RECORDS OF THE SUFFOLK COUNTY COURT

1671–1680

Part I

PREFACE

THE PUBLICATION of these judicial records has been undertaken by the Society as a contribution to the legal and social history of the American colonies. Legal development is probably the least known aspect of American colonial history. Judicial opinions were not recorded in the English colonies, no year-books were issued, and the printed materials for legal and judicial history have been so scanty as to preclude the more cautious historians from dealing with this important side of colonial life; less cautious historians have indulged in generalizations for which slight support can be found in fact.

A few years ago, on the initiative of our associate Evarts Boutelle Greene, then President of the American Historical Association, a committee of that Association was appointed on legal history, and a conference held at New York. This committee recommended that a systematic effort be made to publish the abundant manuscript records of American colonial courts. Acting on that suggestion, the Council of the Colonial Society of Massachusetts cast about for a suitable contribution that they might make to so worthy an enterprise. Their choice fell upon a manuscript book of records of the Quarterly Court of Suffolk County, Massachusetts, covering the period between October 31, 1671, and April, 1680.

This manuscript record book, measuring 9 x 14⅝ inches, in the clear handwriting of the clerks of the court, Freegrace Bendall and Isaac Addington, is the property of the Boston Athenæum; and to the Trustees of that institution the Society is indebted for permission to publish. About one fifth of the book was set up in type some years ago by William H. Whitmore, with the intention of printing it as a Report of the Boston Record Commissioners; but for some reason unknown the enterprise was abandoned, and only a single pull of the proof, also owned by the Boston Athenæum, survived. This page proof, collated with the original manuscript, became the basis of the first one hundred and fifty pages of our text; the rest was typewritten from the original and collated with it before printing. Our associate Charles K. Bolton, Librarian of the Boston Athenæum, has afforded us every facility for this work; and has himself aided in the collation.

Since the entries of cases in the records are extremely brief, often giving little clue to the issues at stake and never to the reasons for the decision, it seemed wise to annotate the entries from the court files. Such papers of this colonial court as survived the Revolution and ravages of time are now part of the archives of the Supreme Judicial Court of the Commonwealth of Massachusetts. Some years ago the ancient dockets were unfolded and carefully mounted in books with protection of transparent silk, under the direction of the then Clerk of the Supreme Judicial Court of the County of Suffolk, our late associate John Noble. Numerous communications from Mr. Noble, based on these files, will be found in volumes I-XI of our Publications. The present Clerk of the Supreme Judicial Court of the County of Suffolk, John F. Cronin, Esq., graciously gave us permission to search the court files for this purpose; and the search was facilitated by his able assistant, Miss Madeleine Connors.

Although no documents can be found for the great majority of cases entered in these volumes, the documents that have survived for the minority are so numerous that a rigorous selection was necessary, in order to keep publication within reasonable compass. For this purpose the system adopted by Mr. George F. Dow, in his Records and Files of the Quarterly Courts of Essex County, a pioneer publication in this field, has been followed, and at various stages the Committee have had the advantages of Mr. Dow’s advice and guidance. The most interesting and important documents have been printed in extenso, in 8-point type.1 Excerpts have been made from others. The rest (excepting such formal documents as writs and returns) have been mentioned by title or reference number, and in many cases have afforded material for a running commentary on the case, which is printed in 10-point type, and enclosed with the selected documents in square brackets.

In the selection of documents to be printed, the Committee have endeavored to serve three distinct purposes. They have attempted to include everything that may throw light on the legal history of the colony. From this point of view the most important documents are the Reasons of Appeal to the Court of Assistants and the Answers to said Reasons drawn up by the other party. In the absence of all record of judicial opinions, these Reasons and Answers offer the principal clue to the reasons of decisions, and are full of significant information as to the kinds of law which the courts of the colony then took under cognizance.

The second point of view in the choice of documents has been that of social history, in its broadest sense. These court files of the colony are the best source we have of the life of the people. They include inventories of houses, estates, shops, and vessels; accounts of common doings such as eating and drinking, lovemaking and fighting; ordinary occupations such as seafaring, brewing, and tanning. The numerous sidelights on coastwise voyages to Maine, Nova Scotia, and the Southern Colonies, and on overseas trading to the West Indies, France, Spain, and England, add much to what we already know of Boston’s maritime activities. Although these records cover the period of King Philip’s War, which probably caused a greater drain of man power and money than any of the later colonial wars, “business as usual” appears to have prevailed in Suffolk County.

Finally, a number of documents have been printed simply because they record the common speech of the day. Depositions of witnesses, reports of conversations between litigious neighbors and combative seamen, are the nearest we can hope to come to the Yankee speech of the seventeenth century. Hence we have kept a sharp look-out for documents of that sort—the more illiterate the better; and have been amply rewarded with salty speech of the sea, idioms tart with Saxon monosyllables, coarse phrases bawled across back fences or hurled at passers-by in the twisty lanes of Boston: phrases the more biting because cursing and swearing, the lazy man’s substitute for language, were forbidden. If any there be who suppose that our New England Puritans were nice in speech, prohibitionists in principle, or ascetics in practice, a careful perusal of our documents may be a wholesome corrective.

The Editor of the Society’s Publications is not responsible for these volumes. They were largely edited as a sort of extra-curricular activity by the Chairman of the Publication Committee, who is to blame for that ample measure in which they fall short of the Society’s high standards of scrupulous accuracy in every detail. He took the precaution of submitting the copy for all annotated cases to Professor Chafee, who rejected certain documents as unimportant and included others, corrected the Chairman’s legal blunders, and amplified his notes from the point of view of legal history. Mr. Charles L. Lundin did most of the copying and collating, and acquired such experience as to be of very material assistance in the selection and annotation. Many corrections and comments have been furnished in reading proof by other members of the Publication Committee, notably by our associate Albert Matthews.

In printing both the original court book and the additional documents, we have followed the Society’s standard practice of reproducing the original as accurately as the limitations of ordinary type will allow. All irregularities of spelling, capitalization, abbreviation, and punctuation have been followed, with these exceptions:

The tilde has been replaced by the letter it represents. Thus pen̄y is spelt penny, and accōn, accion.

The l or li in the abbreviation for pounds is not crossed, as it often is in the manuscripts.

All tailed p’s, such as ꝑ, ꝓ, etc., are spelt out per, pro, etc., and superior letters in connection with such abbreviations are ignored.

Dots, colons, and other abbreviations under superior letters are not reproduced.

Freegrace Bendall, the clerk and recorder of the court at the beginning of the period covered by these volumes, had a peculiar habit of using an apostrophe after all plurals’, thus, as well as for the possessive case. This intrusive apostrophe has not been reproduced.

One of the abbreviations, which can be represented accurately with the character @, has been so reproduced. It probably means anno, “in the year,” following the date.

In recording jury decisions and entries of appeals, the clerk followed fixed formulæ. The formula of submitting the evidence to the jury is reproduced in full only in the first entry (Sheafe v. Hawkins, p. 1), and the formula of entering an appeal to the Court of Assistants is reproduced in full only in the record of the first case so appealed (Clark v. Nicholls, pp. 5–6). In all later cases, the ever-recurrent formulæ have been omitted, and the omission indicated. In the documents copied, the often elaborate endorsements and verifications are omitted.

In the manuscript court record, the date of each session, the lists of judges and jurors, the title of each case, and the executions, are entered in the margin. In printing, these marginal glosses have been brought into the center. The marginal titles for the entries of liquor licenses have, in general, been omitted to save space.

The Index is the work of Mr. Waldo Palmer. The Society’s Editor took the entire copy in charge when it was about half way through page proof, and saw it through the press.

Samuel Eliot Morison

For the Publication Committee

1 It will be understood that all matter in this type is quoted.

2 Massachusetts Bay Records, ii. 38.

3 Which then included Muddy River (Brookline), Winnisimet (Chelsea), Rumney Marsh (Revere), and what is now Winthrop.

4 The Suffolk County of 1680 included the following towns and cities which were incorporated later than 1680: Bellingham, Medway, Franklin, Wrentham, Foxborough, Walpole, Sharon, Stoughton, Randolph, Canton, Quincy, Cohasset, Dover, Holbrook, Millis, Avon, Plainville, Norwood, Westwood, Wellesley, Norfolk, and Needham. The Hingham of 1680 may have included parts of present-day Abington, Norwell, and Scituate; while the Braintree of that day may have included parts of modern Brockton and Abington. (I am indebted to Albert H. Hall, Esq., for much of this information.)

5 But Cambridge, in Middlesex County, included the land on the right bank of the Charles that later became Brighton and Newton.

6 A Century of Population Growth (Bureau of the Census, 1909), p. 11.

7 Massachusetts Bay Records, i. 169.

8 See our Publications, xviii. 56 n¹.

9 William H. Whitmore, Ed., The Colonial Laws of Massachusetts, Reprinted from the Edition of 1660, with the Supplements to 1672, p. 132 (cited hereafter as Whitmore, Colonial Laws, 1660–1672); Whitmore, Ed., The Colonial Laws of Massachusetts, Reprinted from the Edition of 1672, with the Supplements through 1086, p. 21 (cited hereafter as Whitmore, Colonial Laws, 1672–1686).

10 H. L. Osgood, American Colonies in the Seventeenth Century, i. 190.

11 Norfolk County was entirely distinct from the present Massachusetts county of that name. It was organized in 1643 for the benefit of the recently annexed towns in New Hampshire, and also included Salisbury and Haverhill (Mass. Bay Records, n. 38); Pascataqua County apparently was carved out of Norfolk when the laws were revised (Whitmore, Colonial Laws, 1660–1672, p. 144). New Hampshire was organized as a separate Royal Province in January, 1679/80; and on February 4, the General Court of Massachusetts Bay recognized this unwelcome fact by relinquishing the Counties of Norfolk and Pascataqua, and declaring the towns of Salisbury, Amesbury, and Haverhill annexed to Essex County (Mass. Bay Records, v. 264).

12 Whitmore, Colonial Laws, 1672–1686, pp. 218, 221.

13 Osgood, i. 190–191.

14 Osgood, r., pp. 191–192; Whitmore, Colonial Laws, 1660–1672, pp. 132–133; Whitmore, Colonial Laws, 1672–1686, pp. 20–21. Several cases involving proceedings in the Cominissioners’ Court are indexed in this book under Cominissioners’ Court, e.g., Golden v. Clements, pp. 13–17.

15 Whitmore, Colonial Laws, 1672–1686, pp. 37–38. See this introduction, Conflict of Laws.

16 Whitmore, Colonial Laws, 1672–1686, pp. 28–29.

17 Possibly the petition of Mrs. Naylor against her notorious husband, referred by the County Court to the Court of Assistants (below, p. 96; and see Michelson v. Browne, p. 103) asked for a divorce. The divorced Whartons appear on p. 914.

18 Whitmore, Colonial Laws, 1672–1686, p. 36. The “Capital Lawes” in this compilation were still those of the Body of Liberties: idolatry, witchcraft, blasphemy, murder, manslaughter, bestiality, sodomy, adultery, man stealing, false witness, and conspiracy, with the addition of rape, cursing or smiting parents, or being a stubborn or rebellious son. The last two never seem to have been enforced, and there were no laws on the statute book for which loss of a “member” or banishment were prescribed. (Banishment was, however, imposed in some cases.) The inclusion of blasphemy among the capital laws makes it difficult to explain why the Suffolk County Court took cognizance of a case of that nature (below, pp. 114–115).

19 Whitmore, Colonial Laws, 1672–1686, p. 34.

20 Whitmore, Colonial Laws, 1672–1686, p. 3.

21 Id., pp. 34, 152.

22 Id., p. 38.

23 Whitmore, Colonial Laws, 1660–1672, p. 232; W^rhitmore, Colonial Laws, 1672–1686, pp. 206, 212, 272, 288, 294, 313.

24 Woody v. Harrison, pp. 654–655.

25 Patten v. Dyer, p. 215; Patten v. Woody, p. 215; Belcher v. Braintree Selectmen, p. 776.

26 Whitmore, Colonial Laws, 1672–1686, p. 152.

27 See Holowells v. Butler, at p. 1036; Simpson v. Salter, pp. 1040–1041.

28 Patten v. Winsley, at p. 384.

29 Bridgham Estate, pp. 848–849; Holowells v. Butler, at pp. 1033–1034.

30 Below, pp. 788–791.

31 Lechford, Plaine Dealing.

32 Winthrop’s Journal (1908 ed.) ii. 37.

33 The Laws and Liberties of Massachusetts, Reprinted from the 1648 Edition (1929).

34 Whitmore, Colonial Laws, 1660–1672, p. 141, title Counsel, Advice.

35 Id., p. 224.

36 Whitmore, Colonial Laws, 1672–1686, p. 211. See also title Attachments, Summons, sec. 3, id., pp. 7–8.

37 Introduction to Proceedings of the Court of Appeals of Maryland, 1695–1729.

38 See Patten’s power of attorney from England, pp. 377–378; Addington v. Timberlak, p. 242, where Addington was attorney for a Rhode Islander.

39 Batt v. Harris, pp. 539–542. Judge Bond’s introduction mentions a feminine attorney in Maryland, who has been heralded as the first woman attorney at law in America.

40 Below, pp. 1153–1157. For other illustrations of lawyerlike arguments, see Patten v. Dyer, at pp. 373–375; Purkis v. Winder, at p. 1004; Danson v. Eliott, at p. 1090

41 Below, pp. 761, 766.

42 Order about Cornish, pp. 560–561.

43 Hutchinson, Atty, p. 95.

44 Below, pp. 14–15.

45 Below, pp. 295–296.

46 Below, pp. 388–390.

47 Below, pp. 550–554.

48 Below, pp. 563–564.

49 Below, pp. 451–453.

50 Below, pp. 1042–1044.

51 Below, pp. 899–900, 1047.

52 Below, pp. 1170–1171.

53 Below, p. 71. A few years after these volumes terminate, the Boston press began to issue printed forms and blanks for bonds and other legal documents. Broadsides, Ballads, &c., printed in Massachusetts (Coll. Mass. Hist. Soc., LXXV), pp. vii, 16. The earliest known copy of a printed bond is dated 1685, and is found in the Massachusetts Archives, XL. 529; the earliest found in the Suffolk Files is dated 1688.

54 History of Massachusetts Bay, i. 323 n.

55 Leverett, p. 312; Palmer, p. 1069; Leverett, p. 1153; Dowden, pp. 890–894.

56 See Ashton v. Gibbs, pp. 347–358; Whetcomb v. Gibbs, p. 512; Gibbs v. Whetcomb, pp. 587–592.

57 Below, p. 186.

58 Bellingham v. Smith, p. 248; Wharton v. Walley, pp. 745–746.

59 In 1686, Andros obliged attorneys to take oath upon admission to the bar. In 1701, a statute required such an oath. Warren, History of the American Bar (1911), pp. 72, 77–78.

60 History of Massachusetts Bay, i. 269–270 n. See also Dictionary of American Biography, ii. 166.

61 Legal Development in Colonial Massachusetts, 1630–1686, p. 144; see also pp. 5, 66 ff.

62 “The English Common Law in the Early American Colonies,” in Select Essays in Anglo-American Legal History, i. 367 ff. See also R. B. Morris, “Massachusetts and the Common Law: the Declaration of 1646,” American Historical Review, xxxi. 443.

63 Review of “Laws and Liberties of 1648,” in New England Quarterly, iii. 157–158.

64 Hilkey, pp. 66–67.

65 Poore, Federal and State Constitutions, Colonial Charters, etc., i. 940.

66 Below, pp. 373–376.

67 Darvall v. Dudson, at p. 366. See also Cooke v. Broughton, at p. 71.

68 Stuart and Ludden, at p. 406; Newcomb at p. 696. Title Man-slaughter in the revisions of 1660 and 1672 covered only killing in self-defense, etc.

69 Introduction to Proceedings of the Court of Appeals of Maryland, 1695–1729.

70 Scottow v. Shapleigh, at p. 1112.

71 Massachusetts Bay Records, II. 212

72 Below, p. 1105.

73 Mead v. Turner, pp. 36–43. An order of 1650 by the General Court as to this book is quoted by Warren, History of the American Bar, p. 71.

74 See this introduction, Attorneys and Magistrates.

75 Mittimus, pp. 191, 487; supersedeas, pp. 788–791.

76 Below, p. 298; see also for Latin phrases, pp. 533, 534, 536, 769.

77 Below, p. 163.

78 Ashton v. Gibbs, at pp. 347, 350, 351.

79 Patten v. Winsley, pp. 377–384.

80 Douglas Estate, pp. 1104–1105.

81 “King’s Law and Local Custom in Seventeenth-Century New England,” Columbia Law Review, XXXI. 416.

82 Hilkey, p. 68.

83 Earl of Oxford’s Case, 1 Chancery Rep. 1. This reference was suggested by Dean Pound as was also King v. University of Cambridge, 1 Strange 557, 567, where Chief Justice Pratt uses a Biblical illustration as late as 1736: “The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence, Adam (says God) where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldest not eat? And the same question was put to Eve also.” For other English examples, see Warren, History of the American Bar, p. 65 n; Ratcliff’s Case, 3 Coke Rep. 40a, b; Winfield, Chief Sources of English Legal History, p. 146.

84 Below, pp. 203, 309, 535, 892–893, 1116.

85 Below, p. 52.

86 Below, p. 568

87 Below, p. 624.

88 Below, p. 1155

89 Below, pp. 303–304.

90 Below, p. 615

91 Below, pp. 404–408.

92 Below, pp. 1147–1148.

93 Below, at pp. 1034, 1037. The same Biblical passage is unsuccessfully cited in Douglas Est., at 1105, as binding, in accordance with the preamble, in order to fill the gap in title Wills, which gave a decedent’s property to his heirs without defining who they were.

94 On the distinction between this principle of judicial consistency and the modern principle of the binding force of judicial decisions, see Winfield, Chief Sources of English Legal History, pp. 149 f. Some of the passages he cites from the Year-Books, of oral court-room discussion mentioning past cases, resemble the Massachusetts material described below. See also Lewis, “The History of Judicial Precedent,” Law Quarterly Review, xlvi. 341.

95 Below, at pp. 70–71.

96 Below, at pp. 365, 367.

97 Hutchinson v. Blake, pp. 271–274.

98 Below, at p. 714.

99 Below, pp. 797–799.

100 Below, at pp. 654–655.

101 Whitmore, Colonial Laws, 1672–1686, p. 38. See this introduction, Appellate Courts.

102 Peck v. Bonner, pp. 31–36.

103 Ashton v. Gibbs, pp. 347–358.

104 Below, pp. 99–100, 131–133, 201.

105 Clarke v. Nicholls, pp. 5–9, 98–99

106 Dinely v. Steenwick, pp. 167–173, 246–247, 292–293; Dinely, p. 234; Davis v. Dinely, pp. 568–569.

107 Clarke v. Lamb, pp. 1131–1136.

108 Below, pp. 1029–1037.

109 Pincheon v. Collecot, pp. 319–322.

110 Whitmore, Colonial Laws, 1672–1686, p. 9. See Kelly v. Blower, p. 13; Atkinson v. Williams, pp. 53–54; and other entries indexed under Barratry.

111 See this introduction, Attorneys and Magistrates.

112 Cooke v. Broughton, at pp. 70–71. The court nevertheless nullified the deed.

113 Hodges, at p. 190.

114 The same conclusion is stated by Washburn, Sketches of the Judicial History of Massachusetts (1840), p. 48. Goebel observes the same fact in Plymouth Colony and attributes it to the influence of the English county courts. “King’s Law and Local Custom,” Columbia Law Review xxxi 437–438

115 Three different English reporters have been examined for cases in the year 1670–1671. Out of twenty-four cases in 1 T. Raymond 189–218, only three are case; four are assumpsit, one general assumpsit, seven debt, three trespass, four replevin, one covenant, one words (slander). Out of twenty-four cases in 1 Levinz 285–301, only four are case; eight are debt, four assumpsit, two general assumpsit, and there is one each for trespass, ejectment, words (slander), account, trover, and covenant. Out of twenty-four cases beginning 2 Saunders 73, nine are case, a somewhat larger proportion; nine are debt, two ejectment, three assumpsit, and one trover.

116 For example, Leverett v. Ely, p. 4; Greenough v. Hazelden, p. 9; Hutchinson v. Douty, p. 11; Thayre v. Rose, pp. 322–325; Hudson v. George, p. 514.

117 Parker v. Champeroone and Leverett v. Ely.

118 Examples are Bacon v. Gold, p. 12; Oliver v. Woodmancy, p. 17; Cutler v. Hersy, pp. 44–45; Parker v. Corbyn, p. 316; Leverett v. Dowden, p. 882.

119 Sheafe v. Hawkins, pp. 1–3.

120 Anderson v. Cox, pp. 204–205; 287, Gross v. Pearce, p. 275; Clarke v. Clement, p. 636.

121 For example, Bucher v. Bastar, p. 17; Hastings v. Parks, pp. 97–98; Hudson v. Skinner, p. 290; Raynsfords v. Green, p. 853; Leverett v. Fox, p. 935.

122 Hudson v. Hunt, pp. 289–290.

123 Sanders v. Harris, p. 640.

124 Woodcock v. Sutton, p. 773.

125 Brackett v. Clarke, pp. 45–52.

126 Leeds v. Richards, p. 100; Bill v. Wayte, p. 271.

127 Goodman v. Cocke, pp. 200–201.

128 Mosely v. Mason, p. 65.

129 Lidgett v. Collins, pp. 43–44; Smith v. Carrington, p. 155.

130 Sandys v. Locke, pp. 205–209, Hutchinson v. Blake, pp. 271–274, are examples, and others will be found in the Index. See the form of the writ in Wbitmore, Colonial Laws, 1672–1686, p. 162.

131 Marsh v. Machee, p. 43; Baker v. Joy, p. 134.

132 Smith v. Cartwright, p. 10.

133 Dudson v. Darvall, pp. 385–387. Actions of defamation: MackDaniel v. Hale, p. 818, and Legg v. Flood, p. 880. Case upon defamation: Barnes v. Harwood, p. 984.

134 MackDaniel v. Hale, p. 818.

135 Below, p. 13.

136 Francks v. Ely, p. 135; Dudson v. Darvall, pp. 385–387.

137 Wbitmore, Colonial Laws, 1672–1686, p.

138 Id, P. 7.

139 See Jones v. Crispe, at p. 458.

140 Mass. Perpetual Laws, 1780–1800 (1801), i. 199.

141 No. 27. Reprinted in Whitmore’s Bibliographical Sketch of the Laws of the Massachusetts Colony (1630–1686), p. 39.

142 Massachusetts Bay Records, ii. 219.

143 Sheafe v. Palmer at pp. 829–830; Scottow v. Shapleigh, at pp. 1114–1116; Dudley v. Paige, at p. 1120, called “plea”; Townsend v. Williams, at p. 1127, in Court of Assistants; Cooke v. Oliver, at pp. 1146–1148. A declaration is mentioned in Gibbs v. Whetcomb, at p. 588.

144 Cooke v. Broughton, at p. 68; Cooke v. Oliver, at pp. 1148–1149.

145 Mead v. Turner, at p. 39; Dudley v. Paige, at p. 1120.

146 Whitmore, Colonial Laws, 1672–1686, p. 211.

147 Id., p. 7.

148 Robinson, “Anticipations under the Commonwealth of Changes in the Law,” Select Essays in Anglo-American Legal History, i. 480.

149 Plumb v. Parke, p. 146.

150 Henchman v. Rock, at p. 197; Giffard v. Leverett, p. 747; Saffin v. Jesson, pp. 774–775; Lynde v. Haughton, p. 1009.

151 Below, pp. 417–420.

152 Porter v. Appleton, pp. 1137–1139.

153 Below, p. 69.

154 Below, pp. 173, 760.

155 Cooke v. Oliver, pp. 1144–1150

156 Parmiter v. Perry, p. 294.

157 Cooke v. Broughton, at p. 73; Clarke v. Nicholls, at p. 79; Willys v. Baker, pp. 1073–1074.

158 Blackstone, Commentaries, iii. 418.

159 Oxenbridge Complaint, p. 437.

160 Sands v. Hutchinson, pp. 460–461.

161 Whaley, p. 1164.

162 Harris v. Edsall, p. 102; Scottow v. Felton, pp. 317–318; Lytherland v. Brown, pp. 500–504; Lytherland v. Veren, p. 529; Fogg v. Williams, pp. 656–660; Hukely to Rawson, pp. 677–678.

163 Select Essays in Anglo-American Legal History, i. 375.

164 Whitmore, Colonial Laws, 1672–1686, p. 6.

165 Walley v. Waite, pp. 802–803.

166 Below, pp. 139, 657.

167 Richardson and Read, p. 117.

168 Man v. Hews, p. 1058.

169 Bleaze v. Edwards, p. 925.

170 Title Tryals, Whitmore, Colonial Laws, 1672–1686, p. 152.

171 Mead v. Turner, at p. 39.

172 More v. Jones, pp. 156–158.

173 Dudley v. Paige, at pp. 1120–1121; Townsend v. Williams, at p. 1127. See also Sands v. Hutchinson, pp. 460–461, petition for respite of execution.

174 Hutchinson v. Paine, at p. 635.

175 Title Appeal, sec. 2; Snelling, pp. 1103–1104; Townsend v. Williams, at p. 1130.

176 Title Appeal, sec. 2; Jones v. Crispe, at p. 459; Flood v. Legg, at p. 859; Lidgett v. Smith, pp. 876–879; Hill v. Obbinson, at p. 1095; Cooke v. Oliver, at p. 1148.

177 Brattle v. Knight, at p. 799.

178 Hodges, pp. 190–193; Stuart and Ludden, pp. 404–408.

179 Hutchinson, p. 95.

180 Dowden, pp. 890–894.

181 Clarke v. Nicholls, pp. 5–9.

182 Sands v. Hutchinson, pp. 460–461.

183 Starkey, p. 258—abduction; Dobleday, p. 626—lasciviousness; Rigby, p. 940—drinking and wife-beating.

184 Stuart and Ludden, at p. 408—manslaughter. On early Massachusetts criminal trials without right to a jury, see Frankfurter and Corcoran, “Petty Federal Offences etc.,” Harvard Law Review xxxrx. 938–942.

185 In the Court of Assistants; Brattle v. Knight, at p. 799.

186 Kent v. Phillips, pp. 929–930; Savage v. Hutchinson, p. 1039; Maryon v. Wright, pp. 1121–1122; Indicott v. Kent, pp. 1140, 1144.

187 Hutchinson v. Sands, p. 470.

188 Cutler v. Jacob, p. 530.

189 Indicott, p. 1101.

190 Thayer, Preliminary Treatise on Evidence, pp. 130–132.

191 Skinner v. Lowell, at p. 391.

192 Legg v. Flood, pp. 1054–1055.

193 Title Jurors, Juries, sec. 5; Middlecott v. Scotto, pp. 821–822.

194 Batt v. Harris, at p. 540; see the form of the juror’s oath in Whitmore, Colonial Laws, 1672–1686, p. 167.

195 Clarke v. Nicholls, pp. 5–9, 98–99.

196 Bucher v. Bastar, p. 17; Checkly v. Williams, p. 372.

197 Lidgett v. Collins, pp. 43–44.

198 Bellingham Executors v. Smith, pp. 240–241; Middlecott v. Scotto, pp. 821–822.

199 Jones v. Crispe, at p. 459.

200. Hill v. Obbinson, at p. 1095.

201 Jay v. Wharton, pp. 577–578; Winslow v. Bendall, pp. 611–612; Norman v. Skinnar, pp. 803–806; Man v. Wing, p. 1039; Paige v. West, pp. 1080–1083.

202 Hutchinson v. Paine, at p. 536; see title Jurors, Juries, sec. 1, and this introduction, Equity.

203 Gibbs v. Whetcomb, pp. 587–592. The preceding cases leading up to the dispute are Edmunds, p. 486; Waters, pp. 490, 493; Whetcomb v. Gibbs, p. 512.

204 New England Quarterly, v. 812–818.

205 Lawton and Bonner’s Bond, at pp. 180–181, see also Lawton, at p. 304; Jay v. Woodmansey, at p. 577; Cooke v. Oliver, at p. 1150. The statute of May 15, 1672 (Whitmore, Colonial Laws, 1672–1686, p. 201) is not absolutely clear that only a jury in the Court of Assistants could be attainted whereas the verdict of a County Court jury had to be accepted by the bench. Such is the interpretation of Hilkey (Legal Development in Colonial Massachusetts, pp. 79–80), but neither Thayer (Preliminary Treatise on Evidence, p. 173 n) nor Reinsch (in Select Essays in Anglo-American Legal History, I. 379) speaks of such a limitation. It seems possible that the “unless” clause in the statute of 1672 modifies the whole preceding portion of the sentence and not merely the preceding clause. The statute of September 10, 1684, modifying attaints (Whitmore, Colonial Laws, 1672–1686, p. 319), throws no light on the problem. The three attaints in this book, cited above, were against juries in the Court of Assistants. Unquestionably, the attaint was always tried by a jury of twenty-four in the Court of Assistants.

206 J. H. Wigmore, Treatise on Evidence (2d ed. 1923) i. 108.

207 Title Witnesses, sec. 1, enacted in 1641.

208 Waldren v. Smith, at p. 203; Stoughton v. Bishops, at p. 297; Noakes, pp. 308–310; Hutchinson v. Paine, pp. 530–536; Dowden, pp. 890–894. On the history of the numerical system of counting witnesses, which England was already abandoning, see Wigmore, iv. 300.

209 Golden v. Clements, at p. 15.

210 Title Indians, sec. 10; Prince, p. 181; Penniman, p. 328; Eaton, p. 491.

211 Mason, p. 1013.

212 Newcomb pp. 695–697; Clarke v. Lamb, pp. 1134–1135.

213 Massachusetts Bay Records, iv (1). 27.

214 Below, p. 480.

215 Below, pp. 1030–1031.

216 Waldren v. Smith, pp. 202–204; Joy v. Baker, pp. 393–394; Jay v. Woodmancy, pp. 572–577; Batt v. Welds, pp. 614–617; Lidgett v. Smith, pp. 876–879; Cooke v. Oliver, pp. 1144–1150.

217 Below, p. 169.

218 Clarke v. Holmes, pp. 1079–1080; Cooke v. Oliver, at pp. 1144–1145.

219 Purkis v. Winder, pp. 1002–1005.

220 Stoughton v. Bishops, at p. 299; Waldron v. Marshall, at p. 763.

221 Patten v. Winsley, pp. 377–384; Waldron v. Marshall, pp. 759–764; Proutt v. Scarlett, pp. 792–793; Drurey Fined, pp. 837–841; Holowells v. Butler, pp. 1029–1037; Dudley v. Paige, at pp. 1119–1120

222 Woody v. Harrison, at p. 653; Williams v. Fogg, pp. 685–687.

223 Below, pp. 1145–1146.

224 Wigmore, iii. 330 ff.; Woody v. Harrison, pp. 651–656.

225 Wigmore, ii. 662, citing Massachusetts statute of 1882; Cowell, p. 402; Preist, p. 409; Hemaway and Peggy, p. 555; Cox, p. 643; Boulter, p. 719; Butler, pp. 915–916; Childe, p. 939.

226 Trott, p. 222.

227 Cooke v. Oliver, at pp. 1147–1148.

228 Bennett, p. 786; see Waldron v. Marshall, at p. 763.

229 Roscoe Pound, “Puritanism and the Common Law,” American Law Review, XLV. 825, reprinted in his Spirit of the Common Law. Attacks on Chancery under Cromwell are described by Robinson, “Anticipations under the Commonwealth of Changes in the Law,” Select Essays in Anglo-American Legal History, i. 470–472.

230 Hutchinson v. Paine, at p. 536, subsequently discussed.

231 Ashton v. Gibbs, at p. 356; Sharp v. Rider, at p. 363; Patten v. Dyer, at p. 375; Jones v. Crispe, at p. 459.

232 Below, p. 71

233 Below, pp. 530–536, especially, p. 534.

234 See below, p. 4 n. The common term today is “chancerizing.”

235 Parker v. Champeroone, p. 4.

236 Below, pp. 882–883.

237 Below, pp. 1079–1080.

238 Frankes v. Rock, at p. 1049; Dudley v. Paige, at pp. 1120–1121.

239 Below, pp 1137–1139.

240 See Ames, “Specialty Contracts and Equitable Defences,” Harvard Law Review, IX. 49.

241 Below, pp. 530–536. See Williams v. Woodbridge, pp. 767–770, where the defendant unsuccessfully asserted that he was compelled by duress to sign the bond; this defense was probably available in an English common-law court. The same case discusses the assignability of bonds, under a statute, title Bills.

242 Stoughton v. Bishops, pp. 294–299.

243 Below, pp. 788–791

244 Below, p. 885.

245 Dowden, at p. 892. Compare Quincy’s Reports, p. 537 and note.

246 Below, p. 629.

247 Hickson and Bedwell, pp. 442–443; Forrest and Julian Knight, p. 1161.

248 Ex parte Warfield, 40 Texas Criminal Reports 413 (1899); Pound, Cases on Equitable Relief against Defamation (2d ed., 1930) 79 n.

249 Belcher’s Bond, p. 809; Spur, p. 810.

250 Michelson v. Browne, p. 103. See also p. 442.

251 Naylor’s Petition, p. 96. See the discussion of Appellate Courts in this introduction.

252 Baker v. Johnson, p. 392.

253 Thayer v. Paine, pp. 563–564; see also Billing v. Rawson, p. 819.

254 Atherton v. Lockwood, pp. 512–513.

255 Davie v. Hall, pp. 875–876.

256 Skinner v. Lowell, pp. 388–392.

257 Greely v. Hall, pp. 988–989.

258 Bromage v. Genning, 1 Roll. R. 368 (1616).

259 Baildon, Select Cases in Chancery, p. xiv.

260 Cokayn v. Hurst (1458), in Baildon, Select Cases in Chancery, No. 143.

261 Below, pp. 65–78.

262 Cutler v. Cutler, p. 881.

263 Aspinwall v. Evans, p. 981.

264 Parke v. Morrise, pp. 463–464. On the affairs of this charitable trust, see Massachusetts Bay Records, iv (ii). 434, 441, 455–458; v. 5, 22

265 Alford v. Endicott, pp. 726–735.

266 Lamb v. Williams, p. 1051.

267 Fowle v. Stevens, p. 854; Aldredge v. Stevens, p. 854; Wilcocks v. Viall, p. 855.

268 Note by Gray in Quincy’s Reports, p. 537; Woodruff, “Chancery in Massachusetts,” Law Quarterly Review, v. 370, reprinted, with additional material, in Boston University Law Review, ix. 168.

269 Massachusetts Bay Records, v. 477–478.

270 Baker v. Joy, p. 134; Bennet v. Gridley, p. 744; Sedgwick v. Rock, pp. 770–771; Burnes v. Harwood, p. 984; Smith v. Cartwright, p. 10; Tay v. Hawkins, p. 688; Griggs v. Chock, p. 1042; Fogg v. Leverett, p. 689.

271 Marsh v. Machee, p. 43; MackDaniel v. Hale, p. 818.

272 Keen v. Wiswall, p. 1039.

273 Legg v. Flood, p. 880.

274 Clarke v. Kent, pp. 908–909.

275 Scottow v. Shapleigh, pp. 1108–1116

276 Smith v. Cartwright, p. 10. Retractions were ordered in the cases cited in notes 1–4, except Bennet v. Gridley, Tay v. Hawkins, and Fogg v. Leverett.

277 Danson v. Ellitt, p. 1123.

278 See the Hindoo’s comment on the English remedy of damages quoted from Kipling by Pound, “Interests of Personality,” Harvard Law Review, xxviii. 446 n.

279 Id., pp. 364, 449.

280 Burn, Ecclesiastical Law (9th ed., 1842) n. 137–138. This reference was supplied by Dean Pound.

281 Finnish Temperance Society v. Raivaaja, 219 Mass. Reports 28 (1914).

282 Rex v. Penny, 1 Lord Raymond 153 (1697).

283 Holdsworth, History of English Law, v. 211.

284 Below, pp. 992–993.

285 See below, p. 228 n.

286 Below, p. 231; see also Sprague, p. 424.

287 Below, pp. 228–229.

288 Below, p. 232.

289 Below, pp. 237–238; see Bellingham v. Smith, p. 248.

290 Commonwealth v. Canter, 269 Mass. Reports 359 (1929), discussed in Harvard Law Review, xliii. 663–664.

291 Pound, Cases on Equitable Relief against Defamation (2d ed., 1930), p. 13 n.

292 Wainwright, p. 225.

293 Below, p. 235.

294 Below, p. 753.

295 Holdsworth, History of English Law, viii. 449–459.

296 Countess of Shrewsbury’s Case, 5 Coke Reports 13. On the purchase of law books, see Sources of Law in this introduction.

297 Milton v. Eliott, p. 3.

298 Clarke v. Harbour, pp. 736–737.

299 Yardley v. Boden, p. 775.

300 Sheafe v. Palmer, pp. 829–830.

301 Woode v. Chantrell, pp. 159–163.

302 Snelling v. Chantrel, p. 166.

303 See Hay, “Death as a Civil Cause of Action in Massachusetts,” Harvard Law Review, vn. 170.

304 Admiralty Commrs. v. The Amerika, 1917 A. C. 38—marine accident; Panama Railroad v. Rock, 266 United States Reports 209 (1924)—accident in the Canal Zone. See the adverse criticism of these decisions in Harvard Law Review, xxx. 742; xxxviii. 499. Negligent death at sea is discussed by Whitelock, “Extra-territorial Marine Torts,” id., xxii. 403.

305 Title Bridges, Whitmore, Colonial Laws, 1672–1686, p. 12, enacted in 1648.

306 Below, p. 160.

307 Below, pp. 404–408.

308 Below, p. 149.

309 Below, p. 644

310 Below, pp. 695–697.

311 Newcomb v. Wardell, p. 800.

312 Lorin, pp. 332–333; Dare, p. 333.

313 Whitwell, p. 258; Gatch, p. 259; Wakefeild, p. 785.

314 See Forms of Action, in this introduction.

315 Crowne v. Sprague, p. 156; Sandford v. Orchard, pp. 669–671; see also Toy v. Howard, p. 130.

316 Harris v. Bridgeham, p. 277.

317 Gilbert v. Obison, pp. 738–742.

318 Scarlett v. Long, Salter v. Manning, p. 584.

319 Below, pp. 759–766.

320 Norman v. Skinnar, pp. 803–806.

321 Acorman v. Valentine, pp. 982–983. For cases involving chattels in New York, see pp. 385–387, 856–857.

322 Skinner v. Lowell, pp. 388–392.

323 Phillips v. Wharton, p. 420.

324 Salter v. Rose, p. 984.

325 Bartholmew v. Ashton, p. 318. See Litigiousness, in this introduction.

326 Norman v. Salter, p. 131; Scottow v. Felton, pp. 317–318.

327 MackDaniel v. Hale, p. 818.

328 Ashton v. Gibbs, pp. 347–358; Edsall v. Johnson, p. 639.

329 Kelly v. Blower, p. 13; Francks v. Ely, p. 135; Dudson v. Darvall, pp. 385–387. Several instances of the same tort are given in Maine Province and Court Records, indexed under Crimes and Torts.

330 Jones v. Neylor, 471.

331 Stanton v. Trott, 242.

332 Keen v.

333 Sweete v. Gibbs, pp. 742–743; Danson v. Eliott, pp. 1086–1092.

334 Title Conveyances, Deeds and Writings, sec. 1, emphasized in Patten v. Winsley, at p. 381.

335 Cooke v. Broughton, at p. 66 (transaction in 1659); Clarke v. Nicholls, p. 99 (in 1673); Mead and Alcock, p. 456 (in 1673/4); Salter v. Checkley, at p. 580 (in 1674/5).

336 Title Conveyances, etc., sec. 2; Clarke v. Nicholls, at p. 99; Rawson v. Billings, at p. 546.

337 Bundy v. Tomlin, pp. 210–211; Glover Estate, at pp. 428–429.

338 J. H. Beale, “The Origin of the System of Recording Deeds in America,” Green Bag, xix. 335.

339 Cutler v. Cutler, p. 881.

340 Below, pp. 860–862.

341 Boseworth v. Morse, pp. 100–101.

342 Hiskett v. Paine, p. 318.

343 Below, p. 567.

344 29 Charles II c. 3, sec. 4 (1677). This did not apply in a colony unless expressly received there by act of assembly or usage. See 25 Geo. II c. 6, sec. 10 (1752).

345 Title Conveyances, Deeds and Writings, sec. 1. “Sale” as used here does not include a contract to sell.

346 Woody v. Harrison, pp. 651–656; Leverett v. Bullis, pp. 860–862.

347 Tower v. Hobart, pp. 507–508; Harrison v. Woddee, p. 528.

348 Cutler v. Jacob, p. 530.

349 Sheffield v. Harrison, p. 529.

350 Order to Joyliffe, p. 755.

351 Walker v. Ellis, p. 823; Addams v. Jay, p. 1052.

352 Sheafe v. Hawkins, pp. 1–3, continued on pp. 275–277, 564–565, 684, 705–706; Deane v. Gibbs, p. 725; Allen v. Emmons, p. 772; Stoughton v. Gilbert, p. 772; Tompson v. Simons, p. 909; Sheafe v. Salter, p. 1085.

353 Smith to Jones, p. 1026.

354 Hudson v. Daniel, p. 776.

355 Hill v. Obbinson, pp. 1094–1095.

356 Below, pp. 579–583.

357 Below, pp. 426–429.

358 Widow Bridgham, pp. 132–133; Governor Bellingham, pp. 230–231; Glover, pp. 428–429; widow Ward, pp. 1032–1033.

359 Patten v. Dyer, at p. 374; Patten v. Winsley, pp. 381–383; Holowells v. Butler, pp. 1029–1037.

360 Phippen Estate, p. 996.

361 Whitmore, Colonial Laws, 1672–1686, pp. 32, 157–158.

362 Statute of Frauds, 29 Charles II c. 3 sec. 5. This did not apply to the colonies, except as they accepted it.

363 Wills Act, 7 William IV & 1 Victoria, c. 26.

364 Title Wills, sec. 3, Whitmore, Colonial Laws, 1672–1686, p. 158. The statute was apparently enacted in this form in 1649, for the intestacy statute of 1641 (see Liberties 81, 82), incorporated in the Laws and Liberties of 1648, pp. 53–54, lacks these provisions, and merely specifies the rule for division among children which also appears in the revisions of 1660 and 1672 and is explained in the text. In England the distribution of personal property was not regulated by statute until 1670.

365 Examples are: Lorine Est., p. 119; George Est., p. 223; Marshall Est., pp. 225–226; Phippen Est., p. 996; Gallop Est., pp. 1015–1016; Clement Est., p. 1017; Winslow Est., p. 1067; Ward Est., pp. 1069–1070; Blackman Est., p. 1165; Clap Est., pp. 1167–1168.

366 It is arguable that the statutory clause, “where there are no Sons, the daughters shall inherit as Copartners,” gave the daughters nothing when there were sons. This would correspond to the division of land only among sons under the English custom of gavellcind, discussed below. But the cases in this book indicate no such discrimination against daughters. Every case cited in the preceding note gives equal portions to all children except the eldest son. To explain this result on the ground that there were only boys in ten families, several of them numerous, would outrage the law of probabilities. Indeed, Clap’s Estate, pp. 1167–1168, expressly mentions a daughter as well as sons. In the Probate Records of Essex County during our period, cases have been noted of daughters sharing with sons (ii. 258, 271, 279, 284–285, 307–308).

367 Andrews, “The Influence of Colonial Conditions as Illustrated in the Connecticut Intestacy Law,” Select Essays in Anglo-American Legal History, L 431 ff.; Morris, “Massachusetts and the Common Law,” American Historical Review, xxxi. 447–448, referring to Deuteronomy, xxi: 15–17, and questioning some statements of Andrews.

368 Blackstone, Commentaries, n. 79–89, 216.

369 Robinson, “Anticipations under the Commonwealth of Changes in the Law,” Select Essays in Anglo-American Legal History, i. 488–490.

370 St. 12 Charles II c. 24 (1660).

371 Poore, Federal and State Constitutions, Colonial Charters, etc., i. 933. See also, the Plymouth Charter of 1620, id., i. 926; the Provincial Charter of 1691, id., i. 947; E. P. Cheyney, “The Manor of East Greenwich in the County of Kent,” American Historical Review, xi. 29; V. F. Barnes, “Land Tenure in English Colonial Charters of the Seventeenth Century,” in Essays in Colonial History Presented to Charles M. Andrews, p. 4; Morris, Studies in the History of American Law (1930), pp. 103–120; and the report of the 1695 survey of theroyal manor of East Greenwich in Kimbell, An Account of the Legacies, etc., of the Parish of St. Alphege Greenwich (1816), pp. 183 ff.

372 Macdonald, Select Charters, 1606–1775, p. 10.

373 No. 10 (1641), Whitmore’s Bibliographical Sketch, p. 35; title Lands, free Lands, Colonial Laws, 1672–1786, p. 88.

374 Patten v. Winsley, at p. 381.

375 George Estate, p. 223.

376 Pratt Estate, p. 716.

377 Clarke v. Nicholls, pp. 5–9, 98–99; Clarke v. Lamb, pp. 1131–1136.

378 Simpson v. Salter, pp. 1040–1041.

379 Below, pp. 1064, 1096–1097.

380 Patten v. Dyer, pp. 373–376; Patten v. Winsley, pp. 377–384; Salter v. Checkley, pp. 579–583. See Index for other references.

381 Below, pp. 1029–1037.

382 Below, pp. 1104–1105.

383 Below, pp. 860–862

384 Below, pp. 1131–1136.

385 Below, pp. 821–822.

386 Glover Estate, pp. 426–433; Rawson v. Glover, pp. 472–473, 508–511; Rawson v. Billing, pp. 543–546.

387 Below, pp. 81, 109.

388 Below, p. 95.

389 Hudson v. Smith, pp. 592–594, 833

390 Whipple Estate, p. 939.

391. Chamberlayne Estate, p. 992.

392 Examples are: Bernard Est., p. 267; Curtice Est., p. 960; Smith Est., pp. 991–992; Tay Est., p. 994; Elkins Est., p. 1010.

393 Below, pp. 797–799

394 Rogers v. Rowste, p. 689.

395 Kent v. Smith, p. 128. Frankes v. Smith, p. 690.

396 Deane v. Perry, pp. 724–725

397 Keen v. Oxe, pp. 906–908.

398 A bond to pay a debt is reprinted on p. 171. Other examples are cited in this introduction, Sources of Law. Compare a bond executed in London, partly in Latin, on pp. 1003–1004.

399 Townsend v. Williams, pp. 1125–1126.

400 Examples are: Kellond v. Hudson, pp. 106–107; Richards v. Brackett, p. 107; Ashton v. Bonner, p. 167. On colonial resort to arbitration, see Morris, Studies in the History of American Law, p. 60.

401 Below, pp. 195–200.

402 Our Publications, vm. 150–185.

403 Whitmore, Colonial Laws, 1672–1686, pp. 93–100.

404 Our Publications, viii. 156; Charles M. Hough, Records of Cases in the Vice-Admiralty and Admiralty Courts of New York (1925); F. B. Wiener, “Notes on the Rhode Island Admiralty, 1727–1790,” Harvard Law Review, xlvi. 44; Marguerite Appleton, “Rhode Island’s First Court of Admiralty,” New England Quarterly, v. 148.

405 Below, pp. 250–252.

406 Whitmore, Colonial Laws, 1672–1686, p. 213.

407 Melyn v. Dudson, p. 364; Darvall v. Dudson, pp. 364–369.

408 Below, p. 369

409 See in this introduction, Attorneys and Magistrates, and Litigiousness.

410 Dudson v. Darvall, pp. 385–387.

411 Below, p. 413. Notice the Puritan uncertainty about the “Saint” in the records.

412 White v. Lemoigne, p. 988. Another prize-money suit by a “Griffin” seaman is Jackson v. White, p. 982.

413 White, pp. 994–995.

414 Sheafe v. Palmer, pp. 829–830; Smith v. Rand, pp. 621–624.

415 Flood v. Legg, pp. 858–860; Legg v. Flood, pp. 1054–1055.

416 Sprague v. Collins, pp. 18–20; Lidgett v. Collins, pp. 43–44.

417 Hollett v. Pelton, p. 1077.

418 Warren v. More, p. 824.

419 The William and Thomas, pp. 1068–1069.

420 Woode v. Chantrell, at p. 162.

421 Stuart and Ludden, pp. 407–408.

422 See Litigiousness, in this introduction.

423 Miller v. Risco, pp. 277–285.

424 Waldren v. Smith, pp. 135–139.

425 Davis v. Legg, pp. 504–507.

426 Wharton v. Elson, pp. 661–669

427 Alford v. Endicott, at p. 727

428 The Providence, pp. 250–252.

429 Below, pp. 31–36.

430 Below, pp. 901–903, 1119.

431 Below, pp. 279–280, 1119.

432 Below, pp. 471, 661–669.

433 Below, pp. 134, 858–860.

434 Below, pp. 277–278, 1117–1118.

435 Below, pp. 141–142, 157, 505, 622, 663–664.

436 Waldron v. Henderson, at p. 901.

437 Title Bills, enacted in 1647.

438 See Williams v. Woodbridge, pp. 767–770. However, judgments were not assignable, by title Judgments in the revisions of 1660 and 1672.

439 Examples are Mead v. Turner, pp. 36–43; Sharp v. Rider, pp. 359–363. It is not stated that these instruments were under seal.

440 Mead v. Turner, pp. 36–43.

441 Sharp v. Rider, pp. 359–363; Hunt v. Warren, p. 1170.

442 Rawson v. Cooke, p. 475; Paige v. West, pp. 1080–1083.

443 Wharton v. Elson, pp. 661–669.

444 Briggs v. Giffard, pp. 691–692.

445 Briggs v. Leverett, pp. 617–619.

446 Yeale v. Shoare, p. 326. 8

447 Lidgett v. Foote, p. 774.

448 Deane v. Hubbard, pp. 788–791.

449 Below, pp. 1080–1083.

450 An example is reprinted on p. 14. See Index under Bills and Notes.

451 Whitcomb v. Burnham, p. 21.

452 Jesson v. Bushell, p. 672; see in this introduction, Juries.

453 Whitmore, Colonial Laws, 1672–1686, pp. 120–121; see in this introduction, Equity.

454 Below, pp. 30, 295, 317–318.

455 Below, pp. 79, 1072.

456 See in this introduction, Negotiable Instruments.

457 Examples are found on pp. 47–48, 1137–1138.

458 Title Money, Whitmore, Colonial Laws, 1672–1686, pp. 117–119. See the discussion of money and payment in Maine Province and Court Records, ii. xi.

459 Below, pp. 60–62, 156–158.

460 Below, pp. 359–363, 1052.

461 Below, pp. 1123–1124.

462 Below, pp. 661–669.

463 Below, p. 910.

464 Below, p. 927.

465 See E. G. Baird, “Business Regulation in Colonial Massachusetts (1620–1780),” Dakota Law Review, m. 227.

466 Russell v. Barefoot, pp. 299–300; Snelling’s License, 559–560.

467 Lidgett, p. 117; Marsh, p. 339; Gilbert v. Matson, 796–797; other cases involving this industry are on pp. 313, 413.

468 Jenners Fined, Parkman Fined, p. 311.

469 Waldron v. Marshall, at p. 763.

470 Below, p. 126.

471 Below, p. 412.

472 Stanberry, p. 559.

473 Batt, p. 632.

474 Roberts, p. 602.

475 Whitmore, Colonial Laws, 1672–1686, p. 36.

476 Marshall, p. 86; Barefoote, pp. 86–87.

477 Reade, pp. 114–115.

478 Hannah, pp. 1153–1157.

479 Francis, pp. 555–556.

480 Holleday, p. 782.

481 Synderland, p. 600; Cannon, p. 604.

482 Phips, p. 887.

483 Noakes, pp. 308–310.

484 Knight v. Moulder, p. 274

485 Cittern, p. 189.

486 Baker, p. 939.

487 Langle, p. 959.

488 Gross, pp. 112–113; Robbinson, p. 302.

489 Norman v. Salter, p. 131.

490 Richardson, p. 23; Read, p. 24; Wainwright, p. 265; Butcher, pp. 896–897.

491 Gold, p. 184.

492 Chandler, p. 232

493 Gibbs, p. 304.

494 Meadore, p. 753.

495 Dove, Admonished, p. 785.

496 Title Tobacco, Whitmore, Colonial Laws, 1672–1686. p. 146

497 Below, pp. 937, 995.

498 Whitmore, Colonial Laws, 1672–1686, p. 233.

499 Hemenway Presented, p. 698; Roberts Admonished, p. 751.

500 Whitmore, p. 206.

501 Below, pp. 90, 92.

502 Below, p. 255

503 Below, pp. 116, 1101; Title Ballast, Whitmore, Colonial Laws, 1672–1686, p. 9.

504 Pray, p. 188; Hutchinson’s Presentment, p. 227.

505 Below, pp. 629, 675.

506 Our Publications, iii. 51 ff.

507 Hoppin, p. 89; Wainwright, p. 265; Chamberlin, p. 266; Wharton, p. 674; Marnel, p. 894. Read (p. 84) was imprisoned at hard labor at the court’s pleasure, but the place of confinement is not mentioned.

508 Smith, pp. 1101–1102.

509 The provisions for sale are too numerous to cite (see Index) and seem to become more frequent toward the end of our period.

510 Atherton, p. 956; Marshcroft, p. 995.

511 Examples are: Chandler Sentenced, p. 112; Decro, p. 938; White, pp. 994–995; Willistone, pp. 1160–1161.

512 Colcord to Thornton, p. 945.

513 Atherton, p. 151; Pitman, p. 890.

514 Mason Admonished, p. 150; Waldron v. Marshall, at p. 763; Waldron v. Bassett, at pp. 764–765; Marshall v. Waldron, at pp. 783–784; Whaley and Ranger, p. 1164; see also this introduction, Negligence.

515 Lincoln Fined, pp. 329–330; Gulliver Sentenced, p. 482; Tappin Fined, pp. 780–781. See Dudson v. Darvall, at p. 387; and the controversy about Waters’s horse and the obstinate Jesson, this introduction, Juries.

516 Tailor Sentenced, p. 88; Keyn’s Sentence, p. 235; Pollard, p. 1163.

517 Carr Sentenced, pp. 556–557.

518 Lawton, pp. 302–304, Curie, pp. 628–629; Barker, p. 886.

519 Hickson, pp. 442–443; Bed well, p. 443; Colcord, p. 943.

520 Below, pp. 84–85.

521 Below, pp. 231, 697, 302.

522 Brewster, etc., p. 843. See also Hawkins, p. 558; Wharton, p. 674; Gibbs, p. 677.

523 Below, p. 151.

524 Below, p. 674.

525 Below, p. 302.

526 For instance, Morton, pp. 521–522; Jinkins and Whitmarsh, p. 1068; Davis, pp. 1098–1099.

527 Below, p. 1157.

528 Below, p. 1100.

529 See topic Indians in index to Whitmore’s Colonial Laws, 1672–1686.

530 James Indian, pp. 112, 119.

531 Coweset Indian, pp. 147–148. John Indian, p. 148, also had a hair-cut.

532 Wickersham Commission’s Report on Lawlessness in Law Enforcement (1931), pp. 108–109.

533 Below, p. 23.

534 Sprague, p. 442; see Robbinson, p. 1101.

535 Whitmore, Colonial Laws, 1672–1686, p. 31; Harris, p. 24; Mason Admonished, p. 150; Ashton V. Gibbs, pp. 347–358; Stevens, p. 913; Toleman, p. 956.

536 Tuder, p. 26; Wiswall, p. 27.

537 Fairebanks, p. 257.

538 Whitmore, Colonial Laws, 1672–1686, pp. 31, 221.

539 Below, p. 350.

540 For instance, Read, p. 88.

541 Below, p. 89.

542 Below, p. 90

543 Below, p. 300.

544 Whitmore, Colonial Laws, 1672–1686, pp. 101–102, 130. See C. L. Powell, “Marriage in Early New England,” New England Quarterly, i. 323.

545 Whitmore, Colonial Laws, 1672–1686, pp. 101, 28.

546 Below, pp. 82, 107–108.

547 Below, p. 221.

548 Below, p. 258.

549 Below, p. 265.

550 Hall, p. 23; Pascoa, p. 108; Bragg, p. 119; Blake and Burrell, pp. 518–519; Cresey, pp. 779–780; Welden, p. 942; Whitmore, Colonial Laws, 1672–1686, pp. 101–102.

551 Below, pp. 720, 811

552 Below, p. 943.

553 Below, p. 943.

554 Below, p. 232.

555 Below, p. 150.

556 Below, p. 1158.

557 Below, pp. 754–755, 837–841.

558 Below, pp. 442–443. See Wharton and Gridley, p. 914; Knight and Forrest, pp. 1023–1024, 1161.

559 Below, pp. 809–810. See under Equity, in this introduction, for modern Parallels.

560 Examples of this frequent offense are: Egerton, p. 22; Wheaton, pp. 23, 80; Middleton, pp. 90–91. Sometimes the public acknowledgment was omitted: Collicott, p. 114; Hall, pp. 23, 119.

On this topic and its relation to common-law marriages, see Powell, in New England Quarterly, i. 323, giving similar cases in Plymouth Colony: H. B. Parkes, “Morals and Law Enforcement in Colonial New England,” id., v. 431; Parkes, “Sexual Morals and the Great Awakening,” id., iii. 133; Maine Province and Court Records, ii. xliii.

561 Below, pp. 82–84, 126, 266.

562 Kent v. Smith, p. 128; Smith, pp. 149–150; Smith v. Kent, pp. 164–165; Smith, pp. 185–186; Blacklock, pp. 189, 237.

563 Below, pp. 185–186, 189. See Carpenter, p. 91.

564 Below, p. 914. See Wharton, p. 674.

565 Wheeler and Peirce, p. 443.

566 Below, p. 941. For other instances of misconduct by wives, see Moxon, p. 94; Veering and Smith, p. 233; Hickson and Bedwell, pp. 442–443; Blake and Burrell, pp. 518–519; Morton, pp. 521–522; Ockerly and Langberry, pp. 604–605; Wharton, p. 674; Gill, p. 941; Forrest and Knight, pp. 113–114, 237, 1023–1024, 1161.

567 Plumm, pp. 125, 185; Sprague, p. 424; Dobleday, p. 626; Jay, p. 697; Messenger and Hews, pp. 912–913; Jinkins and Whitmarsh, p. 1068.

568 Hawkins and Fogg, p. 558

569 Man, p. 807.

570 See under Evidence, in this introduction.

571 Below, pp. 91, 254, 939, 1012.

572 Warro, p. 113; Judkin, pp. 183–184; Mason, p. 185; Rock’s Negro, p. 232; Jasper and Joan, p. 233; Miriam, Morea, p. 809; John Negro, p. 1067.

573 Bradford, History of Plymouth Plantation, (ed. 1912) ii. 309.

574 Fiske, p. 28.

575 Gillam, p. 118; Chamberlin, pp. 253, 594–595; Shippin, p. 917.

576 Below, pp. 256–257; see p. 597.

577 Below, p. 257; see p. 182.

578 Below, pp. 438–439, 441, 487–489, 599, 630, 677, 753, 997.

579 Below, pp. 438–439, 599. See Index for his other cases.

580 Below, p. 487.

581 Title Provoking Evils, Whitmore, Colonial Laws, 1672–1686, p. 234.

582 Matson, p. 753.

583 Below, pp. 677, 997.

584 Below, p. 519.

585 Lopez v. Howe, 259 Federal Reporter, 401 (1919).

586 Below, pp. 86–87; 144–145; Whitmore, Colonial, 1672–1686, p. 14.

587 Chafee, The Inquiring Mind, pp. 110–116. Both prosecutions failed.

588 Platts, p. 645; Evered, p. 868.

589 Order, p. 646

590 Stretton, p. 867; Newcomb, p. 307. See also pp. 307, 598, and Index.

591 Below, pp. 120, 867, 942.

592 Webb, p. 28

593 Below, pp. 305–306.

594 Below, p. 843. Another South Church case is Hill, p. 940. See also Adams, p. 596.

595 Newcombe, pp. 695–697.

596 Carteret v. Petty, 2 Swanston 323 (1675).

597 Title Courts, sec. 8, in Whitmore, Colonial Laws, 1672–1686, p. 37.

598 Id., p. 207.

599 Below, pp. 153, 178–180.

600 Below, p. 624.

601 Whitcomb v. Burnam, p. 10. On the history of foreign attachment, which was derived from the custom of London, see Beale, “The Exercise of Jurisdiction in rem to Compel Payment of a Debt,” Harvard Law Review, xxvii. 107.

602 Warner v. Franklyn, pp. 1055–1056.

603 Below, pp. 27–28.

604 Harding and Tillinghast, p. 519; Hyde, p. 677.

605 Simmons, pp. 808–809.

606 Evered, p. 868.

607 Usher v. Timberlack, pp. 154–155.

608 Usher v. Timberlack, pp. 154–155.

609 Dinely v. Steenwick, pp. 166–173; Keen v. Dafforn, pp. 1123–1124.

610 Hutchinson v. Paine, pp. 530–536; Purkis v. Winder, pp. 1002–1005.

611 Hunt v. Warren, p. 1170.

612 Lamb v. Williams, p. 1051.

613 For instance: More v. Jones, pp. 156–158; Miller v. Risco, pp. 277–285; Snith v. Rand, pp. 621–624; Darvall v. Dudson, pp. 364–369; White v. Lemoigne, p. 988; Davis v. Legg, pp. 504–507.

614 Sweete v. Gibbs, pp. 742–743.

615 Dudson v. Darvall, pp. 385–387. See also Wensley v. Davis, pp. 856–857.

616 Danson v. Ellitt, p. 1123.

617 Below, p. 600.

618 Below, pp. 628–629.

619 Matthews, p. 436; Combes, pp. 436, 440–441; Cann, p. 439.

620 Sharp v. Rider, pp. 359–363.

621 Below, pp. 680–682.

622 Below, p. 1106.

623 Temple Est., pp. 476–477; Price Est., pp. 479–480; Howlet Est., p. 871; Elkins Est., p. 1010.

624 Whitmore, Colonial Laws, 1672–1686, p. 158; Deacon Est., pp. 29–30; Biggleston Est., p. 188.

625 Below, pp. 726–735.

626 Macdonald, Select Charters, 1606–1775, p. 99.

627 Below, pp. 193, 219, 225, 524.

628 Below, pp. 560–561.

629 Danson v. Eliott, pp. 1086–1092.

630 Below, pp. 347–358.

631 Below, pp. 680–682.

632 The earliest example of the verb “chancer” in the New English Dictionary is dated 1798. See earlier examples in the Nation, lxxiv. 12 (N. Y., 1901).

633 Son of Sir John Davie, Bt., and father of John Davie, Harvard, A.B. 1681, who was informed of his succession to the baronetcy when working on his farm in Groton, Connecticut.

634 Height. See New English Dictionary, “Chief,” sb.9.

635 Father of the Captain John Bonner who made the first engraved map of Boston. 5 Mass. Hist. Soc. Coll., VI. 134, 318; VII. 370.

636 Lawton, in the case to which this belongs.

637 The frequent mention in this case of Lex Mercatoria refers to a well-known English legal treatise, Consuetudo vel Lex Mercatoria, or The Ancient Law-Merchant, by Gerard Malynes. First published in 1622, this book went through several editions during the seventeenth century. A comparison of Turner’s references in the text shows that he used the latest edition, that of 1656. A popular legal tract, Advice Concerning Bills of Exchange by John Marius, was bound in with this edition. Several of Turner’s references in the text are to the Advice of Marius, and not to the treatise of Malynes.

638 This refers to the common practice of giving bills of exchange in sets of three, only one of which was to be paid; this was to allow for possible losses of one or two bills in transmission.

639 This would have been true of a regular bill of exchange payable at a specified date, but the law required a bill payable “after sight” to be accepted in writing because only thus would the date for payment be made definite on the instrument.

640 On 20 July, 1662, Lord Windsor, Governor of Jamaica, appeared at Barbados in command of a fleet, seeking recruits to settle his own colony. Owing to his royal backing the Barbadian authorities were unable to prevent him from carrying off sundry indented servants and debtors. V. T. Harlow, History of Barbados, p. 139.

641 “If any man be proved, and judged a common barrater, vexing others with unjust, frequent & endles suites, it shall be in the power of the Court, both to reject his cause, and to punish him for his Barratry.” Act of 1641, in The Book of the General Lawes and Libertyes (1660), p. 5.

642 An ancient English form of conveyance, which did not require a deed or a record. The two parties went to the actual piece of land that was to be conveyed, in company with whatever freemen they could collect, and the grantor, after describing the bounds in presence of the witnesses, gave livery and seizen by handing to the grantee a bit of turf from the land, or a stone, twig, or some such symbol.

643 This Checkley (1609–1685) was not the father nor any relation to the Anglican controversialist of the same name—see New England Historical and Genealogical Register, n. 350.

644 Copyist’s error for Sedal, i. e., Schedule; also printed Cedal in this same document. The soft pronunciation of the sch in Schedule still prevails in England.

645 Pages 29 and 30 are wanting.

646 The list of judges is wanting for this session.

647 A corruption of “portage,” which originally meant a seaman’s privilege or space allowed him for goods on his own account. When this mode of recompensing a sailor became obsolete, the word “portage” was used for seamen’s wages. A portage bill means “the register or account of the names and claims for wages, allowances, etc., of the crew of a ship.” A blank “Portage Bill” issued by a Boston stationer about the year 1901 is before me as I write. See New English Dictionary under “Port, sb.¹ 4,” and “Portledge”; the examples there given were furnished by our associate, Albert Matthews.

648 Winscal Point, probably identical with Schoodic Peninsula at the eastward side of Frenchmans Bay, Maine, is shown on the eighteenth-century editions of the English Coast Pilot for that region. See illustrations in our Publications, xxvii. There is a Wonsqueak Harbor on the modem government charts of Schoodic Peninsula.

649 Moosepeak or Moosabec Reach, in eastern Maine.

650 The son of Governor Leverett and father of President Leverett.

651 Beginning at this point the records are in the handwriting of Isaac Addington, Freegrace Bendall having taken his departure for Madeira according to the permission granted by the Court, above, p. 121.

652 “Due for primage 5^s 7^d” in margin.

653 John-a-nokes and John-a-stiles were fictitious names for parties in a legal action.

654 Nominy Creek or River, on the Virginia side of the Potomac. A place at the mouth was made a market town by act of the General Assembly in 1691. Nominy Hall on the Creek was the seat of “King” Carter.

655 Possibly a copyist’s error for “January ye 23th.”

656 The reference is to The Generall Laws and Liberties, 1672, p. 152.

657 See note to Lawton v. Bonner at the special court of August, 1672, above, p. 153.

658 A quotation of the Body of Liberties, incorporated in the Book of the General Laws and Libertyes, 1660 and 1672 editions. It is true that the law of October 8, 1672, changing the rules about strangers’ suits, was not published within a year of its enactment. Colonial Laws of Massachusetts, Reprinted from Edition of 1672, p. 207.

659 The reference is to The Book of the General Lawes and Libertyes, 1660. “For as much as the bounds of townes, and of the lands of particular persons, are carefully to be maintained, & not without great danger to be removed by any, which notwithstanding by deficiency & decay of marks, may at unawares be done, wherby great jealousies of persons, trouble in townes, & incumbrances in Courts doe often arise, which by ane care & meanes might be prevented. It is therefore Ordered by this Court & Authority thereof; That every towne shall sett out their bounds, within twelve months after their bounds are graunted. And that when their bounds are once sett out; once in three yeares three or more persons of a towne, appointed by the Select men, shall appoint with the adjacent townes, to goe the bounds, betwixt their said townes, & renew their marks; which marks shall be a great heape of stone, or a trench of six foot long & two-foot broad, the most ancient towne to give notice, of the time & place of meeting for this perambulation; Which time shall be in the first or second month, upon paine of five pound for every towne that shall neglect the same; provided that the three men appointed for perambulation shall goe in their several quarters, by order of the select men, and at the charge of the several townes.”

660 Deputy-Governor Leverett.

661 Deputy-Governor Leverett.

662 Probably a copyist’s error for Angels. “Having treated of Gold at large, I am now obliged to say something concerning the Gold Weights; which are either Pounds, Marks, Ounces, or Angels. In Europe twenty Angels make one Ounce, though here but sixteen go to an Ounce.” William Bosman, A New and Accurate Description of the Coast of Guinea, London, 1721 (2nd ed.), p. 75. We are indebted to Professor Leo Wiener for this reference.

663 “7. And every person or persons whatsoever, that shall revile the Office or person of Magistrates or Ministers, as is usual with the Quakers, such person or persons shall be severely whipt, or pay the sum of five pounds.” The General Laws and Liberties, 1672, p. 61.

664 The case of Hawkins v. Sheafe, which should follow at this point, will be found on p. 1171, below.

665 Probably “actions,” as in the third line below where “accounts” was corrected to the present reading.

666 The term “father-in-law” here means step-father.

667 Perhaps quoted from Coke, who often uses the maxim, e. g., 4 Reports 47a.

668 Then a part of the “Rehoboth North Purchase” which Thomas Willet and associates purchased of Massassoit’s son Alexander in 1661. A traveller in 1704 “Got to y^e House of old Woodcocks, now Inhabited by one Slack, at Attleberry, w^r we stopt y^e Heat of y^e Day.” 1 Proceedings Massachusetts Historical Society xiii. 250. It was half a day’s journey from Billings’s tavern in Dedham.

669 See Hutchinson v. Blake, above, p. 271.

670 Gap in pagination here, although no pages of the manuscript are missing.

671 Cape Newagen, Maine?

672 New Orange (Albany), or New York.