John Clark, Esq., Justice of the Peace, 1667–1728
For us in America, even more than in England itself, the courts of common law have become the guardians of constitutionalism. Its source, far more than we have realized, may be found in another kind of court—the courts of neighbors, the “little commonwealths,” which preserved an ancient experience that most Englishmen had shared.
John P. Dawson
THE Boston Weekly News-Letter for the week ending 12 December 1728 reported:
On Thursday Night of the 5th of this instant December, died here after long indisposition the Honorable John Clark Esq. about 61 Years old; he was made a Justice of Peace June 7, 1700, sometime since was Elected One of His Majesties Council of this Province and is to be interred on Saturday next the 14th.
Apart from his will,
There are a few other facts to be gleaned from surviving records. Clark graduated from Harvard in 1687; his senior oration was entitled, “An Morborum Sedes Sit Anima Sensitiva.”
John Clark’s life was very much like, and yet contrasts with, that of a close contemporary, Cotton Mather. Mather lived from 1663 until 23 February 1727/8, almost exactly the same lifespan as John Clark. They both resided in the north end of Boston, and John Clark belonged to Cotton Mather’s church, the North Meetinghouse. Mather mentioned Clark in his diary occasionally. He was identified as being on several special committees having to do with repairing the meetinghouse.
The major element of contrast, evident in the Journal of the House of Representatives of Massachusetts,
Once Clark’s rise to political prominence was achieved, it continued nearly to the end of his life. He was named a justice of the peace on 7 June 1700.
Clark’s political position in the ongoing fights between the Governor and the House of Representatives of this period is shown by the Journal report of Clark’s election as Speaker after Shute’s rejection of him as a councillor:
A Message from his Excellency by Mr. Secretary, in the words following, Viz I Accept the Choice of John Clarke Esqr as Speaker of the House of Representatives.
August 23d 1721 Samuel Shute Ordered That the said Message be Returned by Mr. John Fortes, and that he inform his Excellency, that this House, when they sent up to Acquaint his Excellency, and the Honorable Board [Council], with the Choice of a Speaker, they did it for Information only, and not Approbation.
Not surprisingly, the first Amendment to the Second Charter, included in King George’s Explanatory Charter of 1726, provided that a Speaker chosen by the General Court must be presented to the Governor “for his Approbation.”
There are other bits of evidence which demonstrate Clark’s adherence to the “popular party.” Clark and Cooke were frequently elected together and Cooke succeeded Clark as Speaker. Clark is identified as being a member of the numerous committees appointed by the General Court to audit the province’s financial affairs, including the validity of muster rolls.
These facts and the will were all we previously knew about John Clark. But, by great good fortune, it has recently been discovered that Clark also left a 269-page judicial book, still in private hands, which contains 1,379 entries describing his actions as a justice of the peace from July 1700 until December 1726. The book may be akin to an official record, for it does not contain a single personal comment or reference. The litigants’ names are listed first; the dispute described; the disposition entered; moneys received are noted; and occasionally the legal issue applied in a case is adumbrated. The book appears to have been kept chronologically and contemporaneously; only an occasional entry is out of order.
After spending considerable time with a book such as Clark’s, one is tempted to overrate its importance. As a record describing the activities of a busy justice of the peace in the fairly stable, legally speaking, period of the second charter, it is unique. It permits some evaluation of social developments in Massachusetts in the provincial period. Finally, it is a document which allows one to assess, probably as well as any eighteenth-century legal materials, the performance of a true lay judge. Clark was a physician, a commercial figure, the owner of several parcels of real estate, and, as just described, a politician of some eminence. He was not a lawyer, and there is no evidence that he had any legal training or access to any legal materials, such as a copy of Lambard’s Eirenarcha: or of the Office of the Justice of Peace or Dalton’s The Countrey Justice.
10. Title Page, Book of Records belonging to John Clark (1667–1728), Justice of the Peace, Suffolk. Courtesy, Collection of James A. Henderson, Jr.
A. A Justice of the Peace
Those who have read the judicial book
Justices of the peace, like John Clark, were selected by the royal governor. Although there is no direct evidence on Clark’s appointment, the Governor presumably acted on the advice of his council in judicial appointment matters, as provided in the Charter.
The large number of matters handled by John Clark, particularly in the years 1710 to 1720, in relation to the Boston population which Carl Bridenbaugh has estimated at 9,000 in 1710 and 12,000 in 1720,
Being a justice of the peace may not have been the road to wealth in colonial Boston, but the fact that it did produce income can not be ignored. A justice of the peace seems to have derived income primarily from his issuance of “process-type” papers. Chapter 18 of the Province Laws, passed on 22 October 1694, provided that a justice should receive a fee of one shilling for issuing a writ in any case to be tried before a justice.
Chapter 21 of the Province Laws of 1700–1701 required a justice to account for and pay over all the King’s fines to the receiver-general of the province once every six months. The penalty for failure to file this account in a timely fashion was five pounds.
When finally paid, not all fines were awarded to the King. For instance, upon conviction of a single offense of profane cursing or swearing, an individual had to pay a fine of five shillings to the “poor of the town” or sit in the stocks.
Another source of revenue for a justice of the peace was his perforrnance of certain functions which were not likely to be recorded. Chapter 21 of the Province Laws of 1697 provided that a deed “be signed and sealed . . . and acknowledged . . . before a justice of the peace. . . .”
It is probable that some of John Clark’s activities as a justice were uncompensated. For instance, he recorded on 21 March 1701 the swearing of Benjamin Frame of Boston as a constable.
In sum, although the financial dimensions of being a justice of the peace are not completely clear, the position seems to have provided an opportunity for earning some income. Some income might have been direct and legal, like fees for services. Other income might have been attributable to “borrowing” or using fines due the Crown or local authorities until such time as they had to be accounted for.
B. Crime
The English justice of the peace was primarily associated with criminal justice. Books of authority contemporaneous with John Clark’s activities, such as W. Nelson’s Office and Authority of a Justice of Peace (1721), J. Shaw’s The Practical Justice of Peace (1728), or Dalton’s are mainly concerned with crime and what is labeled below as regulatory offenses.
John Clark’s book, by contrast, indicates that his activities were largely civil. In his twenty-six years as justice of the peace, he reported 264 criminal matters and 455 civil matters.
Even though Clark’s activities involved primarily civil matters, his criminal jurisdiction was nonetheless important. As a justice of the peace, Clark tried and decided the merits of four major classes of offenses: (i) theft and receipt of stolen goods, (ii) breach of the peace, (iii) speaking profanely, and (iv) libel or false reporting. In addition, he handled four other classes of offenders in his capacity as an officer empowered to grant recognizances: (i) sexual offenders, including fornication and bastardy, (ii) suspicious or threatening individuals, (iii) Sabbath breakers and other blasphemers, and (iv) people indicted by the Suffolk County grand jury.
Theft accounted for approximately one-tenth of Clark’s criminal business. As a single justice of the peace, he was authorized to decide a theft if the “damage” caused did not exceed forty shillings.
Peace offenses comprised over half of Clark’s criminal jurisdiction. The range was large, from “rioting” to family quarrels, with one-on-one assaults being the norm. One of the more serious “peace” cases in the book
Various punishments were available in peace cases,
A modest proportion of the peace offenses was related to drunkenness, technically a separate crime from breach of the peace.
Convictions for profane cursing or swearing constituted the second largest number of criminal matters, 79 out of 264. Chapter 18 of the Province Laws of 1692–1693,
Sept. 7 [1701] William Cavet resident in Boston Mariner convicted before me John Clark Justice of the Peace of prophane cursing and swearing five times. Ordered to pay nine shillings as a fine to the use of the poor of the town of Boston or to set in the stocks two hours received 9s.
This entry shows that Clark adhered to the rules on the fines, but it does not reveal by which evidentiary method Cavet was convicted. The “before me” referred to the conviction, not hearing the actual profanation. Clark’s failure to describe the method of proof contrasts with his care in reciting the basis of proof in a civil debt and contract matter, to be discussed later, in which a defendant failed to appear.
Knowledge of the incidence of profanation offenses in Massachusetts in the period of turbulent economic growth from 1700 to 1730 would be very interesting to a social historian. One might expect concern with such matters to diminish during the period of Clark’s book. Unfortunately, no sure conclusion based on the book alone is possible. Since the book trails off beginning in 1721, as Clark’s political and other activities took perhaps more of his time, it would be impossible even to guess about the frequency of profanation prosecutions. There is always the possibility that Clark might personally have held a particular position on the crime itself, favoring or disfavoring it by his issuance of process papers. In spite of these caveats, the book does give the reader the impression that profanity was receding as a social concern.
Section 7 of Chapter 18 of the Province Laws of 1692–1693 made it a crime for “any person . . . of the age of discretion ( . . . fourteen years or upwards) wittingly and willingly [to] make or publish any lye or libel, tending to the defamation or damage of any particular person . . . , [or] make or spread any false news or reports with intent to abuse and deceive others.”
One sensitive libel case
A Massachusetts justice of the peace was more than a trial judge for petty criminal and small civil actions. He handled the equivalent of bail hearings for individuals charged with crimes beyond his jurisdiction. Although technically within Clark’s jurisdiction, the case involving Governor Dudley, just mentioned, is an example. More often, a justice usually determined a bail equivalent on matters clearly placed by statute beyond his jurisdiction. Sexual crimes comprised the largest class of criminal cases in which John Clark had to obtain security for the appearance of an accused person in another court. Massachusetts law placed fornication and bastardy within the jurisdiction of the general sessions of the justices of the peace.
A typical case
A second class of isolated recognizances, those not linked to appeals of matters previously decided by John Clark, involved people thought to be suspicious or threatening. Modern police practice is not as aggressive as that of colonial Massachusetts in this regard. On several occasions citizens brought before Clark individuals who, they alleged, had been threatening people. In each case Clark would require the accused to find sureties in a significant amount. For instance, on 24 July 1706 Joseph Callender, a Boston tailor, sought protection from Thomas Hunt, a Boston turner.
The ability to bind over a defendant indefinitely and without a specific accusation was linked to a justice’s right to issue the ancient recognizance of the peace. The author of the 1705 edition of Dalton’s explained in twenty-three pages
The third class of recognizances involved Sabbath breaking and other actions which bordered on blasphemy. Early on, Massachusetts made blasphemy a capital crime.
Finally, recognizances were imposed to guarantee appearances to answer various presentments by the grand jury. By far the largest number of grand jury presentments which led to recognitions before Clark involved the unlicensed selling of alcoholic beverages. These will be discussed in the next section as part of the regulatory responsibilities of the justice of the peace. Another significant group of presentments involved allegations of fairly serious religious deviance. John Green, a Boston schoolmaster, was brought before Clark and Samuel Sewall, another justice, to post security to appear and answer a charge of “composing and publishing a mock sermon full of monstrous prophaness and obscenity. . . .”
Sewall reported in his diary for 22 and 23 February 1711–12 that the case against Green had commenced when a Mr. Pemberton complained to him. Sewall went to “Dr. Clark’s” the next morning because “his house [was] amidst the people concerned.” Together Sewall and Clark “stop’d Green’s Lying mouth.”
Although it is not possible to learn a great deal about the grand jury in Boston from the recognizances in Clark’s book, a few observations can be made. First, since Clark’s book shows thirty-five recognizances generated by grand jury presentments, it seems reasonable to conclude that the grand jury was active in Boston during this period. Second, the grand jury seems to have acted on noncapital matters only if they involved cases outside the jurisdiction of a single justice of the peace. Third, some matters, like fornication, which could be formally initiated by a summons, sometimes commenced with a presentment. There is no explanation why some commenced one way and others did not.
This third description is illustrated by the case of Eliza Faulkner, a Boston widow, who was required on 23 June 1707 to make a recognizance and find a surety to answer before the general sessions “a presentment of the Grand Inquest for . . . the County of Suffolk for being guilty of uncleaness with Dr. Hewes at the House of the widow Midwinter of Boston.”
To summarize, John Clark’s criminal business was about one-half the magnitude of his civil business. The majority of the crimes were theft and peace offenses, and the rest a mixture of religious and morality offenses. In addition to trials, Clark acted to secure the appearance of individuals charged with more significant crimes either upon a private complaint or a grand jury presentment.
As anyone familiar with modern criminal law will attest, the substantive criminal law is only one part of any system for identifying and punishing crime. A source of great modern concern has been pre-trial and trial procedure. Unfortunately we can glean very little about these matters from Clark’s book. One thing is clear; justices of the peace relied heavily on local constables to operate their courts. Clark fined two people for resisting a constable
Justices of the peace were authorized to grant warrants to search for stolen or illegally imported goods.
John Clark’s book provides more insight into the disposition of cases than pre-conviction procedure. One fact is startling by modern standards: every criminal case reported in the book ended in a conviction. Since Clark did report the occasional victory by a defendant in a civil matter, it is possible that the absence of findings of innocence may indicate that each person charged criminally was convicted. On the other hand, it may have been a record-keeping convention not to enter findings of innocence since there were no fines to be reported and thus they had no record-keeping significance.
In the vast majority of cases the defendants were punished with fines. The size of the fines depended on the relevant statutes. Clark seems to have imposed fairly low fines, viewed from the allowable limit. This may help explain the startlingly low level of criminal appeals.
In the rare instance in which a defendant could not pay his fine, Clark would substitute, depending on the case, a whipping, a night in jail, or some other punishment of public humiliation. There are only two cases in the book in which Clark ordered a whipping without mentioning a fine; one involved an Indian defendant
John Tunagain Indian convicted of drunkeness and prophane cursing three times the last night ordered to pay five shillings for cursing or to be whipt publicly ten stripes and to pay costs of prosecution. Standing committed till the sentence be performed.
A number of convicted individuals were committed to jail pending payment of their fines, but in most cases John Clark’s book notes receipt of the fine assessed. “Costs” are occasionally assessed in criminal matters, as in the Tunagain case, but the elements and amount are not specified.
It has been noted that Clark tended to fine in the lower ranges of what the law permitted. On one occasion when Clark imposed the maximum fine, a case of selling liquor without a license, he wrote that it was Margaret Johnson’s “second conviction.”
A. criminal defendant aggrieved by the decision of a single justice of the peace could appeal for a new trial to all the justices gathered at the general session.
The deeper social facts about the jurisdiction of a single justice of the peace are hard to learn from Clark’s book. Who was involved in Clark’s court and what was the geographic and sociological domain of his criminal litigants? As mentioned previously, Clark lived in the north end of Boston. If a Massachusetts justice of the peace of this period was a truly local figure, then one might suppose that Clark handled cases with a locus in the north end. There is some support for this in the book. All of the precise geographic locations within Boston mentioned in the book were near Clark’s home. Scarlet’s Wharf is mentioned in two cases;
Unfortunately the precise location of most crimes is not mentioned and all that can be confidently stated is that the defendants and victims were overwhelmingly from Boston.
Somewhat more can be said about the social status of those who were involved in Clark’s criminal jurisdiction. In general, the book seems to support the notion that criminal defendants either had no profession or occupied what can easily be identified as lower status positions, like mariners or laborers.
In addition to being overwhelmingly of low occupational status a number of criminal defendants were black; some were identified as freemen, most were referred to as servants, and one was called a “slave.” Most of the matters involving blacks were theft offenses and, as mentioned earlier, Clark’s punishments seemed harsh.
One of the well-known local policies from the earliest settlement of colonial Massachusetts was the prevention of idleness.
all rogues, vagabonds and idle persons going about in any town or county begging or persons using any subtle craft, juggling or unlawful games or plays, or feigning themselves to have knowledge of physiognomy, palmestry, or pretending that they can tell destinies, fortunes or discover where lost or stolen goods may be found, common pipers, fidlers, runaways, stubborn servants or children, common drunkards, common nightwalkers, pilferers, wanton and lascivious persons, either in speech or behavior, common jailers or brawlers, such as neglect their callings, mispend what they earn, and do not provide for themselves or the support for their families.
In one case John Clark committed Lucy, a black servant of a Mrs. Moor of Boston, to the house of correction for fortune telling.
Blacks were occasionally identified as victims before Clark. In five cases
The two largest racial minorities in Boston in 1700 were blacks and Indians. Only a few of Clark’s criminal cases involved Indians. They were mostly peace matters and one interesting theft case:
Dick an Indian man servant to Mrs. Leach convicted of stealing cabbages from Captain James Grant at the north end of Boston the cabbage being returned with which said Grant being satisfied. Ordered that the said Dick be whipt ten stripes at the public whipping post in Boston.
This is the only entry in the book in which Clark mentioned that he meted out a punishment greater than what had been sought.
Beyond the foregoing, there is not much which can be confidently said about the status of the criminal litigants. There is one case
C. Regulatory Offenses
A Massachusetts justice of the peace was not just a judge. As a magistrate, he performed numerous executive functions. The records of Boston’s selectmen for the years of John Clark’s justiceship refer to numerous meetings among Boston’s justices of the peace in session and the selectmen. William E. Nelson has written that a county’s sessions court “was, in effect, the county government.”
The records of the selectmen list the justices who attended and, as compared with Samuel Sewall and others, Clark came infrequently. Some of Clark’s appearances seem attributable to his position as a physician rather than his justiceship, but one cannot be sure. For instance, the selectmen asked that:
11. Entries, 7 May to 14 May 1711, Book of Records belonging to John Clark, Justice of the Peace, Suffolk. Courtesy, Collection of James A. Henderson, Jr.
John Clark, Esq. . . . goe on board his majesties Ship Seahorse and Report in what State of health or sickness the Ships Company are in, Especially with respect to Smal Pox or other Contagious Sickness.
A later entry disclosed
The primary executive role of the justice was to act on, or participate in, the administration of various matters of a regulatory nature. For instance, the justices and selectmen agreed on 31 January 1723/4 that various of them, including John Clark, Esq., inspect within their assigned parts of town on 14 February “Disorderly Persons new Comers the Circomstances of the Poor and Education of their Children etc. and to meet at the hour of five of the Clock of the Evening . . . ,”
These regular inspections involved the justices directly. They were less directly involved in the licensing of innholders to serve strong drink. The selectmen did this at least annually,
Rebeccah Philpot recognized in the sum of five pounds on condition that she shall appear before her majesties Justices of the Peace at their next sessions by adjournment on the last Monday of this current August to answer to a presentment of the Grand Jury for selling drink by retail without license.
Clark decided a number of liquor sales cases generated by informations
Justices of the peace were supposed to work with local officials to ensure that a ready militia, composed of companies organized around individual officers, was maintained. Chapter 3 of the Province Laws of 1693–1694 established an elaborate system for raising the militia,
Several matters which are quite significant in the records of the selectmen and the separate records of the town have no analogue in Clark’s book. A frequent topic of concern with the town was the arrival of people likely to need poor relief.
Another set of issues frequently discussed by the justices with the selectmen at their joint meetings, but not reflected in Clark’s book, are those involving highways, town property ownership, and boundary matters. Thus the decision made by the justices together with the selectmen on how to compensate people whose homes were blown up to stop an advancing fire on 9 October 1710 had no single-justice aspect.
Clark handled some purely ceremonial municipal matters. He swore in an occasional municipal officer: John Brockus, as military clerk of Colonel Samuel Checkley’s company,
The remaining regulatory matters recorded by Clark constituted violations of numerous petty municipal ordinances. John Prichard was fined twenty shillings for buying a turkey on Boston Neck on 7 January 1714/15.
D. Civil Matters
The civil jurisdiction of a Massachusetts justice of the peace was stable and substantial throughout the period of John Clark’s justiceship. It extended to “all manner of debts, trespasses and other matters not exceeding the value of forty shillings (wherein the title of land is not concerned).”
The first major class of civil matters involved confessions of judgment:
March 24 [1701] John Tuckerman of Boston Cordwainer acknowledged Judgment against his person and estate for the sum of twenty-one shillings due to John Coomer Junior of Boston Pewterer.
April 15th Execution Granted.
The book contains sixty-three such acknowledgments, nine of which have subsequent executions noted, like Tuckerman’s. Not much can be gleaned from the confessions except that their number suggests that creditors knew enough of the English practice to understand that a confessed judgment provided a quicker and surer remedy than a regular law suit.
By contrast, civil proceedings for the collection of a debt or contract-type damages reveal a good deal of interesting legal information. In supporting the prosecution of a number of these cases, bills of exchange or notes were introduced as evidence. The existence of a bill or note was usually revealed in cases which threatened to go by default.
January 2. Christopher Webb of Boston Tailor plaintiff versus John Wakefield of Boston Shipright defendant. Default. The defendant not appearing the plaintiff produced a bill for 40 shillings endorsed accepted by the defendant. Whereupon I give judgment that the defendant pay to the plaintiff the sum of 40 shillings money sued for and cost of suits 6/. Execution issued January 4.
In one of the defaulted bill of exchange cases, Clark noted that the defendant had been “thrice called.”
In most debt or contract-type matters there was nothing as damning against the defendant as a signed note or bill. If the defendant failed to appear, the plaintiff generally would produce and swear to a “book” or account. An entry for 11 September 1701 is illustrative:
Elijah Doubleday of Boston Butcher petitioner versus John Chadwick of said Boston sailor defendant in a plea of the case for the value of eighteen shillings and six pence due by book for meat sold him and the defendants not appearing at the time and the petitioner making oath to his book Judgment is granted by Default for 18s and 6d and costs of suit.
In some cases this pattern varied slightly; the wife of the petitioner
Evidence in Clark’s book suggests that books and accounts formed the evidentiary basis for most contract and debt-type proceedings, not just defaulted cases. Thus, in a contested case
A number of civil matters involved collection of contract damages. Several cases reveal that the petitioners would estimate the liquidated value of performance in a contract case and sue for that amount. Clark, on several occasions, ordered payment of the liquidated sum or, as an alternative, partial or complete performance.
The most enduring debate about colonial legal history has been over the extent of, and methodology by which, English common law was received in Massachusetts. A few tantalizing references in Clark’s civil cases seem to show that Clark and his litigants were familiar with some common law terminology. A number of the contract-type actions were referred to as a “plea of the case.”
Justices of the peace could hear actions in trespass “wherein the title of land [was] not concerned.”
Clark’s book does not give much insight into the dynamics of civil litigation. He seems to have had a liberal attitude to adjournments and continuances. Some may have been involuntary, because of the defendants’ absences, but others seem to have been at the request of the parties, perhaps while they tried to settle.
John Pedley of Boston Joiner plaintiff versus Joseph Essex of Boston aforesaid Watchmaker defendant. The defendant pleads that the work is not worth half the money that the plaintiff sues for whereupon by the agreement of both parties Mr. Frogley and Mr. Whittemore are appointed to view and appraise the work and make their report to me.
Clark’s judgments were usually in a form whereby the defendant was ordered to pay the plaintiff the money sued for. Occasionally the defendant won. No matter what party eventually prevailed, Clark seems to have assessed costs, in an unspecified amount, on the loser. On rare occasions Clark found for the plaintiff but reduced the amount sought.
Litigants could appeal Clark’s determination of the merits to the inferior court of common pleas.
Memorandum. The appeal being granted after the court was risen and the plaintiff was gone the law not allowing such liberty. It considered further and upon the plaintiff[’s] instance issued out an execution July 7th.
Justices of the peace depended on the effectiveness of writs of execution in view of the large number of defaulted civil actions. Clark’s book reveals that nine cognovits resulted in executions and ninety executions issued on regular judgments. On very few of the execution entries is there a subsequent notation. In one case Clark noted “Returned Satisfied Costs 5s Oct. 1” on a judgment made on 5 May 1712.
The geographic and social status of the civil litigants before Clark is a little clearer than that of the criminal litigants. Chart B of the Appendix includes all cases recorded for the year 1 January 1713/14 to 31 December 1714 and shows that the contestants were overwhelmingly from Boston.
Occasional bits of additional information are of interest. As compared with Clark’s criminal cases, only one civil case involved a black or Indian as plaintiff. Several legal representatives of decedents’ estates
May 22 [1710] Mary Baker Widow Relict and administratrix of Nathaniel Baker of Boston, Baker deceased. Plaintiff versus John Harris of Ipswich in the County of Essex gentleman Defendant. The plaintiff and defendant both appearing and the plaintiff refusing to enter the action the defendant prayes his costs of suit which is accordingly granted him.
E. Miscellaneous
Two striking facts about the legal system revealed in Clark’s book merit discussion apart from the relationship to the substantive law—the absence of attorneys and the heavy reliance on recognizances. John Winthrop’s dislike
The word attorney appears in John Clark’s book on merely ten occasions. The only person identified as an “Attorney at Law” was one Ralph Lyndery of Boston,
[September 10, 1711] Thomas Hitchburn of Boston Joiner, Plaintiff, versus Mary Daftorn of Boston aforesaid Widow defendant in a plea of the case for not paying to the plaintiff the sum of forty shillings due according to attachment. The defendant appeared by her son Isaac Daftorn of Boston Cooper by a power of attorney who pleaded that the defendant owed nothing as set forth in the writ. Whereupon the plaintiff made oath to the account in his book and the evidences in the case being heard I give judgment that the defendant pay the petitioner the sum of forty shillings sued for and costs of suit. From which judgment the defendant hath appealed.
On two of these occasions the family member confessed a judgment.
In only four cases does the designation “attorney” appear for a party in which no familial relationship is mentioned. A Mr. Gee appeared to make out a debt on behalf of the petitioner, one Nathaniel Gookin of Sherborn.
Equally striking to a modern reader is Clark’s almost exclusive reliance on recognizances to guarantee that individuals perform something—prosecute appeals to the Inferior Court of Common Pleas,
F. The Significance of the Book of John Clark, Esq.
A single record or book covering the period 1700 to 1726 cannot be safely used to characterize Massachusetts society, its legal culture, major intellectual developments in law, or even the institution of the single justice of the peace. Clark’s book is evidence which must be fitted into a larger picture.
English law provides a perspective by which to assess the significance of Clark’s book. Although there have been few English local histories focused on a single justice and even fewer editions of justice of the peace records,
Another perspective on Clark’s book is Massachusetts legal history. In recent years two somewhat polar positions have been staked out on the development of Massachusetts Bay law from 1630 to 1700. David Konig
Konig’s thesis is based on the belief that a good deal of English law and institutions came along with the communal ideal, and, in particular, that the magistrate central to the Lawes and Libertyes of 1648 was patterned on the English justice of the peace. The popularity of the office of justice of the peace with the Puritans in England and Massachusetts sprang from its local identification and the occasional refusals of English justices to enforce central policy. The justice of the peace was installed in Massachusetts because he was a local figure, but, as Massachusetts moved away from the communal ideal, the institution of the justice was left to increase its power and judicial business.
William E. Nelson’s latest book
At the other pole from Konig are the innovationists: scholars like Barbara Black
The professionalism of the Clark book, and the number and detail of statutes passed regulating justices of the peace after the granting of the second charter in 1691, indicate that the justice of the peace was well established in Massachusetts in 1700. The book also shows that a single justice was in no sense concerned with the whole “community” of Boston. High status people are missing; perhaps they used other justices, but this is doubtful. Thus, while the justice courts may have been small scale, they did not handle randomly matters which concerned the entire community.
These conclusions would seem to support Konig’s view that the office of the justice of the peace was congenial to the Puritans and therefore was quickly and solidly established in the magistrate analogue. They would also seem to raise questions about whether the pattern which William Nelson notes in Plymouth was even close to that in urban Boston. Nelson, of course, had no justice records comparable to Clark’s for Plymouth during the 1725 to 1825 period.
The evidence of the social status of the litigants in the Clark book should lead the participants in the debate to rethink the meanings of the words “communal” and “community.” If Boston was several economic communities or clusters in 1700, was it really one cohesive group in 1650? Was Plymouth ethically unified in 1725? The justice of the peace in England was more a local figure than a representative of some communal or medieval ideal. The strength of this institution in England, and then in Massachusetts, may have been in the familiarity of its officials and the surroundings of justice, in the scale of its grandeur and the modest size of most issues confronted. The economic divisions of the judicial system, shown in Clark’s book, may indicate that there was never a “communal” ideal, because there was no single community.
A third perspective on Clark’s book is how it fits into theories about the development of the criminal law in eighteenth-century America. The dominant insight, which others have modified or refined but for the most accepted, has been William E. Nelson’s claim that the criminal law evolved from a religiously oriented construct at the beginning of the eighteenth century to a property oriented one at the beginning of the nineteenth. In his first book Nelson placed this change near the end of the eighteenth century.
The Nelson thesis can be challenged on three grounds. First, the data on eighteenth-century criminal law is so incomplete that major generalizations are not possible. Even if one can discover changes in the numbers or type of prosecutions, it is dangerous to derive grand interpretations from them. John Clark’s book provides at least more data, but a long study of it makes one even less willing to contemplate making grand generalizations based on an aggregate of similar materials. Clark’s book, like all such records, while fascinating, is sui generis. As any criminal sociologist will attest, records, even if excellently kept, are only evidence of convictions which may represent an unreliable indication of the purposes and impact of the criminal law.
A second possible challenge to the Nelson thesis begins with a concession that “religious-type” offenses probably diminished in number and property offenses increased in the eighteenth century. Such a change does not necessarily show an alteration of an ethical consensus about the purposes of the criminal law. It may instead show something quite different. If one accepts that the criminal law is in large part designed to define and control deviance, as Kai Erikson has argued,
A third possible challenge has been put forward by Robert Gordon in an excellent review
In sum, John Clark’s book does not support or refute any of the great claims made in the latest scholarship on eighteenth-century legal history. A generation ago, John Dawson noted that a major divergence between English and French law was English tenacity or luck in holding onto local institutions charged with enforcing the law. Whether he was correct that these institutions and their longevity were an important part of the creed of “constitutionalism” is beyond the scope of this paper. Nonetheless, Professor Dawson was surely right when he observed that as these local institutions “evolved they left larger room than was provided elsewhere in Europe for wide participation by untrained people—not only in the process of judging disputes but in all the processes of government that clustered around that vital center. There was wisdom, no doubt, in retaining them and in letting their meanings unfold.”
CHART A—CUMULATIVE
CHART B
Entries in John Clark, Esq.’s Book from 1 January 1713/14 to 31 December 1714
A. Matters 87 (Civil & Criminal) | ||||
---|---|---|---|---|
B. Civil Actions | ||||
1. Residence | ||||
Plaintiff residence |
||||
Salem |
5 |
Unknown |
4 |
|
Boston |
60 |
|||
Defendant residence |
||||
Boston |
57 |
Dorchester |
3 |
|
Salem |
2 |
Unknown |
5 |
|
2. Disposition | ||||
Heard the case |
18 |
|||
Cognovit |
2 |
|||
Continuance |
7 |
|||
Appealed |
6 |
|||
Defaults |
45 |
|||
1 |
||||
Disposition not revealed |
9 |
|||
No won/lost disposition |
1 |
|||
Recognizance |
9 |
|||
Auditors empaneled |
2 |
|||
[Executed later per entry] |
2 |
|||
[Later judgment per entry] |
2 |
|||
Execution ordered or noted |
6 |
|||
3. Prevailer | ||||
a. Residence | ||||
Salem |
2 |
Unknown |
4 |
|
Boston |
Charlestown |
1 |
||
b. Plaintiff or Defendant | ||||
Plaintiff |
57 |
Defendant |
1 |
|
c. Occupation | ||||
Innholder |
6 |
Haywright |
1 |
|
Sailmaker |
1 |
Blacksmith |
1 |
|
Shipwright |
4 |
Joiner |
1 |
|
Cordwainer |
9 |
Fence Viewer |
1 |
|
Wharfinger |
3 |
Housewright |
3 |
|
Mariner |
2 |
Clothier |
1 |
|
Unknown |
4 |
Merchant |
1 |
|
Widow |
5 |
Glover |
1 |
|
Victualler |
8 |
Tailor |
1 |
|
Barber |
1 |
Pewterer |
1 |
|
Retailer |
3 |
Shipkeeper |
1 |
|
4. Civil Loser | ||||
a. Residence | ||||
Boston |
49 |
Dorchester |
3 |
|
Salem |
1 |
Roxbury |
1 |
|
Unknown |
5 |
|||
b. Plaintiff or Defendant | ||||
Defendant |
58 |
Plaintiff |
1 |
|
c. Occupation | ||||
Wigmaker |
1 |
Mariner |
5 |
|
Bricklayer |
4 |
Cordwainer |
1 |
|
Innholder |
3 |
Sadler |
2 |
|
Joiner |
5 |
Ship carpenter |
1 |
|
Cooper |
2 |
Carter |
2 |
|
2 |
Sailmaker |
4 |
||
Unknown |
7 |
Widow |
2 |
|
Shipwright |
5 |
House wright |
2 |
|
Laborer |
3 |
Varnisher |
1 |
|
Tailor |
4 |
Fisherman |
1 |
|
Husbandman |
1 |
Blacks (occupation not given) |
2 |
|
Mason |
1 |
|||
C. Criminal | ||||
1. Victim Residence | 2. Offense | |||
Noodle Island |
1 |
Profane cursing |
1 |
|
Boston |
4 |
Profane swearing |
1 |
|
No victim |
6 |
Breach of peace |
5 |
|
Unknown |
4 |
Theft |
1 |
|
False report |
1 |
|||
3. Victim Occupation | ||||
Servant |
1 |
Wife of a mariner |
1 |
|
Tailor |
1 |
Mariner (by his Captain) |
1 |
|
Unspecified |
4 |
Joiner |
1 |
|
Merchant |
1 |
|||
4. Defendant Residence | ||||
Boston |
7 |
Unknown |
7 |
|
5. Defendant Occupation | ||||
Butcher |
1 |
Merchant |
2 |
|
Singleman |
1 |
Captain |
1 |
|
Surgeon |
1 |
Joiner |
1 |
|
Unknown |
5 |
Sailor |
1 |
|
6. Conviction Appealed by a Recognizance |
2 |
|||
7. Committed to Perform |
1 |