from Bristol to the Massachusetts General Court in 1693 and 1694, but was ineligible to serve in the latter year. See below, 67, on the non-residency law of 1693. In 1696, 1697, and 1698, he was elected representative from Boston. He was chosen speaker in 1693, and again in 1698, Acts and Resolves of the Province of Massachusetts Bay, 21 vols. (Boston, 1869–1922), vii (Resolves, Etc., 1692–1702), 21, 29, 45, 104, 148, 180 (hereafter Acts and Resolves). See, Records of the General Court, 68 vols. (1628–1833). (Archives of the Commonwealth, Boston, Massachusetts), vi (1689–1698), 338–339 (hereafter Court Records).
302 See William Henry Whitmore, The Massachusetts Civil List For the Colonial and Provincial Periods, 1630–1774; being a list of the names and dates of appointment of all the civil officers constituted by authority of the charters, or the local government (Baltimore, 1969), 47, 48, 50, 51, 52, 53 (hereafter Civil List). Byfield was chosen for the Council 1699–1702, 1704, 1714–1728, and negatived in 1714, 1715, 1720, 1721, 1722, 1723.
303 For facts (and fiction) about Byfield’s position and tenure on the Bristol Court of Common Pleas, see below, 64–65, note 6.
304 Whitmore, Civil List, 102. Records of the Governor and Council (Archives of the Commonwealth, Boston, Massachusetts), iii (1698–1703), 378 (23 October 1702) (hereafter, Council Records). See Court Files, Suffolk County (Office of the Clerk, Supreme Judicial Court, Suffolk County, Boston) #5538 (hereafter Suffolk Files), for Byfield’s commission as Judge of Probate, Bristol, 26 October 1702. It is signed by Dudley “by and with the advice of the Council,” and it appears that the word “consent” was crossed out, and “advice” substituted, an interesting but mystifying datum. Byfield was off Probate from 1710 to 1715, then back on until 1729. See below, 102.
305 Whitmore, Civil List, 78. He was appointed by Belcher, whose daughter married Byfield’s grandson.
306 Whitmore, Civil List, 127. He was appointed by Burnet on 19 December 1728, and presumably remained on the commission of the peace until his death. He was a J.P. for Suffolk in 1700, 1701 and 1702, possibly until 1706, Records of the Court of General Sessions of the Peace, Suffolk County (Office of the Clerk, Supreme Judicial Court, Suffolk County, Boston), 1 (July, 1702–July, 1712), 136–138; Massachusetts Archives, 328 vols. (Archives of the Commonwealth, Boston, Massachusetts), XL (Judicial, 1683–1724), 641, 642, Massachusetts Archives, Vin (Depositions, 1662–1776), 102 (hereafter Massachusetts Archives). Byfield was also, on occasion, appointed a special justice of the Superior Court for a particular cause, Whitmore, Civil List, 71–72. See also, Suffolk Files, #34664.
307 See below, 64–65, note 6, 102.
308 At least three Smibert portraits of Byfield survive. One authority believes, however, that all three may be Smibert copies of a lost Smibert original. The surviving paintings are standard bust length (30 × 25), while the fee recorded by Smibert was that amount which he would have charged for a ¾ length (50 × 40) painting. Nor would it have been unusual for Smibert to do bust length replicas of larger portraits. Richard H. Saunders, “John Smibert (1688–1741): Anglo-American Portrait Painter” (unpublished dissertation, Yale University, 1979) (conversation with author). One of the three surviving Byfield portraits (#1) is in the Metropolitan Museum of Art, another (#2) at the Vose Gallery, Boston, and the third (#3) privately owned. The portrait reproduced at the start of this article is #3. There is also a copy, by Jane Stuart, which is now at the Bristol, R.I., Historical
Society. Smibert’s notebook records the date of the painting as June 1729. The Metropolitan copy, marked “Aetatis 78, 1730,” is reputed to have come down from the Pepperrell family, who are said to have believed for some time that it was a portrait of Jonathan Belcher. Portrait #2 was once owned by Byfield descendant George Lyde, of New York, and was given by him in 1825 to Byfield parish. Portrait #3 was once owned by Byfield descendant Francis Brinley, who, delivering the Byfield address at the Bristol Bicentennial ceremonies, explained that a daughter of Byfield’s daughter Mrs. Lyde married Colonel Francis Brinley of Roxbury, the speaker’s great-grandfather, Bicentennial, 114. See Henry W. Foote, John Smibert, Painter, with a descriptive catalogue of portraits, and notes on the work of Nathaniel Smibert (Cambridge, 1950), 140–1415 John Smibert, The Notebook of John Smibert with Essays by Sir David Evans, John Kerslake, and Andrew Oliver, and with notes relating to Smibert’s American portraits, by Andrew Oliver (Boston, 1969), 88.
309 Howe, Mount Hope, 64, labels this “about as faint praise as ever damned a man.”
310 Baylies, Historical Memoir, ii:iv, 55–57.
311 See the works cited above, 56–57, notes 1 and 2.
312 In Byfield, it appears, frugality warred with generosity, and there is substantial evidence of both in the records and in the histories: Jeremiah Dummer to Dr. Coleman: “his [Byfield’s] frugality makes him sick of coach hire, fees to officers and door-keepers, and other expenses . . . ,” quoted in Baylies, Historical Memoir, ii:iv, 55–56, note; see, Washburn, Judicial History, 183; Lane, Historical Sketches, 32–33, 36–37 (“His servants were remembered [in his will] with Christian affection and counsel. . . .” He did, however, free and provide for one “favorite servant,” possibly a slave. According to Howe, Mount Hope, 103, “Byfield kept ten bonded whites and one slave.”)
313 Munro, History of Bristol, 67; Lane, Historical Sketches, 34; Washburn, Judicial History, 182.
314 Munro, History of Bristol, 67.
315 Probably including, at one time or another, Jeremiah Dummer, Cotton Mather, Increase Mather, Joseph Dudley, William Phips, Samuel Shute, William Dummer, John Saffin, Nathaniel Blagrove, Sir William Ashurst, and Samuel Sewall. I am baffled by Munro’s apparent inclusion of Baylies in the ranks of Byfield’s enemies. Baylies, as we have seen, wielded his pen as candidly as Smibert did his brush, and to much the same unflattering conclusion, but he seems to have been quite concerned to give a balanced account. At one point, indeed, he cautions us against swallowing whole the words of one of Byfield’s enemies, on the ground that the detractor himself was a man not to be trusted. And, in addition to warning us about Jeremiah Dummer, Baylies says “Colonel Byefield much to his honor, resisted the insane fanaticism of the people during their delusion on the subject of witchcraft, and condemned the conduct of the Court with much severity,” Baylies, Historical Memoir, ii:iv, 55, note. (This is repeated by all, but I do not know its source in original records.) Munro, however, damns Baylies’ account as “evidently much biased by personal prejudice,” Munro, History of Bristol, 67. And Lane, mentioning “the detractions of prejudiced or ill-informed historians who came after him” (Lane, Historical Sketches, 34), probably means Baylies, as well.
316 Munro, History of Bristol, 67.
317 Hutchinson and Baylies have him emigrating to America several years late, “about 1680” and “1680,” respectively, Thomas Hutchinson, The History of the Colony and Province of Massachusetts Bay, ed. Lawrence S. Mayo, 3 vols. (Cambridge, 1936); Baylies, Historical Memoir, ii:iv, 53. And most accounts follow the Weekly News-Letter in placing Byfield firmly in Bristol from about 1680 until 1724, Munro, History of Bristol, 66; Lane, Historical Sketches, 31; Bicentennial, 44; Washburn (who sends him back to Boston only in 1731), Judicial History, 178. But as Mark Howe points out, “The big-wig founders of the town . . . belonged somewhat to the class of absentee landlords. . . .” Howe, Bristol, 10. Byfield, says Howe, was the “least absentee of the quartette,” Howe, Bristol, 17. Still, it is well known to historians that in 1693 and 1694 Byfield was one of the Bostonian representatives of “country towns” (Bristol in his case) at whom the non-residency act of 1693 was aimed, and in 1694 he was rejected on grounds of non-residency. See below. And in 1696, 1697, and 1698, with that act in force, Byfield was representative from Boston. Moreover, in 1700 he was Moderator and Overseer of the Poor for Boston, Robert F. Seybolt, The Town Officials of Colonial Boston, 1634–1775 (Cambridge, 1939), 77. He was a justice of the peace for Suffolk County in 1700 and 1701; see above, 60, note 3. From all that I have seen, the residence story appears to be:
ca. 1692–ca. 1702
318 The major confusion has to do with Byfield’s tenure and position on the Court of Common Pleas for Bristol, and it originates in the statement in his obituary, unfortunately relied upon ever after, that Byfield:
sat CHIEF thirty-eight years in the court of general sessions of the peace, and common pleas for the county of Bristol, as afterwards he did two years for the county of Suffolk.
So far as I have been able to ascertain the facts concerning Byfield and the Bristol Court of Common Pleas, they are:
- a. Chief Justice under Andros, probably from about 1687 to 1689, Baylies, Historical Memoir, ii:iv, 98.
- b. 1689–1701: not on any such court.
- c. August 1701: Appointed (judge, not Chief Justice): Council Records, III, 232. Whitmore, Civil List, 99.
- d. June 1710: Suspended, Whitmore, Civil List, 99.
- e. December 1715: Re-appointed, Whitmore, Civil List, 99.
- f. November or December 1724.: Resigned, Whitmore, Civil List, 100.
So, the Dominion of New England aside, he was on the Court of Common Pleas, Bristol, for just under 18 years, not 38, nor was he Chief Justice (except under Andros) for the very good reason that there was no Chief Justice of Common Pleas. As to General Sessions: in the Province period, that was a court held by justices of the peace for the county. And, although I find this hard to credit, according to the Civil List Byfield was not a J.P. for Bristol at all.
As to Admiralty, as Kinvin Wroth has said of the early admiralty courts: “For seven years the new courts existed in a state of political conflict so confusing that no historian has succeeded in unraveling it completely.” L. Kinvin Wroth, “The Massachusetts Vice Admiralty Court and the Federal Admiralty Jurisdiction,” American Journal of Legal History, vi (1962), 259. The confusion extends to the dates of the judges’ commissions. The actual Admiralty story for Byfield, so far as I can determine: Commission shown in Council, 21 March 1697/8, but taking of oath delayed. Took oath as Judge of Admiralty, 9 June 1699, only to be superseded almost immediately by Wait Winthrop. Appointed again, July 1703. After some confusion, re-commissioned in 1704; sworn in April 1704. Sat until 1714 or 1715. Sitting again October 1728; sworn before Governor and Council, 10 April 1729. See Council Records, ii (1686–1687, 1692–1698), 527; Council Records, iii, 52, 59, 264; Wroth, “The Massachusetts Vice Admiralty Court,” 259, 261; Richard S. Dunn, Puritans and Yankees: The Winthrop Dynasty of New England 1630–1717 (New York, 1971), 271, 272; John G. Palfrey, History of New England, 5 vols. (Boston, 1859–1890), iv, 255, note 1; Charles M. Andrews, “Vice-Admiralty Courts in the Colonies,” Introduction to Records of the Vice-Admiralty Court of Rhode Island 1716–1752, ed. Dorothy S. Towle (Washington, D.C., 1936), 14, note 4, 86–87; Marguerite Appleton, “Rhode Island’s First Court of Admiralty,” New England Quarterly, v (1932), 156 (quoting Boston Newsletter, 1 May 1704); Massachusetts Court of Admiralty Records, 3 vols. (Office of the Clerk, Supreme Judicial Court, Suffolk County, Boston), iii (1726–1733), 52, 59–60 (hereafter Admiralty Records).
In his obituary notice it was said of Byfield as judge of admiralty that:
He was the first judge under our present charter; and never once had a decree revers’d upon an appeal home.
In Lane, Historical Sketches, 34, we read:
The wisdom and justice of Mr. Byfield’s acts as a Civil Judge, are apparent from the remarkable fact that in no case were his decisions ever reversed on appeal to higher powers.
The context makes it clear that Lane, an ecclesiastical historian, intends by “Civil” not an opposition to “Admiralty” but merely “secular.” Thus are legends made.
See also, Munro, History of Bristol, 66, and Bicentennial, 117.
319 See G. B. Warden, Boston, 1680–1776 (Boston, 1970), 51.
320 Wroth, “The Massachusetts Vice Admiralty Court,” 258–259; Dunn, Puritans and Yankees, 271.
321 Warden, Boston, 46, 48, 51.
322 Everett Kimball, The Public Life of Joseph Dudley: A Study of the Colonial Policy of the Stuarts in New England (New York, 1911), 66, note 2; Howard M. Chapin, Privateer Ships and Sailors, 1625–1725 (Toulon, 1926), 178 (Dudley’s “servile agent Byfield”); Dunn, Puritans and Yankees, 268–271.
323 There is a fascinating, if minor, bibliographic muddle which has almost certainly done its bit to produce confusion, and probably inaccuracy. On 29 April 1689, Byfield wrote a letter of introduction to a Declaration written by the revolutionaries who seized power from Andros. The letter, non-committal in the extreme, in itself enables neither contemporary nor historian to gather the political sentiments of the author. But Byfield’s authorship of this innocuous if not helpful document has resulted in quite baseless attribution to him variously of two other documents—one on each side of the great political controversy. See, “An Account of the Late Revolution in New-England. Together with the Declaration of the Gentlemen, Merchants, and Inhabitants of Boston, and the Country adjacent. April 18, 1689. Written by Mr. Nathanael Byfield, a Merchant of Bristol in New-England to his friends in London.” (Printed for Ric. Chiswell, 1689 at the Rose and Crown in St. Paul’s Church-Yard.) The Declaration appears to have been written by Cotton Mather, see Palfrey, History of New England, in, 579 note i; “An Account of the Late Revolutions in New England; In a Letter (Published at Boston by Benjamin Harris, and Sold at the London-Coffee, House there, June 6, 1689.) Signed “A.B.” (“Frequently confused with a pamphlet by Nathaniel Byfield,” Card Catalogue, John Carter Brown Library, Brown University, Providence, Rhode Island); “Seasonable Motives To our Duty and Allegiance (by a Lover of the Peace of New-England) offered to the Consideration of his Neighbors & Country-men.” (Philadelphia, printed by William Bradford, 1689.) Signed “A.B.” (Attributed to Byfield, Evans Catalogue #463.)
324 Acts and Resolves, i (Acts, 1602–1714), 147. See objection by Byfield and others to the act, Massachusetts Archives, xlviii (Legislature, 1643–1732), 224.
325 Palfrey, History of New England, iv, 143 [emphasis added]; see Warden, Boston, 46.
326 Court Records, vi, 338.
327 Baylies, Historical Memoir, ii:iv, 55–56, note; Washburn agrees, Judicial History, 180.
328 Dunn, Puritans and Yankees, 271.
329 See above, 65, footnote 6.
330 See Wroth, “The Massachusetts Vice Admiralty Court,” 259; cf. Dunn, Puritans and Yankees, 271–272.
331 Wroth, “The Massachusetts Vice Admiralty Court,” 261, quoting Dudley: “I have now a second commission for Mr. Byfield. . . .”
332 As a letter from Byfield to Dudley makes clear, quoted by Kimball, Dudley, 66, note 2.
333 See below, 102, note 3.
334 John A. Schutz, William Shirley, King’s Governor of Massachusetts (Chapel Hill, 1961).
335 Joseph J. Malone, Pine Trees and Politics: The Naval Stores and Forest Policy in Colonial New England 1601–1775 (Seattle, 1964).
336 Schutz, William Shirley, 8.
337 Malone, Pine Trees and Politics, 71, 93, 106–109.
338 Malone, Pine Trees and Politics, 71. Malone calls Byfield “a timber merchant and sawmill owner,” ibid.
339 He had, on his death, extensive land holdings in Maine and Vermont, Lane, Historical Sketches, 36.
340 Admiralty Records, in, 108–109, 105, 132–133, 74–81.
341 Swazey v. Byfield, Suffolk Files #35758, Writ of execution, 16 March 1732/3. Judgment for Swazey in Superior Court, Boston. [Reverse of document: Judgment satisfied, £23.4.0, 15 August 1733. This was after Byfield’s death.] Schutz, noting that Byfield had hired Shirley to represent him in this matter, says of Shirley’s appeal to the Privy Council, “The Council’s ruling was inclusive.” Schutz, William Shirley, 8.
342 Suffolk Files #30398. See John Noble, “A Few Notes on Admiralty Jurisdiction in the Colony and in the Province of Massachusetts Bay,” Colonial Society of Massachusetts, Publications, viii (1906), 168.
343 I have discovered records of twenty-seven actions, civil or criminal, in which Byfield or his executor was a party, in a few of them as executor. As we shall see, some of these stretched on for many years, through a number of courts, and in some cases arbitration as well.
344 The inhabitants of Bristol were embroiled in controversy among themselves from virtually the moment of settlement. They squabbled, and sued, over rates and roads, mills and ministers, over land and water. Simple-minded though this may be, I believe the trouble to be in part traceable to the character and temperament of particular individuals—Nathaniel Byfield for one. One historian, taking a somewhat broader view, says of those men who followed the original proprietors, and who were induced to settle in Bristol by land grants: “Like most men who get something for nothing, the first sixty were malcontents.” It will be seen that Bristol is a problem for any historian who might care to advance the thesis that New England was, in this era, harmonious. Perhaps the situation in Bristol supports the thesis that with a shift in societal focus from religion to commerce came disunity and strife. Bristol was, as its celebrants somewhat apologetically record, a commercial enterprise, in the words of the original deed to Byfield et al., “a town for trade.” No Puritan Eden this. Or perhaps the Bristol story points up what we ought in any event to know by dead reckoning, that is, that times of settlement are likely to be times of confusion, therefore of conflict. Or perhaps Bristol was unique. Or perhaps New England was not particularly harmonious.
345 On Saffin see Munro, History of Bristol, 87–90, Baylies, Historical Memoir, ii:iv, 57–62, Washburn, Judicial History, 268–270.
346 Plymouth Records, vi, 116–119, vii, 269. See also vii, 270. At the same time that Saffin sought justice against the tax assessors, he also took up a separate grievance against one of them. He brought an action of the case against Benjamin Church, alleging that by damming up a “certain watercourse, stream or creeke,” Church had flooded Saffin’s land and deprived him of free access thereto. The jury, finding for Saffin, awarded him £3 and costs. He had asked £80 “with other due damages.” Plymouth Records, vii, 270.
347 Plymouth Records, vii, 270–271. They also brought an action against one Robert Skiff for withholding land belonging to them, apparently land sold to Skiff by Saffin. Plymouth Records, vii, 271.
348 Massachusetts Archives, xl, 383. In ibid., xl, 382, is Saffin’s bill of particulars, presented to the arbitrators in February 1683/4. The arbitrators were Thomas Hinckley, William Stoughton, Joseph Dudley, and Nathaniel Thomas.
349 The bond given to Walley, Byfield, and Burton is at Massachusetts Archives, xl, 384, dated 9 February 1683/4. Saffin’s bond, on the same date, is in ibid., xl, 383.
350 The arbitration award, dated 13 February 1683/4, is in ibid., xl, 385.
351 Ibid., 395.
352 Ibid., 396.
353 This is a lengthy document, appearing in ibid., 397–412.
354 Ibid., 376–378, contains the arbitration award, dated 6 July 1696.
355 Ibid., 413, is Saffin’s summary of his Narrative.
356 Ibid., 412.
357 Ibid., 397–412.
358 Ibid., 397.
359 Ibid., 399.
360 Ibid., 405.
361 Ibid., 408. Saffin was married three times, Baylies, Historical Memoir, ii:iv, 62; Munro, History of Bristol, 88, although not “to a daughter of Colonel Byfield,” as Washburn—tripping over some awkward footnoting in Baylies, I suspect—says. See Washburn, Judicial History, 270, Baylies, Historical Memoir, ii:iv, 53.
362 Massachusetts Archives, xl, 377.
363 The Retraction is reprinted by both Baylies, Historical Memoir, ii:iv, 58–61, and Munro, History of Bristol, 89–90; see also, Massachusetts Archives, xl, 320.
364 Two statements in support of Saffin survive: (1) Nathaniel Reynolds, Massachusetts Archives, XL, 414, and (2) William Hoar, ibid., 414–419. Hoar asserts that he has “heard [Byfield and Walley] called cheats and worse terms to their faces at a Tavern in Bristol whilst they dwelt there. And at my house I have heard a near relation of Major Walley’s call him a cheat and curse him, for he said that the Major had wheadled him out of a fair estate at Road Island to come & settle in Bristol, and there dealt as falsely with him in not performing what he pretended to him which promise was the very inducement to cause him to settle in Bristol.”
365 Ibid., 410.
366 Ibid., 411.
367 Howe, Mount Hope, 63–64.
368 Acts and Resolves, vii, 351, 7265 Massachusetts Archives, xlv (Lands, 1622–1726), 286–287; Court Records, vii (1699–1703), 324.
369 This was of course true of most early colonial “legislatures,” that of Plymouth, for example. As we have seen, the disputes which arose in Bristol, before the assimilation of Plymouth into Massachusetts in 1692, had been brought to the Plymouth General Court, where, by the way, trial was by jury, not ever the case in the Massachusetts General Court.
370 The documents in the case are in Massachusetts Archives, xl, 352, 353, 354, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 371, 372, 393, 414, 421, 422, 423; Court Records, vi, 460, 476, 477, 480. Just a few of the documents are printed in Acts and Resolves, vii, 110–111, 491–493.
371 Massachusetts Archives, xl, 409. The selectmen were Nathaniel Blagrove (to whom we will return), John Rogers, and Thomas Walker.
372 The Colonial Laws of Massachusetts, Reprinted From the Edition of 1660 With the Supplements to 1686, ed. William H. Whitmore (Boston, 1889), 41 (“The Body of Liberties,” Sec. 36, 1641); 122 (The Book of the General Lawes and Libertyes, Sec. “appeal,” 1660).
373 Massachusetts Archives, xl, 352.
374 Ibid., 353. See Acts and Resolves, vii, 493. Nonconcurred, Massachusetts Archives, xl, 353; Acts and Resolves, vii, 494.
375 Massachusetts Archives, xl, 377.
376 Ibid., 421.
377 In January 1696/7, an appeal was heard in the Superior Court, from a judgment in the Inferior Court, for Nathaniel Blagrove, executor of Nathan Hayman, against Jabez Goram, as tenant to Byfield; presumably the action was begun in late 1696. Records of the Superior Court of Judicature (Office of the Clerk, Supreme Judicial Court, Suffolk County, Boston) (1686–1700), 169. (Hereafter Superior Court Records.)
378 Saffin and Reynolds appealed to the Superior Court, but withdrew their actions, “Mr. John Sparhawk of Bristol who was subpoenaed not being there.” Byfield was awarded costs. Superior Court Records (1686–1700), 239. For Reynolds’ deposition supporting Saffin in the controversy over the settling and management of Bristol, see Massachusetts Archives, xl, 414.
379 Ibid., xl, 406–407.
380 The papers in this case, Blagrove, Administrator of the Estate of Nathan Hayman v. Byfield, are at:
- Suffolk Files, #4038 (17 papers, f. 129–146).
- Suffolk Files, #162489.
- Suffolk Files, #162509.
Superior Court Records (1686–1700), 169, 239, 242–245, 248–249.
381 Suffolk Files #4038, 6th paper.
382 Massachusetts Records, ii (1642–1649), 21 (1642); Acts and Resolves, i, 75, 144–145, 285, 356–357, 373.
383 Horace Gray, “Note,” Josiah Quincy, Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay between 1716 and 1722, ed. Samuel M. Quincy (Boston, 1865).
384 Acts and Resolves, i, 356–357.
385 The documents in the case are:
- Suffolk Files #7796 (14 papers, f. 110–119).
- Superior Court Records (1700–1714), 187–188.
- Council Records:
- IV (1703–1708), 76, 154, 403–404, 406, 490, 410, 411, 428–431, 443, 447, 449, 533–534.
- V (1708–1712), 132, 219–220, 234–236, 241–242, 243.
- VII (1723–1727), 267.
- Massachusetts Archives, xl, 884, 887–891.
Some of the documents, with narrative and analysis will be found in Acts and Resolves, viii (Resolves, 1703–1707), 206–207, 650–657.
386 Suffolk Files #7796, 6th paper.
387 Suffolk Files #7796, 7th paper.
388 Acts and Resolves, i, 15.
389 Acts and Resolves, i, 43–45, 251–252, 430–431.
390 “Your Apearance for Orphans is made something dim, by reason that Four of the Six, by Instrument under their hands, disavowed the Action; and declard themselvs very well satisfied with the Management of Mr. Nathanl Blagrove their Father-in-Law.” Sewall to Byfield, Acts and Resolves, viii, 656, citing Sewall Letter Book, i, 318. The instruments referred to are in Suffolk Files #7796. See also Council Records, v, 132 (in November 1709, the Council heard a complaint by Nathan and Grace Hayman against Byfield’s division of the real estate, and awarded £12 to Nathan, £30 to Grace).
391 Although by May 1707 both Mary and her sister Elizabeth Brattle appear to have had complaints about the substance of the accounting, Council Records, iv (1703–1708), 403–404, 406, 409, 410, 411, 429–431.
392 The account in the text of the English background is taken from A. W. B. Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Oxford, 1975), 120–122, and Lord Nottingham’s “Manual of Chancery and Practice” and “Prolegomena of Chancery and Equity,” ed. D. E. C. Yale (Cambridge, 1965), 275.
393 Addington v. Griggs, described in Acts and Resolves, viii, 657.
394 Suffolk Files #7796, 6th paper.
395 There are two interesting 1714 letters to John Leverett at the Massachusetts Historical Society. Byfield apologizes for not going to see Leverett in Cambridge while he was in Boston: “ . . . I understood by a Friend of yours, that you were somewhat Timorus [?], and I being a neggatived person, and observed in all my motions, I was afraid my going might prove a disservice . . . ,” Nathaniel Byfield to John Leverett, 1714, Folio XI-M, Saltonstall Papers, Massachusetts Historical Society.
396 See Sewall on this point, Acts and Resolves, viii, 657.
397 Acts and Resolves, viii, 656.
398 Ibid. Blagrove’s petition to the General Court makes the same point:
And May it Please this Hononrd Court
Such is the hast & Severity of yor Petitionrs Enemys, that without any regard to Equall Justice, or to Yor Petitionrs being a Member of the Honourble House of represents, Execution is already actually taken Out against him, for the whole 6000£. Even while the Houss was sitting, thereby to Overawe, & keep him in Continuall dread, to Augmt & put him to unreasonable, & unnecessary charges (the first Step, at least is 40li or 50li fees to ye Sheriff) so that no less can be aim’d at or Intended then his utter ruin
399 Massachusetts Archives, xl, 890.
400 Ibid., 891.
401 Court Records, viii (1703–1709), 254, 260.
402 The House wanted to suspend judgment pending enactment of a law for the chancering of administration bonds, Massachusetts Archives, xl, 889, but the Council thought “the Law already Sufficient in that respect,” Court Records, viii, 265. See also Massachusetts Archives, xl, 888, 889.
403 Acts and Resolves, viii, 206–207.
404 This statement is based on incomplete but not inconsiderable study of the subject.
405 That is, where, by lifting some bar (e.g., statute of limitations), it merely enabled a litigant to proceed in the regular courts.
406 Council Records, v (1708–1712), 235–236.
407 Council Records, v, 243.
408 Council Records, v, 241–242.
409 On the Land Bank dismissals, see Council Records, x (1735–1742), 463, 466, 476, 471, 473, 475, 479, 506, 508, 519.
410 See, Boston Gazette, 16 December 1771, 6 January 1772, 13 January 1772; Massachusetts Gazette, 2 January 1772. The Greenleaf case was first brought to my attention by Catherine Menand.
411 Massachusetts Archives, xl, 890.
412 That is, for not setting up a separate Court of Chancery, arguably outside the powers granted by the original royal charter and certain to be frowned upon by imperial authority.
413 Hutchinson, History, 158 note; Baylies, Historical Memoir, ii:iv, 55; Munro, History of Bristol, 70, note, suggests that the quarrel with Dudley was about Blagrove’s administration of Hayman’s estate.
414 Hutchinson, History, ii, 177; Baylies, Historical Memoir, ii:iv, 55 note; Warden, Boston, 92; Washburn, Judicial History, 180–181; Howe, Bristol, 17. All of these mention Byfield’s desire to procure the governorship for himself. While I do not doubt that he was ambitious enough for this, or anything, I have seen no contemporary support. Byfield’s journey was also aimed at procuring royal approval for the private bank scheme of which he was a promoter, Warden, Boston, 92; Palfrey, History of New England, iv, 334–335.
415 Although Malone, Pine Trees and Politics, 30, seems to be saying that in when Sir Henry Ashurst worked in London for Dudley’s removal, it was “with enthusiastic support in Boston led by Nathaniel Byfield. . . .” If this is the case, Byfield was acting more duplicitously than was in character for him.
416 The documents are at Suffolk File #50704, 51460, 52419, 52859, 53172, 53980 (2 papers, f. 134–135), 54555.
417 Baylies, Historical Memoir, ii:iv, 55–57.
418 The phrase is Malone’s, Pine Trees and Politics, 109, note 107. Dunbar, the Surveyor-General, called Byfield a “poor Superannuated Gentleman near 80 years old, who had already distinguished himself very partial to the Country,” Malone, Pine Trees and Politics, 108, note 103.
419 J. P. Dawson, A History of Lay Judges (Cambridge: Harvard University Press, 1960), 303.
420 The Weekly Newsletter is included in The Early American Newspaper Series (1704–1820) of the microform cards of the Readex Microprint Corporation on the microform for the Newsletter for 28 November 1728 to 1 May 1729.
421 The will and executors’ account for John Clark’s estate are maintained in the Suffolk County Registry of Probate.
422 J. L. Sibley, Biographical Sketches of Graduates of Harvard University (Cambridge: C. W. Sever, 1873–1975), III (1885), 368–369 and 375–379.
423 Diary of Samuel Sewall (3rd vol.), Massachusetts Historical Society, Collections, xvii (1882), 210. [Hereinafter cited as Sewall Diary.] For an account of the early colonial medical practices, including those of Clark’s relatives, see Medicine in Colonial Massachusetts, Colonial Society of Massachusetts, Publications, lvii, 122.
424 Ibid., 227.
425 Diary of Cotton Mather, Massachusetts Historical Society, Collections, lxvii, 189, and lxviii, 299. [Hereinafter cited as Mather Diary.]
426 Sibley, Harvard Graduates, iii, 377.
427 Journals of the House of Representatives of Massachusetts (1919). [Hereinafter cited as Journal.] Volumes one through eight cover 1715 to 1730. The printing of the journal was initiated after a quarrel with Governor Dudley.
428 D. Levin, Cotton Mather: The Young Life of the Lord’s Remembrancer, 1663–1703 (Cambridge: Harvard University Press, 1978). My only criticism of this thoughtful book is that in his effort to be sympathetic Levin may have missed the obvious point that Cotton Mather lost power because he was a hypocrite and a wind-bag. There are two good examples of Mather’s obvious failing. He had the motto “Be Short” inscribed over his study door and yet was notoriously unable to be short about anything. Mather’s feverish defense of his father went well beyond that required, even of a dutiful Puritan son. Perry Miller described Cotton Mather’s obsequiousness as an “unction which infects even his most worthy actions. . . .” P. Miller, The New England Mind: From Colony to Province (Cambridge: Harvard University Press, 1953), 194.
429 Sibley, Harvard Graduates, iii, 375–376.
430 Ibid., 376. The Charter of 1691 gave the Governor the right to appoint justices of the peace. Acts & Resolves of the Province of Massachusetts Bay, i (1867), 12. [Hereinafter cited as Acts & Resolves.]
431 A Report of the Record Commissioners containing the Boston Records from 1700 to 1728, 55 (Report #8:1883). [Hereinafter cited as Report #8 (1883): The Boston Records from 1700 to 1728.]
432 Journal, i, 2.
433 Journal, ii, 232.
434 Journal, iii, 3–4.
435 Ibid., 86.
436 Journal, iv, 1–2.
437 Journal, v, 4.
438 Ibid., 27, 130.
439 Journal, vi, 6. William Dummer was acting governor at the time, having succeeded Samuel Shute, who fled in January of 1723. P. Miller, The New England Mind, 457.
440 See, e.g., Journal, vi, 217. Journal, vii, 6, note 9.
441 Journal, iii, 87.
442 Acts & Resolves, i, 22.
443 See, e.g., Journal, ii, 69, 117.
444 Journal, iii, 96–101.
445 Acts & Resolves, i, 23.
446 For instance, on the third and fourth page of the book the entries proceed: March 6, March 4 and March 10. The book will be cited henceforth as Book, date of entry, unless the text states it, and a page number, assigned by this author.
447 See, e.g., Book, 4 March 1700/01, 3. John Clark dated events within the first three months of the year using the 1700/01 format used in this note. This convention will be observed in this paper.
448 Joseph H. Smith has written that William Pynchon (1590–1651) “had some familiarity with . . . Dalton’s The Countrey Justice. . . .” Colonial Justice in Western Massachusetts 1630–1702, J. H. Smith ed. (Cambridge: Harvard University Press, 1961), 157–158. When compiling the Laws & Liberties in 1648, the General Court ordered two copies of The Countrey Justice. G. L. Haskins, Law and Authority in Early Massachusetts (New York: Macmillan, 1960), 135. The inventory of Clark’s estate disappointingly included the following cryptic entry: “222 Old Books £30.” This is a large number of books for any colonial person.
449 See Colonial Justice in Western Massachusetts. See also The Pynchon Papers, The Colonial Society of Massachusetts, Publications, lx.
450 Originally, Massachusetts did not have judges called justices of the peace; instead, they were “magistrates.” Since individuals frequently became magistrates by virtue of holding another office and/or their social status, Massachusetts did not have much experience in the appointment of judges until the period of the Second Charter. See Haskins, Law and Authority, 173–178.
451 Acts & Resolves, i, 78 (Chapter 35 of the Acts of 1692–3).
452 M. Dalton (and one of the Masters of Chancery), The Countrey Justice (London: W. Rawlins & S. Roycroft, 1705 ed.), 13. The statutory origin of the precise words of the English oath were unclear according to 1705 edition of Dalton’s. The Massachusetts oath differed in that certain references to the King and institutions not physically present in Massachusetts were eliminated. “The oath concerning this office seemeth to be by force of the Statute made 13 R.2. C.7.” Ibid., 12.
453 C. Bridenbaugh, Cities in the Wilderness: The First Century of Urban Life in America 1625–1742, 2d ed. (New York: Knopf, 1955), 143.
454 See, e.g., Report #11 (1884): Records of Boston Selectmen, 1701 to 1715, 18. This report for 16 March 1702 is typical:
At a meeting of the Justices of ye Peace & Select men within the Town of Boston vizt. John Foster, Esq., Elisha Cook, Esqr., Eliakm Hutchinson, Esq, Samll Sewall Esqr., Jer. Dummer Esqr., Elisha Hutchinson Esqr., 2d Edwd Brumfield Esqr., Penn Townsend Esqr., John Clark, Esqr., Isaac Addington Esqr.
The Select men then present were
It was then by the Said Justices & Select men Agreed That the Bakehouse belonging to the Revd Mr. James Allen being on the Back side of the Town, and the Grainary belonging to Mr. Arthur Mason butting on the Common or Training field and the ware house belonging to John Foster Esqr. Night unto the great Still house at the north end of Boston be the Houses at present improved for the Lodging of Gunpowder in until Other & better provision be made for the Same.
And that Capt John Fairwether be treated with about his takeing care to receive in and deliver out Sd powder.
At a meeting of ye Select men March 23d. Mr. John Stevens his Petition for a Timbr building was approved.
456 At the meeting on 27 January 1706/07 the three groups appointed sixteen individuals labelled “Esq.,” including the ten or so regulars, to “Visit the Families of the Town on Wednesday the 5th of February next.” Ibid., 55–56.
457 Acts & Resolves, i, 185.
458 See, e.g., Book, 26 July 1700, i.
459 Acts & Resolves, i, 449.
461 Ibid., 51 (chapter 18 of the Acts of 1692–3). Punishment in the stocks was added by chapter 9 of the Acts of 1693. Ibid., 122–123. Drunkenness fines also went to the poor. See, e.g., Book, 10 December 1706, 44.
462 See, e.g., Book, 7 September 1701, 7.
463 Ibid., 28 October 1700, 2.
464 Acts & Resolves, i, 681 (Chapter 6 of the Acts of 1711–12).
465 Ibid., 298.
466 See, e.g., Book, 6.
467 Chapter 25 of the Acts of Second Session of 1692–3 gave a justice of the peace, within his county, and an ordained minister, within his town, the power to solemnize marriages, but only after publication by way of posting or saying of the banns. The statute set a fee of three shillings for this service. Acts & Resolves, i, 61.
468 Book, 4.
469 Acts & Resolves, i, 136.
470 Book, 23–24.
471 Different people would no doubt tally the sometimes ambiguous entries differently. Chart A of the Appendix shows aggregate figures for the book. The proportion of criminal matters is significantly higher than Richard Gaskins found in similar books for Connecticut for later periods. Gaskins, “Changes in the Criminal Law in Eighteenth Century Connecticut,” American Journal of Legal History, xxv (1981), 309.
472 Acts & Resolves, i, 52 (Chapter 18 of the Acts of 1692–3, 2d Sess.).
473 See, e.g., Book, 1 March 1705/06, 34.
474 See, e.g., Book, 10 January 1709/10, 70.
476 Ibid., 7 May 1711, 90.
477 Acts & Resolves, i, 122–123 (Chapter 9 of the Acts of 1693).
478 See, e.g., Book, 20 May 1726, 268.
479 Acts & Resolves, i, 51 (chapter 18 of the Acts of 1692–3, 2d Sess.).
480 See, e.g., Book, 10 December 1706, 44.
481 Acts & Resolves, i, 51 (Chapter 18 of the Acts of 1692–3, 2d Sess.).
482 Ibid., 122–123 (Chapter 9 of the Acts of 1693).
483 Book, 7.
484 Acts & Resolves, i, 53.
485 The punishments were prescribed in Section 7, as well. Ibid. For a typical case, see Book, 30 August 1710, 77. Ester (sic) Flag was convicted for “publishing a false report . . . by saying that . . . Catherine was drunk at a burial. . . .” Mrs. Flag was fined five shillings and required to find two sureties five pounds each to guarantee her appearance at the next sessions.
486 Book, 40.
487 A similar legal phenomenon is discussed in Dalton, Countrey Justice, 71–73, note 34. Many felonies were technically triable by English justices of the peace, but were dealt by binding over the accused to some other court. Blackstone, writing some sixty years after Clark, noted a similar reluctance of English justices of the peace, sitting as the court of general sessions, to tackle serious criminal matters even if within their jurisdiction. W. Blackstone, Commentaries (Oxford: Clarendon Press, 1st ed. 1769), iv, 268–269.
488 Acts & Resolves, i, 52.
489 Book, 108.
490 Ibid., 109.
491 Ibid., 38.
492 Dalton, Countrey Justice, 2758.
493 Ibid., 278–279. The use of this punishment as an instrument of social control is discussed briefly in A. H. Manchester, Modern Legal History (London: Butterworths, 1980), 194–198.
494 See above, 118, text accompanying footnote 4.
495 M. Farrand, The Laws and Liberties of Massachusetts, reprint of 1648 edition (Cambridge: Harvard University Press, 1929), 5.
496 Acts & Resolves, i, 55 (Chapter 19 of the Acts of 1692–3, 2d Sess.).
497 Ibid., 297 (Chapter 20 of the Acts of 1697, 3d Sess.).
498 Ibid., 58–59 (Chapter 22 of the Acts of 1692–3, 2d Sess.).
499 See, e.g., Book, 6 June 1701, 6.
500 Book, 23 February 1711/12, 101.
501 Sewall Diary, 336–337.
502 Acts & Resolves, I, 682 (Chapter 6 of the Acts of 1711–12, 6th Sess.).
503 Chapter 11, Article 7 of the Acts of 1692–3, 2d Sess., attempted to establish the “grand inquest” in all capital cases as one of the “rights and liberties of the people.” Acts & Resolves, i, 40. The Privy Council disallowed this statute.
504 Book, 48.
505 Ibid., 16 July 1707, 49.
506 Acts & Resolves, i, 171 (Chapter 5 of the Acts of 1694–5, 1st Sess.) established a variety of savage, but non-deadly, punishments for adultery. Polygamy remained a capital offense.
507 Book, 4 May 1705, 25, and 17 April 1706, 36.
508 Ibid., 3 February 1710/11, 84–85 and 24 February 1710/11, 86–87.
509 Ibid., 13 January 1712/13, 123.
510 See, e.g., Report #8 (1883): The Boston Records from 1700 to 1728. At the freeholders meeting of 9 March 1701/02 all four people elected constable, including Adam Winthrop, refused to serve and had to be replaced. Chapter 28 of the Acts of 1692–3 (2d Sess.) imposed a fine of £5 for refusing to serve as constable of any community other than Boston or Salem and £10 for refusing to serve in the latter two communities. Acts & Resolves, i, 67.
511 Acts & Resolves, i, 345 (chapter 16 of the Acts of 1698 [1st Sess.]).
512 Book, 13 March 1704/05, 23–24.
513 It is interesting that article 3 of the act, which purported to recognize “the rights and liberties of the people,” only protected a person from being “twice sentenced for one and the same crime, offense or trespass.” Acts & Resolves, i, 40 (Chapter 11 of the Acts of 1692–3, 2d Sess.). This act was disapproved by the Privy Council on 22 August 1695. William Nelson has stated that protection against double jeopardy in something like its modern form was in existence in early nineteenth century Massachusetts. W. E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge: Harvard University Press, 1975), 99, note 141.
514 Book, 11 October 1715, 200.
515 Ibid., 20 May 1726, 268.
516 Ibid., 2 June 1712, 106.
517 Ibid., 17 February, 1706/07, 46.
518 Ibid., 16 July 1703, 17.
519 Ibid., 26 May 1712, 106.
520 Acts & Resolves, i, 368 (Chapter 1 of the Acts of 1699, 1st Sess.).
521 See, e.g., Book, 25 October 1701, 10.
522 Ibid., 13 April 1716, 213 and 24 February 1710/11, 86–87.
523 Ibid., 26 December 1718, 272.
524 Ibid., 15 December 1715, 204.
525 See Chart B, which classifies all matters during the period from 1 January 1713/14 until 31 December 1714.
527 See below, 150–151.
528 See above, 117–118, text accompanying notes 2 and 3.
529 Book, 19 March 1707/08, 54.
530 See, e.g., The Laws and Liberties of Massachusetts, 25.
531 Acts & Resolves, i, 378. Both the abhorrence of idleness and the institution of a house of correction, by the justices in session, were directly imported from England. See Dalton, Countrey Justice, 112–113.
532 Book, 19 March 1707/08, 54.
533 Ibid., 6 August 1705, 26.
534 Ibid., 27 August 1705, 29.
535 Ibid., 30 August 1706, 41; 16 September 1706, 41; 13 November 1708, 60; 5 October 1713, 147, and 29 February 1715/16, 211.
536 Ibid., 23 February 1715/16, 210.
537 Ibid., 11 October 1715, 200.
538 Ibid., 6 May 1715, 191.
539 Ibid., 31 July 1718, 237.
540 Ibid., 19 May 1715, 192. Bull, a victualler, who surely lived near Clark, appears in the book on over two dozen occasions. He was a civil plaintiff, civil defendant, and criminal defendant at various times.
541 Ibid., 4 October 1712, 116.
542 Ibid., 28 May 1711, 91.
543 Acts & Resolves, i, 52–53 (Chapter 18 of the Acts of 1692–3, 2d Sess.). An assault on a woman in any “fields, streets, or lanes” was cognizable at the general sessions or when out of sessions before two justices of the peace. Ibid., 673–674 (chapter 2 of the Acts of 1711–12 [1st Sess.]). It may have been that these offenses lacked any public “peace” aspect.
544 W. E. Nelson, Americanization of the Common Law, 15.
545 See, e.g., Report #13 (1885): Records of Boston Selectmen, 1716 to 1736, 25 (7 August 1717).
546 Ibid., 81 (8 May 1721).
547 Ibid., 82 (12 May 1721).
548 Acts & Resolves, i, 377 (Chapter 7 of the Acts of 1699–1700, 1st Sess.).
550 Report #13 1885: Records of Boston Selectmen, 1716 to 1736, 122.
551 Ibid., 154–155 (11 July 1726). The power of licensure was given to the Selectmen and to the justices in session in certain situations. Acts & Resolves, i, 56 (Chapter 20 of the Acts of 1692–3, 2d Sess.) and at 475–478 (Chapter 15 of the Acts of 1701–02, 1st Sess.).
552 Book, 14 August 1706, 39.
553 Although this term is never used in the Book, Dalton does use it to refer to prosecutions of this type. Dalton, Countrey Justice, 525–526.
554 Acts & Resolves, i, 56 (Chapter 20 of the Acts of 1692–3, 2d Sess.) and at 475–478 (Chapter 15 of the Acts of 1701–02, 1st Sess.).
555 Book, 30 May 1709, 67.
556 Ibid., 7 August 1710, 76.
557 Ibid., 10 March 1706/07, 47.
558 Ibid., 6 February 1701/02, 11–12.
559 Acts & Resolves, v, 128 (1st Sess.).
560 Book, 3 October 1715, 200.
561 Ibid., 28 December 1709, 70. Adam Winthrop, it will be recalled, refused to serve as a constable for Boston. See above, 124–125, note 2.
562 Report #11 (1884): Records of Boston Selectmen 1701 to 1715, 19 (16 March 1702/03).
563 Ibid., 101 (23 January 1709). The formal structures for control and support of the poor resemble those of Elizabethan England. See Dalton, Countrey Justice, 146–173.
564 Ibid., 151 (10 December 1710).
565 Book, 2 January 1710/11 at 82.
566 Ibid., 30 July 1713 at 139.
567 Ibid., 181.
568 Ibid., 3 March 1715/16, 211.
569 Ibid., 6 September 1712, 113.
570 Acts & Resolves, i, 282–283 (Chapter 8 of the Acts of 1697, 1st Sess.).
571 See, e.g., Book, 2 March 1701/02, 13.
572 Some slight support for this may be found in the fact that in the 1780’s agrarian reformers obtained an enlargement of the jurisdictional amount in single justice civil matters. See W. E. Nelson, Americanization of the Common Law, 70.
573 Book, 3.
574 William Nelson seems to suggest that executions on confessions of judgment without a law suit were not possible until the Confession Act of 1782. W. E. Nelson, Americanization of the Common Law, 148. Clark’s book does not support this suggestion.
575 See, e.g., Book, 15 December 1712, 121.
576 Ibid., 2 January 1715/16, 207.
577 Ibid., 8 December 1707, 52.
578 J. H. Baker, An Introduction to English Legal History, 2d ed. (London: Butterworths, 1979), 56.
579 Acts & Resolves, i, 447–448 (2d Sess.).
580 Another case which mentions the three times rule involved a Thomas West of Martha’s Vineyard. Book, 15 May 1710, 74.
581 Ibid., 8.
582 Ibid., 3 January 1714/15, 181.
583 Ibid., 1 October 1705, 31.
584 Ibid., 14 April 1718, 235.
585 Ibid., 8 October 1711, 94.
586 Ibid., 18 August 1705, 26.
587 Dalton has a lengthy entry on relief in the form of restitution in the context of the crime of forcible entry and detainer. Dalton, Countrey Justice, 312–319.
588 Book, 22 May 1702, 14.
589 Ibid., 28 April 1703, 17.
590 Ibid., 21 March 1714/15, 187.
591 Ibid., 23 January 1715/16, 207.
592 Ibid., undated, 3.
593 Ibid., 4 January 1701, 3.
594 Ibid., undated, 2.
595 Ibid., 24 October 1709, 68.
596 Acts & Resolves, i, 282–283 (Chapter 8 of the Acts of 1697, 1st Sess.).
597 Ibid., 324–325 (Chapter 7 of the Acts of 1698, 1st Sess.).
598 Book, 1 December 1702, 16; 27 April 1713, 131; 18 September 1713, 1455 and 31 October 1715, 202.
599 Book, 15 May 1710, 74.
600 Ibid., 29 June 1711, 135. See also 23 March 1718/19, 245.
601 Ibid., undated, 2.
602 Ibid., 17 August 1713, 141, and 13 January 1715/16, 206.
603 Acts & Resolves, i, 282–283 (Chapter 8 of the Acts of 1697, 1st Sess.).
604 Book, 136.
606 Ibid., 104. The meaning of the term “costs” is unclear, but it may have included the prevailed reasonable attorney’s fees.
607 Ibid., 14 December 1713, 150.
608 Ibid., 9 November 1713, 148.
609 Chart B is included in the appendix.
610 See, e.g., Book, 1 October 1705, 31.
611 Ibid., 3 May 1714, 161.
612 Ibid., 75.
613 Winthrop’s attitude was attributable in part to his experience with the decaying Court of Wards in England. E. S. Morgan, The Puritan Dilemma: The Story of John Winthrop, edited by Oscar Handlin (Boston: Little Brown Co., 1958), 22–26.
614 Acts & Resolves, i, 467 (1st Sess.).
615 Book, 6 September 1705, 25.
616 Ibid., 93.
617 Ibid., 17 October 1701, 10, and 28 April 1706/07, 47.
618 Ibid., 18 February 1711/12, 99.
619 Ibid., 7 June 1708, 55.
620 Ibid., 18 May 1719, 246.
621 Ibid., 14 January 1716/17, 225.
623 Ibid., 8 August 1718, 238.
624 The best recent book on the institution has been a purely institutional study. J. H. Gleason, The Justices of the Peace in England 1558 to 1640 (Oxford: Clarendon Press, 1969).
625 D. T. Konig, Law and Society in Puritan Massachusetts: Essex County, 1629–1602 (Chapel Hill: University of North Carolina Press, 1979).
626 W. E. Nelson, Dispute and Conflict Resolution in Plymouth County, Massachusetts, 1725–1825 (Chapel Hill: University of North Carolina Press, 1981).
627 D. T. Konig, Law and Society in Puritan Massachusetts, xvi.
628 Black, Book Review, Yale Law Journal, xc (1980), 232, reviewing Konig’s book.
629 An assistant was originally an enfranchised member of the Massachusetts Bay Company. “The Charter of the Colony of the Massachusetts Bay in New England 1628–29,” reprinted in The Founding of Massachusetts, E. S. Morgan, ed. (Indianapolis, Bobbs-Merrill, 1964), 314.
630 W. E. Nelson, Dispute and Conflict Resolution, 22–23.
631 See W. E. Nelson, The Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830, 133–152.
632 Gaskins, “Changes in the Criminal Law in Eighteenth Century Connecticut,” 310.
633 K. T. Erikson, Wayward Puritans: A Study in the Sociology of Deviance (1966).
634 R. W. Gordon, Book Review, New York University Law Review, Li (1976), 686.
635 J. P. Dawson, A History of Lay Judges, 299.
636 Financial support for this research was provided by the National Endowment for the Humanities, the Charles Warren Center of Harvard University, and Tufts University. The author wishes to thank Virginia Drachman and the editors of this volume for suggested revisions, and Edward Hanson and Dane Morrison for their research assistance.
637 For example, see Douglas Lamar Jones, “The Strolling Poor: Transiency in Eighteenth-Century Massachusetts,” Journal of Social History, viii (1975), 28–545 Allan Kulikoff, “The Progress of Inequality in Revolutionary Boston,” William and Mary Quarterly, xviii (1971), 375–412; Gary B. Nash, “Urban Wealth and Poverty in Pre-Revolutionary America,” Journal of Interdisciplinary History, vi (1976), 545–5845 Gary B. Nash, The Urban Crucible: Social Change, Political Consciousness, and the Origins of the American Revolution (Cambridge, Mass., 1979), especially chapters seven, eight, and nine; Steven Wiberley, “Four Cities: Public Poor Relief in Urban America, 1700–1775,” unpublished Ph.D. dissertation, Yale University, 1975; David J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (New York, 1971), chapters one through three.
638 Douglas Lamar Jones, Village and Seaport: Migration and Society in Eighteenth-Century Massachusetts (Hanover, 1981); Kenneth A. Lockridge, A New England Town: The First Hundred Years (New York, 1970); Philip J. Greven, Jr., Four Generations: Population, Land and Family in Colonial Andover, Massachusetts (Ithaca, 1970); Kulikoff, “The Progress of Inequality”; Robert A. Gross, The Minutemen and Their World (New York, 1976).
639 Nash, Urban Crucible, chapters three, six, seven, and nine.
640 Ruth Crandall, “Wholesale Commodity Prices in Boston during the Eighteenth Century,” Review of Economic Statistics, xvi (1934), 117–128; Arthur Harrison Cole, Wholesale Commodity Prices in the United States, 1700–1861 (Cambridge, Mass., 1938), Appendix A; Andrew McFarland Davis, Currency and Banking in the Province of the Massachusetts-Bay, 2 vols. (New York, 1900–1901), i. 172–173, 378–379; Carl Bridenbaugh, “The High Cost of Living in Boston, 1728,” New England Quarterly, v (1932), 800–811.
641 Scholars have tended to view the emergence of poor laws in colonial America as essentially a replication of the English poor laws. This essay suggests that the actual process of adaptation of poor laws in colonial Massachusetts arose from the particular economic and social conditions of eighteenth-century American life as much as from the inherited legal tradition of English poor relief policies and practices. Compare Caleb Foote, “Vagrancy-Type Law and its Administration,” University of Pennsylvania Law Review, civ (1956), 603, 615–617 and William B. Chambliss, “A Sociological Analysis of the Law of Vagrancy,” Social Problems, xii (1964), 67–77.
642 See Stephen Foster, Their Solitary Way: The Puritan Social Ethic in the First Century of Settlement in New England (New Haven, 1971), chapter five.
643 The quoted passages are from the Petition of Daniel Giddinge and others, 1760, Record Book, vol. 1749–1763, Essex County Court of General Sessions of the Peace, 301, hereafter cited as Essex Sessions. These records are now located in the Essex Institute, Salem, MA.
644 Historians have tended to view colonial systems of social welfare and social control as mutually exclusive. For the former, see Walter I. Trattner, From Poor Law to Welfare State: A History of Social Welfare in America (New York, 1974), chapters two and three; William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge, Mass., 1975), 48; and Gerald Grob, Mental Institutions in America (New York, 1973), chapter one. The social control perspective is more pervasive in the literature; for example, see Jones, “The Strolling Poor”; Rothman, Discovery of the Asylum; Nash, Urban Crucible; David H. Flaherty, “Crime and Social Control in Provincial Massachusetts,” The Historical Journal, xxiv (1981), 339–360; Julius Goebel, Jr., and T. Raymond Naughton, Law Enforcement in Colonial New York (Montclair, 1970), 101, 107–108; and John K. Alexander, Render Them Submissive: Responses to Poverty in Philadelphia, 1760–1800 (Amherst, 1980).
645 Useful theoretical perspectives which bear on the issue of legitimacy include Eugene D. Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York, 1974); E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (New York, 1975); and Douglas Hay, “Property, Authority and the Criminal Law,” Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Douglas Hay et al. (New York, 1975), 17–63.
646 Records of the Governor and Company of the Massachusetts Bay in New England, 5 vols., ed. Nathaniel B. Shurtleff, M.D. (Boston, 1853), i. 264.
647 Ibid., iii. 15.
648 Ibid., ii. 180.
649 Ibid., iv. Part i, 365. For the concern over “strangers,” see ibid., i. 192, 241, 264; iii. 376.
650 Acts and Resolves, i (1692–93), ch. 28, 67; (1703–04), ch. 14, 538–539; (169–394), ch. 19, 151–152.
651 Acts and Resolves, iii (1742–43), ch. 18, 37–385 quote at 37.
652 For the seventeenth-century practices, see John Demos, A Little Commonwealth: Family Life in Plymouth Colony (New York, 1970); and Edmund S. Morgan, The Puritan Family: Religion and Domestic Relations in Seventeenth-Century New England (New York, 1966).
653 Wenham Town Records, 4 vols. (Wenham, 1940), III, 163, 166–171, 174, 179, 182, 187, 190.
654 Judd Manuscript, Northampton, vol. 3, 56. Taken from Northampton Treasurer’s Papers, Forbes Library, Northampton, MA.
655 John Bridges Petition, File Papers, 1764–1765, Middlesex Sessions; located in the Middlesex County Court House, Cambridge, MA.
656 Wenham Town Records, iii. 212.
657 Apprenticing of poor and orphaned children occurred not only in Boston but in the country towns as well. Indeed, substantial numbers of Boston’s poor apprentices were sent to country towns; see Lawrence W. Towner, “The Indentures of Boston’s Poor Apprentices: 1734–1805,” Colonial Society of Massachusetts, Publications, xliii (1966), 417–468; and W. Graham Millar, “The Poor Apprentices of Boston: Indentures of Poor Children Bound by the Overseers of the Poor of Boston, 1734–1776,” unpublished M.A. thesis, College of William and Mary, 1958, Appendix B, Table 2, 69–71.
658 Acts and Resolves, i (1692), ch. 28, 67. For a more general discussion of the distinctions between lineally- and laterally-extended families in early New England, see James H. Henretta, “Families and Farms: Mentalité in Pre-Industrial America,” William and Mary Quarterly, xxxv (1978), 3–32.
659 Case of Widow Froe, Record Book, 1724, Hampshire Sessions, 215; located in the Hampden County Court House, Springfield, MA. For similar cases, see Petition of the Town of Rowley, File Papers, 1769, Essex Sessions; Petition of Tho. Rowell, Etc. for Mary Flanders, File Papers, 1759, Essex Files; and Petition of H. Long, File Papers, 1757, Essex Sessions.
660 Petition of William King and Wife, File Papers, 1764, Berkshire Sessions; located in Berkshire County Court House, Pittsfield, MA.
661 Benj. Crackbone’s Petition, File Papers, 1759, Middlesex Sessions; also see Case of Thomas Farmer, File Papers, 1756, Middlesex Sessions.
662 Petition of Mary Stephens, File Papers, 1752, Essex Sessions.
663 Petition of Selectmen of Haverhill, File Papers, 1765, Essex Sessions; Record Book, 1749–1777, 55, Essex Sessions.
664 The following discussion is drawn from Rowley v. Sarah Moor, File Papers, 1767, Essex Sessions; Record Book, 1765–1777, March 1765, Essex Sessions for the fornication prosecution; Early Settlers of Rowley, Massachusetts, comp. George Brainard Blodgette and ed. Amos Everett Jewett (Rowley, 1933), 207.
665 Daniel Scott Smith and Michael S. Hindus, “Pre-Marital Pregnancy in America, 1640–1966: An Overview and Interpretation,” Journal of Interdisciplinary History, vi (1975), 537–571
666 Sarah Moor, Answer to Rowley Petition, File Papers, 1767, Essex Sessions.
667 Record Book, 1749–1777, 1767, 136, Essex Sessions.
668 Judd Manuscript, Northampton, i, 232.
669 Thomas Franklin Waters, Ipswich in the Massachusetts Bay Colony, 2 vols. (Ipswich, 1917), ii. 396–397.
670 Records of the Town of Braintree, 1740–1793, ed. Samuel A. Bates (Randolph, 1886), 236, 281–282, 285, 531, 573.
671 Nash, Urban Crucible, 126–127.
672 Wenham Town Records, iii, 188; Town Records of Manchester, 1718–1769, 2 vols. (Salem, 1891), ii, 105, 114, 126, 129, and Judd Manuscript, Northampton, iii, 72.
673 On the Boston almshouse and workhouse, the most recent studies include Nash, Urban Crucible, passim; and Wiberley, “Four Cities.” There is no complete study of the Salem almshouse and workhouse in the eighteenth century. For useful and suggestive studies, see Anne Farnam, “Uncle Venner’s Farm: Refuge or Workhouse for Salem’s Poor?” Essex Institute Historical Collections, cix (1973), 60–86, which looks at the early nineteenth-century developments; see also Joseph B. Felt, Annals of Salem, 2 vols. (Salem, 1849), ii. 396–408. The research reported here relies primarily on this author’s analysis of materials in the Massachusetts Historical Society and the Rare Books and Manuscripts Room, Boston Public Library, for the Boston experiences with poverty. For Salem, the Essex Institute contains a substantial collection of materials on the eighteenth-century workhouse.
674 For an analysis of this transition, see Rothman, Discovery of the Asylum, 30–78, 130–179.
675 The almshouse and the workhouse co-existed in the middle of the eighteenth century; the former was primarily for the destitute who were unable to care for themselves, while the latter was intended to reform the poor and to reduce poor relief costs through a pauper work program. See Boston Overseers of the Poor, Admissions, 1760–1812, Massachusetts Historical Society. My analysis of all admissions between 1763 and 1769 reveals that twenty-seven percent of the paupers were men, forty-seven percent were women (of all ages), and twenty-six percent were children. Typically, about twenty-five people died in the Boston Almshouse each year, though the variability in urban mortality rates revealed more deaths in some years. In 1764, for example, sixty-one people died, including adults as well as infant children.
676 “A List of Persons, Beds . . . in the Almshouse Aug. 1756,” Boston Indentures, vol. 1 (1734–1751), Rare Books and Manuscripts, Boston Public Library.
677 Acts and Resolves, ii (1735–36), ch. 4, 756–758.
678 Salem Town Records, 10 May 1749, 22–23. The overlapping perceptions of the almshouse and the workhouse may be seen vividly in the Salem committee report: the members recommended “the building an Almshouse and Work-House for the Reception and Employment of the Idle and Poor of the Towne.” The quotation is from ibid., 22. The source here is the handwritten copy of the Salem Town Records, Box 4 (1748–1775), Folder 1, Essex Institute, Salem, MA.
679 Acts and Resolves, iii (1743–44), ch. 12, 108–111.
680 Salem Town Records, 12 March 1750, 87.
681 Rules and Orders for the Management of the Workhouse . . . 1749–1798, vol. 14, Public Welfare Department, Salem, MA, Essex Institute.
682 [1749 Rules for the Salem Workhouse], Rules and Orders for the Management of the Workhouse . . . 1749–1798; for the rules of the Boston Workhouse, see Boston Town Records, 1739, 234–240, in vol. 12, Boston Records Commission (Boston, 1885). The rules adopted by Salem are identical to those of Boston except for slight modifications. For example, Salem struck out the provision of the removal of the sick poor from the workhouse to the almshouse, since Salem did not have a separate almshouse. Citations to the following rules will be taken from those of Salem.
683 [1749 Rules . . .], 4.
684 Ibid., 5.
685 Zibina Stibbins to Capt. William Edwards, Springfield, 17 May 1805, Northampton Town Records, reel 143, Forbes Library, Northampton, MA.
686 The Diary of William Bentley, 3 vols. (Gloucester, 1962), ii. 81.
687 For example, on 18 April 1764 Mary Tufts was admitted to the Boston Almshouse. On 10 July she “Jumpt the fence and went off from ye house. . . .” See Boston Admissions, 1763–1768, for numerous examples.
688 Letter of William Whiting, Physician, File Papers, 1769, Berkshire Sessions.
689 Overseers of the Workhouse in Great Barrington to Barnet and Sarah Cammel [Campbell], 10 April 1769, File Papers, 1769, Berkshire Sessions.
690 Petition of Barnet Campbell and Wife, File Papers, 1769, Berkshire Sessions.
691 County of Albany, Witnesses, File Papers, 1769, Berkshire Sessions.
692 Findings of Justices of the Peace in Case of Barnet Campbell, 8 May 1769, File Papers, 1769, Berkshire Sessions.
693 Timothy Woodbridge to Gentlemen, File Papers, 1769, Berkshire Sessions.
694 Israel Dewey to Bernard Camble, File Papers, 1769, Berkshire Sessions.
695 Summons to the Selectmen of Great Barrington, File Papers, 1772, Berkshire Sessions.
696 Shurtleff, i, 1965 also see i, 264.
697 Waters, Ipswich, ii. 386.
698 Records of the Town of Braintree, 2.
699 The Records of the Town of Cambridge, 1630–1703 (Cambridge, Mass., 1901), 24, 108, 155, 190; Town Records of Salem, Massachusetts, 1659–1680 (Salem, 1913), 6, 7, 61, 112; Town Records of Topsfield, Massachusetts, 1650–1730 (Topsfield, 1917), 22, 35, 41; Records of the Town of Braintree, 19–20.
700 Town Records of Salem, 303–304.
701 Waters, Ipswich, ii, 392–393; Wenham Town Records, 4 vols. (Wenham, 1930), i, 5; Town Records of Salem, 50.
702 The exact numbers of the transient heads of households in Essex and Hampshire Counties, by decade, are reported below:
The sources for this evidence include the Record Books of the Courts of General Sessions of the Peace, Essex and Hampshire Counties, Massachusetts, 1730–1789. See Douglas Lamar Jones, “Poverty and Vagabondage: The Process of Survival in Eighteenth-Century Massachusetts,” The New England Historical and Genealogical Register, cxxxiii (1979), 253, Table 1.
703 Unpublished data on all transients warned-out of Boston were kindly provided by Allan Kulikoff to the author.
704 Shurtleff, iv, Part 1, 365.
705 Acts and Resolves, i (1692–93), ch. 28, 64–68.
706 Ibid., esp. 67–68.
707 For example, see Town Records of Salem, 112.
708 Acts and Resolves, i (1700–01), ch. 23, 451–453.
709 Acts and Resolves, ii (1722–23), ch. 5, 244–245. The Boston Selectmen used this law in 1729, bringing suit against Captain John Nimeno for a poor spinster, Sarah Bell, who entered Boston from Ireland. Petition of the Selectmen of Boston to the Suffolk County Sessions Court, 27 October 1729, Rare Books and Manuscripts Room, Boston Public Library.
710 Acts and Resolves, ii (1715–41), ch. 6, 3865 ch. 8, 616; ch. 9, 994–995 ch. 16, 835–836.
711 Acts and Resolves, ii (1731–32), ch. 8, 616; (1736–37), ch. 16, 835–8365 (1739–40), ch. 9, 994–995.
712 James Stephen Taylor, “The Impact of Pauper Settlement, 1691–1834,” Past and Present, lxxiii (1976), 42–745 E. J. Hobsbawm, Labouring Men: Studies in the History of Labour (New York, 1967), 41–72.
713 Acts and Resolves, ii (1739–40), ch. 9, 994–995.
715 Newburyport Warnings, File Papers, 1766, Essex Sessions.
716 Egremont Warnings, Record Book, 1764, vol. 1762–1764, unpaginated, Berkshire Sessions.
717 Record Book, 1766, vol. 1766–1771, 111, 115, Hampshire Sessions.
718 Record Book, 1770, vol. 1766–1771, 165, Hampshire Sessions.
719 For a more pessimistic assessment of the constables’ law enforcement powers and effectiveness, see Michael Zuckerman, Peaceable Kingdoms: New England Towns in the Eighteenth Century (New York, 1970), 85–88.
720 Numerous examples occurred. See Beverly Warnings, Boxford Warnings, Record Book, 1732, vol. 1726–1744, 232; Haverhill Warnings, Record Book, 1737, vol. 1726–1744, 522, Essex Sessions.
721 Colerain Warnings, Greenwich Warnings, Record Book, 1772, vol. 13, 28, 35, Hampshire Sessions.
722 These conclusions, and those in the following paragraph, are based on a quantitative analysis of all transient heads of households warned out of Essex and Hampshire Counties. In order to gather this information, I coded every transient with available data on household size, economic characteristics, and residential history in Essex and Hampshire. This evidence was then keypunched and analyzed by computer, and is still in my possession.
723 Acts and Resolves, ii (1735–36), ch. 4, 756–758.
724 On the prevalence of marital migration, see Jones, Village and Seaport, 70–85.
725 For example, see Bradford v. Andover, Record Book, 1767, 136, Essex Sessions, which involved both the legality of a pauper marriage as well as legal residence.
726 Waltham v. Weston, File Papers, 1762–1763, Middlesex Sessions.
727 Quotations are from the Deposition [of Josiah Allen], File Papers, 1762–1763, Middlesex Sessions.
728 Quotations are from the Deposition of Mehetabel Warren, File Papers, 1762–1763, Middlesex Sessions.
729 Acts and Resolves, i (1700–1701), ch. 23, 453.
730 Acts and Resolves, i (1699–1700), ch. 8, 378–381.
731 Acts and Resolves, iii (1755–1756), ch. 43, 926–928.
732 Benj. Smith’s Petition, File Papers, 1763, Essex Sessions.
733 Acts and Resolves, v (1769–1770), ch. 19, 46.
734 Selectmen of Northampton v. Philemon Lee, Record Book, 1767, vol. 1766–1771, 69–70, 80, Hampshire Sessions.
735 Acts and Resolves, iv (1766–1767), ch. 17, 911–912.
736 For example, the General Court construed the 1767 poor law to provide that any justice of the peace could authorize removal of a transient if the justice lived in the same town from which the transient was sent; see Acts and Resolves, v (1772–1773), ch. 4, 198. For the background of this statute, see “Brookline v. Roxbury, 1767–1772,” The Adams Tapers: Legal Tapers of John Adams, ed. L. Kinvin Wroth and Hiller B. Zobel, 3 vols. (Boston, 1965), I, 299–319.
737 Acts and Resolves, v (1777–78), ch. 20, 774–775; also see ibid., v (1775–76), ch. 14, 457–462; and v (1778–79), ch. 17, 903–905.
738 See above, page 173, footnote 3 for the warnings out in the 1770’s and the 1780’s in Essex and Hampshire Counties.
739 The By-Laws and Town-Orders of The Town of Boston, 1785 and 1786 (Boston, 1786), 108–109.
740 Acts and Resolves (1789), ch. 14, 408–410.
741 Ibid., 409–410.
742 Ibid., 409.
743 Ibid., 408, for the standards based on wealth.
744 Ibid., 410.
745 “Salem Warnings, 1791,” Essex Institute Historical Collections, xliii (1907), 345–352.
746 Laws and Resolves (1793), ch. 59, 479–493. The act was approved on 26 February 1794, so I refer to it as the law of 1794, rather than the one of 1793.
747 Ibid., 485–486.
748 Ibid., 485.
749 Ibid., 485, 489.
750 Ibid., 488.
751 The most recent example is Alan M. Dershowitz’s popular book The Best Defense (New York, 1982).
752 See John M. Murrin, “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts,” in Stanley N. Katz, ed., Colonial America. Essays in Politics and Social Development (1st ed., Boston, 1971), 415–449; Gerard W. Gawalt, The Promise of Power. The Emergence of the Legal Profession in Massachusetts 1760–1840 (Westport, Conn., 1979), 7–35. The use of the word “profession” here is very loose and implies none of the trappings of twentieth-century professionalism. See McKirdy’s “Massachusetts Lawyers on the Eve of the American Revolution: The State of the Profession,” below, 313–316.
753 John H. Langbein, “The Criminal Trial before the Lawyers,” University of Chicago Law Review, xlv (1978), 263–316.
754 David H. Flaherty, “Crime and Social Control in Provincial Massachusetts,” The Historical Journal, xxiv (1981), 357.
755 Ibid., 339–360.
756 Gawalt, Promise of Power, 14, 17.
757 The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. A. C. Goodell (Boston, 1869–1922), i, 75, 287, 374, 467. Hereafter cited as Acts and Resolves.
758 Neal Allen has pointed out that the form of this oath was nearly identical with the English equivalent. See Charles T. Libby, Robert E. Moody, and Neal W. Allen, Jr., eds., Province and Court Records of Maine (Portland, Maine, 1928– ), iv, lxiii. Hereafter cited as Maine Court Records.
759 See the admission of Benjamin Lynde (1701) and Jonathan Remington (1710), Superior Court of Judicature, Court of Assize and General Gaol Delivery Records, 1700–1714, 50, 246, Suffolk County Court House, Boston, hereafter cited as Superior Court Records; and ibid., 467, 622–623.
760 The list included: Jonathan Remington (1710); Joseph Hiller (1718); Joseph Gooch and Edward Shove (1724); William Bollan (1726); Addington Davenport, Jr., Elisha Bisbee, Silvanus Bourn, and Elkanah Leonard (1728); and Joseph Marion and Andrew Lane (1729). Superior Court Records, 1710–1714, 246; ibid., 1715–1721, 258; ibid., 1721–1725, 195, 223; ibid., 1725–1729, 58, 297; and ibid., 1725–1730, 183, 226.
761 Massachusetts Council Records, iv, 469–470, Massachusetts Archives, Boston. Hereafter cited as Council Records.
762 Boston News Letter, 22–29 May 1721.
763 Council Records, iv, 105.
764 The Saltonstall Papers, 1607–1815, edited by Robert E. Moody, Massachusetts Historical Society Collections, Vols, lxxx–lxxxi (Boston, 1972–1974), i, 330; Murrin, “Legal Transformation,” 422; and M. Halsey Thomas, ed., The Diary of Samuel Sewall 1674–1729 (New York, 1973), 1012. Hereafter cited as Sewall Diary.
765 See generally, Clifford K. Shipton, Sibley’s Harvard Graduates: Biographical Sketches of Those Who Attended Harvard College. . . . (Boston, 1873– ), iv, 367–378; hereafter cited as Shipton, Sibley’s Harvard Graduates; Saltonstall Papers, i, 286; and Richard B. Morris, “John Read,” Dictionary of American Biography, xv (New York, 1935), 425–427.
766 Saltonstall Papers, i, 282–284.
767 Saltonstall Papers, i, 327. Paul Dudley was trained at the Inns of Court, but his only involvement with criminal practice was in the important role of Attorney General or chief prosecutor from 1702 to 1718. He had become a Superior Court judge the previous November. Appointment as Attorney General normally prevented a lawyer, such as Valentine, Newton, Read, or Overing, from practicing as a defense lawyer in criminal cases. Only fifteen residents of Massachusetts went to the Inns of Court for their legal education before the Revolution. Alan M. Smith, “Virginia Lawyers, 1680–1776: The Birth of an American Profession,” unpublished Ph.D. dissertation, Johns Hopkins University, 1967, 141–142.
768 Sewall Diary, 1054. Journals of the House of Representatives of Massachusetts (Boston, 1919– ), viii, 180, 182. Hereafter cited as Massachusetts House Journals.
769 Paul Lucas has written that “after the Restoration, a greater spirit of ‘professionalism’ reigned in the Inns, for a larger proportion of students were called to the bar than ever before: whereas one out of fourteen had been called to the bar in the period 1615–1625, during 1702–1713, the proportion was two out of five.” See “Blackstone and the Reform of the Legal Profession,” English Historical Review, lxxvii (1962), 465.
770 Sewall Diary, 836, 839–841, 855–856; see also Murrin, “Legal Transformation,” 426.
771 Suffolk County Court of General Sessions of the Peace, 1719–1725, 125, Suffolk County Court House, Boston.
772 Details are from A. Townsend, The Auchmuty Family of Scotland and America (New York, 1932).
773 John M. Murrin, “Anglicizing an American Colony: The Transformation of Provincial Massachusetts,” unpublished Ph.D. dissertation, Yale University, 1966, 221–222.
774 Ibid., 214–215.
775 Boston News Letter, 19–26 April 1733; Boston Evening Post, 26 January 1741; 11–18 June 1741.
776 Boston Gazette, 2–9 June 1740.
777 Jonathan Sewall Letterbook. 10, Massachusetts Historical Society, Boston.
778 William Shirley arrived in Boston from England in 1731 and quickly established a distinguished law practice. He represented clients at the Assizes during ten years of active practice before he became governor in 1741.
779 The Belcher Papers, Massachusetts Historical Society, Collections, Series 6, vi–vii, vii, 54–55, 97–98, 142–143.
780 Belcher Papers, vii, 203.
781 Belcher Papers, vii, 493, 495, 523.
782 Charles H. Lincoln, ed., Correspondence of William Shirley (New York, 1912), i, 86.
783 Massachusetts House Journals, xvi, 126–143; ibid., xix, 162–165; ibid., xxi, 145–146.
784 L. Kinvin Wroth and Hiller B. Zobel, eds., Legal Papers of John Adams (Cambridge, Mass., 1965), i, cvii–cviii. For valuable information about the practicing lawyers of the immediate pre-Revolutionary period, see “The Massachusetts Bench and Bar: A Biographical Register of John Adams’ Contemporaries,” in ibid., i, xcv–cxiv.
785 Thomas Hutchinson, The History of the Colony and Province of Massachusetts-Bay, ed. Lawrence Shaw Mayo (Cambridge, Mass., 1936), II, 285. The best sketch of Read’s career is in Shipton, Sibley’s Harvard Graduates, IV, 369–378, from which portions of these paragraphs are drawn.
786 See Massachusetts House Journals, xvi, 117–118; ibid., xviii, 194; ibid., xix, 172; ibid., xxii, 175; Belcher Papers, vii, 306–307.
787 Massachusetts House Journals, xvi, 245; ibid., xix, 45.
788 See Suffolk General Sessions, 26 January 1747.
789 Early Files in the Office of the Clerk of the Supreme Judicial Court, Nos. 52030, 49885: 2, Suffolk County Court House, Boston. Hereafter cited as Suffolk Court Files.
790 Superior Court Records, 1747–1750, 188, 227, 231.
791 The inventory of law books can be found in George B. Reed, Sketch of the Life of the Honorable John Read (Boston, 1879), 17–18.
792 Superior Court Records, 1700–1714, 230.
793 See ibid., 253; Suffolk Court Files: 8148. The name of the attorney is not given at this Bristol Assizes in 1710. By statute only sworn attorneys enjoyed the privilege of a fee, which was fixed by law at twelve shillings per case at the Superior Court. A June 1707 statute, which may have been in effect for only three years, required attorneys to assist a party to a civil suit seeking their aid at an established fee. See Acts and Resolves, i, 467 (1701), 622.
794 See the valuable discussion of the theory and practice of using defense counsel in eighteenth-century England, especially at the Old Bailey in London, in Langbein, “Criminal Trial Before the Lawyers,” 307–313.
795 William Blackstone, Commentaries on the Laws of England (Oxford, 1765–1769; Chicago, 1979), iv, 349–350. The province of New York followed the English rules on legal representation in misdemeanors and felonies, which again emphasizes the extent of the Massachusetts innovation. See Julius Goebel, Jr., and T. Raymond Naughton, Law Enforcement in Colonial New York. A Study in Criminal Procedure, 1664–1776 (New York, 1944), 573–575.
796 See J. S. Cockburn, A History of English Assizes 1558–1714 (Cambridge, Eng., 1972), 121–122, 141.
797 J. S. Cockburn, ed., Somerset Assize Orders 1640–1659, Somerset Record Society, lxxi (Frome, Eng., 1971), 16–17; and Cockburn, History of English Assizes, 122.
798 Cotton Mather, Bonifacius. An Essay upon the Good, ed. David Levin (Cambridge, Mass., 1966), 122–131.
799 Ibid., 127.
800 It would appear that few trained lawyers practiced as attorneys in the colony of Massachusetts Bay in the seventeenth century. See the useful comments of Zechariah Chafee, Jr., in Samuel E. Morison, ed. Records of the Suffolk County Court, 1671–1680, Colonial Society of Massachusetts, Collections, vols, xxix–xxx (Boston, 1933), xxix, xxiii–xxvii.
801 Sewall Diary, 714. Since trained lawyers were relatively new in the province, it seems likely that the comment of Mather and Sewall reflected popular English tradition about lawyers rather than their own local experience.
802 Suffolk Court Files: 17087: i; Superior Court Records, 1721–1725, 135.
803 Ibid., 202; Suffolk Court Files: 15426: 9.
804 Superior Court Records, 1721–1725, 162. Tuttle’s lawyer is not identified. In a special verdict the trial jury set out its findings of fact in the case and left the judges to determine ultimate guilt or innocence on the basis of a determination of the correct law.
805 Suffolk Court Files: 159835 Superior Court Records, 1721–1725, 121–122.
806 Suffolk Court Files: 21442: 2.
807 Rupert Cross, Statutory Interpretation (London, 1976), 10.
808 Superior Court Records, 1725–1730, 1355 Suffolk Court Files: 21444: 4.
809 See Gawalt, Promise of Power, 7–355 Charles R. McKirdy, “Before the Storm: The Working Lawyer in Pre-Revolutionary Massachusetts,” Suffolk University Law Review, xi (1976–1977), 52–535 and Goebel and Naughton, Law Enforcement in Colonial New York, 744.
810 Goebel and Naughton, Law Enforcement in Colonial New York, 633.
811 Dominus Rex v James Blin et al., Superior Court Records, 1715–1721, 59.
812 Samuel Sewall, “Journal from August 1, 1717 to July 26, 1726,” 4b, Massachusetts Historical Society, Boston. Hereafter cited as Sewall, “Court Journal.” In this bound volume Chief Justice Sewall made notes on cases at various sittings of the Superior Court of Judicature from 28 April 1718 to 26 July 1726. I am most grateful to the late Robert E. Moody for referring me to this important source and for allowing me to consult his transcription.
813 Superior Court Records, 1725–1730, 1955 Suffolk Court Files: 23833: 1. The fate of Read’s reserved pleas at the Superior Court is unclear. It should be noted that the Superior Court tried both civil and criminal cases at the same sittings.
814 Suffolk Court Files: 15181: 2; Superior Court Records, 1715–1721, 359.
815 Suffolk Court Files: 23358: 3.
816 Ibid.: 23358: 5; Superior Court Records, 1725–1730, 255. An appeal to the Assizes in fact resulted in a trial de novo, a most un-English form of practice.
817 Ibid., 385 Suffolk Court Files: 19285.
818 Ibid.: 17428: 10; ibid.: 17428: 2, 3, 45 Superior Court Records, 1721–1725, 165–166.
819 Read’s defense of John Checkley in a criminal libel trial is discussed below, 232.
820 Suffolk Court Files: 23647: 2, 45 Superior Court Records, 1725–1730, 267.
821 Ibid., 1721–1725, 295 Suffolk Court Files: 17820, 17516: 3. The complicated issues in this case led to appeals.
822 Information from Sewall Diary, 532–537.
823 Suffolk Court Files: 49885, 49960, 50733, 52030, 54806.
824 The records do not indicate whether or not this petition succeeded. Ibid.: 62856.
825 Superior Court Records, 1700–1714, 84–85.
826 Hampshire County Court of General Sessions of the Peace, Book B, No. 3, 1735–1740, 51, Court House, Northampton.
827 L. H. Butterfield, ed., Diary and Autobiography of John Adams (New York, 1964), i, 353. Hiller Zobel and Kinvin Wroth suggest that the appointment of counsel was “apparently an established practice, although it is not yet clear whether the practice was limited to capital cases.” Legal Papers of John Adams, i, li.
828 Butterfield, ed., Diary and Autobiography of John Adams, i, 353–354.
829 Suffolk Court Files: 17418: 35 Superior Court Records, 1721–1725, 162.
830 John H. Langbein discusses the history of plea bargaining in “Understanding the Short History of Plea Bargaining,” Law & Society Review, xiii (1979), 261–272. A useful by-product of his article is its illustration of how different eighteenth-century English criminal trials were from the system described in this essay.
831 Superior Court Records, 1747–1750, 224.
832 Ibid., 1700–1714, 230. Newton and Valentine successfully defended a third client in this series of prosecutions, but a fourth client was found guilty. John Langbein has pointed out to me that the English rule denied the accused a copy of the indictment; the issues in this 1708 Massachusetts case are ones on which counsel had always been allowed in England.
833 The character of reasons of appeal in civil cases can be reviewed easily in Maine Court Records, iv, passim.
834 Suffolk Court Files: 17516: 3; Superior Court Records, 1721–1725, 202.
835 After Philip English, Sr., a Salem merchant, was convicted at the Salem General Sessions in 1722 for words “vilifying and reproaching to the Church of Christ in saying that they were the Devils Church or Members,” he hired Robert Auchmuty to prepare an appeal, another illustration of the wise use of counsel in cases involving public controversy. The first of two brief reasons simply asserted that “the Presentment is so Uncertain that in the Law no Judgment or Sentence can or ought to be given thereupon.” Although the bench did not grant this plea, but convicted English again, it quashed the second prosecution against English on appeal because the presentment was “uncertain.” This was in line with Auchmuty’s argument in the second case, which involved allegations going back to the 1692 witchcraft episode. Suffolk Court Files: 16251:3, 45 Superior Court Records, 1721–1725, 80.
836 Acts and Resolves, ii, 331. Even if this directive had been specifically for civil litigation, it would have had a spill-over effect on reasons of appeal in criminal cases because of the similarity between the intent and character of reasons in either type of case. The same high court and the same five judges heard both civil and criminal cases.
837 Suffolk Court Files: 21901: 2. I have learned nothing about the life of Robert Robinson, who appears as defense counsel a number of times in the 1720’s. Sewall’s diary identifies him as a lawyer in 1716 and as on circuit with the Superior Court in 1719 and 1725. Sewall Diary, 814, 936, 1031–1032.
838 Suffolk Court Files: 21901: 3; Superior Court Records, 1725–1730, 182.
839 It also seems unlikely that the Attorney General attended General Sessions in each county to direct prosecutions. Since the Attorney General, as well as the leading lawyers and a majority of the Superior Court justices, normally resided in Boston, he would have been readily available for consultation about events in Suffolk General Sessions, where, however, most cases involved trivial matters. Flaherty, “Crime and Social Control,” 341.
840 Suffolk Court Files: 15419: 1, 3; Superior Court Records, 1721–1725, 27–28.
841 Suffolk Court Files: 17167: 3; 17379: 1, 6, 2; Superior Court Records, 1721–1725, 162.
842 Superior Court Records, Minute Book 45. Kent (1707–1788) was admitted to Superior Court practice in 1739. See Shipton, Sibley’s Harvard Graduates, viii, 220–230.
843 Josiah Quincy, Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, Between 1761 and 1772 (Reprint, New York, 1969), 162–163.
844 See Maine Court Records, iv, lxix, passim. Paternity suits by unwed mothers for child support were fruitful sources of appeals. Usually the defense attorney pointed out that the mother had failed to follow the statutory procedures for accusing the father during the time of her travail. See the appeal of Joseph Woodsum, Superior Court Records, 1721–1725, 121–122; Suffolk Court Files: 15983. James Jeffrey was the lawyer in this case. His reasons of appeal are printed in Maine Court Records, vi, 71–72. Jeffrey quoted provincial law to the court. This was his only recorded appearance in a York County case from 1719 to 1727.
845 Such a procedure occurred at the Bristol Assizes in the fall of 1793, when Thomas Newton drafted reasons of appeal for Adam, a Negro, who wanted freedom from his master, the prominent John Saffin. Newton’s arguments moved beyond factual issues to question the implications of the absence in the instrument of indenture of a provision covering what would happen if Adam did not serve his master faithfully. Suffolk Court Files: 5941: 2.
846 Chief Justice Thomas Hutchinson stated in a charge to a grand jury in 1767 that: “The principal Crown-Law of this Province is grounded on our provincial Laws: where these fail, the Common Law of England is the Rule.” Quincy, Reports, 235.
847 Suffolk Court Files: 15379: 1; Superior Court Records, 1721–1725, 20.
848 Petition of John Doan and Josiah Oakes, Suffolk Court Files: 21440: 1.
849 Ibid.: 26631.
850 Superior Court Records, 1721–1725, 264.
851 James Fitzjames Stephen, A History of the Criminal Law of England (London, 1883), i, 359. See the valuable critique of English primary sources in L. A. Knafla, “Crime and Criminal Justice: A Critical Bibliography,” in J. S. Cockburn, ed., Crime in England 1550–1800 (London, 1977), 286–298.
852 Sewall Diary, 5375 Sewall, “Court Journal,” 7a.
853 Sewall Diary, 518; M. Hale, Historia Placitorum Coronae: The History of the Fleas of the Crown (2 vols., London, 1736).
854 Suffolk Court Files: 5417.
855 Sewall Diary, 520, 521.
856 Shipton, Sibley’s Harvard Graduates, iv, 387. The library was sold at auction, Boston News Letter, 11 August 1748. The titles of the volumes in question are: William Hawkins, A Treatise of the Pleas of the Crown (2 vols., London, 1716–1721); Michael Dalton, The Countrey Justice (London, 1618); William Nelson, The Office and Authority of a Justice of Peace (London, 1704); John Lilly, The Practical Register: or, A General Abridgment of the Law (2 vols., London, 1718). One cannot readily tell which editions Stoddart owned.
857 “Letter-Book of Samuel Sewall,” Massachusetts Historical Society Collections, 6th series, I and II (Boston, 1886–1888), i, 40. Hereafter cited as “Sewall Letterbook.” I have been unable to identify the volume by Gilbert.
858 The Office of the Clerk of Assize . . . Together with the Office of the Peace (London, 1676; 2nd edition, revised and enlarged, London, 1682).
859 Boston News Letter, 11–18 September 1721.
860 Lawrence Cremin, American Education. The Colonial Experience 1607–1783 (New York, 1970), 397.
861 See Boston Evening Post, 14 May to 11 June 1744, 21 December 17473 Boston News Letter, 17 March 1748.
862 Shipton, Sibley’s Harvard Graduates, v, 234; Artemas Ward Mss., i, Massachusetts Historical Society.
863 Wroth and Zobel, eds., Adams Legal Papers, i, liv; Shipton, Sibley’s Harvard Graduates, x, 229. On Prat’s career, see ibid., x, 226–239.
864 “Sewall Letterbook,” i, 423–424.
865 Ibid., ii, 14.
866 Superior Court Records, 1700–1714, 282.
867 Case of Ebenezer and Sarah Dickenson, Suffolk Court Files: 15419: 1.
868 Ibid.: 17428: 2, 3. Auchmuty may have been making pleas in arrest of judgment at the Assizes rather than stating reasons of appeal.
869 Ibid.: 18112: 1.
870 Superior Court Records, 1721–1725, 236–237; Suffolk Court Files: 18112.
871 Wroth and Zobel, eds., Legal Papers of John Adams, passim; Quincy, Reports, 263. See also Herbert A. Johnson, Imported Eighteenth-Century Law Treatises in the American Libraries, 1700–1799 (Knoxville, 1978).
872 Quincy, Reports, 92; Superior Court Records, 1763–1764, 132.
873 Quincy, Reports, 104–1065 Superior Court Records, 1764–1765, 123–124.
874 Sewall, “Court Journal,” 10a–11a, 13b.
875 Superior Court Records, 1721–1725, 162. John Langbein informs me that there were special verdicts at the Old Bailey in cases of legal difficulty.
876 Four enactments between 1694 and 1701 confirmed that an attorney’s fee was twelve shillings at Superior Court and ten shillings in inferior courts, Acts and Resolves, i, 185, 287, 374, 467. An unknown attorney’s fee in a defendant’s bill of costs at York General Sessions in July 1725 was ten shillings, Maine Court Records, vi, 175. On the continuance of low fee scales, see Legal Papers of John Adams, i, lxix–lxx.
877 See Sewall’s account in “Sewall Letterbook,” i, 423–424; Sewall Diary, 683–684.
878 Acts and Resolves, i, 577; also see the discussion above, 231.
879 Superior Court Records, 1715–1721, 182.
880 Ibid., Minute Book, 31. Bollan studied law in Boston around 1720 with Auchmuty. He later became the son-in-law of William Shirley and served as the province’s London agent from 1745–1762.
881 Ibid., 1740–1745, 182–183, 186.
882 I credit John H. Langbein for this observation.
883 Superior Court Records, 1740–1742, 264; ibid., 1743–1747, 119. Such motions were also possible in England. See J. H. Baker, “Criminal Courts and Procedure at Common Law 1550–1800,” in Cockburn, ed., Crime in England 1550–1800, 42.
884 Superior Court Records, 1740–1745, 266. The defense lawyer is not identified. The jury trials lasted ten to eleven hours. Boston Evening Post, 24 March 1746; Pennsylvania Gazette, 3 April 1746.
885 Superior Court Records, Minute Book 19. There were several recorded pleas for benefit of clergy in 1686 and 1687 during the Dominion of New England. See ibid., 1686–1700, i, 12, 17–20.
886 Massachusetts House Journals, x, 32–43.
887 Superior Court Records, 1730–1733, 175.
888 Acts and Resolves, ii, 785, 838.
889 Superior Court Records, Minute Book, 23, 5.
890 Ibid., 1739–1740, 47; ibid., Minute Book 35, Bristol Assizes, October 1739.
891 Ibid., Minute Book, 22, 56.
892 Ibid., Minute Book, 24, 51.
893 Ibid., 1743–1747, 1585 ibid., Minute Book, 33.
894 Ibid., 1740–1742, 253–254.
895 Ibid., 1740–1745, 243; Suffolk Court Files: 61167.
896 On 15 June 1748 Governor Shirley pardoned an English mariner unable to pay his fine after a conviction for participation in impressment riots. The application to the governor was dated 8 March. See John Lax and William Pencak, “The Knowles Riot and the Crisis of the 1740’s in Massachusetts,” Perspectives in American History, x (1976),200.
897 Suffolk Court Files: 49240: 1.
898 Superior Court Records, 1739–1740, 225; Blackstone, Commentaries on the Laws of England, iv, 366.
899 Superior Court Records, Minute Books, 54, 59.
900 William E. Nelson, Americanization of the Common Law. The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge, Mass., 1975), 226–227.
901 Flaherty, “Crime and Social Control,” 357. The acquittal rates per decade ranged from a low of nineteen percent to a high of seventy-two percent.
902 Hiller B. Zobel, The Boston Massacre (New York, 1970), 224–225.
903 Edwin Powers has written that “in the witchcraft trials of 1692 none of the defendants had the benefit of a lawyer, and every accused witch who was tried was found guilty. Perhaps a competent lawyer could have attacked the jurisdiction of the special tribunal set up for the purpose of trying witches or, at the least, could have prevented the introduction of damaging ‘specter evidence.’” Edwin Powers, Crime and Punishment in Early Massachusetts 1620–1602. A Documentary History (Boston, 1966), 438. On the other hand, leading lawyers Thomas Newton and Anthony Checkley were the successive crown prosecutors during the same trials, ibid., 477. Checkley served as the province’s first Attorney General; Paul Dudley succeeded him from 1702–1718, Sewall Diary, 606 note.
904 New York, 1973, 88.
905 Cambridge, Mass., 1911, 157–161.
906 Two vols., Norman, Okla., 1965, i, 18–19.
907 New York, 1939, 66, 73.
908 Knoxville, Term., 1978.
909 “The Library of Ralph Assheton: The Book Background of a Colonial Philadelphia Lawyer,” Papers of the Bibliographical Society of America, lviii (1964), 345–79; and “The Library of a Philadelphia Judge, 1708,” Pennsylvania Magazine of History and Biography, lxxxiii (1959), 180–191.
910 See Appendix VII, Hamlin, Legal Education, 171–196. See also, as to the apparently extensive libraries of John Valentine and John Read, D. Flaherty, “Criminal Practice in Provincial Massachusetts,” above, 195, 204.
911 “A List of Treatises Printed in the British Colonies and the American States before 1801,” in Harvard Legal Essays Written in Honor of and Presented to Joseph Henry Beale and Samuel Williston . . . (Cambridge, 1934).
912 American Bibliography; A Chronological Dictionary of All Books, Pamphlets and Periodical Publications Printed in the United States of America from the Genesis of Printing in 1630 down to and including the year 1800; with Bibliographical and Biographical Notes (Chicago, 1903–1959), 14 vols, (reprinted New York, 1941–1967).
913 James, “A List of Treatises,” 159.
914 Estimates of the actual number of lawyers vary widely, but are usually less than twenty. Gerard W. Gawalt, The Promise of Power, the Legal Profession in Massachusetts 1760–1840 (Westport, Conn., 1979), 13–14, indicates that as late as 1740 there were only fifteen “trained” lawyers in Massachusetts.
915 In Proceedings of the Massachusetts Historical Society, lxviii (1952), 132–1595 reprinted in David H. Flaherty, Essays in the History of Early American Law (Chapel Hill, 1969), 53–82.
916 See, for example, State Library of Massachusetts, Hand-List of Legislative Sessions and Session Laws, Statutory Revisions, Compilations, Codes, etc. . . . (Boston, 1912); Lawrence Keitt, An Annotated Bibliography of Bibliographies of Statutory Materials of the United States (Cambridge, 1934); Meira G. Pimsleur, Checklists of Basic American Legal Publications, 2 vols. (South Hackensack, N.J., 1962, loose-leaf).
917 Bibliography of Early American Law, projected for publication in 1985 by Kraus-Thomson, N.Y.
918 Lawrence C. Wroth, The Colonial Printer (New York, 1931), 15.
919 Lawrence C. Wroth, An American Bookshelf 1755 (Philadelphia, 1934), 3.
920 John Tebbel, A History of Book Publishing in the United States (New York, 1972), i, 163, 457.
921 A History of the American Bar, 158–159.
922 Henry W. Boynton, Annals of American Bookselling 1638–1850 (New York, 1932), 4.
923 Wroth, The Colonial Printer, 184–186.
924 Supplement to Charles Evans’ American Bibliography (Charlottesville, 1970).
925 For the period from 1639 to 1763 another researcher has calculated that law represented 19.5 percent of the press output in all of the American colonies and political science represented 6.5 percent. See Hellmut Lehmann-Haupt, The Book in America (New York, 1939), 31. A more recent analysis, using Evans’ indexes, shows lower estimates for law in the period from 1764 to 1783. See G. T. Tanselle, “Some Statistics on American Printing, 1764–1783,” in B. Bailyn and J. Hench, The Press and the American Revolution (Worcester, 1980).
926 See for example, George P. Winship, The Cambridge Press 1638–1692 (Philadelphia, 1945).
927 Lawrence C. Wroth, The Oath of a Free-Man (New York, 1939).
928 Charles Evans, “Oaths of Allegiance in Colonial New England,” Proceedings of the American Antiquarian Society, New Series, xxxi, 395. See ibid., 377–438.
929 Winship, Cambridge Press, 1.
930 Boston, 1890.
931 Samuel E. Morison, Builders of the Bay Colony (Boston, 1930), 227–230.
932 Whitmore, Bibliographical Sketch, 9.
933 An Abstract or the Lawes of New England, As they are now established (London: Printed for F. Coules, and W. Ley, 1641).
934 For discussion of its origin, contents, and significance, see Thorp L. Wolford, “The Laws and Liberties of 1648,” Boston University Law Review, xxviii (1948), 426–463, reprinted in D. H. Flaherty, ed., Essays in the History of Early American Law (Chapel Hill, 1969). See also George L. Haskins, “Codification of the Law in Colonial Massachusetts . . . ,” Indiana Law Journal, xxx (1954), 1–17.
935 The Laws and Liberties of Massachusetts, with an Introduction by Max Farrand (Cambridge, Mass., 1929); The Book of the General Lawes and Liberties concerning the Inhabitants of the Massachusetts, edited with an introduction by Thomas G. Barnes (San Marino, Calif., 1975). Barnes’ introduction describes the relationship between Ward’s “Body of Liberties” and The Book of the General Lawes and Liberties and argues persuasively against the designation “code” for these early statutory compilations.
936 Winship, Cambridge Press, 108.
937 Rollo G. Silver, Government Printing in Massachusetts-Bay, 1700–1750 (Worcester, 1958, reprinted from the Proceedings of the American Antiquarian Society for April 1958).
938 Conductor Generalis; or a Guide for Justices of the Peace, And Coroners, Constables, Jury-Men, Over-seers of the Poor, Surveyors of High-ways, Governors of Fairs, Gaolers, etc. A Treatise Briefly showing the Extent and Latitude of the several Officers Therein. To which is Added Copies of Warrant, Mittimusses, Recognizances, and other Necessary Instruments.
939 Justice of the Peace, and Parish Officer. 1st edition, London, 1755; 2d edition, London, 1756; 3rd edition, London, 1756; 4th edition, London, 1757, 3 vols. Greenleaf’s Abridgment was based on the 4th edition.
940 The Constables Pocket-Book; or, A Dialogue Between an Old Constable & a New. Being a Guide, In their Keeping the Peace, &c, In Serving all Warrants. Observing Orders of Courts. Summoning Town-Officers and Town-Meetings. Collecting Rates and Assessments. Serving Writs, Summons, Executions. How to make Returns of all Writs and Warrants. Forms of Bail Bonds, &c. An Account of all Lawful Fees. By N.B. a late Constable in the Town of Boston, N.E. (Boston: Printed for Eleazer Phillips, 1710).
941 The County and Town Officer: or, An Abridgment of the Laws of the Province of the Massachusetts-Bay, Relative to County and Town Officers. By a Gentleman . . . (Boston: Printed by T. and J. Fleet, 1768).
942 Isaiah Thomas, The History of Printing in America, with a Biography of Printers . . . 2d edition (Albany, 1874), ii, 255–256.
943 Julius Goebel, Jr., “King’s Law and Local Custom in Seventeenth Century New England,” Columbia Law Review, xxxi (1931), 416–448, reprinted in David H. Flaherty, Essays in the History of Early American Law.
944 See Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, 1967)3 and his Pamphlets of the American Revolution . . . (Cambridge, 1965).
945 C. K. Shipton and J. E. Mooney, National Index of American Imprints through 1800, the Short-Title Evans (Worcester, 1969). The authors state that that edition was “probably a ghost of a London edition arising from a book-seller’s adv.” (I, 348).
946 William Holdsworth, A History of English Law (London, 1938), xii, 459.
947 Donald Wing, Short-Title Catalog of Books Printed in England . . . 1641–1700. Second edition, revised and enlarged (New York, 1972), i, entry >#C515.
948 Dictionary of American Biography (New York, 1932), viii, 304.
949 English Liberties, or the Free-Born Subject’s Inheritance; containing Magna Charta, Charta de Foresta, The Statute De Tallagio non concedendo, the Habeas Corpus Act, and several other Statutes; with Comments on each of them. Likewise the Proceedings in Appeals of Murder: Of Ship-Money; Of Tonnage and Poundage. Of Parliaments, and the Qualification and Choice of Members: Of the Three Estates, and Of the Settlement of the Crown by Parliament. Together with A short History of the Succession, not by any Hereditary Right: Also a Declaration of the Liberties of the Subject: And of the Oath of Allegiance and Supremacy. The Petition of Right; with a short but impartial relation of the Difference between K. Charles I. and the Long Parliament, concerning the Prerogative of the King, the Liberties of the Subject, and the Rise of the Civil Wars. Of Trials by Juries, and of the Qualifications of Jurors; their Punishment for Misbehavior, and of Challenges to them. Lastly, of Justices of the Peace, Coroners, Constables, Churchwardens, Overseers of the Poor, Surveyors of the Highways, etc. With many Law-Cases throughout the Whole.
950 Pamphlets of the American revolution . . . , 743, footnote 9.
951 American Bibliography, entry #2178.
952 Warren, History of the American Bar, 158.
953 Boston, 1868.
954 Dictionary of National Biography (New York and Boston, 1898), liii, 228.
955 Although earlier views of great religious influence—see, for example, Paul S. Reinsch, English Common Law in the Early American Colonies (Madison, Wis., 1899) and Charles J. Hilkey, Legal Development in Colonial Massachusetts 1630–1686 (New York, 1910)—have been largely superseded, the important role of religion in seventeenth-century Massachusetts law is still acknowledged, as in George L. Haskins, Law and Authority in Early Massachusetts . . . (New York, 1960).
956 Thomas J. Holmes, Cotton Mather: A Bibliography Of His Works, 3 vols. (Cambridge, Mass., 1940), and Increase Mather: A Bibliography Of His Works, 2 vols. (Cleveland, 1931).
957 Lehmann-Haupt, Book in America, 31.
958 Holmes, Cotton Mather, i, No. 124, 360–363.
959 Ibid., ii, No. 205, 557–559.
960 Ibid., ii, No. 117, 346–347.
961 Ibid., i, Nos. 35-A, 35-B, and 112A to 112-R, 89–95, and 324–338.
962 See the Boston edition of 1710, 155–167.
963 R. W. G. Vail, A Check List of New England Election Sermons (Worcester, 1936).
964 Daniel A. Cohen, Pillars of Salt and Monuments of Grace—the Execution Literature of Colonial New England, graduate research paper, Brandeis University, Department of the History of American Civilization, 1982; see also, Wayne C. Winnick, “The New England Execution Sermons, 1639–1800,” Speech Monographs, xxxv (1968), 77–89; Ronald A. Bosco, “Lectures at the Pillory: the Early American Execution Sermon,” American Quarterly, xxx (1978), 156–1765 and Lawrence W. Towner, “True Confessions and Dying Warnings in Colonial New England,” in Sibley’s Heir, Colonial Society of Massachusetts, Publications, lix (Boston, 1982), 523–539.
965 Holmes, Cotton Mather, iii, No. 351, 969–973.
966 Pillars of Salt. An History Of Some Criminals Executed in this Land; for Capital Crimes. With some of their Dying Speeches; Collected and Published, for the Warning of such as Live in Destructive Courses of Ungodliness . . . (Boston: B. Green and J. Allen, 1699). See Holmes, Cotton Mather, ii, Nos. 284-A and 284-B, 818, 822.
967 Bernard Bailyn, Pamphlets of the American Revolution 1750–1776, 204. Bailyn’s introduction to the Discourse (204–211), preceding its reprinting there, describes its sources and impact.
968 For cases in which murder was involved in the piracy, see Thomas M. McDade, Annals of Murder: a Bibliography of Books and Pamphlets on American Murders from Colonial Times to 1900 (Norman, Okla., 1961).
969 A full account of the trial in this case (The Arraignment, trial, and condemnation of Capt. John Quelch, and others of his company for sundry piracies, robberies and murders . . .) was also supposed to have been printed by Boone in Boston in 1704. No copy has ever been located, and it is probably a bibliographic ghost based on the London edition of 1705, with that title.
970 For later documentary compilations on the Salem trials, see W. E. Woodward, Records of Salem Witchcraft Copied from the Original Documents, 2 vols. (Roxbury, Mass., 18645 reprinted New York, 1969); George L. Burr, Narratives of the Witchcraft Cases, 1648–1706 (New York, 1914; reprinted New York, 1968); and Paul Boyer & Stephen Nissenbaum, Salem-Village Witchcraft: a Documentary Record of Local Conflict in Colonial New England (Belmont, Calif., 1972).
971 Holmes, Cotton Mather, iii, No. 454, 1234–1266.
972 For bibliographic treatment of the Quaker controversies, see four extensive bibliographies, all by Joseph Smith: Descriptive Catalogue of Friends’ books . . . , 2 vols. (London, 1867; reprinted New York, 1970); Supplement (London, 18935 reprinted New York, 1970); Bibliotheca Anti-Quakeriana . . . (London, 18735 reprinted New York, 1968); and Bibliotheca Quakeristica . . . (London, 1883).
973 Another interesting publication relating to slavery is the following disputation at Harvard College: A forensic dispute on the legality of enslaving the Africans, held at the public commencement in Cambridge, New England, July 21st, 1773, by two candidates for the bachelor’s degree, Theodore Parsons and Eliphalet Pearson (Boston: John Boyle, 1773).
974 The State of the Action Brought by William Fletcher against William Vassall, For Defaming him: tried In the Superiour Court at Boston, August Term, A.D. 1752. And Now Pending by Appeal to His Majesty in Council (Boston, 1753).
975 See Evans, American Bibliography, entry Nos. 10614, 10622–10627.
976 For a bibliography of the trial, see Livingston Rutherford, John Peter Zenger His Press, His Trial and a Bibliography of Zenger Imprints (New York, 19045 reprinted New York, 1941, and Gloucester, Mass., 1963) 5 for studies of the trial, see Stanley N. Katz’s introduction to A brief narrative of the case and tryal of John Peter Zenger . . . (Cambridge, Mass., 1963), and Leonard W. Levy, Freedom of Speech and Press in Early American History, Legacy of Suppression (Cambridge, Mass., 19605 reprinted New York, 1963).
977 Hiller B. Zobel’s study, The Boston Massacre (New York, 1970) includes an extensive bibliography of the event.
978 Holmes, Cotton Mather, ii, No. 213, 573–596.
979 The second volume covered the period 1691 to 1750, and a third volume was issued in London in 1828, covering the period from 1750 to 1774, edited by John Hutchinson, Thomas Hutchinson’s grandson. The history was also continued by George Richards Minot, who published his Continuation of the History of the Province of Massachusetts Bay . . . , in Boston, 1798.
980 The Preface indicates: “Intended to . . . elucidate the principal facts related in the first part of the History of Massachusetts-bay [1628–1691] and may serve as an appendix to it.”
981 Published anonymously, this was a British view designed to refute the colonists’ claim that their charters made them independent of Parliament. It was revised, enlarged, and reissued in London several times between 1769 and 1776.
982 For a partial listing, see Henry F. DuPuy, A Bibliography of the English Colonial Treaties with the American Indians Including a Synopsis of Each Treaty (New York, 1917).
983 For the American pamphlets, see Adams, American Independence: The Growth of an Idea. A Bibliographical Study of the American Political Pamphlets Printed between 1764 and 1776 Dealing with the Dispute between Great Britain and Her Colonies (Providence, 1965). For the British pamphlets, including those published here, see his The American Controversy. A Bibliographical Study of the British Pamphlets about the American Disputes, 1764–1783, 2 vols. (Providence, 1980).
984 For the history of the successive changes of government, see W. D. Williamson, The History of the State of Maine, 2 vols. (Hallowell, 1839), i, 272–306, 334–357, 371–452, 554–603. Maine Court Records between 1636 and 1727 have been edited in six volumes, Province and Court Records of Maine, for the Maine Historical Society by Charles T. Libby (vols. I and II), Robert E. Moody (vol. III), and Neal W. Allen, Jr. (vols. IV–VI) (Portland: Maine Historical Society, 1928 ff.) The introductions to the first three volumes summarize the history of Maine and my own introduction to volume IV provides a detailed discussion of Maine courts, the records, background, court officers, and law and procedure.
985 Massachusetts Acts and Resolves, i, 194, 402.
986 John Adams to Abigail Adams, 30 June 1774. Adams Family Correspondence (Cambridge, Mass., 1963), i, 116.
987 Province and Court Records, iv, 349–355.
988 John Bridger to the Lords of Trade, 9 March 1707/8. Calendar of State Papers Colonial, xxiii, No. 1384, 697–699.
989 William Willis, A History of Law, the Courts and the Lawyers of Maine . . . (Portland, 1864), 14.
990 The Letters of Thomas Gorges, Deputy Governor of the Province of Maine 1640–1643, Robert L. Moody, ed. (Portland: Maine Historical Society, 1978).
991 Thomas Gorges to Henry Gorges, 19 July 1640. Gorges Letters, 2.
992 Thomas Gorges to Sir Ferdinando Gorges, 29 June 1642. Gorges Letters, 113.
993 Thomas Gorges to Sir Ferdinando Gorges, September 1641. Gorges Letters, 55. See Thomas More, Utopia (Crofts Classics, H. V. S. Ogden, ed., New York, 1949), 13, 59–61. Gorges probably had in mind More’s description in Book I of the law of theft in the mythical land of the Polyerites. There, those convicted of theft are required to perform acts of public service, but are neither imprisoned nor chained unless their crimes are heinous. The description of criminal sanctions in Utopia itself is less specific, but does emphasize servitude rather than capital punishment, few and simple laws, and the encouragement of virtue as a counterpart to punishment.
994 Thomas Gorges to Sir Ferdinando Gorges, September 1641. Gorges Letters, 57.
995 Thomas Gorges to Sir Ferdinando Gorges, 5 December 1641. Gorges Letters, 89.
996 Thomas Gorges to Sir Ferdinando Gorges, 19 May 1642. Gorges Letters, 95.
997 Thomas Gorges to Sir Ferdinando Gorges, 5 December 1641. Gorges Letters, 89.
998 For Rishworth, see Province and Court Records, i, iv–v; ii, xii–xv. Charles Thornton Libby expended an inordinate amount of space discussing Rishworth’s orthography and speculating about his education; his career as public servant might still be more fully examined with profit.
999 Province and Court Records, i, xiv.
1000 For example, Rishworth appeared in behalf of his relative, Edward Hutchinson, Jr., at a county court in October 1653. Province and Court Records, ii, 20–21.
1001 Province and Court Records, iv, liii–xii; v, xxi–xxxv.
1002 Warrant issued over the signature of Colonel William Pepperrell, Sr., dated 11 September 1712, penned by W. P., Jr., then 16 years 3 months. Province and Court Records, v, 131.
1003 A County Court held 7 July 1668 appointed “Clarkes of the writs” in the several towns to provide for a smooth administration of justice, “In prosedinges of Law. . . .” Province and Court Records, ii, 164–165.
1004 William H. Whitmore, The Massachusetts Civil List for the Colonial and Provincial Periods (Albany, 1870), no. Even well into the eighteenth century the isolated nature of the eastern frontier was a basis for the continuing importance of strong figures of authority. Thus, as the regions east of Wells were settled after the Treaty of Utrecht had brought an end to the first intercolonial war, law and authority in the “Eastern Parts” rested largely in the hands of resident magistrates.
1005 “An Act Relating to Attorneys,” 1701–1702 Province Laws, chapter 7, Massachusetts Acts and Resolves, i, 467. The York court records contain the following list of persons who were admitted attorneys and took the oath:
- Charles Story of Portsmouth, October 1701.
- Richard Briar of Kittery, October 1701.
- Jarvis Ring of Salisbury, July 1702.
- Nicholas Gowen of Kittery, April 1703.
- Thomas Phipps of Portsmouth, October 1718.
The list is obviously incomplete. Apart from Boston lawyers such as Thomas Newton, Paul Dudley, and John Valentine, who argued Maine cases before the Superior Court, others in the Piscataqua region appeared in court and had doubtless been admitted and sworn. A clear example is the Portsmouth official, Benjamin Gambling.
1006 For Pickering, see Province and Court Records, iv, lxiv; E. L. Page, Judicial Beginnings of New Hampshire (Concord: New Hampshire Historical Society, 1959), 149.
1007 For Story, Province and Court Records, iv, lxiv–lxvi. For Gambling and Phipps, Province and Court Records, v, xxxvi; C. K. Shipton, Sibley’s Harvard Graduates, iv, v (Cambridge: Harvard University Press, 1933, 1937).
1008 Province and Court Records, iv, 165–167, lxvi–lxvii.
1009 For Godsoe, Province and Court Records, v, xxxviii, 80.
1010 Emory Washburn, Judicial History of Massachusetts (Boston, 1840), 205–206.
1011 Jeremiah Wise, “A Funeral Sermon Preached upon the Death of the Honourable Charles Frost, Esq. . . .” (Boston, 1725), 28–29.
1012 Usher Parsons, The Life of Sir William Pepperrell, Bart. (Boston, 1855), 27.
1013 Menzies’ inscribed copy of Sheppard’s England’s Balme is in the special collections of the Hawthorne-Longfellow Library of Bowdoin College.
1014 David Sewall of York; David Wyer of Falmouth; Theophilus Bradbury and the young Theophilus Parsons, Bradbury’s student; the brothers John and James Sullivan—all were, for greater or lesser periods of time, active in the Maine courts. To discuss them at length would require a separate paper. They laid the groundwork for the substantial achievements of the early-nineteenth-century legal profession in Maine.
1015 Lawrence M. Friedman, A History of American Law (New York, 1972), 87.
1016 Massachusetts Archives, xl, 913, 914, 915.
1017 W. D. Williamson, A History of the State of Maine, ii, 75.
1018 A calculation based on the records of both courts (the Court of Sessions and the Inferior Court of Common Pleas) suggests that perhaps as many as sixty to seventy outsiders were in York for the courts. This would include four of the six justices, county and town officers, grand and trial jurors, informers, witnesses, and litigants.
1019 On 9 May 1716 Samuel Sewall recorded in his diary: “Ferry’d over very pleasantly and were met by Sheriff Layton [Leighton] our Host, and his Wand. . . .” The Diary of Samuel Sewall, 1674–1729, 3 vols. Massachusetts Historical Society, Collections, Series 5, Vols. V–VII, 1878–1882, ii, 194.
1020 Michael Dalton, The Countrey Justice (many editions, 1618–1727); William Lambard, Eirenarcha: or of The Office of the Justices of Peace (many editions, 1581–1607); G. Jacob, Court Reefer’s Companion (1717); T. W., Clerk of Assize, Judges Marshall and Cryer (1660).
1021 Nathaniel Raynes to the Governor and Council, January or February, 1708. Massachusetts Archives, xl, 913, and Maine Province and Court Records, iv, 217.
1022 Shipton, Sibley’s Harvard Graduates, vi (1942), 356–365.
1023 An entry in York County Court Records, Volume X, for 1735.
1024 Absent were Lewis Bane (Bean), John Gray, Samuel Plaisted, and John Penhallow. Joseph Heath of Richmond may also have been a York justice of the peace by 1725, but the records do not clearly indicate this.
1025 Tradition has it that Oliver Cromwell once said of the first John Wheelwright, “I remember the time when I was more afraid of meeting Wheelwright at foot-ball, than I have since been of meeting an army in the field.” They were fellow students at Cambridge. Colonel John’s daughter, Esther, was captured in the great attack on Wells in August 1703; she became the Mother Superior of the Ursulines at Quebec.
1026 Province and Court Records, vi, 267–268.
1027 Job Burnham and John Davis were absent.
1028 The following account is drawn from the records of the court that sat at York, 6 July 1725. Maine Province and Court Records, vi, 186–204.
1029 “An Act for the Regulation of Weights and Measures,” Massachusetts Acts and Resolves, i, 19–70. Amendments to that law of 1692 were passed in 1705 and 1731.
1030 Province and Court Records, vi, 97–99. The first Joseph Hammond and Catherine (Frost) Leighton were presented for fornication 5 July 1670. Hammond “owned the fact” and was fined; but this common slip hardly made Catherine a whore. Province and Court Records, ii, 196.
1031 The prosecutor’s name is not given, either in the court book or in any of the file papers. If the court knew that a formal indictment was forthcoming, provision seems to have been made ahead of time. Thus at a sessions in 1727 the clerk noted that Addington Davenport, Jr., was appointed “King’s Attorney in any Case that Shall come before this Court During the Setting of this Sessions.” Province and Court Records, vi, 259.
1032 Vernon L. Parrington, Main Currents in American Thought: The Colonial Mind (New York, 1927), i, 133.
1033 Province and Court Records, iv, 218, 274.
1034 C. Warren, A History of the American Bar (3d ed., Boston, 1966), 213.
1035 According to the Oxford English Dictionary (Micrographic ed. 1971), “profession” was first used circa 1747, and “professionalism” circa 1856. Ibid., 2316. For the importance of “professionalization” as “a pervasive feature of American cultural life in the late nineteenth century,” see B. Bledstein, The Culture of Professionalism: The Middle Class and the Development of Higher Education in America (New York, 1978), as described by M. S. Hindus, “Crime and History,” Stanford Law Review, xxxiv (1982), 927.
1036 As to usages of the term “profession,” see e.g., H. S. Becker, “The Nature of a Profession,” in Education for the Professions (Manchester, England, 1962), 27–46. Undefined, the term evokes unreflective and romantic notions of power, prestige, and a positive evolution which may be unjustified by the actual record. See, e.g., A.-H. Chroust, The Rise of the Legal Profession in America (Norman, Okla., 1965), i, 90–108; G. W. Gawalt, The Promise of Power: The Emergence of the Legal Profession in Massachusetts, 1700–1840 (Westport, Conn., 1979),7–35.
1037 W. E. Moore, The Professions: Roles and Rules (New York, 1970), 6–7. Much of the analysis in this essay relies on Moore’s excellent study.
1038 Many lawyers turned to farming, both to supply their needs and for additional income. For example, John Worthington had a 340-acre farm in Monson, Hampshire County. R. Taylor, Western Massachusetts in the Revolution (Providence, 1954), 20. One young attorney, Stephen Fessenden, worked as a surveyor. J. L. Sibley and C. K. Shipton, Biographical Sketches of Graduates of Harvard University (Cambridge, Mass.), x, 169. Others were active in commerce. See J. Cushing, “A Revolutionary Conservative: The Public Life of William Cushing, 1732–1810,” Unpublished Ph.D. Dissertation, Clark University, 1960, 55–57. Cushing engaged in the cargo trade between Maine and Massachusetts and lent money at interest.
By 1760, however, the law could be one of the most profitable professions in the colony. “Lawyers might earn ten times as much as did doctors and ministers, as much as all but the wealthiest merchants and planters, and less risk, and greater odds in favor of acquiring and retaining fortunes.” J. Main, The Social Structure of Revolutionary America (Princeton, 1965), 101. Josiah Quincy noted in his journal that Charlestown lawyers made from £2,000 to £3,000 sterling annually, and Robert Treat Paine complained that his cost of living was high because “we lawyers are such big folks that no one will board us without paying top price. . . .” Letter from Robert Treat Paine to Eunice Paine, 28 August 1758, Robert Treat Paine Papers, Massachusetts Historical Society. Of course not all of the lawyers in Massachusetts were reaping fortunes; many had difficulty making ends meet. See C. R. McKirdy, “Before the Storm: The Working Lawyer in Pre-Revolutionary Massachusetts,” Suffolk University Law Review, xi (1976), 46.
1039 See C. R. McKirdy, “Lawyers in Crisis: The Massachusetts Legal Profession, 1760–1790,” Unpublished Ph.D. Dissertation, Northwestern University, 1969, 22.
1040 A. M. Carr-Saunders and P. A. Wilson, “Professions,” in Encyclopedia of the Social Sciences, xii (1934), 476. See also Moore, “Professions,” 10–11; E. Greenwood, “Attributes of a Profession,” Social Work, ii (1957), 44. T. Parsons, “Professions,” International Encyclopedia of the Social Sciences, xii (1969), 536. W. Goode, “The Librarian: From Occupation to Profession,” Library Quarterly, xxxi (1961), 306.
1041 See D. Rueschmeyer, “Doctors and Lawyers: A Comment on the Theory of Professions,” Canadian Review of Sociology & Anthropology, i (1964), 17, 21; H. L. Wilensky, “The Professionalization of Everyone,” American Journal of Sociology, lxx (1964–1965), 138.
1042 This may have been due to the fact that the average colonial, at least according to one observer, “almost qualified for a country-attorney in England.” W. Douglass, A Summary . . . British Settlements in North America (Boston, 1755), i, 520.
1043 J. Willard, “Address before the Members of the Bar of Worcester, Massachusetts, October 2, 1829,” in Addresses Before the Members of the Bar of Worcester, Massachusetts (1879), 38; G. Bliss, “Address Delivered to the Gentlemen of Hampshire, Franklin, and Hampden Bars,” Connecticut Valley Historical Society Papers, iv (1912), i, 15.
1044 See Moore, “Professions,” 88–91. Another indicator of the colony’s ambivalence toward the value of legal training was its slow acceptance of the notion that a judge should be a lawyer. Most of the early judges of the Massachusetts Superior Court were laymen. See Appendix I: “Occupation and Education of Judges of the Massachusetts Superior Court, 1692–1774.” After the appointment of Benjamin Lynde, a barrister, in 1712, the number of “professionally” trained judges increased, but lawyers certainly had no monopoly on judicial appointments. Ibid.
1045 Ibid., 8–9.
1046 E. C. Hughes, Men and Their Work (Westport, Conn., 1958), 40–41.
1047 Ibid. See E. Greenwood, “Attributes of a Profession,” Social Work, ii (1957), 44. See also E. C. Hughes, Men and Their Work (Westport, Conn., 1958), 40–41.
1048 For brief biographies of most of those lawyers practicing in Massachusetts in 1775, see Appendix IV, from C. R. McKirdy, “Lawyers in Crisis: The Massachusetts Legal Profession, 1760–1790,” Unpublished Ph.D. Dissertation, Northwestern University, 1969, 238–256.
1049 See E. C. Hughes, Men and Their Work, 33, 119, for a discussion of this process in relation to medical training. See Appendix II, Table A: “Professional Choices of Harvard Graduates: 1642–1760” and Table B: “Professional Choices of Harvard Graduates: 1691–1760: Per Cent Per Five Year Period.” For a detailed review of John Adams’ legal training, see Coquillette, “Justinian in Braintree: John Adams, Civilian Learning, and Legal Elitism, 1758–1775,” below, 362–376.
Out of 81 lawyers practicing in Massachusetts in 1775 and studied by the author, all but six attended either Harvard or Yale. While there is no way of determining the exact number of lawyers in practice at this time, it generally is agreed that the number was approximately 100. For one estimate, see G. W. Gawalt, “Sources of Anti-Lawyer Sentiment in Massachusetts, 1740–1840,” American Journal of Legal History, xiv (1970), 285. For more detailed descriptions of the 81 lawyers in the author’s sample, see C. R. McKirdy, “Lawyers in Crisis: The Massachusetts Legal Profession, 1760–1790,” Unpublished Ph.D. Dissertation, Northwestern University, 1969.
A college education was not required, and there were some lawyers who were respected without it, including James Otis, Sr., Elisha Bishee, and James Hovey. See below, 321–322, notes 4–8 and accompanying text. After 1750, however, such successes were rare, and the exceptions had to seek obscure corners of the province in which to practice. The three counties of Maine were a favorite place for untrained lawyers to begin practice. For example, James Sullivan, who eventually became a Superior Court Justice, began his legal career there. See Legal Papers of John Adams, L. Wroth and H. Zobel eds. (Cambridge, Mass., 1965), i, cx (hereinafter cited as Adams, Legal Papers). See Appendix III: “Geographical Distribution of the Three Classes of Massachusetts Lawyers [Superior Court Barrister, Superior Court Attorney, Inferior Court Attorney], as of 1775.” Also included in Appendix III are “Loyalty Patterns of the Three Classes of Massachusetts Lawyers by Geographical Area: 1775” and “Loyalty Patterns of the Three Classes of Massachusetts Lawyers by Age: 1775.” For John Adams’ description of his apprenticeship, see Diary and Autobiography of John Adams, L. Butterfield, L. Faber and W. Garrett, eds. (Cambridge, Mass., 1961), i, 58–59.
1050 Moore, “Professions,” 76–79.
1051 See, e.g., Letter from Jonathan Sewall to John Adams, 5 October 1765, Robert Treat Paine Papers, Massachusetts Historical Society 5 Letter from John Adams to Abigail Adams, 5 July 1774, in Adams Family Correspondence, L. H. Butterfield ed. (Cambridge, Mass., 1963), i, 122, [hereinafter Adams Correspondence]; Benjamin Pratt’s “Fairewell to the Bar,” Boston Gazette, 26 October 1761. This emphasis on collegiality, while present in established professions, is more noticeable among those occupations attempting to gain acceptance as a profession. Moore, “Professions,” 109.
For a daily account of a trip on one of the judicial circuits, see Adams, Diary, ii, 35–45. See also Adams Legal Papers, i, lxvi–lxvii (reflections of difficulties in riding circuit). With a bar of not more than 100, it would have been very difficult for practitioners not to see many of their colleagues repeatedly. Indeed, there were cases in which father and son or brother and brother appeared as opposing counsel. See, e.g., Fletcher v. Vassall (Superior Court at Boston 1752) (James Otis, Sr. for plaintiff, James Otis, Jr. for defendant); Rex v. Preston et al. (The Boston Massacre Trial) (Superior Court of Judicature, Court of Assize and General Gaol Delivery, held at Boston 1770). (Josiah Quincy, Jr. appeared with John Adams for the defendants, and his older brother Samuel Quincy appeared with Robert Treat Paine for the prosecution.) See Adams Legal Papers, iii, 1–45, and sources cited.
1052 For one lawyer’s complaints about growing competition at the bar, see Adams, Diary, i, 55, 316, 320.
John Adams believed that there were too many lawyers in Massachusetts, and discouraged others from studying for the bar because “[T] here were such swarms of young ones. . . .” Diary, ii, 52. Such anxiety still is strong among individual practitioners. See D. C. Lotte, “Laymen to Lawmen: Law School, Careers and Professional Socialization,” Harvard Educational Review, xxiv (1959), 352, 356. Adams complained about “Deputy Sheriffs, petit Justices, and Pettifogging Meddlers” who “attempt to draw Writs, and draw them wrong oftener than they do right,” Diary, i, 70. In 1720, the Massachusetts General Court had tried to provide some regulation of these men. It ordered that “if the plaintiff in any action suffer a nonsuit, through the default, negligence or omission of his attorney that drew the writ, . . . by mislaying the action or otherwise, such attorney shall draw a new writ without fee . . .”, The Acts and Resolves, Public and Private of the Province of Massachusetts Bay, E. Ames, A. C. Goodell et al. eds. (Boston, 1869), i, [hereinafter Acts and Resolves].
As of 1760, the only formal requirements for practice in the various county courts were contained in very general court orders or bar agreements. The order of the Middlesex Court of Common Pleas was typical in this regard: “Ordered that no Person who has not been sworn as Attorney in this Court or in the Superior Court of Juda. etc. (altho sworn in any other inferr. Court in any other county) shall be entitled to the Fee of an attorney in this Court.” Minute Book of the Middlesex Court of Common Pleas (December Term, 1748). The Worcester County Court of Common Pleas passed a similar rule in 1757 when Timothy Ruggles came to the bench. Worcester Address, 41. It should be remembered, of course, that the courts did not always require that sworn attorneys be educated.
1053 Adams, Diary, i, 235–236.
1054 When Jeremy Gridley read the proposed rules to the bench for approval, James Otis rose to his feet storming that he had never agreed “for any such Rules as these, for they were vs. the Province Law, vs. the Rights of Mankind, and he was amazed that so many wise Heads as that Bar was blessed with could think them practible. . . .” “All schemes to surpress Pettyfoggers,” he declared, “must rest on the Honor of the Bar.” As the bar was not fully agreed on the proposal, the court could do nothing and the issue was temporarily dropped. Ibid., 236.
1055 Letter from James Hovey to Robert Treat Paine, 22 October 1764, Robert Treat Paine Papers, Massachusetts Historical Society.
1058 E. Washburn, Sketches of the Judicial History of Massachusetts from 1630 to the Revolution in 1775 (Boston, 1840), 238. Chief Justice Thomas Hutchinson decreed in 1762 that only “Barristers” could argue before the Superior Court of Judicature. See Adams, Diary, ii, 2765 Minute Book, Superior Court of Judicature, Suffolk, August 1762, August 1764. There is evidence that this restriction, if it had any clear meaning, was not always enforced. Josiah Quincy, Jr., although never appointed a “barrister,” claims to have pleaded before the Superior Court on several occasions. See J. Quincy, Jr., Reports . . . Superior Court of the Province of Massachusetts Bay, Between 1761 and 1772 (Boston, 1865), 317. Quincy appeared before the Court at the Boston Massacre Trial. See below, 350. See also C. R. McKirdy, Unpublished Ph.D. Dissertation, 47, and C. R. McKirdy, “A Bar Divided: The Lawyers of Massachusetts and the American Revolution,” American Journal of Legal History, xvi (1972), 205.
1059 Hovey assured Robert Treat Paine that he, Hovey, made his suggestions with the knowledge that his qualifications were “very small” when compared to those of his colleagues. Letter of James Hovey to Robert Treat Paine, 22 October 1764, Robert Treat Paine Papers.
1060 G. W. Gawalt, The Promise of Power: The Emergence of the Legal Profession in Massachusetts, 1760–1840 (Westport, Conn., 1979), 17.
1061 W. Willis, A History of the Law, the Courts and the Lawyers of Maine (Portland, 1883), 83, 652.
1062 G. Dexter, ed., “Record Book of the Suffolk Bar,” Massachusetts Historical Society, Proceedings, xix (1881–1882), 149.
1064 Ibid., 147.
1065 Ibid., 150. In addition to the required liberal arts education, the applicant had to serve a three-year apprenticeship with a recognized barrister before he could request the bar to recommend him to the Inferior Court as an attorney. Ibid. Once recognized at the bar of the County Court of Common Pleas, attorneys had to practice there for at least two years before the bar would recommend advancement to the status of attorney of the Superior Court. Two more years were required before a lawyer could hope to be named a barrister of the high court. Ibid.
1067 Ibid., 147–152.
1068 Ibid., 148.
1069 Worcester Address, 41.
1070 See e.g., Letter from Jonathan Sewall to Edward Winslow, 10 November 1773, Miscellaneous Manuscripts Bound, xiv, Massachusetts Historical Society.
1071 See, e.g., Letter from John Adams to Abigail Adams, 29 June 1774, in Adams Correspondence, i, 1135 Letter from John Adams to Abigail Adams, 1 July 1774, in Adams Correspondence, i, 119.
1072 Roscoe Pound contended that the “spirit of public service” was the essence of a profession. R. Pound, The Lawyer From Antiquity to Modern Times (St. Paul, 1953), 9–10. See also Moore, “Professions,” 13–15; B. Barber, “Some Problems in the Sociology of the Professions,” in the Professions in America, K. S. Lynn ed. (Cambridge, Mass., 1965), 18. In recent times, this orientation has often been formalized in a code of ethics which emphasizes the proper relations with colleagues, clients, and others outside the occupational group. E. C. Hughes, Men and Their Work, 46–47.
1073 T. Parsons, “The Professions and Social Structure,” Social Forces, xvii (1939), 457–467.
1074 In colonial Massachusetts, the practice which attorneys sought to monopolize largely involved routine actions for the collection of debts. Superior Court Docket Books for Massachusetts Counties (1757–1773), Massachusetts Historical Society. Disputes involving land constituted another significant portion of the lawyer’s business. See Adams Legal Papers, i, li (nature of lawyer’s business in eighteenth-century Massachusetts). See also E. Brown, Joseph Hawley; Colonial Radical (New York, 1931), 51 (description of Joseph Hawley’s practice in western Massachusetts).
1075 See Massachusetts Acts & Resolves, i, ch. 3, 622 (1708–9). For an example of how the system worked, see Letter from John Adams to Josiah Quincy, October 1761, in Adams, Diary, i, 223. Adams refused to accept “hush money.” Even William Cushing purchased notes at a discount. J. Cushing, “A Revolutionary Conservative: The Public Life of William Cushing 1732–1810,” Unpublished Ph.D. Dissertation, Clark University, 1960, 55–57.
1076 S. E. Morison, Three Centuries of Harvard, 1636–1936 (Cambridge, Mass., 1963), 22–25; G. C. Brauer, Jr., The Education of a Gentleman: Theories of Gentlemanly Education in England, 1660–1775 (New Haven, 1959), 13–28, 34–42. There were several indications of an improving social position of the bar, one of which was the growing number of Harvard graduates choosing careers in law. Of the 741 Harvard men who took degrees from 1642 to 1720, over one-half followed clerical pursuits. During the same period forty-three became doctors, and only fourteen by any stretch of the imagination could be called lawyers. In the period from 1720 to 1760, while the clergy still represented the most popular professional choice, it represented approximately one-third of the graduates. During the same forty years, 121 men chose medicine and sixty-seven chose the law. Twenty-seven of these new lawyers graduated between 1751 and 1760. See Appendix II: “Professional Choices of Harvard Graduates: 1642–1760.”
Of equal, if not more, significance was the fact that, by the late 1740’s, the leading Bay Colony families no longer spurned the practice of law. By 1760 some of the most prominent names in Massachusetts—Winslow, Leonard, Dudley, Sewall, Quincy, and Willard—were listed on the roles of the legal profession, i.e., Pelham Winslow (Harvard College, 1753), Daniel Leonard (H. C, 1760), George Leonard (H. C, 1743), Joseph Dudley (H. C, 1751), Jonathan Sewall (H. C, 1748), David Sewall (H. C, 1755), Samuel Quincy (H. C, 1754), and Abel Willard (H. C, 1752). The practice of law had gained a stature by 1760 which Adams, six years out of Harvard College, could only admire:
For let the smart sayings of the gay, and the grave Satyrs, even of the wise and learned be what they will, I have for my own Part, and I thank God for it no bad Opinion of the Law, either as a science, or a Profession. . . . Multitudes of needless Matters and some that are nonsensical, it must be confessed have in the Course of Ages, crept into the Law. But I beg to know, what Art or Science can be found in the whole Circle, that has not been taught by silly, senseless, Pedants, and is not stuffed with their Crudities and Jargon. . . . But if the Grandeur and Importance of a subject, has any share in the Pleasure it communicates, I am sure that Law has by far the advantages of most other sciences.
Nothing less that the Preservation of the Health and Properties, Lives and Tranquility, Moralls and Liberties of Millions of the human species, is the object and Designs of the Law, and a Comparision of Several Constitutions of Government, invented for those Purposes, an Examination of the great Causes of their Danger, as well as those of their safety, just be as Agreeable an Employment as can exercise the Mind. Adams, Diary, i, 196–197.
1077 Moore, “Professions,” 114.
1078 Diary, i, 137. Adams had little good to say about the “pettifoggers.” See, e.g., Diary, i, 70, 132–133, 135–137.
1079 Diary, i, 236. As to Adams’ motivation in attacking the pettifoggers, see R. Zemsky, Merchants, Farmers, and River Gods: An Essay on Eighteenth Century American Politics (Boston, 1971), 86–87. See Nathaniel Ames, An Astronomical Diary: Or, Almanack For The Year of our Lord Christ, 1765 (Boston, 1765), for a layman’s view of pettifoggers.
1080 Adams, Diary, i, 136.
1081 Moore, “Professions,” 16.
1082 Joseph Hawley, for example, was disbarred for one year for attacking a Superior Court decision in the press. R. Taylor, Western Massachusetts in the Revolution (Providence, 1954), 55.
1083 Acts and Resolves, i, 374.
1084 See B. Bernard, “Some Problems in the Sociology of the Professions,” in The Professions in America, K. S. Lynn et al., eds., 22.
1085 J. L. Sibley and C. K. Shipton, Biographical Sketches of Graduates of Harvard University (Cambridge, Mass.), viii (1951), 224–225. See also Adams, Diary, i, 160, where Adams claims that Richard Dana, another venerable member of the bar, put his interests before those of his clients.
1086 Note: To Professors Charles Donahue, Samuel Thorne, Harold Berman, and Andrew Kaufman at Harvard Law School, my teachers and friends, and to Catherine Menand, Theodore Chase, and Professor John Leubsdorf, who carefully examined this text, I owe a special debt.
1087 Diary and Autobiography of John Adams, L. H. Butterfield ed., 4 vols. (Cambridge, Mass., 1964), i, 45. (Hereafter cited as Diary.)
1088 Ibid., i, 63.
1089 See W. Scott Van Alstyne, Jr., “The District Attorney—A Historical Puzzle,” Wisconsin Law Review, cxxv (1952); Stephen Botein, “Cicero as Role Model for Early American Lawyers: A Case Study in Classical ‘Influence,’” Classical Journal, lxxiii (1977–1978), 3135 Peter Stein, “The Attraction of the Civil Law in Post-Revolutionary America,” Virginia Law Review, lii (1966), 403 Herbert A. Johnson, The Law Merchant and Negotiable Instruments in Colonial New York 1664 to 1730 (Chicago, 1963).
1090 Cf. Charles P. Sherman, Roman Law in the Modern World, i (Boston, 1937), 344–413.
1091 As to Adams’ infatuation with Hannah Quincy, which occurred simultaneously with his first serious legal study, see Diary, i, 72–74. “And by Reason of my Inattention my mind is liable to be called off from Law, by a Girl. . . .” Ibid., i, 72. See also below, page 380, note 8.
1092 Ibid., i, 44–45.
1093 Ibid., i, 137–138.
1094 Ibid., i, 44–46, 54. See the helpful biographical register of Adams’ contemporaries in Legal Papers of John Adams, L. K. Wroth and H. B. Zobel, eds. (Cambridge, Mass., 1965), i, xcv–cxiv, (hereafter cited as Legal Papers); and the useful biographical list of lawyers practicing in Massachusetts in 1775 attached as Appendix IV to C. R. McKirdy’s “Massachusetts Lawyers on the Eve of the American Revolution: The State of the Profession, above, 339–358.
1095 See Legal Papers, i, ii–liii. “Moreover, amidst rural boredom, the law was hardly an arid study but the principal entertainment after church-going-. . . .” Ibid., liii. Braintree was hardly a “hot spot.” As Adams wrote to his friend John Wentworth, “Here, no Idea of a Lady, of Diversions . . . or of Pleasure ever enters. . . . Old Roman Lawyers, and dutch Commentators are my constant Companions.” The Earliest Diary of John Adams, L. H. Butterfield, ed. (Cambridge, Mass., 1966), 64. (Hereafter cited as Earliest Diary).
1096 Diary, i, 63.
1097 Diary, nr, 264. Adams recalls that he brought with him to Worcester “Lord Bolingbrokes Study and Use of History, and his Patriot King,” which made Putnam “so well pleased” that they were added to Putnam’s book seller order. Ibid., iii, 264.
1098 Ibid., i, 173.
1099 Diary, i, 44. This was probably the Leyden 1730 edition. See ibid., i, 45, note 3.
1100 Ibid., i, 45.
1101 Ibid., i, 55.
1102 Ibid., iii, 272.
1103 Ibid., iii, 271–272. According to Adams’ recollection in his Autobiography, he had been able to mention that he had read “Burlamaqui . . . and Heineccius in Turnbulls Translation, and Turnbulls Moral Phylosophy” as books “upon the Law of Nature and Nations.” Ibid., iii, 271. There are substantial differences between the Diary and the Autobiography accounts of the meeting with Gridley. Cf. ibid., i, 54–56; iii, 270–272, but the emphasis on neoclassical learning was present in both accounts.
1104 Ibid., iii, 271.
1105 Ibid., i, 56.
1106 Ibid., iii, 271.
1107 Ibid., i, 56; iii, 272–273.
1108 Ibid., iii, 273.
1109 This was not atypical, although the “normal” education of colonial lawyers could reward further study. Some were educated at the Inns of Court in London, if a gentleman’s life in those institutions in the eighteenth century could be described as a “formal legal education.” See W. Holdsworth, A History of English Law (London, 1938), xii; C. R. McKirdy, “Massachusetts Lawyers on the Eve of the American Revolution: The State of the Profession,” Appendix IV, “Biographical Sketches of Lawyers Practicing in Massachusetts in 1775,” above, 339–358. Very few Massachusetts lawyers were educated in the Inns of Court after 1733. See G. W. Gawalt, The Promise of Power: The Emergence of the Legal Profession in Massachusetts, 1760–1840 (Westport, Conn., 1979), 31–32, note 17; E. A. Jones, American Members of the Inns of Court (London, 1924), xviii–xx.
1110 Diary, i, 58. Gridley went on, “and that he has made a very considerable, a very great Proficiency in the Principles of the Law, and therefore that the Clients Interest may be safely intrusted in his Hands.”
1111 See H. A. Johnson, Imported Eighteenth Century Law Treatises in American Libraries 1700–1700 (Knoxville, Tenn., 1978), xxiii–xxiv. (Hereafter cited as Johnson, Law Treatises.) As to the substantial collection of books on Roman and civil law in the early Harvard catalogue, see J. Quincy, The History of Harvard University (Cambridge, Mass., 1840), ii, 424–425, 586; A. Sutherland, The Law at Harvard (Cambridge, Mass., 1967), 68. As a result of the bequest of a New Orleans practitioner, Samuel Livermore, in 1833, Harvard Law School received a “whole library of foreign law, consisting of the works of leading civilians . . . amounting in numbers to upwards of three hundred costly volumes.” J. Quincy, History, ii, 425. See also ibid., i, 586. These books were actively used in a curriculum, as designed by Joseph Story and Nathan Dane, which emphasized “Law of Nature, the Law of Nations, Commercial and Maritime Law,” ii, 375. Quincy paid Story the compliment of describing him as an “eminent lawyer and civilian.” Ibid., ii, 377. In 1917 Roman law was still required for an advanced law degree at Harvard. See The Centennial History of the Harvard Law School, 1817–1017 (Boston, 1918), 77.
1112 See M. Bloomfield, Book Review, American Journal of Legal History, xxv, 79 (1981). By 1756 the College of Philadelphia (now the University of Pennsylvania) was offering a course which included the “civil laws” and assigned Grotius’ De Jure Belli ac Pads and Pufendorf’s De Jure Naturae et Gentium. A-H Chroust, The Rise of the Legal Profession in America (Norman, Oklahoma, 1965), ii, 176. See Johnson, Law Treatises, 27, 46. By 1763 both Grotius and Pufendorf were part of the fourth-year curriculum at King’s College (Columbia). Johnson, Law Treatises, xxiv. But were they part of a professional legal education, or just thought of as treatises on ethics and philosophy? Much later, during the enthusiasm of the codification movement, anonymous writers in the North American Review would state that “The common, civil, and customary law of Europe have each precisely the same force with us in this branch [the law merchant and maritime law]. . . . [O]ur courts study them all, and adopt from them whatever is most applicable to our situation, and whatever is on the whole just and expedient, without considering either course obligatory. . . . In fact, all eminent lawyers in this country sooner or later find it necessary to study the law books of the continent. . . . [T]he continental law ought to be made an important, it might also be said the most important, branch of elementary legal education.” Anonymous, North American Review, xl (October 1820), 412; North American Review, xxi (October 1825), 387–388; quoted in Chroust, Rise of Legal Profession, ii, 55–56. “In our courts of justice the writings of the [French] civilians are referred to freely and fearlessly. The Institutes of Justinian and the commercial treatises of Pothier, Emerigon and Roccus are naturalized among us.” Anonymous, North American Review, xxi (October 1825), 387–388, quoted in Chroust, Rise of Legal Profession, ii, 55. As to the practical reality of these statements, which is more doubtful, see Peter Stein’s article “The Attraction of Civil Law in Post Revolutionary America,” Virginia Law Review, lii (1966), 403, and A. W. B. Simpson’s “The Rise and Fall of the Legal Treatise Legal Principles and the Form of Legal Literature,” Chicago Law Review, xlviii (1981), 632. See also Alan Watson’s illuminating The Making of the Civil Law (Cambridge, Mass., 1981), 27–38.
1113 Papers of John Adams, R. J. Taylor, M. Kline, G. L. Lint, eds. (Cambridge, Mass., 1977). (Hereafter cited as Papers.)
1114 See The Law Practice of Alexander Hamilton, J. Goebel, Jr., ed., 2 vols. (New York, 1964, 1969). (Hereafter cited as Law Practice.)
1115 Hamilton was “profoundly” learned in the law, and this included “basic Roman law texts” and contemporary civilian sources. See Law Practice, i, 6–7. Goebel’s edition of Hamilton’s legal papers provides detailed evidence of how European civil law sources were used in maritime and law merchant cases during the early eighteenth century in New York. Ibid., ii, 48–231. These papers also show that questions of “incorporation,” ibid., ii, 20–21, and “universal principles of custom,” ibid., ii, 1–28, were very much afoot, encouraged by the rapid expansion of New York trade from 1775 to 1800. There were regular citations to the civilian law merchant treatises, ibid., ii, 215, 428, and to French law, ibid., ii, 224–227. This evidence backs up other contemporary documents stressing the value of civil law as it pertains to ius gentium, including the lectures of President Stiles at Yale in 1777 on Montesquieu, Vattel, Pufendorf, and “modern continental civil law.” See The Literary Diary of Ezra Stiles, Dexter, ed. (New York, 1901), 166–168. See also the lectures by Justice James Wilson in Philadelphia in 1790. The Works of James Wilson, R. C. McCloskey, ed. (Cambridge, Mass., 1967), i, 76, 85, 149–150, 257, 279.
1116 See Diary, iii, 154.
1117 Diary, i, 62–63, 64–65.
1118 Ibid., i, 173–174.
1119 Ibid., i, 63.
1120 Ibid., i, 173–174. As to Gridley’s career and famous pupils, such as William Cushing, James Otis, Benjamin Pratt, and Oxenbridge Thacher, see Legal Papers, i, ci.
1121 See D. R. Coquillette, “Legal Ideology and Incorporation I: The English Civilian Writers, 1523–1607,” Boston University Law Review, lxi (1981), i, 71–81. (Hereafter cited as “Legal Ideology II.”)
1122 Ibid., 71–73.
1123 See D. R. Coquillette, “Legal Ideology and Incorporation II: Sir Thomas Ridley, Charles Molloy, and the Literary Battle for the Law Merchant, 1607–1676,” Boston University Law Review, lxi (1981), 315, 363 ff. (Hereafter cited as “Legal Ideology II.”) Molloy’s treatise was present in Adams’ library. See Johnson, Law Treatises, 40.
1124 Diary, i, 174.
1127 Cf. ibid., iii, 271–272.
1128 Ibid., i, 174.
1129 Ibid., 175.
1130 See ibid., 115–117, 142, 123, note 19. Adams referred to Montesquieu as “Secondat,” that being the baron’s family name. Adams owned Nugent’s translation, “Second Edition corrected and considerably improved” (London, 1752), a copy of which is still in the family. Ibid., 123, note 19.
1131 Ibid., 199.
1133 Ibid., 200.
1134 Earliest Diary, 53–59.
1135 Ibid., 58, note 2. See the Illustration above, 365.
1136 Ibid., 58–59, note 2.
1137 See Legal Papers, ii, 73 ff.
1138 See below, 408–416.
1139 Legal Papers, i, 2 ff.
1140 Adams enjoyed a chance to see the Island of Oleron, although from a distance, during his first trip to Europe. See Diary, ii, 291.
1141 See Legal Papers, ii, 173 ff., 275 ff., 335 ff.; Legal Papers, i, 228–230, 245–247, 280–285.
1142 See ibid., 6, 7, 10, 11, 18, 24. As to St. German, see Coquillette, “Legal Ideology i,” 39–49.
1143 See Diary, i, 104–106.
1144 Ibid., 122, note 4.
1145 Diary, iii, 273–274.
1146 See Richard B. Morris, “Legalism versus Revolutionary Doctrine in New England,” in Essays in the History of Early American Law, D. Flaherty, ed. (Chapel Hill, N.C., 1969), 431. See also below, 415–416, note 5. Adams wrote that he “had a low Opinion of the Compilers, Abridgers, and Abstract makers. We had better draw science from its fountain in original Authors.” Diary, i, 177. Nevertheless, Adams did find Wood’s New Institute of the Imperial or Civil Law and Van Muyden’s Tractatio to be useful. “Have this moment finished Woods new Institute of the Imperial or civil Law. It is a great Help in the study of Van Muyden and Justinian. I understand Wood much better for having read Van Muyden, and shall now understand Van Muyden much better for having read Wood.” Ibid., 103.
1147 See below, 408–416.
1148 Thus Adams wrote in his diary: “Law is human Reason. It governs all the Inhabitants of the Earth; the political and civil Laws of each Nation should be only the particular Cases, in which human Reason is applied.” Adams continued: “Let me attend to the Principle of Government. The Laws of Britain, should be adapted to the Principle of the british Government, to the Climate of Britain, to the Soil, to its situation, as an Island, and its Extent, to the manner of living of the Natives as Merchants, Manufacturers and Husbandmen, to the Religion of the Inhabitants.” Diary, i, 117.
1149 Ibid., 59. See Stephen T. Riley’s fine essay “Robert Treat Paine and John Adams: A Colonial Rivalry” in Sibley’s Heir, vol. 59, Publications, Colonial Society of Massachusetts (1982), 415–429.
1150 Diary, i, 59.
1151 Ibid. Robert Treat Paine became a signer of the Declaration of Independence, Attorney General of Massachusetts, and a Justice of the Supreme Judicial Court. See Legal Papers, i, cvi.
1152 “[S]et down to Van Muyden in Earnest. His latin is easy, his definitions are pretty clear, and his Division of the subject, are judicious.” Diary, i, 57.
1153 Ibid., 47. Peter Chardon died young in Barbadoes in 1766. See ibid., 48, note 2.
1154 Diary, i, 189 (emphasis added).
1155 Legal Papers, i, lviii Diary, i, 224.
1156 Legal Papers, i, lviii.
1157 Ibid,; Diary, iii, 276.
1158 Diary, iii, 274.
1160 Ibid. As to Benjamin Pratt (1711–1763) see Legal Papers, i, cvi.
1161 Diary, i, 251.
1163 Ibid., 251–252. Adams’ copy of Richard Hurd’s Moral and Political Dialogues (3d. ed., London, 1765) is in the Boston Public Library. At one point Hurd describes the kind of person who is “[i]n a word, both in mind and person the furthest in the world from any thing that is handsome, gentlemenlike, or of use and acceptance in good company!” Besides this description, Adams later wrote: “An exact description of a Dartmouth educated Schollar.” Ibid., 252, note 5.
1164 Ibid., 252–253.
1165 Ibid., 253.
1166 Adams had bittersweet memories of Hannah. See ibid., i, 72–74. Hannah married Bela Lincoln, not a happy match. Ibid., 176–177.
1167 Joseph Dudley (1732–1767) married Gridley’s daughter. See Legal Papers, i, c.
1168 Diary, i, 253.
1169 Ibid., 254.
1170 See the full analysis of this debate in connection with Adams’ “A Dissertation on the Canon and Feudal Law,” below, 401–403.
1171 Diary, i, 254–258.
1172 Ibid., 255. Gridley’s suggestion that it “should be a part of our plan to publish Pieces, now and then . . .” may well have inspired Adams’ “A Dissertation on the Canon and Feudal Law.”
1173 Ibid. The Sodalitas Club was not unique. In Boston many lawyers certainly dined together during this period as informal groups. These included James Otis (1725–1783), Robert Auchmuty (1723–1788), and Oxenbridge Thacher (1719–1765), who often ate with Adams, Gridley, and the others. Indeed Richard B. Morris lists them as members of the Sodalitas Club. See R. B. Morris, “Legalism versus Revolutionary Doctrine in New England,” in Essays in the History of Early American Law, D. H. Flaherty, ed. (Chapel Hill, N.C., 1969), 425. Cf. Page Smith, John Adams (Garden City, N.Y., 1962), i, 77–78. Thacher died in 1765. Otis was a great patriot, but plagued by madness. He was killed by lightning in 1783. Auchmuty, like Fitch, became Advocate General in Admiralty and Judge of the Vice Admiralty Court, a post held by his father. He was a leading loyalist and fled to Halifax and England in 1776. See Legal Papers, i, xcvi.
In New York the prestigious “Moot” Club, copied from the famous after-dinner moot association at Gray’s Inn, met regularly in the eighteenth century. So did New Jersey’s Institutio Legalis. See A-H Chroust, Rise of the Legal Profession, ii, 130, note 1. The descendants of these associations, the famous “library companies,” such as the Library Company of Philadelphia (1802), and Boston’s Social Law Library (1804), did much lasting practical good. Ibid., 130, note 1.
1174 Legal Papers, i, c. According to Adams’ Autobiography the “little Clubb” met “once a Week,” but for how long is unclear. Diary, iii, 285. On Gridley’s death, Adams characteristically wrote, “He was a great Admirer of Barbeyrac: thought him a much more sensible and learned Man than Puffendorf. I admired the facility with which he translated and criticised the Greek Passages in the Notes.” Diary, iii, 286.
1175 Ibid., i, c.
1177 See Legal Papers, i, xciii–xciv.
1178 Ibid., 3.
1179 See E. Coke, The First Part of the Institutes of the Lawes of England (London, 1628), *11b. Indeed, Adams’ notes are a paraphrase, as the editors point out.
1180 For a list of the standard scholarly sources on English civilian specialists, monopolies, and a brief description, see Coquillette, “Legal Ideology and Incorporation I,” 19–22.
1181 See ibid., and Coquillette, “Ideology and Incorporation II,” 346–363.
1182 Legal Papers, ii, 68–97 (Case No. 43).
1183 Ibid., 68. See the excellent account by L. Kinvin Wroth, “The Massachusetts Vice Admiralty Court,” in Law and Authority in Colonial America: Selected Essays, G. Billias, ed. (Barre, Mass., 1965), 32 ff. See also L. Kinvin Wroth, “The Massachusetts Vice Admiralty Court and the Federal Admiralty Jurisdiction,” American Journal of Legal History, vi (1962), 250–268, 347–367.
1184 Legal Papers, ii, 71–72.
1185 Ibid., 71.
1186 Ibid., 73.
1187 Ibid., 74, note 23.
1188 Ibid., 73, 74, note 24.
1189 Translation of Digest 41:1:15 from De Adquirendo: Translation of Justinian’s Digest, Book 14, Title i, 3 (Cambridge, trans. C. H. Monro, 1900), set out in Legal Papers, ii, 75, note 26.
1191 Ibid., 73. The parties agreed to arbitration in April, 1769.
1192 H. Melville, Moby Dick (1950 ed.), 393–394, quoted by the editors of the Legal Papers, ii, 72, note 27.
1193 Legal Papers, ii, 72.
1194 Case No. 46, Legal Papers, ii, 173–210.
1195 See ibid., 174–177.
1196 Ibid., 174.
1197 Ibid., 175. A riot had driven the commissioners to Castle William.
1198 Diary, iii, 306.
1199 Legal Papers, ii, 203. In another context Adams was not so sure. “But disregarding order, for the present let me record the Controversy We had last Week, Concerning the Rules of Law which were to govern this Case. The Court of Admiralty is originally a Civil Law Court. Jurisdiction of a Crime, is given to it in this Case by Act of Parliament. The Question is whether it is to proceed by the civil Law?” Legal Papers, ii, 206. As to the early choice-of-law doctrine in the colonies, see William E. Nelson, “The American Revolution and the Emergence of Modern Doctrines of Federalism and Conflict of Laws,” below, 419–467.
1200 Ibid., 203.
1201 Ibid., 206. As the editors of the Legal Papers alertly noticed, Adams omitted language from Wood making key exceptions from this rule: “unless he swears of his own Fact, and where there are other Circumstances to concur or corroborate, or unless he is a publick Officer; as a Notary, &c. deposing by Vertue of his Office. This is founded upon very good reason.” Wood, New Institute of the Civil Law, 361 (2d ed. 1712). Legal Papers, ii, 203, note 107.
1202 See Codex 4:20:9:15 Digest 22:5:125 Thomas Wood, New Institute of the Imperial, or Civil Law; J. Calvinus, Lexicon Juridicum Juris Caesarei Simul et Canonici (Cologne ed., 1622), 905; J. Fortescue, De Laudibus Legum Angliae (London, 1741, ed.), 38. See also Legal Papers, ii, 203–204, notes 109, 116, 117. As the editors of the Legal Papers observe, Fortescue was, ironically, “pointing to” the rule “as a defect in civil-law procedure.” Legal Papers, ii, 205, note 117.
1203 Jean Domat, The Civil Law in its Natural Order (Strahan Trans., 1722), 1:13–14, as set out in Legal Papers, ii, 205.
1204 T. Wood, A New Institute of the Imperial, or Civil Law (3d ed., 1721), 310. See Legal Papers, ii, 205.
1205 Ibid., 207.
1206 Robert Auchmuty’s Interlocutory Decree (probably 1 March 1769), which rejected Adams’ arguments, also referred extensively to the Digest. See Legal Papers, ii, 207–209.
1207 Case No. 22, Legal Papers, i, 280–285.
1208 Ibid., 280.
1209 Ibid., 281, note 6. For an excellent discussion of the colonial Massachusetts law of divorce, see the editorial note at ibid., 280–284.
1210 Ibid., 283.
1212 Ibid., 284–285. See W. Holdsworth, History of English Law, v (London, 3d ed., 1945), 12–15; ibid., xii (1st ed., 1938), 425–427.
1213 See Legal Papers, i, 245–247 for another excellent editorial note.
1214 Case No. 15, ibid., 245–254.
1215 Ibid., 254. At least according to the editors of the Legal Papers, the notation by Adams “in a heavier hand” suggests that “these are authorities for his position.” Ibid., 254, note 17.
1216 Ibid., 254, note 20.
1217 See Diary, i, 243–244. As to Henry Swinburne’s distinguished career as an English civilian, see J. Duncan M. Derrett, Henry Swinburne (? 1551–1624), Civil Lawyer of York (York, England, 1973), a useful piece for biography and bibliography.
1218 See Johnson, Law Treatises, 52.
1219 See “Editorial Note,” Legal Papers, ii, 275–276.
1220 Ibid., 276–279.
1221 Ibid., 278.
1222 Ibid., 283 (Calvin); ibid., 283, 326 (Domat); ibid., 283, 326 (Wood); ibid., 283, 329–330 (Maranta); ibid., 330, note 118; ibid., 283, 327–329 (Gail); ibid., 328, note 116.
1223 Ibid., 330–331. See also ibid., 280.
1224 Ibid., 326 (emphasis Adams’). “Of those who defend their own safety. He who, when in danger of his life, kills his aggressor or anyone else, should have no fear of prosecution on this account.” Ibid., 326–327, note 115.
1225 Ibid., 334. Adams had a copy of Barrington’s book in his library. See Johnson, Law Treatises, 5.
1226 Legal Papers, ii, 278–279, 331.
1227 Ibid., 278, 323–324.
1228 Ibid., 280. Later, Hutchinson would write that the Special Court believed the homicide to be justified. Ibid., 280.
1229 Case No. 57 (1772–1773), ibid., 335–351. For the importance of Francis Bacon as a conduit for civilian learning into the common law, see D. R. Coquillette, “Legal Ideology I,” 9–10.
1230 Slew v. Whipple, Case No. 38 (1766), ibid., 52–55 (Whether “Jenny Slew” was wrongfully kept in “Servitude as a Slave” by “John Whipple Jnr. of . . . Ipswich.”).
1231 Newport v. Billing, Case No. 39 (1768), ibid., 55–57 (Plaintiff claims he was capable of bringing “Trespass and false Imprisonment” action, as he was “no slave but a freeman.”).
1232 Ibid., 104.
1233 See, for example, ibid., iii, 257–258, in the context of the famous case of Rex v. Wemms (Case No. 64), the “Boston Massacre” case (1770).
1234 Diary, ii, 56, quoted in Legal Papers, ii, 104.
1235 Ibid., iii, 258, note 218.
1236 Earliest Diary, 72–73.
1237 See Legal Papers, i, lxxvii–lxxxiii.
1238 See Diary, i, 136–137; ibid., iii, 274.
1239 See Legal Papers, i, lxxviii–lxxix; Diary, i, 235–236. See also G. W. Gawalt, The Promise of Power, 33, note 29.
1240 Legal Papers, i, lxxix.
1241 See Diary, i, 235–236. “Mr. Otis arose and said he had the Credit of the Motion, but he never had moved for any such Rules as these, for they were vs. the Province Law, vs. the Rights of Mankind, and he was amazed that so many wise Heads as that Bar was blessed with could think them practicable, and concluded that he was for one, entirely against them. And said that all schemes to suppress Petty fogger’s [sic] must rest on the Honor of the Bar. Foster Hutchinson asked why then was the Court troubled with the Motion? Judge Watts said if the Bar was not agreed the Court could do nothing. And at last they determined to consider till April.” Ibid., i, 236.
1242 Ibid., i, 316. See Legal Papers, i, lxxix.
1243 Diary, i, 316.
1244 See John M. Murin, “The Legal Transformation of the Bench and Bar in Eighteenth Century Massachusetts,” in Colonial America: Essays in Politics and Social Development, S. Katz, ed. (Boston, 1971), 415–449; Gerard W. Gawalt, The Promise of Power: The Emergence of the Legal Profession in Massachusetts 1760–1840 (Westport, Conn., 1979); G. W. Gawalt, “Massachusetts Legal Education in Transition, 1766–1840,” American Journal of Legal History, xxvii (1973), 27; G. W. Gawalt, “Sources of Anti-Lawyer Sentiment in Massachusetts, 1740–1840,” American Journal of Legal History, xiv (1970), 283; G. W. Gawalt, Massachusetts Lawyers: A Historical Analysis of the Process of Professionalization, 1760–1840, 1969 Ph.D. thesis, Northwestern University; Charles R. McKirdy, “Before the Storm: The Working Lawyer in Pre-Revolutionary Massachusetts,” Suffolk Law Review, xi (1976), 46; C. R. McKirdy, “A Bar Divided: The Lawyers of Massachusetts and the American Revolution,” American Journal of Legal History, xvi (1972), 206; C. R. McKirdy, Lawyers in Crisis: The Massachusetts Legal Profession 1760–1790, 1970 Ph.D. thesis, Northwestern University. See also C. R. McKirdy, “Massachusetts Lawyers on the Eve of the American Revolution: The State of the Profession,” above, 313–358.
1245 Legal Papers, i, lxxxiii.
1246 Ibid., lxxxii–lxxxiii. One attraction of civilian learning to Adams and other Americans may have been the systematic, digestible civilian treatises. This must have been particularly attractive, given the absence of American law schools, the limited usefulness of apprenticeships, and the relative scarcity of readable common law treatises and law reports. I owe this suggestion to John Leubsdorf. See H. A. Johnson, Imported Eighteenth-Century Law Treatises in American Libraries 1700–1799 (Knoxville, 1978) for the impressive extent of civilian titles present in America.
1247 Adams was a fanatic book collector. Wherever he went, he bought books and inspected the libraries of others. See his comments on Miers Fisher’s law library in Philadelphia, Diary, ii, 126; the Dickinson library in Fairhill, ibid., 133; George III’s library (which Adams inspected), ibid., iii, 150, note 3; Putnam’s library, ibid., 264; and, of course, Gridley’s great library, much of which Adams purchased, ibid., 271. He bought books in France, ibid., ii, viii, 195 facing illustration; Spain, ibid., 426; New York, ibid., 109; and London, ibid., iii, 149, note 3, 189. According to Adams, this was all at great expense and was a struggle. See ibid., i, 337.
1249 Ibid., iii, 274.
1250 Legal Papers, i, xciv.
1251 Charles R. McKirdy, Lawyers in Crisis: The Massachusetts Legal Profession, 1780–1700, 1970 Ph.D. thesis, Northwestern University, 40.
1252 Gerard W. Gawalt, The Promise of Power, 6.
1253 See above, pages 376–381.
1254 See D. R. Coquillette, “Legal Ideology I,” 22–35.
1255 Diary, ii, 375.
1256 The Earliest Diary, 41. For descriptions of Adams’ classical skills and readings, see A. Iacuzzi, John Adams, Scholar (New York, 1952); D. M. Robathan, “John Adams and the Classics,” New England Quarterly, xix (1946), 91–98, and C. B. Schulz, “John Adams on ‘The Best of All Possible Worlds,’” Journal of the History of Ideas (1983), 561–577.
1257 Vernon L. Parrington, The Colonial Mind 1620–1800 (New York, 1927), 320. Adams has been described as one of the “great triumverate” of American revolutionary thinkers, with Thomas Jefferson and James Wilson. See Charles F. Mullett, Fundamental Law and the American Revolution 1760–1776 (New York, 1933), 179–188. Parrington praised Adams as a political “realist,” the “political counterpart of Dr. Johnson.” Parrington, Colonial Mind, 307. See also Robert J. Taylor’s fine essays on Adams’ political thought: “John Adams: Legalist as Revolutionist,” Proceedings of the Massachusetts Historical Society, lxxxix (1978), 55–71; and “Construction of the Massachusetts Constitution,” Proceedings of the American Antiquarian Society, xc (1980), 326–346. For a scholarly analysis of the contributions of Adams to the 1773 constitutional arguments between Governor Thomas Hutchinson, the Massachusetts Council, and the House of Representatives, see The Briefs of the American Revolution, J. P. Reid, ed. (New York, 1981), 45–73, 119–143.
1258 See Diary, i, 255–2585 ibid., 252, note 1.
1259 See ibid., 253–255.
1260 Ibid., 253. This was another reference to the “Feudorum Consuetudines Partim ex Editione vulgata partim ex Cujaciana vulgata appositate, as also the Epitome Feudorum Dionysio Gothofredo Authore” mentioned by Adams at ibid., 251.
1261 Ibid., 254.
1263 Ibid., 255.
1264 Ibid., 255–256.
1265 See above, 371–372.
1266 Diary, i, 258.
1267 Ibid., 256–257.
1268 Ibid., 256.
1269 See Papers of John Adams, i, 103–128.
1270 Ibid., 104. See Diary, i, 263.
1271 Adams, in his Autobiography, described the production of the “Dissertation” in the Gazette version:
“On the 14 day of July of this Year 1765, Mrs. Adams presented me with a Daughter in her confinement in her Chamber, I was much alone in (the Parlour below) my Office of Evenings and Mornings. The Uneasy State of the public Mind, and my own gloomy Apprehensions, turned my Thoughts to writing. Without any particular Subject to write on, my Mind turned I know not how into a Speculation or rather a Rhapsody which I sent to the Boston Gazette, and was there published without Title or Signature, but which was afterwards reprinted in London under the Title of a dissertation on the Cannon and Feudal Law. It might as well have been called an Essay upon Forefathers Rock. Writings which appear mean enough at the present day, were then highly applauded, in proportion to their Zeal rather than their Merit, and this little production had its full Share of praise.” (Diary, iii, 284.)
1272 “[P]erhaps, for the necessary defense of a barbarous people. . . .” Papers, i, 112.
1273 To Charles Francis Adams’ dismay. See C. F. Adams, The Works of John Adams, 10 vols. (Boston, 1850–1856), iii, 452. (Hereafter cited as Works.)
1274 Papers, i, 115.
1275 Ibid., 117.
1276 Ibid. (Emphasis added.)
1277 Ibid., 118.
1278 Ibid., 121.
1279 Ibid., 127. (Emphasis added.)
1280 Ibid., 126.
1281 12, 19 August 1765; 30 September 17655 and 21 October 1765. See ibid., 103.
1282 Ibid., 105. Thomas Hollis (1720–1774) was an extraordinary man. Heir to a fortune from manufacturing, Hollis was a dissenter and a whig who supported republican causes, including undertaking to rebuild the library of Harvard College after the fire of 1764. Thanks to the assistance of William H. Bond, the leading expert on Hollis, it can be said with certainty that Hollis caused the publication in the London Chronicle of what Hollis called a “master” dissertation, although he did not know who wrote it. Unpublished Diary of Thomas Hollis, Nov. 21  (Hollis emphasis). Hollis also caused Adams’ “Dissertation” to be published again by way of addition to the Appendix to the Journal of the House of Representatives of Massachusetts Bay “now reprinting here by Almon, by my [Hollis’] means. . . .” Ibid., June 21 . Hollis still did not know the author. Ibid., June 26 ; July 19 ; Hollis quoted from Adams’ “Dissertation” in a letter published in the London Chronicle on July 28, 1768 to “Katharina Alexieuna, Empress of all the Russias, ever magnanimous.” Ibid., July 24  and July 28 . All of the above information is thanks to William H. Bond.
1283 There is a Boston Athenæum copy, EB5 F68–9H7. See ibid,; Diary, i, 360–361. See also ibid., 258, note 1.
1284 Diary, i, 360–361.
1285 Works, in, 447. The “Dissertation” continued to serve Adams well. It formed part of Adams’ contribution to the Massachusetts House of Representatives’ “Rejoinder” of 2 March 1773 to Governor Thomas Hutchinson’s constitutional arguments. See The Briefs of the American Revolution, J. P. Reid, ed. (New York, 1981), 119–143. On the occasion of Adams’ appointment as Minister Plenipotentiary to the States General of the United Netherlands, he encouraged a new edition, which was published in 1782 in London, A Collection of State-Papers, Relative to the First Acknowledgment of the Sovereignty of the United States of America, and the Reception of Their Minister [Plenipotentiary,] by [their Mightiness] the States General of the United Netherlands, By An American. Like an Essay on Cannon and Feudal Law, by John Adams, Esq. See Papers, I, 105. It attracted favorable comment, Works, iii, 4475 Papers, I, 104, and was republished by Robert Bell in Philadelphia in 1784. Works, in, 447. It was republished again in 1851 in the classic The Works of John Adams, edited by Charles Francis Adams. Works, in, 447–464. It has now been republished yet again, in a definitive edition, in the Papers of John Adams (Cambridge, Mass., 1977). Papers, i, 103–128.
1286 See D. R. Chesnutt’s review of the John Adams Papers, vols. 1 and 2, in American Journal of Legal History, xxv (1981), 82, 83. “His [Adams’] ‘Dissertation’ of 1765 is like the Pachelbel Kanon which is built around a simple theme. The Novanglus letters of 1775 are more like the Bach Brandenburgs which bring forth a variety of themes hammered home through complex orchestration. (The editors wryly describe the plethora of legal citations in Novanglus as a veritable ‘thicket.’)” Ibid., 83.
1287 The last letter was published 17 April 1775, two days before the hostilities at Concord and Lexington. See Papers, ii, 373. Adams, with Joseph Hawley and Samuel Adams, probably also wrote the answer of the Massachusetts House of Representatives in 1773 to Governor Thomas Hutchinson’s famous “Address” of 1773. See the excellent edition by John Phillip Reid, The Briefs of the American Revolution (New York, 1981), 25–73.
1288 See, for example, the drafts of the “Clarendon/Pym Letters” (1765–1766), Diary, i, 272, 274–275, 281–282, 287–292, 296–299. These include a marvellous reference to Grotius’ De Jure Belli ac Pacts, never published in the newspapers, on the issue of modifying covenants and rules to allow for cases of necessity and impossibility—here put in a context of “a Failure of Justice” that equals an “Abdication of the Crown and Throne.” Ibid., 289.
1289 Papers, ii, 222.
1290 See the excellent “Editorial Note,” Papers, ii, 216–226.
1291 In August 1774 Leonard accepted appointment from General Gage as one of the mandamus councilors. Papers, ii, 217. He later became solicitor to the Customs Commissioners in 1775, sailed to Halifax in 1776, and continued his service to the Commissioners there and in England. From 1782 to 1806 he was Chief Justice of Bermuda, and he was a leading barrister in London from 1806 until his death in 1829. See Legal Papers, i, ciii.
1292 Ibid., ii, 219.
1293 Leonard was correctly identified in 1775 by Adams’ former law clerk, John Trumbell, but Adams later expressed surprise that “Massachusettensis” was other than another old loyalist friend, Jonathan Sewall, who sailed for London in August 1775. Ibid., 221–222. See ibid., i, ex. Sewall’s son became Chief Justice of Lower Canada.
1294 Ibid., ii, 219.
1295 Ibid., 251.
1296 See, for example, ibid., 250–252, 258–265, 337–385.
1297 Ibid., 309. Calvin’s Case, vii, Coke’s Reports (1608), i, concerned James Ps desire to have the post-nati, i.e. those born after his accession to the English throne, naturalized in both England and Scotland. The English Parliament was unwilling, and a collusive action was brought by Calvin, a Scottish post-natus. A majority of the Exchequer Chamber held that Calvin was a natural-born subject of the King of England, and not an alien, and that allegiance to a sovereign and protection by a sovereign were reciprocal rights. For a concise account, see D. Walker, The Oxford Companion to Law (1980), 170; W. Holdsworth, A History of English Law, ix (3rd ed., 1944), 79–80.
1298 Papers, ii, 269.
1299 Ibid., 251. See also ibid., 337–354.
1300 Ibid., 372.
1301 Ibid., 288–289. This quotation is from the 1738 translation, found in Adams’ library. Ibid., 306, note 1. The quotation from Grotius continued: § 2. “The liberty allowed before is much restrained, since the erection of tribunals: Yet there are some cases wherein that right still subsists; that is, when the way to legal justice is not open; for the law which forbids a man to pursue his right any other way, ought to be understood with this equitable restriction, that one finds judges to whom he need apply,” &c.
Adams referred as well to Sidney’s Discourses, which also cited Grotius: “The same course is justly used against a legal magistrate, who takes upon him to exercise a power which the law does not give: for in that respect he is a private man, (Quia,) as Grotius says, (eatenus non habet imperium,) and may be restrained as well as any other, because he is not set up to do what he lists, but what the law allows, so the same law limits and directs the exercise of that which he has.” Ibid., 291.
1302 Ibid., 291. (Emphasis added.)
1303 Ibid., 293.
1304 Ibid., 311. Adams confused the three separate classical concepts of ius gentium, naturalis ratio, and ius naturale. See below, 413, note 3. But so did the Roman jurists. See C. F. Mullett, Fundamental Law and the American Revolution, 1760–1776 (New York, 1933), 16–17. See also D. R. Coquillette, “Legal Ideology I,” 22–24.
1305 Papers, ii, 311–312. (Emphasis added in first two instances.) Adams continued to emphasize that Parliament’s claims were not supported by “the practice of nations”:
“The practice of nations has been different. The Greeks planted colonies, and neither demanded nor pretended any authority over them, but they became distinct independent commonwealths.
The Romans continued their colonies under the jurisdiction of the mother commonwealth—but, nevertheless, she allowed them the priviledges of cities. Indeed that sagacious city seems to have been aware of the difficulties similar to those under which Great Britain is now labouring; she seems to have been sensible of the impossibility of keeping colonies planted at great distances, under the absolute control of her senatus consulta. Harrington tells us, Oceana p. 43, that ‘the commonwealth of Rome, by planting colonies of its citizens within the bounds of Italy, took the best way of propagating itself, and naturalizing the country; whereas if it had planted such colonies without the bounds of Italy, it would have alienated the citizens, and given a root to liberty abroad, that might have sprung up foreign, or savage and hostile to her; wherefore it never made any such dispersion of itself, and its strength, till it was under the yoke of the emperors, who disburdening themselves of the people, as having less apprehension of what they could do abroad than at home, took a contrary course.’” Ibid., 311.
1306 Ibid., 312, 313.
1307 Ibid., 313.
1308 Ibid., 311.
1309 Ibid., 312.
1310 Ibid., 314. Adams argued that: “In one word, if public principles and motives and arguments, were alone to determine this dispute between the two countries, it might be settled forever, in a few hours; but the everlasting clamours of prejudice, passion and private interest, drown every consideration of that sort, and are precipitating us into a civil war.” Ibid., 314.
1311 Ibid., 313–314. (Emphasis added.)
1312 Ibid., 335.
1314 Ibid., 309, 347–348. As to Calvin’s Case, see above, 410, note 4.
1315 Ibid., 373–376.
1316 See, for example, ibid., 363–369. Adams’ “love-hate” relationship with Mansfield, who argued against repeal of the Stamp Act, could be the subject of another article. On one occasion, rich with irony, Adams was technically Mansfield’s guest at the House of Lords! See Diary, iii, 149–151, setting out Adams’ letter to the Boston Patriot of 17 February 1812:
“Mr. Copley, another of my countrymen, with whom I had obtained without so much royal protection, a reputation not less glorious; and that by studies and labours not less masterly in his art, procured me, and that from the great Lord Mansfield, a place in the house of lords, to hear the king’s speech at the opening of parliament [11 November], and to witness the introduction of the Prince of Wales, then arrived at the age of twenty one. One circumstance, a striking example of the vicissitudes of life, and the whimsical antithesis of politics, is too precious for its moral, to be forgotten. Standing in the lobby of the house of lords, surrounded by a hundred of the first people of the kingdom, Sir Francis Molineux, the gentleman usher of the black rod, appeared suddenly in the room with his long staff, and roared out with a very loud voice—Where is Mr. Adams, Lord Mansfield’s friend!’ I frankly avowed myself Lord Mansfield’s friend and was politely conducted by Sir Francis to my place. A gentleman said to me the next day, ‘how short a time has passed, since I heard that same Lord Mansfield say in the same house of lords, “My Lords, if you do not kill him, he will kill you.’” Mr. West said to me, that this was one of the finest finishings in the picture of American Independence.
Pope had given me, when a boy, an affection for Murray. When in the study and practice of the law, my admiration of the learning, talents and eloquence of Mansfield had been constantly increasing, though some of his opinions I could not approve. His politics in American affairs, I had always detested. But now I found more politeness and good humor in him than in Richmond, Cambden, Burke or Fox.” Ibid., iii, 150–151.
Adams’ friendship with Copley had another ironic twist. Copley’s son, John Singleton Copley, Baron Lyndhurst (1772–1863), became Lord Chancellor of England. See The Compact Edition of the Dictionary of National Bibliography (1975 ed.), i, 1107–1114.
1317 See, for example, Geoffrey Marshall, Parliamentary Sovereignty and the Commonwealth (London, 1957), 47–138; K. C. Wheare, The Constitutional Structure of the Commonwealth (Oxford, 1960), 1–113; R. L. Watts, New Federations Experiments in the Commonwealth (London, 1966), 17–37.
Other contemporaries of Adams had reached almost identical conclusions. See, for example, Thomas Jefferson’s A Summary View of the Rights of British America (Philadelphia, 1774).
1318 See Stephen Botein, “Cicero as Role Model for Early American Lawyers: A Case Study in Classical ‘Influence,’” Classical Journal, lxxiii (1977–1978), 313, 316–319.
1319 See above, 404–415. See also Charles F. Mullett, Fundamental Law and the American Revolution 1760–1776 (New York, 1933), 181–188. Mullett correctly observed that the ius gentium of Gaius, “universal, rational and equitable,” was hardly adopted by later civilians, and that these terms had much ambiguity in colonial America. Ibid., 17. Nevertheless, Mullett acknowledged that “Grotius, Pufendorf, and Vattel” did much toward identifying ius gentium and natural law among American colonials. Ibid., 17. See also Peter Stein “The Attraction of the Civil Law in Post Revolutionary America,” Virginia Law Review, lii (1966), 403, 404–407.
1320 George Lee Haskins, Law and Authority in Early Massachusetts (New York, 1960), 160.
1321 See above, 376–381. See generally, John M. Murin, “The Legal Transformation: the Bench and Bar in Eighteenth Century Massachusetts,” in Colonial America: Essays in Politics and Social Development, S. Katz, ed. (Boston, 1971), 415–449.
1322 It was in Adams’ political writing that he frequently turned to civilian authority as a source of broadly applicable, natural law principles. I am indebted to John Leubsdorf for the suggestion in the text.
1323 See above, 382–395. For an excellent general account of the contents and nature of these eighteenth-century civil law treatises, see A. W. B. Simpson, “The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature,” University of Chicago Law Review, xlviii (1981), 632, 656–657. For an excellent general account of their influence on American revolutionary thought, see Thomas C. Grey, “Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought,” Stanford Law Review, xxx (1978), 843, 850, 860–863, emphasizing the influence of Pufendorf, Burlamaqui, Vattel, and Rutherforth. See also Erwin C. Surrency, “The Lawyer and the Revolution,” American Journal of Legal History, viii (1964), 125, 132, emphasizing Pufendorf, Grotius, and Wood’s Institutes of Civil Law.
1324 Of these, only Bacon’s influence on Adams has not been illustrated by this essay. As to this, set Diary, i, 177, 186, 266, 286; Diary, ii, 375, 386; Diary, iii, 264; Diary, iv, 212.
1325 The exact dates when the “Autobiography” was written remain unclear. See Diary, i, xliv. The section with the Gridley quote follows a mark in the text stating “Continued November 30, 1804.” See Diary, iii, 261.
1326 Diary, iii, 271–272. (Emphasis added.) For a slightly different account in Adams’ contemporary diary, see ibid., i, 54–55. See also above, 363, note 8.
1327 Note: Citations to published source materials of a legal nature conform to A Uniform System of Citation (Cambridge, Mass., 13th ed., 1981), which is available at most law libraries. The author is indebted to Morton J. Horwitz for his helpful comments and criticisms and to the Law Center Foundation of New York University for research support.
1328 Joseph H. Beale, A Treatise on the Conflict of Laws, vol. 3 (New York, 1935), 1911. But see Kurt H. Nadelmann, “Joseph Story’s Contribution to American Conflicts Law: A Comment,” American Journal of Legal History, 5 (1961), 230, 234–235.
1329 Willis L. M. Reese and Maurice Rosenberg, eds., Cases and Materials on Conflict of Laws (Mineola, 7th ed., 1978), 4–5.
1330 See William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge, Mass., 1975), 21–35; William E. Nelson, “The Eighteenth-Century Background of John Marshall’s Constitutional Jurisprudence,” Michigan Law Review, 76 (1978), 893, 902–924.
1331 Blackstone argued that the American plantations had been acquired by conquest, not settlement, and therefore were not subject to the common law. See William Blackstone, Commentaries on the Laws of England, vol. i (Oxford, 1765), 105. See generally Elizabeth G. Brown, British Statutes in American Law, 1776–1836 (Ann Arbor, 1964), 12–14.
1332 Opinion of Richard West, Counsel for Board of Trade (1720), in George Chalmers, Opinions of Eminent Lawyers on Various Points of English Jurisprudence, vol. 1 (London, 1814), 194–195.
1333 Anonymous, 2 P. Wms. 75, 24 Eng. Rep. 646 (Ch. 1722). Accord, Blankard v. Galdy, 2 Salk. 411, 91 Eng. Rep. 356 (K.B. 1693). See generally Brown, British Statutes in American Law, 10–11; Joseph H. Smith, Appeals to the Privy Council from the American Plantations (New York, 1950), 482–484. Brown finds any conclusions as to reception tenuous. See Brown, British Statutes in American Law, 19–21.
1334 Baker v. Mattocks, Quincy 69, 72 (Mass. 1763).
1335 Richmond v. Davis, Quincy 279, 293 (Mass. 1768). Accord, Baker v. Mattocks, Quincy 69, 70 (Mass. 1763) (opinion of Russell, J.); Hendricks v. Ashley, Hampshire Super. Ct., September 1772 (allegation of false imprisonment “against the Custom of England and this province”).
1336 See generally Bernard Bailyn, Pamphlets of the American Revolution, 1750–1776, vol. 1 (Cambridge, Mass., 1965), 115–138; Lawrence H. Gipson, The Coming of the Revolution, 1763–1775 (New York, 1954), 69–89, 110–115, 172–195; G. H. Guttridge, English Whiggism and the American Revolution (Berkeley, 2d ed., 1963), 58–90.
1337 See Jones v. Belcher, Quincy 9 (Mass. 1762), which involved a conflict between a Massachusetts statute and an act of Parliament. But the analysis would have been similar if two colonial statutes had been involved. The issue was whether, upon a bond executed by a Massachusetts debtor to pay a debt due in England, interest should be allowed at the rate provided by the Massachusetts or by the English statute. The court could not make the typical arguments and merely apply the English rule, since a local rule was in direct conflict. See below, 423, notes 2–7 and accompanying text. But its approach was equally simplistic. Declining the opportunity to rule generally upon the applicability of acts of Parliament in the colonies, it held merely that “as the Bond was given to a Person here, (not the Creditor in England), and the Debt was become his, New England Interest ought to be granted.” Ibid., 9. Residence of the parties thus appears to have been the deciding factor in determining what law to apply, but the brevity of analysis and the lack of other cases make it impossible to determine if the holding was representative of any general rule. But see Jonathan Elliot, ed., The Debates in the Several State Conventions, on the Adoption of the Federal Constitution (Philadelphia, 2d ed., 1836), 2:556–557, where John Marshall noted some twenty years later that in such a case the lex loci contractu would apply. There was some support for Marshall’s approach in mid-eighteenth-century English cases. See Robinson v. Bland, 2 Burr. 1077, 1079, 97 Eng. Rep. 717, 718 (K.B. 1760) (dictum); Note, Interest Money, 1 Eq. Cas. Abr. 286, 288–289, 21 Eng. Rep. 1049, 1051 (cc. 1700). Jones v. Belcher itself could be so analyzed. But, as Lord Mansfield observed, “the law of the place where the thing happens does not always prevail.” Robinson v. Bland, 2 Burr. 1077, 1084, 97 Eng. Rep. 717, 721 (K.B. 1760). See also Roach v. Garvan, 1 Ves. Sen. 157, 27 Eng. Rep. 954 (Ch. 1748). Both Robinson and Roach involved transactions entered into in France by English subjects to which English courts hesitated to apply French law. See generally Part I, B, below, for a possible explanation as to why.
1338 Allison v. Long, Jamaica Ct. Errors, January 1710, quoted in part in Smith, Appeals to the Privy Council, 477.
1339 Proceedings and Acts of the General Assembly of Maryland, October 1720–October 1723, quoted in Brown, British Statutes in American Law, 18–19.
1340 Baker v. Mattocks, Quincy 69, 72 (Mass. 1763). Judge Trowbridge’s statement in Richmond v. Davis, Quincy 279, 293 (Mass. 1768), see text at 422 above, is not inconsistent with the statement quoted here in the text, for by statute Trowbridge meant an act of Parliament as distinguished from a provincial law. See ibid., 293.
1341 Allison v. Long, Jamaica Ct. Errors, January 1710, quoted in part in Smith, Appeals to the Privy Council, 477.
1342 The qualification concerning inapplicability to local conditions is based on a somewhat broad reading in Smith, Appeals to the Privy Council, 485–486, of two Rhode Island cases. The important point to note is that these cases do not put in question the general rule that acts of Parliament were in force in the colonies. Read broadly, as Smith reads them, they merely place a qualification upon that rule, that only legislation applicable to local conditions would be in force in the colony. Read more narrowly, they suggest only that an act of Parliament which does not expressly name the colonies could be overridden by local legislation. Moreover, as Smith himself notes, “many years were to pass before . . . [any broad] challenge of Parliament’s right to legislate was to become current.” Ibid., 486.
1343 See E. Allen Farnsworth, Contracts (Boston, 1982), 371.
1344 See Curtis P. Nettels, The Emergence of a National Economy, 1775–1815 (New York, 1962), 39–40, 43–44, 251.
1345 See Rickards v. Hudson, Privy Council, 1762, quoted in Smith, Appeals to the Privy Council, 491 n.99; Wright v. Searl, Berkshire CP., September 1767, where the court held that an action for breach of a warranty relating to land in Connecticut could be heard only in Connecticut, since “divers facts and matters in issue which are local . . . must have existed and Taken Place in . . . Connecticut.” It should be noted that even in some types of suits not involving land, litigants were required to show that the cause of action accrued within the jurisdiction of the court before which they were bringing suit. See, e.g., Freeman v. Eddy, Bristol Super. Ct., October 1768 (suit for maintenance of bastard child dismissed since child neither begotten nor born within the county).
1346 Fonda v. Burghardt, Berkshire CP., April 1764. The matter quoted in the text was contained in Ross v. Willson, Berkshire CP., September 1766, which was dismissed on other grounds. For analogous cases from colonial Pennsylvania, see Hyam v. Edwards, 1 Dallas 1 (Pa. Sup. Ct. 1759); Weston v. Stammers, 1 Dallas 2 (Pa. Sup. Ct. 1759).
1347 See Rickards v. Hudson, Privy Council, 1762, discussed in Smith, Appeals to the Privy Council, 490–491; Cuyler v. Vanschaack, Hampshire Super Ct., September 1773, Suffolk Files No. 158004. For an opinion in Maryland according a limited effect to a judgment of bankruptcy obtained in Great Britain, see Burk v. M’Clain, 1 H. & M. 236 (Md. Prov. Ct. 1766).
1348 Douglass v. Douglass, Berkshire CP., September 1768; Henshaw v. Phelps, Hampshire CP., August 1761. See generally, Legal Papers of John Adams, L. Kinvin Wroth and Hiller B. Zobel eds. (Cambridge, Mass., 1965), i, 79–80.
1349 See Kurt H. Nadelmann, “Full Faith and Credit to Judgments and Public Acts: A Historical-Analytical Reappraisal,” Michigan Law Review, 56 (1957), 33, 37, 40.
1350 Province Laws of 1773–1774, ch. 16 (1774), in Acts and Resolves . . . of the Province of Massachusetts Bay, vol. 5 (Boston, 1886), 323.
1351 William Blackstone, Commentaries on the Laws of England, vol. 3 (Oxford, 1768), 24.
1352 Ibid., 103.
1353 See ibid., 100.
1354 See ibid., 80–81; Adolphus Ballard and James Tait, eds., British Borough Charters, 1216–1307 (Cambridge, 1923), 145–155.
1355 See William Blackstone, Commentaries on the Laws of England, vol. 3 (Oxford, 1768), 83.
1356 See Edith G. Henderson, Foundations of English Administrative Law (Cambridge, Mass., 1963), 118–119; David J. Sharpe, “The Origins of American Admiralty and Maritime Law,” S.J.D. dissertation, Harvard Univ., 1969, 140; Alexander W. Sack, “Conflicts of Laws in the History of English Law,” in Law: A Century of Progress, 1835–1935 (New York, 1937), 3:342, 356–357. For some exceptions to this rule in the field of maritime law, see Sharpe, “Origins of American Admiralty,” 146–149. Common law courts would, of course, enforce some other law as custom.
1357 Commins v. Massam, King’s Bench, 1642, discussed in Henderson, Foundations of English Administrative Law, 119–120.
1358 King v. Bishop of Litchfield, 7 Mod. 217, 219, 87 Eng. Rep. 1200, 1201 (K.B. 1734).
1359 Caule v. Cook, 2 Keble 498, 84 Eng. Rep. 313 (K.B. 1669).
1360 Rex v. Inhabitants in Glamorganshire, 1 Ld. Raym. 580, 91 Eng. Rep. 1287, 1288 (K.B. 1701).
1361 See Groenvelt v. Burwell, 1 Ld. Raym. 454, 91 Eng. Rep. 1202 (K.B. 1700).
1362 William Blackstone, Commentaries on the Laws of England, vol. 3 (Oxford, 1768), 42.
1363 Ibid., 87.
1364 Edward Coke, The Fourth Part of the Institutes of the Lawes of England, iv (London, 6th ed., 1681), 135–136. Cf. Thomlinson’s Case, 12 Co. Rep. 104, 77 Eng. Rep. 1379 (C.P. 1605).
1365 William Blackstone, Commentaries on the Laws of England, vol. 3 (Oxford, 1768), 85, 87.
1366 Jeremiah Dummer, A Defense of the New-England Charters (Boston, 1745), 27. For further examples of colonial attacks on prerogative courts like admiralty and chancery as contrary to the rights of Englishmen, and, in the case of chancery, as dilatory and expensive, see James Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger (Cambridge, Mass., Stanley N. Katz, ed., 1968), 3–4, 111, 205–206 n.8; Stanley N. Katz, Newcastle’s New York: Anglo-American Politics, 1732–1753 (Cambridge, Mass., 1968), 65 n.10, 67, 81; Carl Ubbelohde, The Vice-Admiralty Courts and the American Revolution (Chapel Hill, 1960), 143–1465 Sewall v. Hancock, 1768–1769, in Wroth and Zobel, Legal Papers of John Adams, ii, 174, 199–2005 Charles M. Andrews, “Introduction: Vice-Admiralty Courts in the Colonies,” in Dorothy Towle, ed., Records of the Vice-Admiralty Court of Rhode Island, 1716–1752 (Washington, D. C., 1936), 1–795 Solon D. Wilson, “Courts of Chancery in the American Colonies,” in Association of American Law Schools, ed., Select Essays in Anglo-American Legal History (Boston, 1908), ii, 779, 793–795. For similar attacks in seventeenth-century England, see William S. Holdsworth, A History of English Law (London, 1923), i, 432–433, 558–559.
1367 See Sewall v. Hancock, 1768–1769, in Wroth and Zobel, Legal Papers of John Adams, ii, 173, 203. See also “A Journal of the Times,” 24 February 1769, in ibid., ii, 208 n.131.
1368 Thomas Pownall to Rev. Dr. Cooper, 25 February 1769 and 9 October 1769, in Smith, Appeals to the Privy Council, 208.
1369 Anonymous, Remarks on the Review of the Controversy between Great Britain and Her Colonies (London, 1769), 122–123. See also Smith, Appeals to the Privy Council, 143, 163, 208.
1370 See Scollay v. Dunn, Quincy 74 (Mass. 1763); L. Kinvin Wroth, “The Massachusetts Vice-Admiralty Court,” in George A. Billias, ed., Law and Authority in Colonial America (Barre, Mass., 1965), 32, 45–48, 54–565 L. Kinvin Wroth, “The Massachusetts Vice-Admiralty Court and the Federal Admiralty Jurisdiction,” American Journal of Legal History, vi (1962), 250, 347, 355, 358–3605 Ubbelohde, Vice-Admiralty Courts, 18–19.
1371 See Lyman v. Alvord, Hampshire CP., August 1763, holding that admiralty does not have exclusive jurisdiction of actions regarding the cutting of naval mast trees. On the admiralty claim to jurisdiction, see “Editorial Note,” in Wroth and Zobel, Legal Papers of John Adams, 21247.
1372 See Erving v. Cradock, Quincy 553 (Mass. 1761); Francis Bernard to Earl of Halifax, 2 December 1763, in Quincy 392, 394 (Mass. 1763). As to similar suits in other colonies, see Ubbelohde, Vice-Admiralty Courts, 50–51, 165–168. Such suits were in accord with the apparent English rule “that in these cases the officer seizes at his peril, and that a probable cause is no defense.” Leglise v. Champante, 2 Str. 820, 93 Eng. Rep. 871 (K.B. 1728). See also the discussion in Wroth and Zobel, Legal Papers of John Adams, ii, 125, n.62. The legal and political significance of the rule is attested by the Revenue Act of 1764, 4 Geo. 3, ch. 15, sec. 46, reversing the rule in America.
1373 As to suits against other royal officials, see Goodspeed v. Gay, Quincy 558 (Mass. 1763) 5 Brown v. Switser, Suffolk Super. Ct., August 1760 (suit against “an Officer of the Forces now serving in America” for recruiting a man claimed as an indentured servant); Harrington v. Fletcher, Worcester Super. Ct., September 1770 (suit against enlistment recruiter on his promise to pay the plaintiff for granting permission to his son to join the army); Cowdin v. Brewer, Worcester CP., May 1760 (suit against army captain on his promise to pay the plaintiff the wages earned by his apprentice in the army, if the apprentice enlisted). On the common law liability of officials in eighteenth-century England, see William S. Holdsworth, A History of English Law (London, 1923), x, 157. On the common law liability of provincial and other local officials in Massachusetts, see Nelson, Americanization of the Common Law, 13, 17–18.
1374 Scollay v. Dunn, Quincy 74, 81 (Mass. 1763). The provision of the Charter was as follows:
And whereas we judge it necessary that all our subjects should have liberty to appeal to us, our heirs and successors, in cases that may deserve the same, we do by these presents ordain, that in case either party shall not rest satisfied with the judgment or sentence of any judicatories or courts within our said province or territory, in any personal action, wherein the matter in difference doth exceed the value of three hundred pounds sterling, that then he or they may appeal to us, our heirs and successors, in our or their privy council. Quoted in Scollay v. Dunn, supra, at 81 n.4.
1375 See, e.g., Scollay v. Dunn, Quincy 74 (Mass. 1763); Dudley v. Dudley, Quincy 12, 25 n.2 (Mass. 1762); Hancock v. Bowes, Suffolk Super. Ct., August 1766. Appeals were allowed only in personal actions in which the plaintiff sought over £300 damages. See Erving v. Cradock, Quincy 553, 557 (Mass. 1761), for a case in which an appeal was granted.
1376 See Smith, Appeals to the Privy Council, 160–163.
1377 See ibid., 163–165, 328–344. See also Anonymous, Review of the Controversy, 63, for an argument that, at least in chartered colonies, the crown had “no Way to put” a Privy Council judgment “in Execution.”
1378 Adams Trust Ms., March 1771, Microfilm Reel No. 185, Massachusetts Historical Society, Boston, Mass.
1379 The brief does not indicate whether it was written for plaintiff or defendant.
1380 Jevens v. Harridge, 1 Wms. Saund. 8, 85 Eng. Rep. 8 (K.B. 1666) (dictum). Accord, Adney v. Vernon, 3 Lev. 243, 83 Eng. Rep. 671 (CP. 1685). Cf. Chetley v. Wood, 2 Salk. 659, 91 Eng. Rep. 560 (K.B. 1703) (effect in King’s Bench of judgment rendered in Common Pleas).
1381 Pitt v. Knight, 1 Lev. 222, 1 Wms. Saund. 97, 83 Eng. Rep. 379, 85 Eng. Rep. 105 (K.B. 1667). Accord, Shuttle v. Wood, 2 Salk. 600, 91 Eng. Rep. 510 (K.B. 1703). Cf. Anon., 1 Salk. 209, 91 Eng. Rep. 187 (K.B. 1712) (effect in Marshalsea of judgment rendered in King’s Bench or Common Pleas).
1382 Mico v. Morris, 2 Lev. 234, 83 Eng. Rep. 666 (K.B. 1685). Other arguably relevant cases cited by counsel were Lucking v. Denning, 1 Salk. 201, 91 Eng. Rep. 180 (K.B. undated) (limits of jurisdiction of “Court of the Sheriffs of London”); Stannian v. Davis, 1 Salk. 404, 91 Eng. Rep. 350 (K.B. 1704) (limits of jurisdiction of “Palace-Court”); Anon., 2 Salk. 439, 91 Eng. Rep. 381 (K.B. 1698) (limits of jurisdiction of Marshalsea); Wharton v. Musgrave, Cro. Jac. 331, 79 Eng. Rep. 283 (Ex. Ch. 1613) (whether scire facias should be brought in county where original judgment rendered); Hewson v. Brown, 2 Burr. 1034, 97 Eng. Rep. 692 (K.B. 1760) (mode of bringing Common Pleas judgment into King’s Bench).
1383 Counsel did cite Vaughan’s “Concerning Process out of the Courts at Westminster into Wales of Late Times, and How Anciently,” Vaughan 395, 124 Eng. Rep. 1130 (undated), to the effect that “a judgment given in Wales shall not be executed in England.” Vaughan at 398, 124 Eng. Rep. at 1131. See also Vaughan at 412–413, 417, 124 Eng. Rep. at 1138–1139, 1141. But these citations do not indicate that counsel saw an analogy between the English-Welsh boundary and provincial boundaries in America. See Walker v. Witter, 1 Dougl. 1, 6, 99 Eng. Rep. 1, 4 (K.B. 1778), where Lord Mansfield thought the “Courts in Wales” analogous to local “Courts in England not of record,” and William Blackstone, Commentaries on the Laws of England, vol. 3 (Oxford, 1768), 77, where Welsh courts were viewed merely as “a fifth species of private courts of a limited . . . jurisdiction,” analogous to the courts of the duchy of Lancaster and the counties palatine. See ibid., 77–78. Counsel also cited cases discussing whether English courts could take jurisdiction of suits involving foreign corporations, Henriques v. General Privileged Dutch Co., 2 Ld. Raym. 1532, 1535, 92 Eng. Rep. 494, 496 (K.B. 1729), or contracts made in Wales, Ireland, Scotland or Europe, Dutch West-India Co. v. Henriques, 1 Stra. 612, 93 Eng. Rep. 733 (C.P. 1725); Errington v. Thompson, 1 Ld. Raym. 183, 91 Eng. Rep. 1018 (K.B. 1697). Of course, English courts declined jurisdiction in such cases when they could not administer foreign law. See above, 426–427. It is difficult to see what counsel’s citation of these cases indicates other than confusion.
1384 See above, 422–424, notes 7–9, 1–5 and accompanying text.
1385 See generally Bailyn, Pamphlets, 115–138.
1386 Statement of Sir Henry Ashurst, Colony Agent, quoted in Smith, Appeals to the Privy Council, 143, n.57, 147, n.85.
1387 See Dummer, Defense of the New-England Charters, 4.
1388 See Alexander, Trial of John Peter Zenger, 205–206 n.8; Katz, Newcastle’s New York, 66–67; Wilson, “Courts of Chancery,” 794–795, 801. Cf. Frederick B. Wiener, “Notes on the Rhode Island Admiralty, 1727–1790,” Harvard Law Review, 46 (1932), 44, 59.
1389 See Bailyn, Pamphlets, 120, 136–138.
1390 See Dummer, Defense of the New-England Charters, 21.
1391 See D. R. Coquillette, “Justinian in Braintree: John Adams, Civilian Learning, and Legal Elitism, 1758–1775,” above, 386–390. Legal Papers of John Adams, ii, 173.
1392 Ibid., 203.
1393 Ibid., 208.
1394 See above, 432.
1395 See Gordon S. Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill, 1969), 355; Curtis P. Nettels, “The Origins of the Union and of the States,” Massachusetts Historical Society Proceedings, 72 (1957–1960), 68, 69–70.
1396 Respublica v. Sweers, 1 Dallas 41, 44 (Pa. Sup. Ct. 1779). Congress accordingly had the right to bring suit in state courts. See, e.g., United States v. Foster, Suffolk Sup. Jud. Ct., August 1788; Hillegas v. Silber, Suffolk CP., April 1782.
1397 See Government v. Lyon, Hampshire Super. Ct., April 1777 (treason); Government v. Baker, Barnstable Sup. Jud. Ct., May 1780 (sedition); Commonwealth v. Smith, Bristol Sup. Jud. Ct., November 1782 (sedition).
1398 See Hammett v. Warren (1783), in William Cushing, “Notes of Cases decided in the Superior and Supreme Judicial Courts of Massachusetts from 1772 to 1789,” ms. in Harvard Law School Library, Cambridge, Mass., 61–62, citing Melchart v. Halsey, 3 Wils. K.B. 149, 95 Eng. Rep. 982 (K.B. 1771). Accord, Bingham v. Cabot, Essex Sup. Jud. Ct., November 1801, in Francis Dana, “Minute Book,” ms. in Massachusetts Historical Society, Boston, Mass.
1399 Final Record, Plymouth Gen. Sess., October 1776. See also James Sullivan, Observations upon the Government of the United States of America (Boston, 1791), 24, which refers to the Declaration of Independence as the “act of Congress” which established independence. But see Wood, Creation of American Republic, 356, who notes that seven states thought it necessary to enact the Declaration of Independence to give it the force of law. See also Province Laws, 1775–1776, ch. 22 (1776), Acts and Resolves, 5:484, which made provision for court styles.
1400 Charge to the Grand Jury, cc. 1790, in the N. P. Sargeant Papers, ms. in Essex Institute, Salem, Mass. See also “Notes of subjects in debate in Convention,” January 1788, Cushing Papers, ms. in Massachusetts Historical Society, Boston, Mass., which notes that the Confederation had “many, if not most of the great powers, now inserted in the proposed Constitution, such as making war & peace, borrowing money without bounds upon ye Credit of the united States—building & equipping a navy—demanding men & money without limitation—& of appropriating money” See generally “Note: The United States and the Articles of Confederation: Drifting Toward Anarchy or Inching Toward Commonwealth?,” Yale Law Journal, 88 (1978), 142.
1401 See Commonwealth v. Bartlett, Cumberland Sup. Jud. Ct., June 1784 (prosecution for sale of goods to British army during war dismissed under amnesty provision of peace treaty).
1402 Respublica v. Sparhawk, 1 Dallas 357, 362–363 (Pa. Sup. Ct. 1788); Wilcox v. Henry, 1 Dallas 69, 71 (Pa. Sup. Ct. 1782) (dictum).
1403 See Warren v. Sloop Speedwell, Cumberland Sup. Jud. Ct., July 1780, in N. P. Sargeant, “Court Minutes,” ms. in Essex Institute, Salem, Mass. (two Congressional resolves pleaded); Buffington v. Brig Susanna, Middlesex Sup. Jud. Ct., November 1780, in Sargeant, “Court Minutes” (Congressional resolve instructing ship captain pleaded). See generally Henry J. Bourguignon, The First Federal Court: The Federal Appellate Prize Court of the American Revolution, 1775–1787 (Philadelphia, 1977), 45–47, 52–75. In some instances, Congressional recommendations were effective only because state legislation specifically made them so. See ibid., 58–75.
1404 See Hall v. Langdon, Cumberland Sup. Jud. Ct., July 1783 (rules for government of American army pleaded). See generally Wood, Creation of the American Republic, 355; Nettels, “The Origins of the Union,” 69–70.
1405 The cases suggest that Congressional bills of credit had many of the attributes of money. See, e.g., Government v. Fisk, Hampshire Super. Ct., September 1778 (indictment for counterfeiting Congressional bills); Morey v. Moris, Suffolk Common Pleas, April 1783, appeal dism. for want of prosecution, Suffolk Sup. Jud. Ct., August 1783 (not necessary in civil action to plead specie value of federal bills); Government v. Clark, Hampshire Gen. Sess., August 1777 (indictment for refusing to accept Congressional bills in discharge of debt—nolle pros—entered at November 1777 term). See generally Nettels, “The Origins of the Union,” 70.
1406 See Hillegas v. Silber, Suffolk CP., April 1782. See generally Bourguignon, The First Federal Court, 93–94.
1407 See, e.g., United States v. Fulton, October 1776, in Heath Papers, Microfilm Reel No. 28, Massachusetts Historical Society, Boston, Mass. (desertion); United States v. Snow, October 1776, in ibid, (leaving guard); United States v. Looly, December 1776, in ibid, (minor accused of sleeping at post discharged by reason of nonage and other inabilities); United States v. Horton, December 1776, in ibid, (“behaving in an infamous & Scandalous Manner unbecoming an Officer or a Gentlm.”); United States v. Harman, January 1777, in ibid, (enlisting twice); United States v. Spring, March 1778, in ibid, (abusing officer); United States v. Lyon, March 1782, in Heath Papers, Microfilm Reel No. 29 (desertion and forging pass).
1408 See United States v. Nowel, December 1776, in Heath Papers, Microfilm Reel No. 28 (larcency from traveller on road); United States v. Galloway, December 1777, in ibid, (parading in streets with swords drawn and threatening civilians).
1409 See United States v. Strong, January 1777, in ibid.5 “Guard Report,” 17 October 1778, in Miscellaneous Bound Manuscripts (ms. in Massachusetts Historical Society, Boston, Mass.) (Peter Murry, a transient, suspected of being a spy).
1410 See Hall v. Langdon, Cumberland Sup. Jud. Ct., July 1783 (providing intelligence to British).
1411 See the cases cited above, 437, note 8.
1412 See Peine v. Thayer, Worcester Common Pleas, June 1784.
1413 See Commonwealth v. Brown, Barnstable Sup. Jud. Ct., May 1789; Roberdeau v. Fitzgerald, Suffolk Common Pleas, January 1787, appeal dism. on nonappearance of both parties, Suff. Sup. Jud. Ct., February 1787.
1414 Apthorp v. Henshaw, Suffolk Sup. Jud. Ct., February 1786.
1415 Spencer v. Worthington, Berkshire Sup. Jud. Ct., October 1789. See also Worthington v. Spencer, Hampshire Sup. Jud. Ct., September 1789, in Dana, “Minute Books.”
1416 See Bourguignon, The First Federal Court, 79–134.
1417 See ibid., 97–100, 133–134.
1418 See ibid., 105, 109–110; Sharpe, “The Origins of American Admiralty,” 204. On Congress’ recommendation to the states that jury trial be granted in admiralty cases and on the states’ responses thereto, see Bourguignon, The First Federal Court, 46, 58–75.
1419 See ibid., 65–66, 105, 108–110, discussing Pennsylvania’s provision that facts found by juries could not be reexamined on appeal.
1420 See ibid., 74–75.
1421 Miller v. Ship Resolution, 2 Dallas 1 (Fed. Ct. App. 1781). Accord, Luke v. Hulbert, 2 Dallas 41 (Fed. Ct. App. 1787); Bourguignon, The First Federal Court, 107, 314.
1422 Williams v. Schooner Polly, Suffolk Sup. Jud. Ct., February 1778, in Sargeant, “Court Minutes.” See Bourguignon, The First Federal Court, 303.
1423 See ibid., 105–106, 307–318.
1424 See ibid., 317–318.
1425 Samuel Seabury, An Alarm to the Legislature of the Province of New-York (New York, 1775), quoted in Bailyn, Pamphlets, 42.
1426 Thomas Jefferson, A Summary View of the Rights of British America (Philadelphia, 1774), quoted in Bailyn, Pamphlets, 41.
1427 Whitney v. Russell, Middlesex Sup. Jud. Ct., April 1782, in Sargeant, “Court Minutes”; Motion of Scot, Worcester Super. Ct., September 1777.
1428 Whitney v. Russell, Middlesex Sup. Jud. Ct., April 1782, in Sargeant, “Court Minutes.”
1429 King v. Shattuck, Hampshire Common Pleas, April 1782. This suit was dismissed, however, upon a plea that the remedy for the assault lay solely within the jurisdiction of a court martial.
1430 Hall v. Langdon, Cumberland Sup. Jud. Ct., July 1783.
1431 Locke v. Thomas, Essex Common Pleas, December 1784.
1432 Mitchel v. Prichard, Suffolk Sup. Jud. Ct., August 1783.
1433 Cushing v. Vose, Suffolk Common Pleas, October 1785.
1434 Commonwealth v. McGregory, 14 Mass. 499 (1780).
1435 Johonnot v. Tucker, Suffolk CP., April 1780.
1436 Definitive Treaty of Peace with Great Britain, 3 September 1783, art. V, 8 Stat. 80, 82 (1783).
1437 See, e.g., Gibbs v. Apthorp, Hampshire Sup. Jud. Ct., May 1785, where a purchaser from the state pleaded the confiscation in defense to a suit brought by the Tory to recover his land. The plea was rejected, however, probably because the defendant did not allege title in himself by virtue of the confiscation.
1438 Treaty of 1783, art. IV.
1439 See Knights v. Park, Middlesex Sup. Jud. Ct., October 1787; Brattle v. Taylor, Middlesex Sup. Jud. Ct., October 1787; Brattle v. Hinckley, Worcester Sup. Jud. Ct., September 17865 Caner v. Houghton, Worcester Sup. Jud. Ct., September 1786; Bancroft v. Kent, Suffolk Sup. Jud. Ct., February 1786.
1440 Mass. Laws of 1784, ch. 77. See Caner v. Houghton, Worcester Sup. Jud. Ct., September 1786; Bancroft v. Kent, Suffolk Sup. Jud. Ct., February 17865 Bliss v. Bascom, Hampshire CP., May 1786. But see Lane v. Jones, Suffolk Sup. Jud. Ct., February 1787, where British creditors did recover interest accruing between 1775 and 1783.
1441 Mass. Laws of 1784, ch. 77.
1442 Pepperell v. Cutler, Suffolk Sup. Jud. Ct., August 1786; Apthorp v. Henshaw, Suffolk Sup. Jud. Ct., February 1786.
1443 Treaty of 1783, art. VI.
1444 See Commonwealth v. Bartlett, Cumberland Sup. Jud. Ct., June 1784. Cf. Respublica v. Gordon, 1 Dallas 233 (Pa. Sup. Ct. 1788).
1445 Commonwealth v. Phelps, Hampshire Sup. Jud. Ct., April 1783.
1446 Commonwealth v. Whitney, Worcester Sup. Jud. Ct., April 1783.
1447 Commonwealth v. Williams, Hampshire Sup. Jud. Ct., April 1784.
1448 Commonwealth v. Appleton, Essex Sup. Jud. Ct., June 1783.
1449 Commonwealth v. Wright, Hampshire Sup. Jud. Ct., April 1784.
1450 See generally Oscar Handlin and Mary F. Handlin, Commonwealth: A Study of the Role of Government in the American Economy: Massachusetts, 1774–1781 (Cambridge, Mass., 1947), 33–48.
1451 See above, 446, note 8 and accompanying text.
1452 See, e.g., Taylor v. Commonwealth, Suffolk Sup. Jud. Ct., February 1783.
1453 See Moore v. Patch, Worcester Sup. Jud. Ct., April 1792, in Dana, “Minute Books”; Herrick v. Hart, Essex Sup. Jud. Ct., December 1788. But see Gibbs v. Apthorp, Hampshire Sup. Jud. Ct., April 1785, where a plea in abatement alleging that one of two administrators of the plaintiff estate was an alien was overruled.
1454 William Blackstone, Commentaries on the Laws of England, vol. 1 (Oxford, 1765), 360.
1455 Article 9 of Jay’s Treaty, 8 Stat. 116, 122 (1794), reversed the common law rule as to then existing British land holdings in the United States. See Commonwealth v. Sheafe, 6 Mass. 441 (1810).
1456 Whitaker v. English, 1 Bay 15, 16 (S.C. 1784).
1457 Camp v. Lockwood, 1 Dallas 393 (Pa. Ct. Com. PL 1788).
1458 See Respublica v. Gordon, 1 Dallas 233 (Pa. 1788); Marks v. Johnson, Kirby 228 (Conn. 1787); Beckman v. Tomlinson, Kirby 291 (Conn. 1787).
1459 See Rutgers v. Waddington, New York Mayor’s Court 1784, in Richard B. Morris, ed., Select Cases of the Mayor’s Court of New York City, 1674–1784 (Washington, D. C., 1935), 302; State v. Johnston, 2 H. & M. 160 (Md. 1786).
1460 Frank G. Bates, Rhode Island and the Formation of the Union (New York, 1898), 121–140; Merrill Jensen, The New Nation (New York, 1950), 323–325. An analogous issue that did not arise in Massachusetts during the Confederation period concerned the effect to be given to out-of-state discharges in bankruptcy. For cases from other states, see Taylor v. Geary, 1 Kirby 313 (Conn. 1787); Miller v. Hall, 1 Dall. 229 (Pa. Sup. Ct. 1788); Jones v. Allen, 1 Dallas 188 (Philadelphia CP. 1786).
1461 See Mass. Laws of 1786, ch. 29.
1462 See Bruce v. Chapin, Suffolk CP., January 1788, modified on other grounds, Suffolk Sup. Jud. Ct., February 1789. According to the Connecticut case of Mumford v. Wright, 1 Kirby 297 (Conn. 1787), Rhode Island applied its legislation only to payments made by Rhode Island debtors to Rhode Island creditors.
1463 See Bourguignon, The First Federal Court, 63.
1464 Whipple v. Winsor, Bristol Common Pleas, September 1779.
1465 “Justices to Gov. Hancock,” 20 December 1783, in Cushing Papers (ms. in Massachusetts Historical Society, Boston, Mass.).
1466 See Exeter v. Hanchet, Hampshire Sup. Jud. Ct., September 1784, in Sargeant, “Court Minutes,” in which a year after the South Carolina case procedures for committing runaways were mentioned as existing. No statute creating such procedures intervened between the two cases.
1467 The Federalist No. 80 (Middletown, Conn., Jacob E. Cooke, ed., 1961), 535 (Hamilton).
1468 James Madison, “Preface to Debates in the Convention of 1787,” in Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven, 1911), iii, 539, 547.
1469 “Charge to Grand Jury,” ca. 1790, Sargeant Papers.
1470 The Federalist No. 22, 137 (Hamilton).
1471 Charles C. Pinckney, “Observations on the Plan of Government Submitted to the Federal Convention in Philadelphia,” in Farrand, Records of the Federal Convention, 106, 115.
1472 The Federalist No. 22, 143–144 (Hamilton). See also Elliot, Debates in the State Conventions, 4:147 (remarks of Mr. Iredell).
1473 “Justices of the Supreme Court to President Washington,” September 1790, in Cushing Papers, ms. in Massachusetts Historical Society, Boston, Mass.
1474 Farrand, Records of the Federal Convention, 1:238 (remarks of Mr. Randolph).
1475 The Federalist No. 80, 537 (Hamilton). See also Farrand, Records of the Federal Convention, 1:22 (resolution proposed by Mr. Randolph), 224 (resolution of Convention), 237 (report of Committee of the Whole); 2:46 (resolution of Convention); Elliot, Debates in the State Conventions, 4:159 (remarks of Mr. Davie).
1476 Farrand, Records of the Federal Convention, 1:164 (remarks of Mr. Madison). See also Elliot, Debates in the State Conventions, 3:66 (remarks of Mr. Randolph).
1477 Farrand, Records of the Federal Convention, 2:390. See generally ibid., 2:27–29 (debate on proposed negative).
1478 See Elliot, Debates in the State Conventions, 2:481 (remarks of Mr. Wilson).
1479 “The Letters of Luther Martin,” in Paul L. Ford, ed., Essays on the Constitution of the United States Published during its Discussion by the People, 1787–1788 (Brooklyn, 1892), 361.
1480 Compare U. S. Constitution, art IV, sec. 1, which applies to “the public Acts, Records, and judicial Proceedings of every other State,” with Articles of Confederation, art. IV, which applied to the “records, acts and judicial proceedings of the courts and magistrates of every other State.” But see Nadelmann, “Full Faith and Credit,” 54–56, where the argument is made, on the basis of language stricken out of Madison’s Notes referring to state acts of insolvency, that the full faith and credit clause was intended to apply only to private laws, not to the public laws of the states. Nadelmann bases his argument on the assumption that all state insolvency legislation during the Confederation period consisted of private acts. But this assumption is unsound, for several states, such as New York, passed general insolvency acts. See An Act for giving Relief in Cases of Insolvency, N.Y. Laws of 1788, ch. 92 (1788). In any event, it is difficult to understand how the framers, who for a decade had been witnessing statutory reconstruction of their entire legal system, could have conceived of legislation as anything but public acts. See Nelson, Americanization of the Common Law, 90–92.
The second amendment to the full faith and credit clause gave Congress power to legislate concerning the effect to be given to statutes as well as to judgments. See generally Farrand, Records of the Federal Convention, 2:486–489.
For the quotation in the text, see ibid., 2:447 (remarks of Mr. Wilson and Dr. Johnson).
1481 On the fact that lawyers in the 1780’s were not generally aware of developing differences between the common law of the various states, see Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, Mass., 1977), 11–14.
1482 Farrand, Records of the Federal Convention, 2:46 (remarks of Mr. Randolph). See also Elliot, Debates in the State Conventions, 2:491–492 (remarks of Mr. Wilson); 4:156 (remarks of Mr. Davie), 164 (remarks of Mr. Maclaine).
1483 See ibid., 2:258 (remarks of Mr. Hamilton). Cf. ibid., 3:542 (remarks of Mr. Henry).
1484 Scholars who have studied the history of full faith and credit have debated whether the courts or only the Congress would have power to create such a body of law—that is, whether the full faith and credit clause is self-executing. The debate has been particularly pointed in regard to legislation, as distinguished from judgments. The arguments are summarized in Nadelmann, “Full Faith and Credit,” 62–73. The issue, however, is historically a spurious one, since the record left by the framers is too thin for close analysis.
1485 Farrand, Records of the Federal Convention, i, 238 (remarks of Mr. Randolph). Cf. Elliot, Debates in the State Conventions, ii, 488 (remarks of Mr. Wilson); iv, 150 (remarks of Mr. Johnston), 165 (remarks of Mr. Iredell).
1486 Ibid., ii, 488 (remarks of Mr. Wilson).
1487 Ibid., iii, 565 (remarks of Mr. Grayson).
1488 The Federalist No. 42, 287 (Madison).
1489 Elliot, Debates in the State Conventions, 4:536 (answer of Massachusetts legislature to Virginia Resolutions of 1798).
1490 Annals of Congress, viii, 2146 (1798) (remarks of Representative Otis).
1491 Ibid., viii, 2146 (1798) (remarks of Representative Otis). See also ibid., viii, 2252 (1799) (remarks of Representative Bayard).
1492 Ibid., xi, 614 (1802) (remarks of Representative Bayard).
1493 See Anon., Y.B. 11 Hen. 4, f. 47, pl. 21 (1409) (opinion of Thirning, J.). See also Marshall’s Case, Cro. Car. 9, Latch 83, 79 Eng. Rep. 613 (K.B. 1625); Alexander W. Renton, ed., Encyclopaedia of the Laws of England (London, 1897), iii, 357–358.
1494 See Camfield v. Warren, 1 Lutwyche 639, 125 Eng. Rep. 335 (CP. 1700); Unston v. Milner, 1 Show. K.B. 49, 89 Eng. Rep. 440 (K.B. 1689); Barnes v. Ward, 1 Sid. 29, 82 Eng. Rep. 950 (K.B. 1661); John Comyns, A Digest of the Laws of England, vol. 1 (London, 1762), 5.
1495 Nebon v. DeBellerive, Cir. Ct. D. Mass., May 1790. Cf. Prince v. Parker, Cir. Ct. D. Mass., June 1798 (New York plaintiff v. Virginia defendant).
1496 Browne v. Read, Cir. Ct. D. Mass., October 17955 Wells v. Freeman, Cir. Ct. D. Mass., October 1794.
1497 Clarke v. Wilder, Cir. Ct. D. Mass., June 1794 (jury verdict that overseas resident not a citizen of Massachusetts).
1498 Douglass v. Enos, Cir. Ct. D. Mass., October 17925 Parkman v. Langdon, Cir. Ct. D. Mass., October 1796. Cf. Lyman v. Amory, Cir. Ct. D. Mass., June 1796 (Massachusetts plaintiff v. Massachusetts defendant and foreign defendant resident at Boston). See also Gray v. Spellman, Cir. Ct. D. Mass., October 1798 (Massachusetts plaintiff v. defendant “of New Haven . . . , now residing in Boston & citizen of the State of New York”); Apthorp v. Rogers, Cir. Ct. D. Mass., October 1792 (New York administrator of Massachusetts decedent v. Massachusetts defendants).
1499 Folger v. Barker, Cir. Ct. D. Mass., October 1792.
1500 Walton v. McNeil, 29 Fed. Cas. 141 (C.C.D. Mass. 1794).
1501 See Froud v. Robbins, Suffolk CP., January 18055 Irving v. Derby, Essex CP., October 1794.
1502 Upon such a plea fact questions were determined by a jury. See Duffield v. Greenleaf, Cir. Ct. D. Mass., October 1797.
1503 Fields v. Taylor, 9 Fed. Cas. 41 (C.C.D. Mass. 1799). Cf. Irving v. Derby, Essex Common Pleas, October 1794, in which an analogous plea was upheld in a state court suit between a Massachusetts plaintiff and an English defendant.
1504 United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812) (dictum).
1505 United States v. Worrall, 2 Dallas 384, 395 (C.C.D. Pa. 1798) (opinion of Peters, D.J.). See also Henfield’s Case, 11 Fed. Cas. 1099, 1103–1105 (grand jury charge of Jay, CJ.), 1120 (petit jury charge of Wilson, J.) (C.C.D. Pa. 1793). See generally Horwitz, Transformation of American Law, 9–15; Leonard W. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (Cambridge, Mass., 1960), 234–2485 James M. Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, 1956), 188–220.
1506 Commonwealth v. Cushing, 11 Mass. 67 (1814); Commonwealth v. Harrison, 11 Mass. 63 (1814); Commonwealth v. Sumner, Suffolk Common Pleas, April 1827. Habeas corpus to obtain the release of a man in military service could, of course, also be brought in the federal court. See, e.g., United States v. Bainbridge, 24 Fed. Cas. 946 (C.C.D. Mass. 1816).
1507 Bassett v. Ross, Berkshire Common Pleas, April 1813.
1508 See Commonwealth v. Cushing, 11 Mass. 67, 71 (1814), where the court determined the “true construction” of the statute.
1509 See United States v. Bainbridge, 24 Fed. Cas. 946 (C.C.D. Mass. 1816), where Justice Story noted that he had “never been able to bring . . . [his] mind to assent to the construction put upon . . . [federal enlistment legislation] in some of the cases in the Massachusetts Reports. Com. v. Cushing, 11 Mass. 67.” 24 Fed. Cas. at 952.
1510 Isaac Maltby, A Treatise on Courts Martial and Military Law (Boston, 1813), 160–161.
1511 Freeman v. Otis, 9 Mass. 272 (1812); Brown v. Austin, 1 Mass. 208 (1804).
1512 Hoit v. Hook, 14 Mass. 210 (1817); Coolidge v. Harris, Suffolk Common Pleas, October 1822.
1513 Holden v. Eaton, 8 Pick. (25 Mass.) 436 (1829).
1514 Sprague v. Carter, Middlesex Common Pleas, May 1801 (suit against marine for personal debt); Discharge of Richardson, Worcester Sup. Jud. Ct., September 1800 (writ of habeas corpus granted on behalf of soldier imprisoned pursuant to writ of execution). The two members of the military, who were exempt from imprisonment for debt by virtue of federal statute, see An Act for the Better Organization of the Troops of the United States §4, 1 Stat. 749, 751 (1799), were discharged from custody.
1515 See Freeman v. Otis, 9 Mass. 272 (1812), where the state court rejected the defense of official immunity on a government contract upon a finding that the defendant had prevented the plaintiff from obtaining redress from the government, and Holmes v. Hastings, Plymouth Common Pleas, April 1802, rev’d on discontinuance by plaintiff, Plymouth Sup. Jud. Ct., June 1802, where the court rejected a plea by a Boston postmaster that he was too busy to come to Plymouth to defend a suit brought against him there.
1516 See Levy, Legacy of Suppression, 234–248; Smith, Freedom’s Fetters, 188–220.
1517 See, e.g., Williams’ Case, 29 Fed. Cas. 1330 (C.C.D. Conn. 1799) (joining crew of French privateer); Henfield’s Case, 11 Fed. Cas. 1099 (C.C.D. Pa. 1793) (joining crew of French privateer).
1518 See above 457, notes 1 and 2, and 458, note 8 and accompanying text.
1519 John B. McMaster and Frederick D. Stone, eds., Pennsylvania and the Federal Constitution, 1787–1788 (Philadelphia, 1888), 302.
1520 James Sullivan, Observations upon the Government, 31. Cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174–176 (1803).
1521 See Bingham v. Cabot, 3 U.S. (3 Dallas) 382 (1798)5 Emory v. Greenough, 3 U.S. (3 Dallas) 369 (1797). Cf. Borden v. Borden, Cir. Ct. D. Mass., June 1806 (remanded to state court from which previously removed since want of diversity apparent upon record even though diversity properly pleaded).
1522 Dodge v. Perkins, 7 Fed. Cas. 798, 799 (C.C.D. Mass. 1827), where in dictum Justice Story added that, if the want of diversity were not apparent, it must be pleaded by the defendant before the court reached the merits of the controversy.
1523 Picquet v. Swan, 19 Fed. Cas. 609 (C.C.D. Mass. 1828).
1524 Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806).
1525 2 Dallas 384 (C.C.D. Pa. 1798).
1526 2 Dallas at 394–395. Chase also observed that federal courts could not adopt state common law, since the common law of the various states was different. Ibid., 394–395. Other lawyers were first coming to this realization at about the same time. See Brown v. Van Braam, 3 U.S. (3 Dallas) 344, 352–354 (1797) (argument for defendant in error), discussed in Charles Warren, “New Light on the History of the Federal Judiciary Act of 1789,” Harvard Law Review, xxxvii (1923), 49, 89 n.85. See generally Horwitz, Transformation of American Law, 11–15.
1527 “Madison’s Report on the Virginia Resolutions” (1800), in Elliot, Debates in the State Conventions, iv, 546, 565–566.
1528 Ibid., 566.
1529 Ibid., 566.
1530 11 U.S. (7 Cranch) 32 (1812).
1531 See United States v. Coolidge, 25 Fed. Cas. 619 (C.C.D. Mass. 1813); James Sullivan, A Dissertation upon the Constitutional Freedom of the Press (Boston, 1801), 40–41, 48–54. Cf. United States v. Smith, 27 Fed. Cas. 1147 (C.C.D. Mass. 1792) (common law prosecution incident to federal statute).
1532 United States v. Coolidge, 14 U.S. (1 Wheat.) 415 (1816).
1533 See above, 457, notes 1 and 2, and 458, note 8 and accompanying text.
1534 See generally Hart and Wechsler’s The Federal Courts and the Federal System, Paul M. Bator, Paul J. Mishkin, David L. Shapiro and Herbert Wechsler, eds. (Mineola, N.Y., 1973), 1336.
1535 See Tarble’s Case, 80 U.S. (13 Wall.) 397 (1872); Ableman v. Booth, 62 U.S. (21 How.) 506 (1859).
1536 See above, 451–453, notes 1–9, 1–2 and accompanying text.
1537 See Byrne v. Crowninshield, 17 Mass. 55 (1820) (foreign statute of limitations rejected); Blanchard v. Russell, 13 Mass. 1 (1816) (bankruptcy law of state of which creditor a citizen rejected); Bradford v. Farrand, 13 Mass. 18 (1816) (foreign bankruptcy statute rejected since contract made in Massachusetts); Walsh v. Farrand, 13 Mass. 19 (1816) (foreign insolvency statute applied when all parties citizens of foreign state); Phelps v. Decker, 10 Mass. 267 (1813) (Pennsylvania statute invalidating warranty on Pennsylvania land rejected in suit for breach thereof); Wilson v. Bourne, 10 Mass. 337 (1813) (foreign insolvency statute rejected when plaintiff a Massachusetts citizen); Baker v. Wheaton, 5 Mass. 509 (1809) (foreign insolvency statute applied in suit by Massachusetts endorsee); Pearsall v. Dwight, 2 Mass. 84 (1806) (foreign statute of limitations rejected); Proctor v. Moore, 1 Mass. 198 (1804) (foreign bankruptcy statute rejected since contract not made in foreign state and plaintiff not a citizen thereof).
1538 See Winthrop v. Carleton, 12 Mass. 4 (1815) (foreign interest rate applied upon money advanced in foreign state); Wellman v. Nutting, 3 Mass. 433 (1807) (factor in foreign country liable according to its law); Powers v. Lynch, 3 Mass. 77 (1807) (endorsee of bill of exchange drawn in foreign country liable according to laws of that country).
1539 None of the Massachusetts cases makes any argument that full faith and credit was applicable in choice of law cases. Neither did Justice Story, either in his treatise on conflicts or in his treatise on the Constitution; in both he talks about the full faith and credit clause only in connection with judgments. See Joseph Story, Commentaries on the Constitution of the United States, vol. 3 (Boston, 1833), sees. 1297–13075 Joseph Story, Commentaries on the Conflict of Laws (Boston, 3d ed., 1846), 1004–1005. As to the remainder of the United States, see Nadelmann, “Full Faith and Credit,” 73.
1540 The doctrine of comity is discussed in Tappan v. Root, 15 Mass. 419 (1819)5 Hanover v. Turner, 14 Mass. 227 (1817); Greenwood v. Curtis, 6 Mass. 358, 377 (1810). See also Story, Conflict of Laws, 11–12.
1541 See Nadelmann, Joseph Story’s Contribution to Conflicts, 230–232.
1542 See above, 423, note 1 and accompanying text.
1543 Sherburn v. Emery, York Sup. Jud. Ct., June 1792, in Dana, “Minute Books.”
1544 Goodwin v. Jones, 3 Mass. 514 (1807). See also Stevens v. Gaylord, 11 Mass. 256, 263–264 (1814) (dictum). Cf. Cutter v. Davenport, 18 Mass. (1 Pick.) 81 (1822).
1545 Commonwealth v. Green, 17 Mass. 515 (1822).
1546 17 Mass. at 546–547.
1547 Hanover v. Turner, 14 Mass. 227 (1817). But compare Barber v. Root, 10 Mass. 260 (1813).
1548 See Hall v. Williams, 23 Mass. (6 Pick.) 232 (1828); Hull v. Blake, 13 Mass. 153 (1816); Jacobs v. Hull, 12 Mass. 25 (1815).
1549 See Bartlett v. Knight, 1 Mass. 401 (1805). For similar cases in other states, see Nadelmann, “Full Faith and Credit,” 63–66.
1550 See Mills v. Duryee, 11 U.S. (7 Cranch) 481 (1813); Bissell v. Briggs, 9 Mass. 462 (1813).
1551 M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 326 (1819) (argument of Mr. Webster, counsel for M’Culloch). See also McMaster and Stone, Pennsylvania and the Federal Constitution, 302 (remarks of Mr. Wilson).
1552 Timothy Ford, An Enquiry into the Constitutional Authority of the Supreme Federal Court (Charleston, S.C., 1792), 13. See also Sullivan, Government of the United States, 39. See also M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405–406 (1819).
1553 Cohens v. Virginia, 19 U.S. (4 Wheat.) 264, 293–294 (1821) (argument of counsel for Virginia).
1554 “Grand Jury Charge,” ca. 1790, in Sargeant Papers.
1555 Story, Conflict of Laws, 12.
1556 11 U.S. (7 Cranch) 481 (1813).
1557 U.S. Constitution, art. I, sec. 10.
1558 U.S. Constitution, art. IV, sec. 2.
1559 U.S. Constitution, art. I, sec. 10.
1560 41 U.S. (16 Pet.) i (1842).
1561 41 U.S. (16 Pet.) 539 (1842).
1562 17 U.S. (4 Wheat.) 209 (1819).
1563 See above, 463–464.
1564 See above, 453, note 6 and accompanying text.
1565 Lawrence M. Friedman, A History of American Law (New York: Simon and Schuster, 1973), 29.
1566 William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge: Harvard University-Press, 1975), vii. Of course the term “buried” does not include the so-called “live” records of the probate courts and registries of deeds, which can readily be found in the respective clerks’ offices.
This article attempts to provide a review of recent remedies to records management abuses and to suggest some research uses. It should be noted that actual examples and references to colonial court cases are generally limited to the Inferior Court of Common Pleas for Suffolk County. For a detailed guide to this collection, see Catherine Menand, The Records of the Suffolk Inferior Court of Common Pleas, available at the Supreme Judicial Court Records Preservation Project, fifteenth floor, Suffolk County Court House, Boston, MA 02108.
1567 William Jeffrey, quoted by George L. Haskins, “Law and Colonial Society,” Essays in the History of Early American Law, ed. David H. Flaherty (Chapel Hill: The University of North Carolina Press, 1969), 41. Michael S. Hindus notes in The Files of the Massachusetts Superior Court (Boston: G. K. Hall and Company, 1980), 4, that “colonial court records [are] vital because they [are] frequently the only relatively complete historical source for the entire colonial period. In the late nineteenth and twentieth centuries, court records were only one of many historical sources, and thus their value as collateral sources of information is not nearly as great as for the colonial and early national periods.”
1568 The Legal Papers of John Adams, ed. L. Kinvin Wroth and Hiller Zobel, 3 vols. (Cambridge: Harvard University Press, 1965), i, xxxiii.
1569 David H. Flaherty, “The Use of Early American Court Records in Historical Research,” Law Library Journal, lxix (1976), 345. See Records of the Suffolk County Court, Colonial Society of Massachusetts, Publications, xxix, xxx (1933); W. C. Ford, A. Mathews, “Bibliography of the Laws of Massachusetts Bay, 1641–1776,” Colonial Society of Massachusetts, Publications, iv (1910), 297–480.
1570 John Noble, “The Early Court Files of Suffolk County,” Colonial Society of Massachusetts, Publications, iii (1895–1897), 317; Flaherty, “Court Records in Historical Research”; Robert J. Brink, “The Use of Court Records in Biographical Research,” Biography, 1 (1978), 79
1571 Noble, “Early Court Files,” 318.
1572 Elijah Adlow, Threshold of Justice: A Judge’s Life Story (Boston: Court Square Press, 1973), 272–275.
1573 Michael S. Hindus, The Records of the Massachusetts Superior Court and its Predecessors: An Inventory and Guide (Boston: Archives Division, Office of the Secretary of the Commonwealth, 1977), 3. See the following for information on the development of a records program for the Massachusetts courts. Robert J. Brink, “The Suffolk Inferior Court Files: An Historical Treasure Turning to Dust,” Boston Bar Journal, xx (1976), 6; Robert J. Brink, “Boston’s Great Anthropological Documents,” Boston Bar Journal, xxii (1978), 6; Robert S. Bloom, “Judicial Records: The Formulation of a Statewide Records Preservation Program,” Boston Bar Journal, xxii (1978), 23; Michael S. Hindus, “Designing Projects for Maximum Impact: Saving the Early Court Records of Massachusetts,” The American Archivist, xlii (1979), 307; Robert J. Brink, “Deferred Maintenance of Court Records,” Law Library Journal, lxxiii (1980), 997; Catherine Menand, “Archival Processing of Court Records,” Law Library Journal, lxxiii (1980), 10035 Michael S. Hindus, “The Massachusetts Superior Court Records Project,” Law Library Journal, lxxiii (1980), 10075 Michael S. Hindus et al., The Files of the Massachusetts Superior Court, 1859–1959: An Analysis and a Plan for Action (Boston: G. K. Hall and Company, 1980); and Robert J. Brink, “Saving the Court Records of Massachusetts,” Boston Bar Journal, xxvi (1982), 16.
1574 See Michael G. Kammen, “Colonial Court Records and the Study of Early American History: A Bibliographical Review,” American Historical Review, lxx (1964–1965), 738. See also Zechariah Chafee, Jr., “Colonial Courts and the Common Law,” Essays in the History of Early American Law, ed. David H. Flaherty (Chapel Hill: The University of North Carolina Press, 1969), 66.
1575 Pound, quoted by Chafee, “Colonial Courts,” 66.
1576 Pound, quoted by Chafee, “Colonial Courts,” 67. (Emphasis added.) See R. Pound, The Formative Era of American Law (Boston, 1938), 3–8; The Spirit of the Common Law (Boston, 1963), 113.
1577 Pound, quoted by Chafee, “Colonial Courts,” 67. See R. Pound, The Spirit of the Common Law, 113.
1578 G. Edward White’s book Tort Law in America: An Intellectual History (New York: Oxford University Press, 1980), xiii, explains that “scholarship is implicitly directed toward areas about whose relevance and soundness a tacit consensus exists and away from areas tacitly judged to be unpromising. The direction of research is a function of largely unarticulated value choices made by influential scholars.” In this context, Michael Kammen commented that “Dean Pound’s enormous influence on the study of American law also tended to persuade potential scholars that the period before independence was not worth close examination.” See Kammen, “Colonial Court Records,” 738.
1579 Grant Gilmore, The Ages of American Law (New Haven: Yale University Press, 1977), 9.
1581 Nelson, Americanization of the Common Law, vii. Professor Nelson states that his “research disclosed that the law of Massachusetts did change substantially in the seventy years between 1760 and 1830 in a variety of ways.” Ibid.
1582 Friedman, A History of American Law, 282. See Josiah Quincy, Reports of Cases Argued and Adjuded in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772 (Boston, 1865).
1583 White, Tort Law in America, 8. See Nelson, Americanization of the Common Law, 69–88.
1584 Friedman, A History of American Law, 341.
1585 White, Tort Law in America, 9. (Emphasis added.)
1586 Ibid. See also William E. Nelson, “The Reform of Common Law Pleading in Massachusetts, 1760–1830: Adjudication as a Prelude to Legislation,” University of Pennsylvania Law Review, cxxi (1973), 97.
1587 See generally Nelson, Americanization of the Common Law, 54–63; Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge: Harvard University Press, 1977), 167–168.
1588 Horwitz, Transformation of American Law, 167. See also Nelson, Americanization of American Law, 61.
1589 Horwitz, Transformation of American Law, 167.
1590 Ibid., 168.
1591 Flaherty, “Court Records in Historical Research,” 344. Although Flaherty made this statement in 1976, it is still largely true today. In Massachusetts, the poor storage conditions of courthouses combined with the poor physical condition of early court records have discouraged in-depth analysis of developing pleading practices and doctrine by all but the most enterprising researchers.
1592 See Erwin C. Surrency, “The Lawyer and the Revolution,” American Journal of Legal History, vii (1964), 125.
1593 Diary and Autobiography of John Adams, ed. L. H. Butterfield, 4 vols. (Cambridge, Mass.: Belknap Press, 1961), i, 264–265, quoted in Hiller B. Zobel, “The Joys and Uses of Legal History,” Massachusetts Historical Society, Proceedings, lxxxiv (1972), 59.
1594 David H. Flaherty has noted in “An Introduction to Early American Legal History,” Essays in the History of Early American Law, ed. David H. Flaherty (Chapel Hill: The University of North Carolina Press, 1969), 17, that “there remains both opportunity and need for the study of the role that lawyers played in the American Revolution. The definitive works have not yet appeared.” This is still true.
1595 “The largest source of information about John Adams’ legal career,” the editors of his personal legal papers point out, exists, strangely enough, not in the legal papers themselves but in court records. Legal Papers of John Adams, xxxiii. This observation must also be true for other lawyers.
1596 See Charles Robert McKirdy, “A Bar Divided: The Lawyers of Massachusetts and the American Revolution,” American Journal of Legal History, xvi (1972), 205.
1597 David E. Maas, “Honest Graft in Revolutionary Massachusetts,” Boston Bar Journal, xxiii (1979), 7.
1598 Legal Papers of John Adams, ed. Wroth and Zobel, i, x, viii. The editors also note that a “thorough treatment of the court system must . . . await . . . documentary exhumation. . . .” Ibid., xxxviii.
1599 Kenneth Silverman, “Cotton Mather and the Howell Estate,” Boston Bar Journal, xxvi (1982), 5. See also Robert J. Brink, “The Use of Court Records in Biographical Research: A Descriptive and Prescriptive Look at the Suffolk Files,” Biography, 1 (1978), 79. For an example of the use of court records in tracing the legal career of lawyers see Hugh F. Bell, “James Otis’s First Big Case: Fletcher v. Vassall,” Boston Bar Journal, xxv (1981), 7.
1600 Quoted in Charles A. Hammond, “Bulfinch and the Suffolk County Court House of 1810,” Boston Bar Journal, xxii (1978), 12, note 7.
1601 Ibid., 11. Dr. Hammond’s article and its appendices suggest the considerable significance of court records to architectural historians. Not only do the records show reports of the various committees, which provide insights into the workings of town and county governments, but the records detail exactly what materials were used, their suppliers as well as their costs.
Courts today have not lost their appetite for litigation or legal papers; and our courthouses, too, have been stretched, like corsets, to their limit. As a result, “[c]ourt records have been in a condition of crisis for a long time. The records of the Massachusetts Superior Court, the major trial court of the state, are housed in fourteen county courthouses, most of them built in the nineteenth century. . . . These records date from the earliest settlement of the Massachusetts Bay Colony in the 1620’s. . . . There [is] no disagreement about the conditions of storage; in nearly every county they [are] inadequate, and in some counties deplorable.” Michael S. Hindus et al., The Files of The Massachusetts Superior Court, 1859–1959, 3. As described at the beginning of this article, much is now being done to remedy the records problems. This digression into the deplorable condition of court records is to put scholars on notice that there are problems in using them.
1602 Hiller B. Zobel, “The Pompeii of Paper,” Boston Bar Journal, xxii (1978), 21.
1603 Catherine Menand, “Archival Processing of Court Records,” Law Library Journal, lxxiii (1980), 1006. Ms. Menand notes that one “can learn almost as much from the character of the documents as from the contents: evidence of literacy, of physical vigor, and something from the quality of the paper and the arrangement of the text. Only the originals can do this.”
1604 Records of the Suffolk Inferior Court of Common Pleas (in the custody of the Social Law Library, Boston), Case of 1791 April c (Continued Action). 111; ibid., Case of 1792 January, 1875 Case of 1790 October c. 288.
1605 Ibid., Case of 1797 October 88.
1606 See Robert J. Brink, “Massachusetts Declares Independence,” Boston Bar Journal, xxii (1978), 32.
1607 Records of the Suffolk Inferior Court, Case of 1761 January 1285 Case of 1755 October 1735 Case of 1771 October c. 49.
1608 Ibid., Case of 1760 October, 134.
1609 Ibid., Case of 1778 July c. 39; Hugh Clark’s Short and Easy Introduction to Heraldry (London, 1788) has an alphabetical listing of “technical terms” beginning on page 89.
1610 Clarence S. Brigham, Paul Revere’s Engravings (Worcester: American Antiquarian Society, 1954), 116.
1611 Records of the Suffolk Inferior Court, Case of 1772 misc., Bracken v. Joy.
1612 Ibid., Case of 1801 April c. 380.
1613 Catherine Lynn Frangiamore, Wallpapers in Historic Preservation (Washington, D.C.: Office of Archeology and Historic Preservation, National Park Service, 1977), 8.
1614 Records of the Suffolk Inferior Court, Case of 1765 July 375; Case of 1765 July c. 123; Case of 1765 July 374.
1615 Ibid., Case of 1765 July 296.
1616 Ibid., Case of 1765 July 197. The agreement provided that at the “River Tagus” in Lisbon “the said Brig (meaning said Schooner) being tight, stained and strong manned tackel’d and provided fit for Merchants service . . . should load, receive, and take on board . . . WINE & FRUIT or any other Goods, as they should tender to be laden not exceeding what the said Schooner could reasonably stow and carry over & above her Tackle, Apparel and furniture therewith as the Wind & Weather would permit should sail and proceed to Boston in New England, but if the Wind proved favorable to touch first at Halifax Nova Scotia . . . there deliver . . . said cargo . . . proceeding with the Residue to Boston . . . where said Master was to receive and take on board said Schooner a Cargo of fish to proceed from thence to Lisbon allowing Forty working days for landing her outward Cargo at the aforesaid Ports taking her return Cargo of fish at Boston & unloading it there viz at Lisbon. . . .”
1617 Flaherty, “Court Records in Historical Research,” 344. John Noble described the numerous variety of legal and non-legal papers typically found in colonial court files: “They are made up not only of the original pleadings in the cases, but also of exhibits, evidence, copies of records and documents used in the trial of those cases, and of all sorts of collateral matter introduced therein. Besides these files of court there are great numbers of miscellaneous papers, records, wills, deeds, correspondence, and papers of every sort of legal and historical character. . . .” Noble, Early Court Files, 317.
1618 Records of the Suffolk Inferior Court, Case of 1801 January 98.
1619 James Willard Hurst, “Legal Elements in United States History,” Law in American History, ed. Donald Fleming and Bernard Bailyn (Boston: Little Brown and Company, 1971), 14–15.
1620 Noble, “Early Court Files,” 325.
1621 Zechariah Chafee, Jr., “Preface,” in William Jeffrey, Jr., Early New England Court Records: A Bibliography of Published Materials (Cambridge, Mass., 1954), 3–4. See also Zechariah Chafee, Jr., “Introduction,” Colonial Society of Massachusetts, Publications, xxix (1933), xvii–xciv.
1622 See Larry R. Gerlach and Michael L. Nicholls, “The Mormon Genealogical Society and Research Opportunities in Early American History,” William and Mary Quarterly (3d ser.), xxxii (1975), 625.
1623 See William E. Nelson, Americanization of the Common Law. The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge, Mass., 1975), 14–18; William E. Nelson, “The Eighteenth-Century Background of John Marshall’s Constitutional Jurisprudence,” Michigan Law Review, lxxvi (1978), 893, 902–904.
1624 Respublica v. Sweers, 1 Dallas 41, 44 (Pennsylvania Supreme Court, 1779).
1625 Final Record of Court of General Sessions, Plymouth County, Mass., October 1776 (ms. in Pilgrim Hall, Plymouth, Mass.).
1626 See Nelson, Americanization of the Common Law, 21–30; Nelson, “Eighteenth-Century Background,” 904–917.
1627 For an example of how legal knowledge can generate new historical insight, see John P. Reid, In a Defiant Stance: The Conditions of Law in Massachusetts Bay, the Irish Comparison, and the Coming of the American Revolution (University Park, Pa., 1977).
1628 J. Willard Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1015 (Cambridge, Mass., 1964).
1629 For an illustration of one effort to do so, see William E. Nelson, Dispute and Conflict Resolution in Plymouth County, Massachusetts, 1725–1825 (Chapel Hill, 1981), 80–86.
1630 See generally Nelson, Dispute and Conflict Resolution.
1631 For a survey of early American court jurisdictions, see Lawrence M. Friedman, A History of American Law (New York, 1973), 32–49, 122–126.
1632 See George P. Fletcher, Rethinking Criminal Law (Boston, 1978), 253–256.
1633 King v. Donham, Plymouth General Sessions, October 1763, in David T. Konig, ed., Plymouth Court Records, 1686–1859 (Wilmington, Del., 1978), iii, 59.
1634 See Benjamin J. Shipman, Handbook of Common-Law Pleading (St. Paul, Minn., 3d ed. by Henry W. Ballantine, 1923), 183–185.
1635 F. W. Maitland, The Forms of Action at Common Law (Cambridge, 1936), 42. See also ibid., 44, 85–86.
1636 For an illustration of the pleadings in a common recovery, see Angier v. Harris, Plymouth Common Pleas, January 1786, in Konig, Plymouth Court Records, xvii, 23. See generally A. W. B. Simpson, An Introduction to the History of the Land Law (Oxford, 1961), 121–129.
1637 Wanno v. David, Plymouth Common Pleas, December 1732, in Konig, Plymouth Court Records, iv, 537.
1638 See Maitland, The Forms of Action, 49–50.
1639 See Nelson, Americanization of the Common Law, 74.
1640 See Shipman, Common-Law Pleading, 213.
1641 See Maitland, The Forms of Action, 71, 92.
1642 See Shipman, Common-Law Pleading, 114–131.
1643 See Maitland, The Forms of Action, 66–68.
1644 See Shipman, Common-Law Pleading, 141–143.
1645 See A. W. B. Simpson, “The Penal Bond with Conditional Defeasance,” Law Quarterly Review, lxxxii (1966), 392.
1646 See Nelson, Americanization of the Common Law, 80.
1647 See Maitland, The Forms of Action, 68–70. In particular, debt permitted the ancient and obsolete proof by wager of law, i.e. by the defendant swearing an oath of innocence with supporting oaths by a fixed number of others. Plaintiffs usually wished to avoid wager of law, which was not abolished in England until 1833. Ibid., 69–70.
1648 See Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, Mass., 1977), 171–173; David T. Konig, “Editor’s Introduction,” in Konig, Plymouth Court Records, i, 139, 154–156.
1649 See Nelson, Americanization of the Common Law, 54–55.
1650 See Konig, “Editor’s Introduction,” 154–155.
1651 See ibid., 155.
1652 See Shipman, Common-Law Pleading, 277–449.
1653 Michael S. Hindus, The Records of the Massachusetts Superior Court and Its Predecessors: An Inventory and Guide (Boston, 1977). The inventory project was commissioned by the Judicial Records Committee of the Massachusetts Supreme Judicial Court. Many of the pre-1860 records inventoried here will be included in the judicial archives scheduled to be deposited in the new State Archives building at Columbia Point, Boston, in late 1985.
1654 For a full description of the Suffolk Files, see John Noble, “The Early Court Files of Suffolk County,” Colonial Society of Massachusetts, Publications, III (1900), 317, and “The Records and Files of the Superior Court of Judicature, and of the Supreme Judicial Court, Their History and Places of Deposit,” Colonial Society of Massachusetts, Publications, v (1902), 5.
1655 Similarly, although an earlier ending point might have been more appropriate for this volume, it was impossible to use a different cut-off date without replicating at great expense the field work for the 1977 inventory.
1656 David T. Konig, Law and Society in Puritan Massachusetts: Essex County, 1620–1602 (Chapel Hill, 1979), 26, 35–36; Zechariah Chafee, Jr., “Introduction” to Records of the Suffolk County Court, 1671–1680, Colonial Society of Massachusetts, Publications, xxix (1933), xvii–xx; George Lee Haskins, Law and Authority in Early Massachusetts (New York, 1960), 32–34.
1657 The lower jurisdiction was 20 shillings from 1638 to 1647 when cases were heard by magistrates. Haskins, 325; Konig, 365; Chafee, xix.
1658 Chafee, xx–xxi; Charles J. Hilkey, Legal Development in Colonial Massachusetts, 1630–1686 (New York, 1910), 29–36.
1659 See Barbara Black, “The Judicial Power and the General Court in Early Massachusetts, 1634–1686,” unpublished Ph.D. dissertation, Yale University, 19755 Konig, 36–37n; Chafee, xxi.
1660 Much of the legislation relating to the courts was disallowed by the English Privy Council between 1692 and 1699. The basic scheme appears in 1692–3 Massachusetts Acts and Resolves, Chapter 9 and Chapter 33 and was finally passed as 1699 Massachusetts Acts and Resolves, Chapters 1–3.
1661 1699 Massachusetts Acts and Resolves, Chapter 1; see also the excellent analysis of Hendrik Hartog, “The Public Law of a County Court: Judicial Government in Eighteenth Century Massachusetts,” American Journal of Legal History, xx (1976), 282.
1662 1699 Massachusetts Acts and Resolves, Chapter 3; Hilkey, 34; The Legal Papers of John Adams, Wroth and Zobel, eds., i (Cambridge, Mass., 1965), xli.
1663 William Nelson suggests that this characterization was exaggerated. In his view, parties were interested primarily in getting a decision from the highest court and would raise sham pleading points in order to avoid trial in a lower court. William E. Nelson, Americanization of the Common Law. The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge, Mass., 1975), 16.
1664 1780 Massachusetts Acts, Chapter 17, 1782 Massachusetts Acts, Chapter 9; Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York, 1971), 184–87; Michael Stephen Hindus, Prison and Plantation: Crime, Justice, and Society in Massachusetts and South Carolina, 1767–1878 (Chapel Hill, 1980), 12–14.
1665 1783 Massachusetts Acts, Chapter 42; 1807 Massachusetts Acts, Chapter 123.
1666 1783 Massachusetts Acts, Chapter 51.
1667 Hartog, 329, n. 145.
1668 Minute books and docket books are described in the inventory as dockets.
1669 Robert J. Brink, “Boston’s Great Anthropological Documents,” Boston Bar Journal, xxii (September, 1978), 6.
1670 See in this volume George Haskins, “Lay Judges, Magistrates, and Justices in Early Massachusetts,” above 44–45, and Michael Hindus, “A Guide to the Court Records of Early Massachusetts,” above, 520.
1671 Charter, Massachusetts Records, i, 16 and 17, spelling modernized.
1672 Massachusetts Records, i, 73.
1673 The titles of recent studies emphasize law and authority, tending to obscure the importance of the court structure itself. For example, while Thomas Konig offers a fine discussion of the county courts, his title is Law and Society in Puritan Massachusetts (Chapel Hill, 1979). His bibliography lists Thomas Barnes, “Law and Liberty (and Order) in Early Massachusetts,” (1975), George Haskins, Law and Authority in Early Massachusetts (1960), and Edwin Powers, Crime and Punishment in Early Massachusetts (1966). The seventeenth-century judicial system has been more heavily studied than the eighteenth; Joseph Smith’s introduction to Justice in Western Massachusetts (Cambridge, Mass., 1961), which provides an excellent outline of the courts, ends at 1692.
1674 Descriptions, such as in P. S. Reinsch, English Common Law in the Early American Colonies (1899), of a legal system resembling a Biblical patriarchy have been revised by historians examining statutes and court records.
1675 Massachusetts Records, i, 169. Before counties were established in 1643, these courts were also called Inferior Quarter Courts.
1676 Ibid., i, 239.
1677 Ibid., i, 264. John Noble, “Notes on Strangers’ Courts,” Colonial Society of Massachusetts, Publications, vi, 283, says special courts were eliminated in 1672.
1678 Massachusetts Records, v, 477.
1679 Dudley Commission 8 October 1685 (in Colonial Society of Massachusetts Collections, ii, 39).
1680 Council Minutes 1 March 1687. After the Revolution the Superior Court of Judicature became the Supreme Judicial Court (Statute 1780, chapter c. 17). The 1780 Constitution expressly stated the separation of legislative, executive, and judicial branches.
1681 Province Laws 1692, chapter 33; 1692–1693, chapter 9; and 1697, chapter 9 were all disallowed. Stanley Katz, “The Politics of Law in Colonial America,” Perspectives, v (1971), ascribes the reason to the Privy Council’s view that equity courts were the prerogative of the crown and not to be established by legislatures.
1682 Province Laws 1699–1700, chapter 1 (general sessions); chapter 2 (common pleas); chapter 3 (Superior Court).
1683 Charter in Colonial Society of Massachusetts Collections, ii, 23.
1684 Province Laws 1700–1701, chapter 3.
1685 A word of caution: references to the administrative authority of general sessions, for example, before these duties were assumed by county commissioners in 1827, are scattered throughout legislation on such subjects as elections, taxation, poor relief, and the incorporation of new towns. Researchers would need to conduct a wider search than the single index heading of the court’s name in the laws.
1686 [These court records were deposited at the Essex Institute under an agreement with the Supreme Judicial Court and remain under the control of the Court and of the Clerk of Courts for Essex County. Except for the witchcraft trial records, which are on permanent deposit at the Institute, by late 1985 it is anticipated that these records will be moved to the State Archives building now under construction at Columbia Point, Boston, as part of a new judicial archives which will contain all pre-1860 court records. FSA, Jr., DRC]
1687 Mr. Cushing wishes to acknowledge the assistance of Anne E. Bently, Catherine S. Craven, and Robert V. Sparks, all of the staff of the Massachusetts Historical Society, in the mounting of this exhibition.