A “magistracy fit and necessary”: A Guide to the Massachusetts Court System

    THE course of colonial history in Massachusetts was marked by a consistent concern for establishing legal authority and the rule of law. George Haskins has pointed out that one of the first acts of the Massachusetts Bay Company’s officers in the new settlement was to grant to some of their members the powers of justices of the peace. Within a few years, the three-tier hierarchy of courts, which still exists, was established.1670 The full panoply of judicial administration was slower to emerge, as conflicts over equity and probate jurisdiction were resolved, but nonetheless the judicial history of Massachusetts has been an unbroken evolution.

    Each step in creating the court structure in Massachusetts has been based on specific legal authority and enactment; the history of the judiciary can, and should, be traced from the establishing act through subsequent enabling statutes. The initial authority for erecting courts in the colony was cited by the General Court at its meeting in London on 30 April 1629. It was that passage in the charter which empowered the company to settle the “forms and ceremonies of government and magistracy fit and necessary” and allowed for the “imposition of lawful fines, mulcts, imprisonment, or other lawful correction” to the end that the colony might be “religiously, peaceably, and civilly governed.”1671 The first meeting of the Court of Assistants in the colony, on 23 August 1630, ordered that “in all civil actions, the first process or summons by the beadle or his deputy shall be directed by . . . a justice of the peace; the next process to be a capias [indictment] or distringas [distrain], at the discretion of the Court.”1672 Thus, not only was the colony never without legal officers, it was never without institutions to impose the rule of law and procedures to administer justice.1673 Courts of record sat to hear civil and criminal causes from the first, and at no time did the religious authority of the Puritan theocracy replace the secular rule of English law.1674

    County courts were established in 1636, with a bench composed of magistrates of the county sitting together. They heard civil causes under ten pounds and criminal causes not subject to the original jurisdiction of the General Court, which were all cases not involving life, member, or banishment. Appeal from the county courts lay to the Court of Assistants.1675 These same magistrates, sitting singly in their towns, heard civil causes under twenty shillings and minor criminal causes. After 1638 they were augmented by commissioners, invested with “like power,” who sat in panels of three, with two a quorum.1676 Divorce cases were heard in the county courts, with appeal to the Court of Assistants. Probate, too, was in the county courts, and inquests on deaths were held before a magistrate with a jury.

    A Strangers’ Court, for the “speedy dispatch of all causes” involving transients who could not stay for the ordinary courts, was established in 1639. After 1650 strangers were allowed to sue in any court, and the special court fell into disuse.1677 Equity was judged upon application to the General Court until 1685 when, “for ease,” it was transferred to the county courts, which were “empowered as a court of chancery.”1678 This was the court structure under the first charter.

    The brief Dominion period which followed disrupted many things in the public life of Massachusetts, but had little impact on court organization in the lower tiers. The elected magistrates became appointed justices of the peace and the county courts continued much as before. The General Court was, of course, abolished, and its legislative functions exercised by the Governor and Council.1679 The Superior Court of Judicature, established in 1687, became the highest court.1680

    The second charter, in 1692, transformed the colony into a royal province and gave the legislature authority to establish courts. This authority had limits, however, for the first three comprehensive judiciary acts were disallowed by the Privy Council.1681 Statutes passed in 1699–1700 replaced the county courts with courts of general sessions of the peace for criminal causes and courts of common pleas for civil; the Superior Court of Judicature was continued as an appellate court. Justices of the peace continued to administer justice at the local level, with appeal lying to the inferior courts of sessions and common pleas.1682

    The Governor and Council were given power over probate by the 1692 charter, but they appointed a judge of probate to sit in each county and heard only appeals.1683 Equity was heard in common pleas. Coroners courts were established and reported to general sessions.1684

    The Constitution changed the name of the Superior Court of Judicature to the Supreme Judicial Court, but structurally nothing else. The same court system continued into the nineteenth century.

    Research in court records should be guided by the original statutes defining the jurisdictions and procedures of each court and by the succeeding legislative acts which redefined that court’s authority.1685 Times and places of sittings, as well as court fees, were set by the legislature. Even the authorized text for court forms can be found in the printed Acts and Resolves. No matter how reliable secondary sources may be, they are no substitute for information on actual court jurisdictions and powers set out in the statutes themselves.

    The following list of the Massachusetts courts, grouped by jurisdiction and citing each establishing statute, illustrates an evolutionary history that flows without interruption from the first days of settlement. Massachusetts court records over the years show old writ headings crossed out and new ones penned in and docket books economically filled up, with only the names changing as the business of administering justice in Massachusetts proceeds through its fourth century.

    50. Section of Writ of Attachment, 25 June 1776, Inferior Court of Common Pleas, Suffolk. It shows George III’s title crossed out and replaced with “The Government and People of the Massachusetts Bay in New England.” This, and similar writs, were issued before the signing of the Declaration of Independence on 4 July 1776. See above, 487. Courtesy, Social Law Library, Boston.


    Underlined courts are still in operation as courts


    General Court: Charter of 1692

    Court of Assistants: Records 23 August 1630

    Governor and Council: Dudley’s Commission 8 October 1685

    Superior Court: Council Minutes 1 March 1687

    Supreme Court: Constitution, Chapter III; St. 1780, c. 17

    Appeals Court: St. 1972, c. 740



    County Court: Colony Laws 3 March 1636

    Commissioners: Colony Laws 6 September 1638

    Sessions: Province Laws 1699–1700, c. 1

    Common Pleas: Province Laws 1699–1700, c. 2

    Superior: St. 1859, c. 196

    Appellate: St. 1943, c. 588, § 1


    Magistrates: Colony Laws 14 June 1631

    Justices: Council Minutes 3 March 1687

    Police: St. 1821, c. 109

    District: St. 1921, c. 430

    Appellate: St. 1922, c. 532, § 8


    Boston Police: St. 1821, c. 109

    Boston Municipal: St. 1866, c. 279

    Appellate: St. 1912, c. 649, § 8


    • Strangers Court (1639–1672)
    • Coroners Court (1700–1877)
    • Admiralty Court (1685–1775)

    Strangers: Colony Laws 6 June 1639

    Coroners: Province Laws 1700–1701, c. 3

    Admiralty: Dudley’s Commission 13 November 1685


    Probate: St. 1783, c. 46, § 1–2

    Insolvency: St. 1856, c. 284, § 1

    Probate and Insolvency: St. 1858, c. 93

    Probate and Family: St. 1978, c. 478, § 128


    • Boston (1906–   )
    • elsewhere handled
    • by District Courts
    • Springfield (1969–   )
    • Worcester (1969–   )
    • New Bedford (1972–   )

    Boston: St. 1906, c. 489

    Springfield: St. 1969, c. 859

    Worcester: St. 1969, c. 859

    New Bedford: St. 1972, c. 731


    Land Court (1898–   )

    Land Court: St. 1898, c. 562


    • Boston (1971–   )
    • Hampden (1973–   )

    Boston: St. 1971, c. 843

    Hampden: St. 1973, c. 591