1 Edmund S. Morgan, The Birth of the Republic, 1763–1780, Revised Edition (Chicago, 1977), 4.

2 Roscoe Pound, The Spirit of the Common Law (Boston, 1921), 113. See also Pound, The Formative Era of American Law (Boston, 1938), 3–8.

3 “The Body of Liberties of 1641” from The Colonial Laws of Massachusetts, W. H. Whitmore, ed. (Boston, 1889).

4 See Charles Warren, A History of the American Bar (Boston, 1911), 73.

5 See Dennis R. Nolan, Readings in the History of the American Legal Profession (New York, 1980), 2.

6 Barbara A. Black, “Community and Law in Seventeenth-Century Massachusetts,” Yale Law Journal, xc (1980), 246, reviewing David T. Konig, Law and Society in Puritan Massachusetts (Chapel Hill, 1979). This is not to say law was always the only, or dominant, form of social control, but that it was always a substantial form of social control. Daniel Boorstin put it particularly well. “The Colonists, though not lawyers, were of a decidedly legalistic turn of mind. . . .” Daniel J. Boorstin, The Americans: The Colonial Experience (New York, 1958), 20.

7 See George Haskins’ seminal book, Law and Authority in Early Massachusetts (New York, 1960), 1–8. “Few others equaled [Massachusetts Bay’s] contribution to theology, letters, and education; none paralleled its early achievements in government and law.” Ibid., 1.

8 Lawrence M. Friedman, A History of American Law (New York, 1973).

9 S. E. Morison, “Preface,” The Colonial Society of Massachusetts, Publications, xxix (Boston, 1933), ix.

10 See Stanley N. Katz’s bold and stimulating “The Problem of a Colonial Legal History” in Colonial British America, Jack P. Greene, J. R. Pole, eds. (Baltimore, 1984), 457–484; and David H. Flaherty’s excellent “Introduction” to his Essays in the History of Early American Law (Chapel Hill, 1969), 8–17.

11 As Flaherty puts it, “The field is not barren . . . yet it has not yielded a bountiful harvest.” Ibid., 14.

12 Stephen Botein, Early American Law and Society (New York, 1983), 1. See also S. E. Morison, Colonial Society of Massachusetts, Publications, xxix, ix.

13 See Stanley N. Katz, “The Problem of a Colonial Legal History,” 478. Katz believes contemporary ideological disputes could also be “diversions from the main task of understanding the past.” Ibid. Cf. Charles M. Andrews, The Colonial Period of American History (New Haven, 1938), iv, 222–223, n.1.

14 Stephen Botein, Early American Law and Society, 1.

15 See George L. Haskins, Law and Authority, x–xiii; James W. Hurst, Law and the Conditions of Freedom (Madison, 1967), 4–9; David T. Konig, Law and Society, xiii.

16 Cf. Perry Miller, “Errand into the Wilderness” from Errand Into the Wilderness, P. Miller ed. (New York, 1956); The New England Mind (Boston, 1953), ii, 130–131; and The Life of the Mind in America (New York, 1956), 99–116. Cf. Lawrence M. Friedman, “Heart Against Head: Perry Miller and the Legal Mind,” Yale Law Journal, lxxvii (1968), 1244–1259, reemphasizing the need to study legal ideology in a social context.

17 This, of course, does not denigrate the need for “conventional” legal expertise. “The fact that many ‘legal scholars’ do not explore extensively the social background and context of legal conflict leads some to think that their works say nothing about ‘law and society.’ The tendency is to put these books in their place: excellent reference books on rules, not roles. But even the narrowest of these works may contribute substantially to one’s understanding of the role as well as the rule.” Barbara A. Black, “Community and Law in Seventeenth-Century Massachusetts,” Yale Law Journal, xc (1980), 245–246.

18 The Massachusetts Judicial Records Committee has been aided by the National Historical Publications and Records Commission. See Robert J. Brink, “Boston’s Great Anthropological Documents”; Hiller B. Zobel, “The Pompeii of Paper”; and Robert S. Bloom, “Judicial Records—The Foundation of a Statewide Records Preservation Program”; all in Boston Bar Journal, xxii (Sept. 1978), 6–33. The Plymouth Court Records Project, funded by a number of grants, was carried out in association with the Pilgrim Society. See William E. Nelson’s “Introductory Essay,” Plymouth Court Records 1686–1859 (ed. David T. Konig), i, 3–138.

19 David H. Flaherty, Essays, 29. As Flaherty observes, “[T]he fact remains that few court records have ever been employed in analytical and general studies. Quantifying methods can now be used to great advantage. . . .” Ibid., 32. See also David H. Flaherty, “A Select Guide to the Manuscript Court Records of Colonial New England,” American Journal of Legal History, xi (1967), 107.

20 Perry Miller, The Legal Mind in America (New York, 1962), 17.

21 See Anton-Hermann Chroust, The Rise of the Legal Profession in America (Norman, Oklahoma, 1965), 2 vols.; Charles Warren, A History of the American Bar (Boston, 1911). Paul Hamlin’s Legal Education in Colonial New York (New York, 1939) did use extensive original sources. See also David H. Flaherty, Essays, 16; Morton J. Horwitz, “The Conservative Tradition in the Writing of American Legal History,” American Journal of Legal History, xvii (1973), 275.

22 See Gerard W. Gawalt, The Promise of Power: The Emergence of the Legal Profession in Massachusetts 1760–1840 (Westport, Conn., 1979); John P. Reid, In a Defiant Stance (London, 1977); Maxwell Bloomfield, American Lawyers in a Changing Society, 1776–1876 (Cambridge, Mass., 1976); Stephen Botein, “Professional History Reconsidered,” American Journal of Legal History, xxi (1977), 60–79; Dennis R. Nolan, Readings in the History of the American Legal Profession (New York, 1980); and Daniel H. Calhoun, Professional Lives in America: Structure and Aspiration 1750–1850 (Cambridge, Mass., 1965). On the great influence of Hurst, see Robert W. Gordon, “J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society Review, x (1976), 9–56.

23 George L. Haskins, “Lay Judges: Magistrates and Justices in Early Massachusetts,” below, 39–40.

24 See David T. Konig, Law and Society, xiii.

25 The “practicing” limitation excludes colonists with legal backgrounds who acted as magistrates and legislators, but who probably never took clients in the Bay Colony, including John Winthrop, formerly of Gray’s Inn and Inner Temple, Richard Bellingham, Recorder of Boston, England, and Reverend Nathaniel Ward, formerly of Lincoln’s Inn. In an odd way, it is also hard to overlook that lecherous, alcoholic bon vivant, “proud and indolent” Thomas Morton with his “Maypole at Merry-Mount (Wollaston).” He certainly had a legal background, and claimed to be “a gentleman of Cliffords Inn.” He was also described as “a kind of pettiefogger of Furnefells Inn” by a rather prejudiced Governor Bradford. See Anton-Hermann Chroust, The Rise of the Legal Profession, 72; Samuel Eliot Morison, Builders of the Bay Colony (Boston, 1930), 16–17. Morton’s “practice” seemed to involve selling guns and liquor to the Indians for furs. As Morison observed, some of us have “met more spiritual descendants of Thomas Morton than of John Winthrop.” Ibid., 19.

26 Winthrop was an English justice of the peace at eighteen and held court leet for his father at little more than twenty. Ibid., 53; Edmund S. Morgan, The Puritan Dilemma: The Story of John Winthrop (Boston, 1958), 15–16. He also was admitted in the Court of Wards and Liveries, as was John Humfry. See G. W. Robinson, John Winthrop as Attorney (Cambridge, Mass., 1930). There is some question whether Winthrop was a member of Gray’s Inn, Inner Temple, or both. Morgan says he was admitted to Gray’s Inn in 1613 and took up bachelor residence in Inner Temple. Edmund S. Morgan, The Puritan Dilemma, 15, 23. The Dictionary of American National Biography (New York, 1960), x, 408 says that Winthrop was “admitted” at Gray’s Inn 25 October 1613 and at Inner Temple in 1628. That explanation is probably correct. Some lawyers were members of one inn, but “migrated” to another. The name of Winthrop’s uncle, Emmanuel Downing, appears next to Winthrop’s entry in the Inner Temple register in 1628/29. Downing was also an attorney of the Wards, and Winthrop was probably joining his uncle’s chambers. Winthrop’s eldest son, John, joined Inner Temple in 1624/25. I owe this information to the kind help of J. H. Baker. Cf. E. Alfred Jones, American Members of the Inns of Court (London, 1924), 219–220, Wilfrid R. Prest, The Inns of Court Under Elizabeth I and the Early Stuarts, 1500–1640 (London, 1972), 208.

27 Ward practiced and studied law in London for nearly ten years before entering the ministry. Ibid., 221. See Charles Warren, A History of the American Bar, 59; Massachusetts Historical Society, Proceedings (Boston, 1878), 3.

28 See George L. Haskins, “Lay Judges: Magistrates and Justices in Early Massachusetts,” below, 53. See J. P. Dawson, A History of Lay Judges (Cambridge, Mass., 1960), 3–4.

29 See George L. Haskins, “Codification of the Law in Colonial Massachusetts: A Study in Comparative Law,” Indiana Law Journal, xxx (1954), 1; George L. Haskins, Samuel E. Ewing, 3d “The Spread of Massachusetts Law in the Seventeenth Century,” Pennsylvania Law Review, cvi (1958), 413; George L. Haskins, “Influence of New England Law on the Middle Colonies,” Law and History Review, i (1983), 238; Thorp L. Wolford, “The Laws and Liberties of 1648,” Boston University Law Review, xxviii (1948), 426. As to law reform in England, see Donald Veall, The Popular Movement for Law Reform 1640–1660 (Oxford, 1970), 97–240; G. B. Nourse, “Law Reform Under the Commonwealth and Protectorate,” Law Quarterly Review, lxxv (1959), 512–529; Stuart E. Prall, The Agitation for Law Reform During the Puritan Revolution 1640–1660 (Hague, 1960). The law reform movement in England had an interest in the codification of customary law and in establishing a relatively pluralistic and local basis of justice, but its development and character were quite different from anything in the Bay Colony. It was politically more democratic and more radical in its objectives. See Donald W. Hanson, From Kingdom to Commonwealth: The Development of Civic Consciousness in English Political Thought (Cambridge, Mass., 1970), 300–301, 332–339; Gerard Winstanley, The Law of Freedom in a Platform (London, 1652—reprinted 1941 with Introduction by Robert W. Kenny).

30 John D. Eusden, Puritans, Lawyers and Politics in Early Seventeenth-Century England (New Haven, Conn., 1968), 177.

31 Ibid., 174. In Massachusetts, this conviction included notions of recording judgments for use as precedents. As early as 1639, the General Court enacted that

Whereas many judgments have bene given in our courts, whereof no records are kept of the evidence and reasons whereupon the verdit and judgment did passe, the records whereof being duely entered and kept would bee of good use for president [precedent] to posterity, and a releife to such as shall have just cause to have their causes reheard and reviewed, it is therefore by this Court ordered and decreed that thenceforward every judgment, with all the evidence, bee recorded in a booke, to bee kept to posterity. Records of the Governor and Company of Massachusetts Bay in New England (Boston, 1853), i, 275 (1639). See Edwin Powers, Crime and Punishment, 437. Nevertheless, while what might be called the first statutory compilation to be printed in Massachusetts, Lawes and Libertyes, appeared in 1648, there were no printed reports of Massachusetts cases until 1804. See Laurence M. Friedman, A History of American Law, 282–283. The General Court sent to England for two copies of Cokes Reports in 1647. See below, xxxi, note 7.

32 George L. Haskins, Law and Authority, 125–136.

33 “In their respective religious and civil spheres, the Cambridge Platform and The Law and Liberties represented the culmination of an extraordinarily creative period during which the colonists applied conscious design to received tradition. . . .” Ibid., 136. Nevertheless, “little has been done to interpret the Hebraic laws of early New England within a wider context of religious theory and practice.” Stephen Botein, Early American Law and Society, 2. This includes possible talmudic influences.

34 Daniel J. Boorstin describes Chafee’s Introduction as “brilliant.” The American: The Colonial Experience, 381. See also Edwin Powers, Crime and Punishment in Early Massachusetts: 1620–1602 (Boston, 1966), a documentary history limited to the punishment of crime.

35 See Morris Cohen, “Legal Literature in Colonial Massachusetts,” below, 245.

36 In 1649 it became “unlawful for any person to ask a counsellor advice of any magistrate in any case wherein he shall be a plaintiffe,” despite the observation by the magistrates that “we must then provide lawyers to direct men in their causes.” Records of the Governor and Company of Massachusetts Bay (Boston, 1853), iii, 168. See also Edwin Powers, Crime and Punishment, 434. In the 1660 version of the Massachusetts statutes, this provision was essentially reenforced by adding the words “shall or may be plaintiff.” Massachusetts Colonial Laws (Boston, 1887), 141. To whom would a plaintiff now turn for legal advice? The presence of a practicing bar was acknowledged by a 1663 statute that “No person who is an usuall and common attorney in any inferior court, shall be admitted to sitt as a Deputy in this [General] Court.” Records, iv, 87. In 1673, it was enacted “that it shall be lawful for any person by his lawfull attorney . . . to sue in any of our Courts for any right or interest. . . .” Records, iv, 563. The barratry statute of 1656 also took a backhanded notice of legal practice by prohibiting attorneys from fomenting reckless or vexatious litigations. Ibid., 825 Massachusetts Colonial Laws, 9.

Perhaps the most interesting statute was the order in 1650 that “whereas this Commonwealth is much defective for want of laws for maritime affairs . . . the said laws printed and published in a book called Lex Mercatoria shall be perused and duly considered and such of them as are approved by this court shall be declared and published to be in force in this jurisdiction.” Records, iii, 193. This reference to Gerald Malynes’ great commercial law text, Consuetudo, vel, Lex Mercatoria, follows closely on the General Court’s order to England in 1647 for the importation of two copies each of Coke’s Reports, Coke’s First Institutes (“Coke upon Littleton”), [Rastell’s] “Newe Tearmes of the Lawe,” Coke’s Second Institutes (“Coke upon Magna Carta”), Dalton’s Justice of the Peace, and [Coke’s] “Book of Entryes” “to the end we may have the better light for making and proceeding about laws. . . .” Records, iii, 212. These enactments hardly evidence a lack of interest in law or legal development.

37 See Anton-Hermann Chroust, The Rise of the Legal Profession, i, 77–79; Charles Warren, A History of the American Bar, 69–74; Edwin Powers, Crime and Punishment, 528; F. W. Grinnell, “The Bench and Bar in Colony and Province (1630–1776) in Commonwealth History of Massachusetts (New York, 1928), ii, 161–164; Henry E. Clay, “The Development of the Legal Profession in the Bay Colony at the Commonwealth—the First 200 Years,” Massachusetts Law Review (Summer, 1981), 115, 116; Nathan Mathews, “The Results of Prejudice Against Lawyers in Massachusetts in the 17th Century,” Address Before the Bar Association of the City of Boston, 9 December 1926, Boston Bar Journal (1926), 73–94.

38 See F. W. Grinell, “Bench and Bar,” 161–164; Nathan Mathews, Results of Prejudice, 80–87 (revocation of charter), 88–89 (witchcraft). “Thus ended the Puritan Commonwealth—a result virtually, and I think literally, due to the absence of an educated Bar.” Ibid., 87.

39 See above, xxx, note 5 and accompanying text.

40 Barbara Black, below, 71, note 5.

41 As to the retention of Paul Dudley, William Shirley, and Robert Auchmuty in Byfield’s later legal affairs, see ibid., 87, 101, 103. There is every reason to suppose similar use of counsel in earlier cases.

42 See David T. Konig, Law and Society, xi–xiii, 89–116; Zechariah Chafee, Jr., Colonial Society of Massachusetts, Publications, xxix, xxxvi–xxxvii.

43 Ibid., xxxvi.

44 See Marcus W. Jernegan, “The Province Charter (1689–1715)” in Commonwealth History of Massachusetts (New York, 1928), 11, 1–28.

45 See Anton-Hermann Chroust, The Rise of the Legal Profession, i, 77–79.

46 See Charles R. McKirdy, “Massachusetts Lawyers on the Eve of the Revolution: The State of the Profession,” below, 329–330, 334.

47 Charles Warren, A History of the American Bar, 73.

48 Ibid., 72. See Anton-Hermann Chroust, The Rise of the Legal Profession, 77–83.

49 See Charles Warren, A History of the American Bar, 72–73.

50 See Zechariah Chafee, Colonial Society of Massachusetts, Publications, xxiv–xxvi.

51 Anton-Hermann Chroust, The Rise of the Legal Profession, 79.

52 See Records and Files of the Quarterly Courts of Essex County (1636–1683) (Salem, 1911–1921), iv, 198 (1669), vii, 416 (1680). See also Edwin Powers, Crime and Punishment, 438. Cf. Anton-Hermann Chroust, The Rise of the Legal Profession, 80–81. One individual, Hudson Leverett, did have a pretty bad record, but Chroust is much too facile in assuming that lack of a “liberal education” and formal legal education necessarily created technically incompetent and dishonest attorneys. Ibid., 76–77, 80. While we who teach in formal law schools might wish to believe this is true, elitist prejudice is another possibility.

53 Zechariah Chafee, Jr., Colonial Society of Massachusetts, Publications, xxv.

54 Ibid., xxv. Chafee states that “by the year 1671, when these records begin, paid attorneys were a recognized, but hardly reputable, class.” Ibid., xxvi.

55 Ibid., xxvi.

56 Ibid., xxvi.

57 Cf. Anton-Hermann Chroust, The Rise of the Legal Profession, 73–75; Charles Warren, A History of the American Bar, 68–69.

58 See Stanley N. Katz, “Looking Backward: The Early History of American Law,” University of Chicago Law Review, xxxiii (1966), 867, 870–873; Stephen Botein, “The Legal Profession in Colonial North America,” Lawyers in Early Modern Europe and America, Wilfrid Prest, ed. (New York, 1981), 129–130.

59 Zechariah Chafee, Colonial Society of Massachusetts, Publications, xxix, xxviii.

60 Ibid., xxviii–xxxv.

61 For example, the actual state of the seventeenth-century legal system must be central to John M. Murrin’s famous thesis that the eighteenth century saw the “Anglicization” of that system. See page xxxix, below.

62 See David D. Hall, “Understanding the Puritans” in Colonial America: Essays in Politics and Social Development, Stanley N. Katz, ed. (Boston, 1971), 31. “It was Calvin, to be sure, who taught the Puritans their legalism, but the political situation in which they found themselves encouraged the development of this legalism beyond the point where he had stopped.” Ibid., 43. See generally Perry Miller, The New England Mind: From Colony to Province (Cambridge, Mass., 1953) 19–67.

63 See Robert J. Brink, “‘Immortality Brought to Light’: An Overview of Massachusetts Colonial Court Records,” below, 471; William E. Nelson, “Court Records as Sources for Historical Writing,” below, 499; Michael S. Hindus, “A Guide to the Court Records of Early Massachusetts,” below, 519 and Catherine S. Menand, “A ‘magistracy fit and necessary’: A Guide to the Massachusetts Court System,” below, 541.

64 See Barbara Black, “Nathaniel Byfield, 1653–1733,” below, 104.

65 See Douglas L. Jones, below, 153–154, and sources cited. There was also severe inflation. Ibid., 154. See “An Overview of Massachusetts History to 1820” in the companion volume to this book, Medicine in Colonial Massachusetts, The Colonial Society of Massachusetts, Publications, lvii (1980), 3–19; James A. Henretta, “Economic Development and Social Structure in Colonial Boston” in Colonial America, Stanley N. Katz ed. (1971), 450–465; Marcus W. Jernegan, “The Province Charter (1689–1715)” in Commonwealth History of Massachusetts, ii, 1–28; and Bernard Bailyn, The New England Merchants in the Seventeenth Century (Cambridge, Mass., 1955), 143–197. The colony was “buffeted by demographic and social changes.” See Adam J. Hirsch, “From Pillory to Penitentiary,” Michigan Law Review, lxxx (1982), 1128.

66 The Colonial Society of Massachusetts, Publications, lvii, 5–11.

67 Even the bizarre, traumatic Salem witchcraft trials of 1692–1693 have been blamed in part on the dislocation surrounding the revocation of the First Charter. See David T. Konig, Law and Society, 169–185. The Second Charter arrived in Boston on 14 May 1692. On 2 June 1692 Governor Phips and his council commissioned the infamous special court of “oyer and terminer,” without waiting for the newly authorized legislature to convene, which alone had the necessary powers under the Charter to create courts. Ibid., 170. By 22 September 1692 the last of the terrible executions had occurred. Ironically, witchcraft accusations in Andover were halted by a defamation suit. Ibid., 184.

The causes of the “witchcraft outbreak” remain the focus of a torrent of scholarly work beyond the scope of this conference, but a high rate of social change doubtless contributed to the kind of anxiety that, in the same year, sent sixty armed men from Gloucester into the woods to “intercept a spectral force of French and Indians.” Ibid., 167. It is ridiculous to blame the prosecutions on the lack of “trained lawyers of courage and force to challenge the legality of the special court,” cf. Anton-Hermann Chroust, i, 77, and equally unavailing to blame the trials on the colonial legal system. The witch proceedings were terminated by Governor Phips in May 1693 never to occur again. The King’s Privy Council refused to approve the General Court’s effort in the 1692–1693 session to place witchcraft back on the list of capital crimes. The recantation of Judge Samuel Sewall, read for him by the Reverend Samuel Willard during a service at the Old South Church on 14 January 1697, a day of fasting and prayer designated in memory of “the late tragedie,” marked the end of an era. Judge Sewall stood silently in the church as the recantation was read. It is sobering to recall that the “Second Charter” period, with its legal and professional growth, began with such a symbol. See Edwin Powers, Crime and Punishment, 455–5095 John Demos, “Underlying Themes in the Witchcraft of Seventeenth-Century New England,” Colonial America, Stanley N. Katz ed. (1971), 113–133; Demos, Entertaining Satan: Witchcraft and the Culture of Early New England (New York, 1982); Paul Boyer, Steven Nissenbaum, Salem Possessed: The Social Origins of Witchcraft (Cambridge, Mass., 1974). As to the considerable extent of colonial witchcraft persecutions at other times and places, see E. W. Taylor “The Witchcraft Episode (1692–1694),” Commonwealth History, ii, 29–62.

68 John M. Murrin, “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts” in Colonial America, Stanley N. Katz ed., 415 (Katz’s summary).

69 Ibid., 416.

70 Ibid., 421–425.

71 Ibid., 448.

72 See ibid., 4485 Daniel J. Boorstin, The Americans, 195–205.

73 See the sources cited in note 2, xxv, above, and the articles of David H. Flaherty and Charles R. McKirdy, below. In the “companion” volume to this book, Medicine in Colonial Massachusetts 1620–1820, The Colonial Society of Massachusetts, Publications, lvii (Boston, 1980), the editors set out criteria for establishing true “professionalism” among doctors, such as “how doctors in eighteenth-century New England identified themselves,” how they “differentiated themselves from other healers,” their development of professional education, what doctor-patient relations were “expected,” and “what colonial doctors exploited from their own past.” Ibid., 32. It is obvious that comparative study of these two professional developments, legal and medical, would be most fruitful, and it is hoped that the publication of these two “companion” volumes will encourage such study.

74 There were approximately 1,500 blacks, slave and free, in Boston in 1750. See Sherwin L. Cook, “Boston: The Eighteenth Century Town,” Commonwealth History, ii, 229. There was also racism. In 1723 the Boston Town Meeting voted to recommend to the General Court an act for the restraint of “Indians, Negroes and Mulattoes” that prohibited, among other things, their possession of firearms, visits from slaves, street gatherings, and loitering. They would be required to bind out their children at four years of age to a white master. Ibid., 227–228. Slaves were sold in Boston in 1746. Ibid., 228. There is an obvious contrast here to the Puritan statute of 1647 limiting bond slavery. See Anton-Hermann Chroust, The Rise of the Legal Profession, i, 52.

75 Douglas L. Jones, below, 190. James A. Henretta has observed that, in 1687, “the distribution of political power and influence in Boston conformed to . . . a wider, more inclusive hierarchy of status, one which purported to include the entire social order within the bonds of its authority. But the lines of force which had emerged on the eve of the American Revolution . . . now failed to encompass a significant portion of the population. . . . Society had become more stratified and unequal. Influential groups, increasingly different from the small property owners who constituted the center portion of the community, had arisen at either end of the spectrum.” Colonial America, Stanley N. Katz ed., 462–463.

76 David H. Flaherty, below, 193.

77 Ibid., 240.

78 Ibid., 241.

79 Neal W. Allen, Jr., below, 275.

80 Ibid., 287.

81 Ibid., 309.

82 Ibid., 312.

83 Morris L. Cohen, below, 253.

84 Ibid., 253–254.

85 Ibid., 256–261.

86 Ibid., 256.

87 This argument certainly was not missed by John Adams. See Daniel R. Coquillette, below, 412–416.

88 See Diary and Autobiography of John Adams ed. L. H. Butterfield (Cambridge, Mass., 1961), i, 210–211, in, 275–276. For an old man’s recollection of the famous day of his youth, see John Adams’ letter to William Tudor, 29 March 1817, in John Adams, Works, Charles Francis Adams ed. (Boston, 1817), x, 244–245.

89 See Charles R. McKirdy, below, 337–358. (Appendices III and IV.)

90 See David Flaherty’s review of William Nelson’s Americanization of the Common Law in the University of Toronto Law Journal (1976), 116. James Henretta has argued that the Revolution was “in reality the completion of a long process of social evolution, simply speeded up and given a positive articulation by the war. . . . Except for the disruptions caused by the war itself and the Loyalist emigration . . . most of the changes . . . represented the culmination of previous trends.” James A. Henretta, The Evolution of American Society, 1700–1815, An Interdisciplinary Analysis (Lexington, 1973), 169. See also Flaherty, “Review,” 116–117; Stanley Katz, “Looking Backward: The Early History of American Law,” Chicago Law Review, xxxiii (1966), 884.

91 John P. Reid, “A Lawyer Acquitted: John Adams and the Boston Massacre Trials,” American Journal of Legal History, xviii (1974), 189, 191.

92 Ibid., 191. See also Erwin C. Surrency, “The Lawyer and the Revolution,” American Journal of Legal History, viii (1964), 125.

93 George Dargo, Law in the New Republic (New York, 1983), 7.

94 “[The changes] affected some legal institutions and not others, and some areas of American Law more than others.” Ibid., 7. Dargo has argued that the Revolution had a “deep, abiding, and immediate impact on American public law,” ibid., 8 (emphasis supplied), but that in terms of private law the changes were much more gradual—although eventually very important. “What is striking, in fact, is the strong continuity of private law in the revolutionary era.” Ibid., 8. This view is quite compatible with that of Morton J. Horwitz, set out below, lii.

95 See Daniel R. Coquillette, below, 376–382, 395–400; Charles R. McKirdy, below, 339–358, [Appendix IV].

96 Ibid., 318–323. See also Daniel R. Coquillette, below, 395–400.

97 See John D. Cushing, “The Judiciary and Public Opinion in Revolutionary Massachusetts,” in Law and Authority in Colonial America, George A. Billias ed. (Barre, Mass., 1965), 173–182, 185, n.19.

98 Ibid., 182. These efforts included careful charges to the grand juries which explained “the social compact and its violation by Great Britain.” Ibid., 174.

99 See George Dargo, Law in the New Republic, 48–59, for an excellent description of the “sudden increase of lawyers” and the new “private” law schools.

100 See John M. Murrin, “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts,” 446–448.

101 John P. Reid, “A Lawyer Acquitted,” 191.

102 “Both sides were dedicated to following the forms of law but both were prepared to manipulate those forms for their own advantage. It was the forms of law and the idea of legality that mattered, for they kept the situation from escalation into violence; manipulation was a matter of strategy not of abuse.” Ibid., 194.

103 See Reid’s analysis of John Adams’ personal view of the Tea Party. “Adams was a lawyer, a conservative lawyer, and it is significant that . . . he found, as did so many other whigs, that constitutional legality was at times determined by political necessity.” John P. Reid, In a Defiant Stance, 99. The political pressure on the entire Massachusetts legal system by the years 1769–1771 was so great that Hiller B. Zobel has concluded “[I]n cases involving political subjects, the Massachusetts judicial system . . . was under such powerful pressure from both sides that a fair trial was, without extra legal assistance, unlikely, if not impossible.” Hiller B. Zobel, “Law Under Pressure: Boston 1769–1771” in Law and Authority in Colonial America, George A. Bellias ed. (1965), 204. See also Michael S. Hindus, Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767–1878 (Chapel Hill, 1980), 33–36.

104 Ibid., 65, 67.

105 “What had appeared to be utopian plans for a large prosperous, well-trained legal profession before the war became a reality in the postwar period.” Gerard W. Gawalt, The Promise of Power, 36.

106 George Dargo, Law in the New Republic, 48.

107 Ibid., 59. The extremely high growth rates in the legal profession recall the very rapid expansion of the Inns of Court in the period 1500–1600, when the annual rate of admission quadrupled. The growth rate continued to be high until the Civil War. See Wilfrid R. Prest, The Inns of Court, 1–70. Morton Horwitz, in a different context, suggests that we should be alert to recapitulation of English experience, but no major comparative studies of the rate of growth of the legal profession and the causes and consequences have ever been undertaken. Cf. Morton Horwitz, Transformation of American Law, 1780–1860 (Cambridge, Mass., 1977), 17.

108 See Daniel J. Boorstin, The Americans: The Colonial Experience, 195–205.

109 Charles R. McKirdy, 328.

110 In particular, McKirdy draws on W. E. Moore’s The Professions: Roles and Rules (New York, 1970) and B. Bledstein’s The Culture of Professionalism (New York, 1978) to isolate and describe five characteristics that measure “professionalism:” 1) full-time earning occupation, 2) need for useful, theoretical knowledge and requirement of formal education, 3) group “identity” by members, 4) “service” orientation, and 5) autonomy from outside control. These factors compare closely with those set out by the editors of our companion volume, Medicine In Colonial Massachusetts, 1620–1820, The Colonial Society of Massachusetts, Publications, lvii, 32.

111 John Adams was an elitist, but one who looked to academic performance and formal professional requirements to block the nepotistic careers of the sons of the leading tory families, as well as to eliminate “pettifoggers.” See Daniel R. Coquillette, below, 395–400. Among McKirdy’s most interesting Appendices is his “Appendix II—Professional Choices of Harvard Graduates: 1642–1760.” Before 1684, and the “Intercharter Period,” there was but one “law” career choice. During the 1685–1691 “Intercharter Period,” there were four. But during the 1692–1760 “Second Charter Period,” there were seventy-six Harvard graduates who ultimately would call themselves “lawyers,” with twenty-seven alone in the ten-year period 1751–1760. While this was still well behind the clergy (the most popular choice) and medicine (nearly twice as popular as law), it was a most impressive indicator as to the growing prestige of the profession and its expectations for education. See Charles R. McKirdy, below, 333–336 (Appendix II).

112 See John P. Reid, “A Lawyer Acquitted,” 191–194; and Daniel J. Boorstin, The Americans: The Colonial Experience, 191–205. As Reid observed: “[I]n the functioning of eighteenth century constitutional legality, local institutions defined the meaning of ‘law’ as much as did imperial institutions.” John P. Reid, In a Defiant Stance, 72.

113 See Janice Potter and Robert M. Calhoon, “The Character and Coherence of the Loyalist Press” in The Press and the American Revolution, Bernard Bailyn, John B. Hench eds. (Boston, 1981), 231. On the peculiar influence of classical studies on the American colonial mind, including minds as distinct as John Winthrop and John Adams, see Richard M. Gummere, The American Colonial Mind and the Classical Tradition (Cambridge, Mass., 1963). See also Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass., 1967), 23–24; Stephen Botein “Cicero as Role Model for Early American Lawyers: A Case Study in Classical Influence,” Classical Journal, lxxiii (1977–1978), 314–318; Charles F. Mullett, “Classical Influences on the American Revolution,” Classical Journal, xxxv (1939–1940), 93–94.

114 See Perry Miller, The Legal Mind in America (New York, 1962), 20–21, 31–32, 41–43; Felix Gilbert “Intellectual History: Its Aims and Methods,” Historical Studies Today, eds. Felix Gilbert, Stephen R. Graubard (New York, 1972), 141–158; Patrick Gardiner, The Nature of Historical Explanation (London, 1952), 115–139. See also William E. Nelson’s original essay “The Eighteenth-Century Background of John Marshall’s Constitutional Jurisprudence,” Michigan Law Review, xxvi (1978), 893, 900–901, 917–924.

115 See Daniel R. Coquillette, “Legal Ideology and Incorporation I: The English Civilian Writers, 1523–1607,” Boston University Law Review, lxi (1981), 1–2, 3–10; “Legal Ideology and Incorporation II: Sir Thomas Ridley, Charles Molloy, and the Literary Battle for the Law Merchant, 1607–1676,” Boston University Law Review, lxi (1981), 317–320, 371.

116 Of course, in focusing on ideology, one must not forget the historical context. Thus, even as John Adams struggled for good civil law precedents in the case of the Liberty, Sewall v. Hancock, 1768–1769, “[a]n ensuing riot drove the customs commissioners to Castle William in Boston Harbor, where they remained until the troops which they had urgently requested were garrisoned in Boston.” See L. Kinvin Wroth, “The Massachusetts Vice-Admiralty Court” in Law and Authority in Colonial America, George A. Billias ed., 53.

117 See John M. Murrin, “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts,” 446–448.

118 Morton J. Horwitz, Transformation of American Law, 4–9.

119 “And while Americans always insisted on the right to receive only those common law principles which accorded with colonial conditions, most of the basic departures were accomplished not by judicial decision but by local statute. . . .” Ibid., 5. Massachusetts statutory policy during the Second Charter period remains a great area for future research. See above, xlv.

120 According to Horwitz, “ . . . American judges before the nineteenth century rarely analyzed common law rules functionally or purposively, and they almost never self-consciously employed the common law as a creative instrument for directing men’s energies toward social change.” Morton J. Horwitz, The Transformation of American Law, 1.

121 William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge, Mass., 1975), 143. As to Murrin’s thesis of “Anglicization,” Nelson states: “[O]ne cannot explain developments in Massachusetts law . . . as a consequence of adherence to English law. . . . [B]y the last third of the eighteenth century each society was pursuing its own independent course even on those occasions when the courses seemed superficially to be parallel.” Ibid., 10. See also William E. Nelson, “The Legal Restraint of Power in Pre-Revolutionary America: Massachusetts as a Case Study, 1760–1775,” American Journal of Legal History, xviii (1974), i, 13–26, 32.

122 The research in Dispute and Conflict Resolution is based on the Plymouth Court Records project, edited by David T. Konig and described above, note 7, xxiv. Nelson’s critics, predictably, argue that there was more “rugged individualism” in pre-Revolutionary colonial society than he represents and less communal bliss, and that Nelson exaggerates the changes wrought by the Revolution. See David Flaherty’s review of Americanization of the Common Law in the University of Toronto Law Review (1976), 110–113, in which Flaherty also criticizes Michael Zuckerman’s Peaceable Kingdoms: New England Towns in the Eighteenth Century (1970). Much more work is obviously required, of the type undertaken by David T. Konig in the Essex records and by Nelson himself in the Plymouth records, before any of these questions will be finally answered. See David T. Konig, Law and Society in Puritan Massachusetts, Essex County, 1620–1602 (Chapel Hill, 1979).

123 William E. Nelson, below, 467.

124 Ibid., 428. William Blackstone, Commentaries on the Laws of England (Oxford, 1765–1769), in, *87, *42.

125 William E. Nelson, below, 433.

126 Ibid., 467.

127 As Robert W. Gordon astutely suggests: “One of the aims of the recent work of Morton Horwitz, William Nelson, and John Reid has been to identify the characteristics of ‘modern’ law . . . by reference to what they see as the ‘pre-modern’ law of the eighteenth century. But reconstruction might do more for us than that: it might demonstrate an actual continuity between the old system and our own.” “Historicism in Legal Scholarship,” Yale Law Journal, xc (1981), 1049–1050. See also David H. Flaherty, “Review,” University of Toronto Law Journal (1976), 110, 115–117.

At the very least, “[w]e should know more than we currently do about ‘stable, preindustrial communities’ in order to comprehend the distinctiveness of ‘modern’ legal systems; that is, we must know what modern law is not.” Stanley N. Katz, “The Problem of a Colonial Legal History,” 481, 482.

128 This suggestion, as with so many helpful comments, comes from Russell K. Osgood. Katz also points out that “we have never clearly worked out the process by which legislation and adjudication became distinguishable activities in the colonial period.” Ibid., 482.

129 Not only was there the trauma of the “Great Awakening” in the early 1740’s, but also the local religious setting became far more diverse. In a critique of Michael Zuckerman’s Peaceable Kingdoms, supra, John Murrin calculated that “by 1760, fifty-four percent of the total population of Massachusetts . . . lived in towns possessing permanent dissenting congregations of Anglicans, Quakers, Baptists or Separates.” John Murrin, “Review Essay,” History and Theory, xi (1972), 245–272. See also David Flaherty, “Review,” University of Toronto Law Journal (1970), 111, 113; and William Nelson’s fascinating description of “Hanover and Pembroke: The Quaker Towns” in Dispute and Conflict Resolution in Plymouth County, 58–68.

130 Preface, “An abstract of the Laws of New England” in Governor Thomas Hutchinson, A Collection of Original Papers Relative to the History of the Colony of Massachusetts-Bay (Boston, 1769). As to the violent sack of Hutchinson’s Boston mansion, see Bernard Bailyn, The Ordeal of Thomas Hutchinson (Cambridge, Mass., 1974), 35.

131 See Frank E. Manuel, Shapes of Philosophical History (Stanford, 1965), 137; Arthur Marwick, The Nature of History (New York, 1970), 227–279; Edward H. Carr, What Is History? (New York, 1961), 3–35; W. H. Walsh, An Introduction to Philosophy of History (Atlantic Highlands, N.J., 1951), 169–187.

132 Grant Gilmore, “The Age of Antiquarius: On Legal History in the Time of Troubles,” University of Chicago Law Review, xxxix (1972), 484. As to the “invention” of legal history and “historical” schools of jurisprudence, see Donald R. Kelley, “Guillaume Budé and the First Historical School of Law,” The American Historical Review, lxxii (1967), 833–834; Donald R. Kelley, Foundations of Modern Historical Scholarship: Language, Law, and History in the French Renaissance (New York, 1970), 53–148; T. G. A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge, 1957), 8–17.

133 Stephen M. Fuller, “Some Contemporary Approaches to the Study of Legal History and Jurisprudence,” Tulsa Law Journal, x (1975), 576.

134 Felix Gilbert, History: Choice and Commitment (Cambridge, Mass., 1977), 452.

135 See Michael S. Hindus, Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767–1878 (Chapel Hill, 1980), 34–37. See also Hiller B. Zobel, “Law Under Pressure,” 203–205.

136 See Robert W. Gordon, “Historicism in Legal Scholarship,” Yale Law Journal, xc (1981), 1018–1024; Morton J. Horwitz, “The Historical Contingency of the Role of History,” ibid., 1057.

137 O. W. Holmes, Jr., The Common Law, M. Howe ed. (Boston, 1963), 5. See Grant Gilmore, “The Age of Antiquarius,” 480–481.

138 Morton J. Horwitz, “The Historical Contingency,” 1057. Erich Auerbach defines this insight as “[W]hen people realize that epochs and societies are not to be judged in terms of a pattern concept of what is desirable absolutely but rather in every case in terms of their own premises; when people reckon among such premises not only natural factors like climate and soil but also the intellectual and historical factors; when, in other words, they came to develop a sense of historical dynamics . . . when, finally, they accept the conviction that the meaning of events cannot be grasped in abstract and general forms of cognition. . . .”

Erich Auerbach, Mimesis, the Representation of Reality in Western Literature (W. Trask, Trans, Princeton, 1953), 391. See also Donald R. Kelley, Foundations of Modern Historical Scholarship, 301–309.

139 Robert W. Gordon, “Historicism,” 1017. See Darret B. Rutman, “The Mirror of Puritan Authority,” Law and Authority in Colonial America, George A. Billias ed., 149–152.

140 Grant Gilmore, “The Age of Antiquarius, 487. “If legal history does not tell us how things ought to be, it can at least tell us that they need not be the way they are.” Adam J. Hirsch, “Pillory to Penitentiary,” 1269. Arthur Marwick and Felix Gilbert have expressed the same idea in a broader context. “We cannot escape from history, our lives are governed by what happened in the past, our decisions by what we believe to have happened.” Arthur Marwick, The Nature of History (New York, 1970), 319. “But, after all reservations have been made, we ought to remain aware that the man who acted and was acted upon in the past is the same man who acts in the present, and that the past is one way—and not the worst way—of acquiring the right and the criteria to judge the present. Our willingness to see the past as a whole, our willingness to take a stand, constitutes our card of identity.” Felix Gilbert, History: Choice and Commitment (Cambridge, Mass., 1977), 453.

141 Clifford K. Shipton, “The Locus of Authority in Colonial Massachusetts,” in Law and Authority in Colonial America, 147.

142 “Our recent preoccupation with the relation of law to the interests (primarily the material interests) of individuals and groups has led us to overlook the significance of legal institutions for the nature of man and his quest for a moral order.” Daniel J. Boorstin, “The Humane Study of Law,” Yale Law Journal, lvii (1948), 960, 975.

143 Note-Book kept by Thomas Lechford, Esq., Lawyer, Archaeologia Americana, vii (Cambridge, Mass., 1885) [hereafter, Note-Book], 155; Aspinwall Notarial Records (Boston, 1903), 5; Records of the Governor and Company of the Massachusetts Bay in New England, N. B. Shurtleff, ed. (Boston, 1853) [hereafter, Massachusetts Records], ii, 2325; Records and Files of the Quarterly Courts of Essex County Massachusetts (Salem, 1911), i, 37, 89, 101 et passim. I am grateful to my colleague, James H. Kettner, for his helpful criticism of this paper and for many kindnesses in guiding my feet in “right paths.”

144 See especially S. E. Prall, The Agitation for Law Reform during the Puritan Revolution, 1640–1660 (The Hague, 1966) and D. Veall, The Popular Movement for Law Reform, 1640–1660 (Oxford, 1970).

145 David Grayson Allen, In English Ways: The Movement of Societies and the Transferal of English Local Law and Custom to Massachusetts Bay in the Seventeenth Century (Chapel Hill, 1981), 209. George Lee Haskins, in his Law and Authority in Early Massachusetts: A Study in Tradition and Design (New York, 1960), especially Chapter X, 163–188, first emphasized the English local dimension in early Massachusetts law.

146 T. G. Barnes, “Law and Liberty (and Order) in Early Massachusetts,” The English Legal System: Carryover to the Colonies (Clark Library, Los Angeles, 1975), 63–89. Lechford appreciated the breadth of that jurisdiction: “And they themselves say, that in the generall and quarter Courts, they have the power of Parliament, Kings Bench, Common Pleas, Chancery, High Commission, and Star-chamber, and all other Courts of England. . . .” Plain Dealing: or Newes from New-England (London, 1642) (Wing L810) [hereafter, Plain Dealing], 26.

147 The Colonial Laws of Massachusetts, W. H. Whitmore, ed. (Boston, 1889) [hereafter, Whitmore], 39.

148 The other two were Richard Bellingham (Lincoln’s Inn, no date of call, but was recorder of Boston, Lincolnshire) and John Humphrey (Lincoln’s Inn, called 1623) 5 both were Assistants, or magistrates, in Massachusetts.

149 Winthrop’s Journal, J. K. Hosmer, ed. (New York, 1908) [hereafter, Winthrop], ii, 36.

150 The Book of the General Lawes and Libertyes Concerning the Inhabitants of the Massachusets, T. G. Barnes, ed. (San Marino, Calif., 1975) [hereafter, Lawes and Libertyes]. Introduction, 10, note 15.

151 Quoted in Darrett B. Rutman, Winthrop’s Boston: Portrait of a Puritan Town 1630–1640 (Chapel Hill, 1965) [hereafter, Rutman], 233.

152 H. E. Bell, An Introduction to the History and Records of the Court of Wards and Liveries (Cambridge, 1953), 30–31.

153 Quoted in Rutman, 233–234.

154 The Lord Coke his Speech and Charge (London, 1607) (STC 5491).

155 Lawes and Libertyes, Introduction, 5.

156 Note-Book, vii–ix; Trumbull’s introduction to a new edition of Plain Dealing (Boston, 1867), xi–xiii. Even if Thomas was no relation to Sir Richard Lechford, that the latter’s name is indifferently spelled Lechford or Leechford indicates that Thomas’s name should be pronounced with a long “e.”

157 Note-Book, 182.

158 Miscellanea Genealogica et Heraldica, J. J. Howard, ed. (London, 1868), i, 54–55.

159 Plain Dealing Proheme

160 John Cotton, The Way of Congregational Churches Cleared (London, 1648) (Wing C6469), 71.

161 The author, who has spent a quarter-century studying the Star Chamber from 1596 to 1641, has had access to all known, extant materials on the Case of Prynne, Bastwick, and Burton.

162 William Laud, Works (Oxford, 1854) [hereafter, Laud], iv, 130.

163 William Prynne, Canterburies Doome (London, 1646) (Wing P3917), 101. Peter Heylyn, Laud’s chaplain, who is usually a good corrective to Prynne’s animus towards Laud, agrees substantially with him on this, and adds some details. Cyprianus Anglicanus (London, 1668) (Wing H1699), 295.

164 Laud, iv, 132.

165 Ibid., 131.

166 Star Chamber registrar’s rough book of orders and decrees, Bodleian Library: MS. Rawlinson C. 827, f.6v.

167 Ibid., f.39.

168 Laud, iv, 131, Massachusetts Records, i, 377. C. E. Banks, Topographical Dictionary of 2885 English Emigrants to New England, 1620–1650 (Philadelphia, 1937), 39 and 103, lists a Ferdinando Adams of Barking, Essex, and one of the same name of St. Katherine’s parish, London; both settled in Dedham, Mass.

169 Note-Book, 47, Lechford to the Reverend Hugh Peters, 3 January 1639.

170 Ibid., 48.

171 Trumbull makes the case for this in his introduction, Note-Book, xiii.

172 Note-Book, 275.

173 Sheffield City Library: Wentworth-Woodhouse MSS., Letter-books, 5–11. I am grateful to Dr. David Postles, the Sheffield City Library Archivist, for his search—in vain—of the card-index to the Wentworth Letters, post-1631, for Lechford’s name.

174 Massachusetts Records, ii, 206, 11 November 1647.

175 Note-Book, 182; Plain Dealing, Title page.

176 Wilfrid R. Prest, in The Inns of Court under Elizabeth I and the Early Stuarts, 1590–1640 (London, 1972) has dealt extensively with the development of “barristers”; see also, his “The English Bar, 1550–1700,” in Lawyers in Early Modern Europe and America, W. R. Prest, ed. (New York, 1981), 65–85. See also, J. H. Baker, “Counsellors and Barristers,” Cambridge Law Journal, xxvi i (November 1969), 205–229; W. C. Richardson, A History of the Inns of Court (Baton Rouge, 1977); and E. W. Ives, The Common Lawyers of Pre-Reformation England (Cambridge, 1983), 36–89.

177 C. W. Brooks, “Litigants and Attorneys in the King’s Bench and Common Pleas, 1560–1640,” Legal Records and the Historian, J. H. Baker, ed. (London, 1978), 53, and C. W. Brooks, “The Common Lawyers in England, c. 1558–1642,” Lawyers in Early Modern Europe and America, W. R. Prest, ed. (New York, 1981), 42–64.

178 J. H. Baker, “Solicitors and the Law of Maintenance 1590–1640,” Cambridge Law Journal, xxxii (April, 1973), 56–80.

179 T. G. Barnes, “Star Chamber Litigants and their Counsel, 1596–1641,” Legal Records and the Historian, J. H. Baker, ed. (London, 1978), 25.

180 The author is grateful to Marcus A. McCorison, Director and Librarian of the American Antiquarian Society, for making a xerox copy of the entire Lechford MS. available to him. J. Hammond Trumbull’s choice of title, Note-Book, was unfortunate. The MS. makes very clear that “scrivener’s entry book” would have been more appropriate; save that the instruments are given in extenso, it resembles with respect to entries and fees three scrivener’s waste-books of Robert Glover, 1611–1617, in the Public Record Office: Wards 9/351. Trumbull’s and the other editors’ transcription in the 1885 edition leaves something to be desired, both with respect to canons of transcription and accuracy; a comparison of their text on 46–47 with the plate below (the passport for the Sparrow) will indicate that “Virtute litterarum” in the MS. has been rendered—quite impossibly—as “Virtute harum.” That the editors gave no indication in the 1885 edition of the existence of extracts at the rear of the MS. was inexcusable. The author intends to undertake a critical edition of the MS. at some future time, with an apparatus dealing with the legal matter in it.

181 Thomas Powell, The Attourneys Academy (London, 1623) (STC 20163), 170.

182 Of the 57 pleadings, Hatt is named in 4 ex parte the plaintiff and 29 ex parte the defendant; other named attorneys accounted for 5 plaintiff and 11 defendant; pleadings in which no attorney was named, 1 plaintiff and 7 defendant.

183 British Library: Addition MSS. 31116 (Whitaker’s diary of the Long Parliament) f.128, petition of the city of London to the Commons, 20 July 1643. Hatt was the son of Giles Hatt of Leckhampstead, Berks., and was admitted to Gray’s Inn in 1629, but not called to the bar; his son, also John, was called in 1651, Register of Admissions to Gray’s Inn, 1521–1889, J. Foster, ed. (London, 1889), 188 and 2385 The Pension Book of Gray’s Inn, 1560–1660, R. J. Fletcher, ed. (London, 1901), 381; Four Visitations of Berkshire, W. Harry Rylands, ed. (London, 1908), ii, 142.

184 Note-Book, 441.

185 Scriveners’ Company Common Paper, 1357–1628, with a Continuation to 1678, F. W. Steer, ed., London Record Society (London, 1968), 4.

186 AAS: Lechford’s MS. scrivener’s book, 241.

187 Massachusetts Records, i, vii.

188 Note-Book, 1.

189 Ibid., 437.

190 Ibid., 119.

191 Symboleography, first published in one part in 1590 (Beal T500a), was very popular; Lechford would probably have possessed it, possibly the last edition of both parts bound in one volume, printed in 1622 (STC 25275).

192 Note-Book, 74, Augustin Clement to John Tinker.

193 Note-Book, 46–47 and AAS: Lechford’s MS. scrivener’s book, 29. See illustration on page 22.

194 AAS: Lechford’s MSS., 241, has an entry-example of the proper style. It was possible that the engrossed instrument carried the full style; it was also possible that the Massachusetts Governor preferred to omit the red-flag of “Franciae” against the Sf arrow encountering a French warship.

195 Note-Book, 85.

196 Plain Dealing, 69.

197 The handiest, most learned, and historically most accurate brief introduction to the sixteenth and seventeenth centuries’ developments in pleading is J. H. Baker, An Introduction to English Legal History, 2nd. ed. (London, 1979), 71–74.

198 Edward Coke, A Booke of Entries (London, 1614) (STC 5488) was a great advance over the older printed literature of this sort, which began with William Rastell’s Collection of Entries, first published in 1566 (Beal T448) with numerous editions to 1670. It was probably Coke’s Entries which the Massachusetts General Court ordered purchased in two copies, along with other law books, to “have the better light for making & proceeding about lawes . . . ,” Massachusetts Records, ii, 212, 11 November 1647. The Second Part of West’s Symboleography (Beal T500D, T500d, T500e)—usually bound up with the First—supplied a great many pleadings in English-bill, for Chancery, Star Chamber, and the like.

199 Woodcock v. Davis (Lechford ex parte defendant), Note-Book, 367–372.

200 Cockerell v. Cockerham and Jones v. Leeke, respectively, Note-Book, 80 and 427.

201 Note-Book, 82–83.

202 Ibid., 163–166.

203 Ibid., 166–168.

204 Records of the Colony of New Plymouth: Judicial Acts, 1636–1602, N. B. Shurtleff, ed. (Boston, 1857), 13.

205 Note-Book, 339.

206 Ibid., 356.

207 Lang v. Upham et al. and Winslow v. Askew, respectively, Note-Book, 338 and 365.

208 Note-Book, 215.

209 Ibid., 179.

210 Ibid., 88.

211 Massachusetts Records, i, 275–276.

212 Ibid., 270.

213 Note-Book, 182–183.

214 Winthrop, ii, 37–38.

215 Whitmore, 39.

216 Note-Book, 325.

217 Plain Dealing, 31. See also, Note-Book, 227, 231, 237–238, and 256.

218 Note-Book, xx. Whitmore, 21, says Lechford was “starved into returning to England.”

219 Plain Dealing, 69.

220 In the suit in equity by Lechford for the plaintiffs, William and Elizabeth Cole v. Francis Doughty (September 1639), for relief upon a bond as surety and for other testamentary matters, Lechford noted the following fees and charges: 6s. 8d. for the bill (it is a big one); copy, 3s. 4d; copy of the deed in question, 4d.; entering the action, 1s. 6d.: total 11s. 10d. plus a fee of 6s. more, for a grand total of 17s. 10d., upon which he received 7s. with 10s. remaining (apparently, he was willing to forego 10d.). AAS: Lechford’s Ms., 110.

221 Note-Book, 234.

222 Ibid., 67, 102, 127, 236, and 237. For Spanish tobacco, see Jacob M. Price, France and the Chesapeake (Ann Arbor, 1973), i, 4 and 182.

223 Note-Book, 317 and xxiv. It should be noted that just after Lechford complained in July 1640 of no preferment, “writing petty things,” and so forth, and also of having “not yet here an house of my owne to put my head in, or any stock going” (Plain Dealing, 69), he purchased his Boston house.

224 Margery S. Foster, “Out of Smalle Beginings . . .” An Economic History of Harvard College in the Puritan Period (Cambridge, Mass., 1962), 54 and 88.

225 The author will not stake his scholarly reputation on the origins of the Theorem, beyond noting that in 1849 two of the earliest Gold Rush lawyers were one Mulford and Stephen J. Field in Marysville, Yuba County, California. If neither made a million—and Field was very nearly gunned-down by an irate judge—at least Field ended up on the United States Supreme Court.

226 Plain Dealing, 37. Lechford wrote this in a disquisition in May 1640 intended for, but perhaps never given to, John Winthrop, stressing inter alia the importance of converting the natives, which he argued could only be done by a church the polity of which was wider than a congregation.

227 Plain Dealing, 55.

228 Massachusetts Records, i, 310.

229 Plain Dealing, 77.

230 Ibid., Proheme.

231 Note-Book, xxiv.

232 Ibid., 89, June 1639.

233 Plain Dealing, 17.

234 Ibid., 77.

235 Ibid., Proheme.

236 John Cotton, The Way of Congregational Churches Cleared (London, 1648), 71. We have only Cotton’s word for when Lechford died: this quotation is completed by “yet put out his Book (such as it is) and soon after dyed.” This would point to a death date in late 1642 or perhaps 1643. A search of the Prerogative Court of Canterbury wills (Public Record Office, Probate) failed to turn up a will probated there, which would indicate that he either died intestate or devised only a modest personal estate. Time did not permit a search of PCC act books (for administration on an intestacy), other probate jurisdictions, or parish registers.

237 A. H. Chroust, The Rise of the Legal Profession in America (Norman, Oklahoma, 1965), ii, 220–221, 224ff.

238 Ibid., 39–41. This practice, which began in the nineteenth century, still persists in Vermont today in the Superior Courts, where two of the three judges can be laymen. See Boston Globe, 18 July 1982, 32; 21 August 1983, 65. See also David Margolick, “Vermonters Consider the Case of Laymen Judges,” New York Times for 27 October 1983, A24. In the assize courts in Italy today six of the eight judges are laymen. M. Cappelletti et al., The Italian Legal System (Stanford, 1967), 79ff.

239 J. P. Dawson, A History of Lay Judges (Cambridge, Mass., 1960), 3.

240 Ibid., 4.

241 See T. Barnes’ essay “Thomas Lechford and the Earliest Lawyering in Massachusetts, 1638–1641,” in this volume, above, 3–38.

242 P. S. Reinsch, “The English Common Law in the Early American Colonies,” Select Essays in Anglo-American Legal History (Boston, 1907), i, 370.

243 Barnes, “Thomas Lechford,” 17–29.

244 C. J. Hilkey, “Legal Development in Colonial Massachusetts,” Columbia Studies in History, Economics and Public Law, xxxvii (1910), 68.

245 F. Bacon, Law Tracts (London, 1741), 3, 9.

246 For this and other bills drafted, see Winthrop Papers (Massachusetts Historical Society, Boston, 1929–1947), i, 295–310, 371–374, 418–419.

247 See Barnes, “Thomas Lechford,” above, 5–7. See also G. L. Haskins, Law and Authority in Early Massachusetts (New York, 1960, 1977), 186.

248 Quoted in J. H. Smith, Colonial Justice in Western Massachusetts (Cambridge, Mass., 1961), 199.

249 The Colonial Laws of Massachusetts, ed. W. H. Whitmore (Boston, 1889), 39.

250 Barnes, “Thomas Lechford,” above, 6–7. See also summaries in Haskins, Law and Authority, 106, and footnotes 69–72.

251 Winthrop Papers, ii, 55, note.

252 N. Ward, “The Simple Cobbler of Agawam,” Publications of the Ipswich Historical Society, xiv (1905), 66.

253 Haskins, Law and Authority, 278–279, notes 90–92.

254 See generally, Records of the Governor and Company of Massachusetts Bay, ed. N. B. Shurtleff (Boston, 1853–1854), i, 3–20; F. Rose-Troup, The Massachusetts Bay Company and its Predecessors (New York, 1930); Haskins, Law and Authority, 9.

255 Massachusetts Bay Records, i, 51–52.

256 Haskins, Law and Authority, 28–29.

257 Massachusetts Bay Records, i, 74.

258 See Winthrop Papers, 178, 195, 207.

259 Quoted from Haskins, Law and Authority, 32.

260 This episode is discussed in ibid., 29–30.

261 H. L. Osgood, The American Colonies in the Seventeenth Century (New York, 1904), i, 177.

262 Haskins, Law and Authority, 32–33, and footnote references.

263 Massachusetts Bay Records, i, 169, 325–326.

264 Haskins, Laws and Authority, 33.

265 Summarized in ibid., 33.

266 Winthrop Papers, iv, 468ff.

267 Colonial Laws of Massachusetts.

268 Edited by M. Farrand (Cambridge, Mass., 1929).

269 Massachusetts Bay Records, i, 74.

270 Ibid.

271 For Ludlow’s position, see Winthrop Papers, ii, 264; also, Dictionary of National Biography.

272 E. g. Simon Bradstreet, who had served as Steward to the Earl of Lincoln, and William Pynchon, one of the original Assistants and known as a competent administrator. On the latter, see Smith, Colonial Justice in Western Massachusetts, 7–8, 10; Haskins, Law and Authority, 260, footnote 71.

273 Haskins, Law and Authority, 27–28.

274 That is, apart from training and experience as a justice of the peace, as explained in the instances cited in the following footnotes.

275 Winthrop Papers, ii, 3; G. W. Robinson, John Winthrop as Attorney (Cambridge, Mass., 1930).

276 A. Jones, The Life and Work of Thomas Dudley (Boston, 1899), 25.

277 Winthrop Papers, ii, 55, note; R. E. Wall, Massachusetts Bay: The Crucial Decade (New Haven, 1972), 31–32.

278 A. P. Newton, The Colonizing Activities of the English Puritans (New Haven, 1914), 45; F. Rose-Troup, “John Humfry,” Essex Institute Historical Collections, lxv (1929), 293.

279 Johnson was also a wealthy landowner in Rutland, England, and was a brother-in-law of the Earl of Lincoln.

280 See above, 42, footnote 5.

281 Haskins, Law and Authority, chapter 11, and especially 220–221.

282 H. Adams, History of the United States of America (New York, 1889), i, 133.

283 The episode is discussed in Haskins, Law and Authority.

284 The relevant elected lists are printed in W. H. Whitmore, The Massachusetts Civil List (Albany, 1870), 21–22.

285 Commissioners’ courts were established in 1638 for the settling of small cases by appointed freemen in communities where no magistrate resided. See Haskins, Law and Authority, 34, especially footnote 67. Also Massachusetts Bay Records, i, 239, 317; ii, 208, 279.

286 Smith, Colonial Justice in Western Massachusetts, 200.

287 This expression is frequently used to describe the early government of Massachusetts. It first appears as a term of John Winthrop. See Winthrop Tapers, ii, 293. See also Haskins, Law and Authority, chapter 4.

288 A. B. White, Self-Government at the King’s Command (Minneapolis, 1933) passim; G. L. Haskins, The Growth of English Representative Government (Philadelphia, 1948), chapter 3.

289 F. W. Maitland, Memoranda de Parliamento (London, 1893), xcix.

290 E. P. Cheyney, A History of England (New York, 1926), ii, chapters 37–41.

291 See W. Notestein, The English People on the Eve of Colonization (New York, 1954), chapters 19, 20.

292 Haskins, Law and Authority, 76.

293 S. and B. Webb, English Local Government (London, 1906–1908), i, 308; Haskins, Law and Authority, 76, 174–178.

294 F. W. Maitland, Collected Papers (Cambridge, 1911), i, 476–477.

295 See, James P. Lane, Historical Sketches of the First Congregational Church, Bristol, R.I., 1680–1872 (Providence, 1872), 37–38.

296 See, e.g., Lane, Historical Sketches; Francis Baylies, An Historical Memoir of the Colony of New Plymouth, 2 vols., 4 parts (Boston, 1830); Emory Washburn, Sketches of the Judicial History of Massachusetts From 1630 to the Revolution in 1775 (Boston, 1840); Wilfred H. Munro, The History of Bristol, R.I.: The Story of the Mount Hope Lands, From the Visit of the Northmen to the Present Time (Providence, 1880); Celebration of the Two-Hundredth Anniversary of the Settlement of the Town of Bristol, Rhode Island, Sept. 24th . . . 1880 . . . , compiler William J. Miller (Providence, 1881) (hereafter Bicentennial); Mark A. DeW. Howe, Bristol, Rhode Island: A Town Biography (Cambridge, 1930); George L. Howe, Mount Hope: A New England Chronicle (New York, 1959).

297 “An Account of the Deceased,” Weekly News-Letter No. 1533, With Amendment, Boston, 14 June 1733. This account is endlessly repeated, sometimes mis-quoted, but nowhere improved upon. Lane, Historical Sketches, 38–40, has some additional material on Byfield’s wives. See also, The Heraldic Journal, 4 vols. (Boston, 1865–1868), ii, 126–127.

298 The “Bristol” of which Byfield was “Principal Settler” has been since 1747 Bristol, Rhode Island. Byfield took the oath of freemanship in Plymouth on 5 June 1684, Records of the Colony of New Plymouth in New England, 1620–1602, 12 vols. ed. Nathaniel B. Shurtleff (Boston, 1855–1861), vi, 130. His name does not appear in the Index of Freemen in the volume of the Massachusetts Records where it should be if he had become a freeman of the Bay Colony between 1674 and 1684. See Records of the Governor and Company of the Massachusetts Bay in New England, 1628–1686, ed. Nathaniel B. Shurtleff, 5 vols, in 6 (Boston, 1854), v (1674–1686), 611–616 (hereafter Massachusetts Records). He is recorded as having taken the oath of allegiance in Boston in 1678. See Records of the Suffolk County Court, 1671–1680, with Introduction by Zechariah Chafee, Colonial Society of Massachusetts, Publications, xxix–xxx (1933), ii, 962.

299 Charles Chauncy, Nathanael’s character display’d. A sermon preach’d the Lord’s Day after the funeral of the Honourable Nathanael Byfield, esq; late judge of the vice-admiralty, and one of His Majesty’s council for this province. Who died at his house in Boston, on the 6th of June, 1733. In the 80th year of his age. (Boston [?] 1733).

300 Munro, History of Bristol, 66; Lane, Historical Sketches, 37. The tombstone, no longer discoverable, bore the Byfield arms, with the name “Lyde,” below, 105, and the Byles epitaph, above, 56, note 1, Lane, Historical Sketches, 37.

301 In 1689 he was elected to the Plymouth General Court, but did not take his seat, Baylies, Historical Memoir, ii:iv, 101. He was elected representative from Bristol to the Massachusetts General Court in 1693 and 1694, but was ineligible to serve in the latter year. See below, 67, on the non-residency law of 1693. In 1696, 1697, and 1698, he was elected representative from Boston. He was chosen speaker in 1693, and again in 1698, Acts and Resolves of the Province of Massachusetts Bay, 21 vols. (Boston, 1869–1922), vii (Resolves, Etc., 1692–1702), 21, 29, 45, 104, 148, 180 (hereafter Acts and Resolves). See, Records of the General Court, 68 vols. (1628–1833). (Archives of the Commonwealth, Boston, Massachusetts), vi (1689–1698), 338–339 (hereafter Court Records).

302 See William Henry Whitmore, The Massachusetts Civil List For the Colonial and Provincial Periods, 1630–1774; being a list of the names and dates of appointment of all the civil officers constituted by authority of the charters, or the local government (Baltimore, 1969), 47, 48, 50, 51, 52, 53 (hereafter Civil List). Byfield was chosen for the Council 1699–1702, 1704, 1714–1728, and negatived in 1714, 1715, 1720, 1721, 1722, 1723.

303 For facts (and fiction) about Byfield’s position and tenure on the Bristol Court of Common Pleas, see below, 64–65, note 6.

304 Whitmore, Civil List, 102. Records of the Governor and Council (Archives of the Commonwealth, Boston, Massachusetts), iii (1698–1703), 378 (23 October 1702) (hereafter, Council Records). See Court Files, Suffolk County (Office of the Clerk, Supreme Judicial Court, Suffolk County, Boston) #5538 (hereafter Suffolk Files), for Byfield’s commission as Judge of Probate, Bristol, 26 October 1702. It is signed by Dudley “by and with the advice of the Council,” and it appears that the word “consent” was crossed out, and “advice” substituted, an interesting but mystifying datum. Byfield was off Probate from 1710 to 1715, then back on until 1729. See below, 102.

305 Whitmore, Civil List, 78. He was appointed by Belcher, whose daughter married Byfield’s grandson.

306 Whitmore, Civil List, 127. He was appointed by Burnet on 19 December 1728, and presumably remained on the commission of the peace until his death. He was a J.P. for Suffolk in 1700, 1701 and 1702, possibly until 1706, Records of the Court of General Sessions of the Peace, Suffolk County (Office of the Clerk, Supreme Judicial Court, Suffolk County, Boston), 1 (July, 1702–July, 1712), 136–138; Massachusetts Archives, 328 vols. (Archives of the Commonwealth, Boston, Massachusetts), XL (Judicial, 1683–1724), 641, 642, Massachusetts Archives, Vin (Depositions, 1662–1776), 102 (hereafter Massachusetts Archives). Byfield was also, on occasion, appointed a special justice of the Superior Court for a particular cause, Whitmore, Civil List, 71–72. See also, Suffolk Files, #34664.

307 See below, 64–65, note 6, 102.

308 At least three Smibert portraits of Byfield survive. One authority believes, however, that all three may be Smibert copies of a lost Smibert original. The surviving paintings are standard bust length (30 × 25), while the fee recorded by Smibert was that amount which he would have charged for a ¾ length (50 × 40) painting. Nor would it have been unusual for Smibert to do bust length replicas of larger portraits. Richard H. Saunders, “John Smibert (1688–1741): Anglo-American Portrait Painter” (unpublished dissertation, Yale University, 1979) (conversation with author). One of the three surviving Byfield portraits (#1) is in the Metropolitan Museum of Art, another (#2) at the Vose Gallery, Boston, and the third (#3) privately owned. The portrait reproduced at the start of this article is #3. There is also a copy, by Jane Stuart, which is now at the Bristol, R.I., Historical

Society. Smibert’s notebook records the date of the painting as June 1729. The Metropolitan copy, marked “Aetatis 78, 1730,” is reputed to have come down from the Pepperrell family, who are said to have believed for some time that it was a portrait of Jonathan Belcher. Portrait #2 was once owned by Byfield descendant George Lyde, of New York, and was given by him in 1825 to Byfield parish. Portrait #3 was once owned by Byfield descendant Francis Brinley, who, delivering the Byfield address at the Bristol Bicentennial ceremonies, explained that a daughter of Byfield’s daughter Mrs. Lyde married Colonel Francis Brinley of Roxbury, the speaker’s great-grandfather, Bicentennial, 114. See Henry W. Foote, John Smibert, Painter, with a descriptive catalogue of portraits, and notes on the work of Nathaniel Smibert (Cambridge, 1950), 140–1415 John Smibert, The Notebook of John Smibert with Essays by Sir David Evans, John Kerslake, and Andrew Oliver, and with notes relating to Smibert’s American portraits, by Andrew Oliver (Boston, 1969), 88.

309 Howe, Mount Hope, 64, labels this “about as faint praise as ever damned a man.”

310 Baylies, Historical Memoir, ii:iv, 55–57.

311 See the works cited above, 56–57, notes 1 and 2.

312 In Byfield, it appears, frugality warred with generosity, and there is substantial evidence of both in the records and in the histories: Jeremiah Dummer to Dr. Coleman: “his [Byfield’s] frugality makes him sick of coach hire, fees to officers and door-keepers, and other expenses . . . ,” quoted in Baylies, Historical Memoir, ii:iv, 55–56, note; see, Washburn, Judicial History, 183; Lane, Historical Sketches, 32–33, 36–37 (“His servants were remembered [in his will] with Christian affection and counsel. . . .” He did, however, free and provide for one “favorite servant,” possibly a slave. According to Howe, Mount Hope, 103, “Byfield kept ten bonded whites and one slave.”)

313 Munro, History of Bristol, 67; Lane, Historical Sketches, 34; Washburn, Judicial History, 182.

314 Munro, History of Bristol, 67.

315 Probably including, at one time or another, Jeremiah Dummer, Cotton Mather, Increase Mather, Joseph Dudley, William Phips, Samuel Shute, William Dummer, John Saffin, Nathaniel Blagrove, Sir William Ashurst, and Samuel Sewall. I am baffled by Munro’s apparent inclusion of Baylies in the ranks of Byfield’s enemies. Baylies, as we have seen, wielded his pen as candidly as Smibert did his brush, and to much the same unflattering conclusion, but he seems to have been quite concerned to give a balanced account. At one point, indeed, he cautions us against swallowing whole the words of one of Byfield’s enemies, on the ground that the detractor himself was a man not to be trusted. And, in addition to warning us about Jeremiah Dummer, Baylies says “Colonel Byefield much to his honor, resisted the insane fanaticism of the people during their delusion on the subject of witchcraft, and condemned the conduct of the Court with much severity,” Baylies, Historical Memoir, ii:iv, 55, note. (This is repeated by all, but I do not know its source in original records.) Munro, however, damns Baylies’ account as “evidently much biased by personal prejudice,” Munro, History of Bristol, 67. And Lane, mentioning “the detractions of prejudiced or ill-informed historians who came after him” (Lane, Historical Sketches, 34), probably means Baylies, as well.

316 Munro, History of Bristol, 67.

317 Hutchinson and Baylies have him emigrating to America several years late, “about 1680” and “1680,” respectively, Thomas Hutchinson, The History of the Colony and Province of Massachusetts Bay, ed. Lawrence S. Mayo, 3 vols. (Cambridge, 1936); Baylies, Historical Memoir, ii:iv, 53. And most accounts follow the Weekly News-Letter in placing Byfield firmly in Bristol from about 1680 until 1724, Munro, History of Bristol, 66; Lane, Historical Sketches, 31; Bicentennial, 44; Washburn (who sends him back to Boston only in 1731), Judicial History, 178. But as Mark Howe points out, “The big-wig founders of the town . . . belonged somewhat to the class of absentee landlords. . . .” Howe, Bristol, 10. Byfield, says Howe, was the “least absentee of the quartette,” Howe, Bristol, 17. Still, it is well known to historians that in 1693 and 1694 Byfield was one of the Bostonian representatives of “country towns” (Bristol in his case) at whom the non-residency act of 1693 was aimed, and in 1694 he was rejected on grounds of non-residency. See below. And in 1696, 1697, and 1698, with that act in force, Byfield was representative from Boston. Moreover, in 1700 he was Moderator and Overseer of the Poor for Boston, Robert F. Seybolt, The Town Officials of Colonial Boston, 1634–1775 (Cambridge, 1939), 77. He was a justice of the peace for Suffolk County in 1700 and 1701; see above, 60, note 3. From all that I have seen, the residence story appears to be:

318 The major confusion has to do with Byfield’s tenure and position on the Court of Common Pleas for Bristol, and it originates in the statement in his obituary, unfortunately relied upon ever after, that Byfield:

sat CHIEF thirty-eight years in the court of general sessions of the peace, and common pleas for the county of Bristol, as afterwards he did two years for the county of Suffolk.

So far as I have been able to ascertain the facts concerning Byfield and the Bristol Court of Common Pleas, they are:

1. a. Chief Justice under Andros, probably from about 1687 to 1689, Baylies, Historical Memoir, ii:iv, 98.
2. b. 1689–1701: not on any such court.
3. c. August 1701: Appointed (judge, not Chief Justice): Council Records, III, 232. Whitmore, Civil List, 99.
4. d. June 1710: Suspended, Whitmore, Civil List, 99.
5. e. December 1715: Re-appointed, Whitmore, Civil List, 99.
6. f. November or December 1724.: Resigned, Whitmore, Civil List, 100.

So, the Dominion of New England aside, he was on the Court of Common Pleas, Bristol, for just under 18 years, not 38, nor was he Chief Justice (except under Andros) for the very good reason that there was no Chief Justice of Common Pleas. As to General Sessions: in the Province period, that was a court held by justices of the peace for the county. And, although I find this hard to credit, according to the Civil List Byfield was not a J.P. for Bristol at all.

As to Admiralty, as Kinvin Wroth has said of the early admiralty courts: “For seven years the new courts existed in a state of political conflict so confusing that no historian has succeeded in unraveling it completely.” L. Kinvin Wroth, “The Massachusetts Vice Admiralty Court and the Federal Admiralty Jurisdiction,” American Journal of Legal History, vi (1962), 259. The confusion extends to the dates of the judges’ commissions. The actual Admiralty story for Byfield, so far as I can determine: Commission shown in Council, 21 March 1697/8, but taking of oath delayed. Took oath as Judge of Admiralty, 9 June 1699, only to be superseded almost immediately by Wait Winthrop. Appointed again, July 1703. After some confusion, re-commissioned in 1704; sworn in April 1704. Sat until 1714 or 1715. Sitting again October 1728; sworn before Governor and Council, 10 April 1729. See Council Records, ii (1686–1687, 1692–1698), 527; Council Records, iii, 52, 59, 264; Wroth, “The Massachusetts Vice Admiralty Court,” 259, 261; Richard S. Dunn, Puritans and Yankees: The Winthrop Dynasty of New England 1630–1717 (New York, 1971), 271, 272; John G. Palfrey, History of New England, 5 vols. (Boston, 1859–1890), iv, 255, note 1; Charles M. Andrews, “Vice-Admiralty Courts in the Colonies,” Introduction to Records of the Vice-Admiralty Court of Rhode Island 1716–1752, ed. Dorothy S. Towle (Washington, D.C., 1936), 14, note 4, 86–87; Marguerite Appleton, “Rhode Island’s First Court of Admiralty,” New England Quarterly, v (1932), 156 (quoting Boston Newsletter, 1 May 1704); Massachusetts Court of Admiralty Records, 3 vols. (Office of the Clerk, Supreme Judicial Court, Suffolk County, Boston), iii (1726–1733), 52, 59–60 (hereafter Admiralty Records).

In his obituary notice it was said of Byfield as judge of admiralty that:

He was the first judge under our present charter; and never once had a decree revers’d upon an appeal home.

In Lane, Historical Sketches, 34, we read:

The wisdom and justice of Mr. Byfield’s acts as a Civil Judge, are apparent from the remarkable fact that in no case were his decisions ever reversed on appeal to higher powers.

The context makes it clear that Lane, an ecclesiastical historian, intends by “Civil” not an opposition to “Admiralty” but merely “secular.” Thus are legends made.

See also, Munro, History of Bristol, 66, and Bicentennial, 117.

319 See G. B. Warden, Boston, 1680–1776 (Boston, 1970), 51.

320 Wroth, “The Massachusetts Vice Admiralty Court,” 258–259; Dunn, Puritans and Yankees, 271.

321 Warden, Boston, 46, 48, 51.

322 Everett Kimball, The Public Life of Joseph Dudley: A Study of the Colonial Policy of the Stuarts in New England (New York, 1911), 66, note 2; Howard M. Chapin, Privateer Ships and Sailors, 1625–1725 (Toulon, 1926), 178 (Dudley’s “servile agent Byfield”); Dunn, Puritans and Yankees, 268–271.

323 There is a fascinating, if minor, bibliographic muddle which has almost certainly done its bit to produce confusion, and probably inaccuracy. On 29 April 1689, Byfield wrote a letter of introduction to a Declaration written by the revolutionaries who seized power from Andros. The letter, non-committal in the extreme, in itself enables neither contemporary nor historian to gather the political sentiments of the author. But Byfield’s authorship of this innocuous if not helpful document has resulted in quite baseless attribution to him variously of two other documents—one on each side of the great political controversy. See, “An Account of the Late Revolution in New-England. Together with the Declaration of the Gentlemen, Merchants, and Inhabitants of Boston, and the Country adjacent. April 18, 1689. Written by Mr. Nathanael Byfield, a Merchant of Bristol in New-England to his friends in London.” (Printed for Ric. Chiswell, 1689 at the Rose and Crown in St. Paul’s Church-Yard.) The Declaration appears to have been written by Cotton Mather, see Palfrey, History of New England, in, 579 note i; “An Account of the Late Revolutions in New England; In a Letter (Published at Boston by Benjamin Harris, and Sold at the London-Coffee, House there, June 6, 1689.) Signed “A.B.” (“Frequently confused with a pamphlet by Nathaniel Byfield,” Card Catalogue, John Carter Brown Library, Brown University, Providence, Rhode Island); “Seasonable Motives To our Duty and Allegiance (by a Lover of the Peace of New-England) offered to the Consideration of his Neighbors & Country-men.” (Philadelphia, printed by William Bradford, 1689.) Signed “A.B.” (Attributed to Byfield, Evans Catalogue #463.)

324 Acts and Resolves, i (Acts, 1602–1714), 147. See objection by Byfield and others to the act, Massachusetts Archives, xlviii (Legislature, 1643–1732), 224.

325 Palfrey, History of New England, iv, 143 [emphasis added]; see Warden, Boston, 46.

326 Court Records, vi, 338.

327 Baylies, Historical Memoir, ii:iv, 55–56, note; Washburn agrees, Judicial History, 180.

328 Dunn, Puritans and Yankees, 271.

329 See above, 65, footnote 6.

330 See Wroth, “The Massachusetts Vice Admiralty Court,” 259; cf. Dunn, Puritans and Yankees, 271–272.

331 Wroth, “The Massachusetts Vice Admiralty Court,” 261, quoting Dudley: “I have now a second commission for Mr. Byfield. . . .”

332 As a letter from Byfield to Dudley makes clear, quoted by Kimball, Dudley, 66, note 2.

333 See below, 102, note 3.

334 John A. Schutz, William Shirley, King’s Governor of Massachusetts (Chapel Hill, 1961).

335 Joseph J. Malone, Pine Trees and Politics: The Naval Stores and Forest Policy in Colonial New England 1601–1775 (Seattle, 1964).

336 Schutz, William Shirley, 8.

337 Malone, Pine Trees and Politics, 71, 93, 106–109.

338 Malone, Pine Trees and Politics, 71. Malone calls Byfield “a timber merchant and sawmill owner,” ibid.

339 He had, on his death, extensive land holdings in Maine and Vermont, Lane, Historical Sketches, 36.

340 Admiralty Records, in, 108–109, 105, 132–133, 74–81.

341 Swazey v. Byfield, Suffolk Files #35758, Writ of execution, 16 March 1732/3. Judgment for Swazey in Superior Court, Boston. [Reverse of document: Judgment satisfied, £23.4.0, 15 August 1733. This was after Byfield’s death.] Schutz, noting that Byfield had hired Shirley to represent him in this matter, says of Shirley’s appeal to the Privy Council, “The Council’s ruling was inclusive.” Schutz, William Shirley, 8.

342 Suffolk Files #30398. See John Noble, “A Few Notes on Admiralty Jurisdiction in the Colony and in the Province of Massachusetts Bay,” Colonial Society of Massachusetts, Publications, viii (1906), 168.

343 I have discovered records of twenty-seven actions, civil or criminal, in which Byfield or his executor was a party, in a few of them as executor. As we shall see, some of these stretched on for many years, through a number of courts, and in some cases arbitration as well.

344 The inhabitants of Bristol were embroiled in controversy among themselves from virtually the moment of settlement. They squabbled, and sued, over rates and roads, mills and ministers, over land and water. Simple-minded though this may be, I believe the trouble to be in part traceable to the character and temperament of particular individuals—Nathaniel Byfield for one. One historian, taking a somewhat broader view, says of those men who followed the original proprietors, and who were induced to settle in Bristol by land grants: “Like most men who get something for nothing, the first sixty were malcontents.” It will be seen that Bristol is a problem for any historian who might care to advance the thesis that New England was, in this era, harmonious. Perhaps the situation in Bristol supports the thesis that with a shift in societal focus from religion to commerce came disunity and strife. Bristol was, as its celebrants somewhat apologetically record, a commercial enterprise, in the words of the original deed to Byfield et al., “a town for trade.” No Puritan Eden this. Or perhaps the Bristol story points up what we ought in any event to know by dead reckoning, that is, that times of settlement are likely to be times of confusion, therefore of conflict. Or perhaps Bristol was unique. Or perhaps New England was not particularly harmonious.

345 On Saffin see Munro, History of Bristol, 87–90, Baylies, Historical Memoir, ii:iv, 57–62, Washburn, Judicial History, 268–270.

346 Plymouth Records, vi, 116–119, vii, 269. See also vii, 270. At the same time that Saffin sought justice against the tax assessors, he also took up a separate grievance against one of them. He brought an action of the case against Benjamin Church, alleging that by damming up a “certain watercourse, stream or creeke,” Church had flooded Saffin’s land and deprived him of free access thereto. The jury, finding for Saffin, awarded him £3 and costs. He had asked £80 “with other due damages.” Plymouth Records, vii, 270.

347 Plymouth Records, vii, 270–271. They also brought an action against one Robert Skiff for withholding land belonging to them, apparently land sold to Skiff by Saffin. Plymouth Records, vii, 271.

348 Massachusetts Archives, xl, 383. In ibid., xl, 382, is Saffin’s bill of particulars, presented to the arbitrators in February 1683/4. The arbitrators were Thomas Hinckley, William Stoughton, Joseph Dudley, and Nathaniel Thomas.

349 The bond given to Walley, Byfield, and Burton is at Massachusetts Archives, xl, 384, dated 9 February 1683/4. Saffin’s bond, on the same date, is in ibid., xl, 383.

350 The arbitration award, dated 13 February 1683/4, is in ibid., xl, 385.

351 Ibid., 395.

352 Ibid., 396.

353 This is a lengthy document, appearing in ibid., 397–412.

354 Ibid., 376–378, contains the arbitration award, dated 6 July 1696.

355 Ibid., 413, is Saffin’s summary of his Narrative.

356 Ibid., 412.

357 Ibid., 397–412.

358 Ibid., 397.

359 Ibid., 399.

360 Ibid., 405.

361 Ibid., 408. Saffin was married three times, Baylies, Historical Memoir, ii:iv, 62; Munro, History of Bristol, 88, although not “to a daughter of Colonel Byfield,” as Washburn—tripping over some awkward footnoting in Baylies, I suspect—says. See Washburn, Judicial History, 270, Baylies, Historical Memoir, ii:iv, 53.

362 Massachusetts Archives, xl, 377.

363 The Retraction is reprinted by both Baylies, Historical Memoir, ii:iv, 58–61, and Munro, History of Bristol, 89–90; see also, Massachusetts Archives, xl, 320.

364 Two statements in support of Saffin survive: (1) Nathaniel Reynolds, Massachusetts Archives, XL, 414, and (2) William Hoar, ibid., 414–419. Hoar asserts that he has “heard [Byfield and Walley] called cheats and worse terms to their faces at a Tavern in Bristol whilst they dwelt there. And at my house I have heard a near relation of Major Walley’s call him a cheat and curse him, for he said that the Major had wheadled him out of a fair estate at Road Island to come & settle in Bristol, and there dealt as falsely with him in not performing what he pretended to him which promise was the very inducement to cause him to settle in Bristol.”

365 Ibid., 410.

366 Ibid., 411.

367 Howe, Mount Hope, 63–64.

368 Acts and Resolves, vii, 351, 7265 Massachusetts Archives, xlv (Lands, 1622–1726), 286–287; Court Records, vii (1699–1703), 324.

369 This was of course true of most early colonial “legislatures,” that of Plymouth, for example. As we have seen, the disputes which arose in Bristol, before the assimilation of Plymouth into Massachusetts in 1692, had been brought to the Plymouth General Court, where, by the way, trial was by jury, not ever the case in the Massachusetts General Court.

370 The documents in the case are in Massachusetts Archives, xl, 352, 353, 354, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 371, 372, 393, 414, 421, 422, 423; Court Records, vi, 460, 476, 477, 480. Just a few of the documents are printed in Acts and Resolves, vii, 110–111, 491–493.

371 Massachusetts Archives, xl, 409. The selectmen were Nathaniel Blagrove (to whom we will return), John Rogers, and Thomas Walker.

372 The Colonial Laws of Massachusetts, Reprinted From the Edition of 1660 With the Supplements to 1686, ed. William H. Whitmore (Boston, 1889), 41 (“The Body of Liberties,” Sec. 36, 1641); 122 (The Book of the General Lawes and Libertyes, Sec. “appeal,” 1660).

373 Massachusetts Archives, xl, 352.

374 Ibid., 353. See Acts and Resolves, vii, 493. Nonconcurred, Massachusetts Archives, xl, 353; Acts and Resolves, vii, 494.

375 Massachusetts Archives, xl, 377.

376 Ibid., 421.

377 In January 1696/7, an appeal was heard in the Superior Court, from a judgment in the Inferior Court, for Nathaniel Blagrove, executor of Nathan Hayman, against Jabez Goram, as tenant to Byfield; presumably the action was begun in late 1696. Records of the Superior Court of Judicature (Office of the Clerk, Supreme Judicial Court, Suffolk County, Boston) (1686–1700), 169. (Hereafter Superior Court Records.)

378 Saffin and Reynolds appealed to the Superior Court, but withdrew their actions, “Mr. John Sparhawk of Bristol who was subpoenaed not being there.” Byfield was awarded costs. Superior Court Records (1686–1700), 239. For Reynolds’ deposition supporting Saffin in the controversy over the settling and management of Bristol, see Massachusetts Archives, xl, 414.

379 Ibid., xl, 406–407.

380 The papers in this case, Blagrove, Administrator of the Estate of Nathan Hayman v. Byfield, are at:

• Suffolk Files, #4038 (17 papers, f. 129–146).
• Suffolk Files, #162489.
• Suffolk Files, #162509.

Superior Court Records (1686–1700), 169, 239, 242–245, 248–249.

381 Suffolk Files #4038, 6th paper.

382 Massachusetts Records, ii (1642–1649), 21 (1642); Acts and Resolves, i, 75, 144–145, 285, 356–357, 373.

383 Horace Gray, “Note,” Josiah Quincy, Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay between 1716 and 1722, ed. Samuel M. Quincy (Boston, 1865).

384 Acts and Resolves, i, 356–357.

385 The documents in the case are:

• Suffolk Files #7796 (14 papers, f. 110–119).
  • Superior Court Records (1700–1714), 187–188.
• Council Records:
  • IV (1703–1708), 76, 154, 403–404, 406, 490, 410, 411, 428–431, 443, 447, 449, 533–534.
  • V (1708–1712), 132, 219–220, 234–236, 241–242, 243.
  • VII (1723–1727), 267.
• Massachusetts Archives, xl, 884, 887–891.

Some of the documents, with narrative and analysis will be found in Acts and Resolves, viii (Resolves, 1703–1707), 206–207, 650–657.

386 Suffolk Files #7796, 6th paper.

387 Suffolk Files #7796, 7th paper.

388 Acts and Resolves, i, 15.

389 Acts and Resolves, i, 43–45, 251–252, 430–431.

390 “Your Apearance for Orphans is made something dim, by reason that Four of the Six, by Instrument under their hands, disavowed the Action; and declard themselvs very well satisfied with the Management of Mr. Nathanl Blagrove their Father-in-Law.” Sewall to Byfield, Acts and Resolves, viii, 656, citing Sewall Letter Book, i, 318. The instruments referred to are in Suffolk Files #7796. See also Council Records, v, 132 (in November 1709, the Council heard a complaint by Nathan and Grace Hayman against Byfield’s division of the real estate, and awarded £12 to Nathan, £30 to Grace).

391 Although by May 1707 both Mary and her sister Elizabeth Brattle appear to have had complaints about the substance of the accounting, Council Records, iv (1703–1708), 403–404, 406, 409, 410, 411, 429–431.

392 The account in the text of the English background is taken from A. W. B. Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Oxford, 1975), 120–122, and Lord Nottingham’s “Manual of Chancery and Practice” and “Prolegomena of Chancery and Equity,” ed. D. E. C. Yale (Cambridge, 1965), 275.

393 Addington v. Griggs, described in Acts and Resolves, viii, 657.

394 Suffolk Files #7796, 6th paper.

395 There are two interesting 1714 letters to John Leverett at the Massachusetts Historical Society. Byfield apologizes for not going to see Leverett in Cambridge while he was in Boston: “ . . . I understood by a Friend of yours, that you were somewhat Timorus [?], and I being a neggatived person, and observed in all my motions, I was afraid my going might prove a disservice . . . ,” Nathaniel Byfield to John Leverett, 1714, Folio XI-M, Saltonstall Papers, Massachusetts Historical Society.

396 See Sewall on this point, Acts and Resolves, viii, 657.

397 Acts and Resolves, viii, 656.

398 Ibid. Blagrove’s petition to the General Court makes the same point:

And May it Please this Hononrd Court

Such is the hast & Severity of yor Petitionrs Enemys, that without any regard to Equall Justice, or to Yor Petitionrs being a Member of the Honourble House of represents, Execution is already actually taken Out against him, for the whole 6000£. Even while the Houss was sitting, thereby to Overawe, & keep him in Continuall dread, to Augmt & put him to unreasonable, & unnecessary charges (the first Step, at least is 40li or 50li fees to ye Sheriff) so that no less can be aim’d at or Intended then his utter ruin

399 Massachusetts Archives, xl, 890.

400 Ibid., 891.

401 Court Records, viii (1703–1709), 254, 260.

402 The House wanted to suspend judgment pending enactment of a law for the chancering of administration bonds, Massachusetts Archives, xl, 889, but the Council thought “the Law already Sufficient in that respect,” Court Records, viii, 265. See also Massachusetts Archives, xl, 888, 889.

403 Acts and Resolves, viii, 206–207.

404 This statement is based on incomplete but not inconsiderable study of the subject.

405 That is, where, by lifting some bar (e.g., statute of limitations), it merely enabled a litigant to proceed in the regular courts.

406 Council Records, v (1708–1712), 235–236.

407 Council Records, v, 243.

408 Council Records, v, 241–242.

409 On the Land Bank dismissals, see Council Records, x (1735–1742), 463, 466, 476, 471, 473, 475, 479, 506, 508, 519.

410 See, Boston Gazette, 16 December 1771, 6 January 1772, 13 January 1772; Massachusetts Gazette, 2 January 1772. The Greenleaf case was first brought to my attention by Catherine Menand.

411 Massachusetts Archives, xl, 890.

412 That is, for not setting up a separate Court of Chancery, arguably outside the powers granted by the original royal charter and certain to be frowned upon by imperial authority.

413 Hutchinson, History, 158 note; Baylies, Historical Memoir, ii:iv, 55; Munro, History of Bristol, 70, note, suggests that the quarrel with Dudley was about Blagrove’s administration of Hayman’s estate.

414 Hutchinson, History, ii, 177; Baylies, Historical Memoir, ii:iv, 55 note; Warden, Boston, 92; Washburn, Judicial History, 180–181; Howe, Bristol, 17. All of these mention Byfield’s desire to procure the governorship for himself. While I do not doubt that he was ambitious enough for this, or anything, I have seen no contemporary support. Byfield’s journey was also aimed at procuring royal approval for the private bank scheme of which he was a promoter, Warden, Boston, 92; Palfrey, History of New England, iv, 334–335.

415 Although Malone, Pine Trees and Politics, 30, seems to be saying that in when Sir Henry Ashurst worked in London for Dudley’s removal, it was “with enthusiastic support in Boston led by Nathaniel Byfield. . . .” If this is the case, Byfield was acting more duplicitously than was in character for him.

416 The documents are at Suffolk File #50704, 51460, 52419, 52859, 53172, 53980 (2 papers, f. 134–135), 54555.

417 Baylies, Historical Memoir, ii:iv, 55–57.

418 The phrase is Malone’s, Pine Trees and Politics, 109, note 107. Dunbar, the Surveyor-General, called Byfield a “poor Superannuated Gentleman near 80 years old, who had already distinguished himself very partial to the Country,” Malone, Pine Trees and Politics, 108, note 103.

419 J. P. Dawson, A History of Lay Judges (Cambridge: Harvard University Press, 1960), 303.

420 The Weekly Newsletter is included in The Early American Newspaper Series (1704–1820) of the microform cards of the Readex Microprint Corporation on the microform for the Newsletter for 28 November 1728 to 1 May 1729.

421 The will and executors’ account for John Clark’s estate are maintained in the Suffolk County Registry of Probate.

422 J. L. Sibley, Biographical Sketches of Graduates of Harvard University (Cambridge: C. W. Sever, 1873–1975), III (1885), 368–369 and 375–379.

423 Diary of Samuel Sewall (3rd vol.), Massachusetts Historical Society, Collections, xvii (1882), 210. [Hereinafter cited as Sewall Diary.] For an account of the early colonial medical practices, including those of Clark’s relatives, see Medicine in Colonial Massachusetts, Colonial Society of Massachusetts, Publications, lvii, 122.

424 Ibid., 227.

425 Diary of Cotton Mather, Massachusetts Historical Society, Collections, lxvii, 189, and lxviii, 299. [Hereinafter cited as Mather Diary.]

426 Sibley, Harvard Graduates, iii, 377.

427 Journals of the House of Representatives of Massachusetts (1919). [Hereinafter cited as Journal.] Volumes one through eight cover 1715 to 1730. The printing of the journal was initiated after a quarrel with Governor Dudley.

428 D. Levin, Cotton Mather: The Young Life of the Lord’s Remembrancer, 1663–1703 (Cambridge: Harvard University Press, 1978). My only criticism of this thoughtful book is that in his effort to be sympathetic Levin may have missed the obvious point that Cotton Mather lost power because he was a hypocrite and a wind-bag. There are two good examples of Mather’s obvious failing. He had the motto “Be Short” inscribed over his study door and yet was notoriously unable to be short about anything. Mather’s feverish defense of his father went well beyond that required, even of a dutiful Puritan son. Perry Miller described Cotton Mather’s obsequiousness as an “unction which infects even his most worthy actions. . . .” P. Miller, The New England Mind: From Colony to Province (Cambridge: Harvard University Press, 1953), 194.

429 Sibley, Harvard Graduates, iii, 375–376.

430 Ibid., 376. The Charter of 1691 gave the Governor the right to appoint justices of the peace. Acts & Resolves of the Province of Massachusetts Bay, i (1867), 12. [Hereinafter cited as Acts & Resolves.]

431 A Report of the Record Commissioners containing the Boston Records from 1700 to 1728, 55 (Report #8:1883). [Hereinafter cited as Report #8 (1883): The Boston Records from 1700 to 1728.]

432 Journal, i, 2.

433 Journal, ii, 232.

434 Journal, iii, 3–4.

435 Ibid., 86.

436 Journal, iv, 1–2.

437 Journal, v, 4.

438 Ibid., 27, 130.

439 Journal, vi, 6. William Dummer was acting governor at the time, having succeeded Samuel Shute, who fled in January of 1723. P. Miller, The New England Mind, 457.

440 See, e.g., Journal, vi, 217. Journal, vii, 6, note 9.

441 Journal, iii, 87.

442 Acts & Resolves, i, 22.

443 See, e.g., Journal, ii, 69, 117.

444 Journal, iii, 96–101.

445 Acts & Resolves, i, 23.

446 For instance, on the third and fourth page of the book the entries proceed: March 6, March 4 and March 10. The book will be cited henceforth as Book, date of entry, unless the text states it, and a page number, assigned by this author.

447 See, e.g., Book, 4 March 1700/01, 3. John Clark dated events within the first three months of the year using the 1700/01 format used in this note. This convention will be observed in this paper.

448 Joseph H. Smith has written that William Pynchon (1590–1651) “had some familiarity with . . . Dalton’s The Countrey Justice. . . .” Colonial Justice in Western Massachusetts 1630–1702, J. H. Smith ed. (Cambridge: Harvard University Press, 1961), 157–158. When compiling the Laws & Liberties in 1648, the General Court ordered two copies of The Countrey Justice. G. L. Haskins, Law and Authority in Early Massachusetts (New York: Macmillan, 1960), 135. The inventory of Clark’s estate disappointingly included the following cryptic entry: “222 Old Books £30.” This is a large number of books for any colonial person.

449 See Colonial Justice in Western Massachusetts. See also The Pynchon Papers, The Colonial Society of Massachusetts, Publications, lx.

450 Originally, Massachusetts did not have judges called justices of the peace; instead, they were “magistrates.” Since individuals frequently became magistrates by virtue of holding another office and/or their social status, Massachusetts did not have much experience in the appointment of judges until the period of the Second Charter. See Haskins, Law and Authority, 173–178.

451 Acts & Resolves, i, 78 (Chapter 35 of the Acts of 1692–3).

452 M. Dalton (and one of the Masters of Chancery), The Countrey Justice (London: W. Rawlins & S. Roycroft, 1705 ed.), 13. The statutory origin of the precise words of the English oath were unclear according to 1705 edition of Dalton’s. The Massachusetts oath differed in that certain references to the King and institutions not physically present in Massachusetts were eliminated. “The oath concerning this office seemeth to be by force of the Statute made 13 R.2. C.7.” Ibid., 12.

453 C. Bridenbaugh, Cities in the Wilderness: The First Century of Urban Life in America 1625–1742, 2d ed. (New York: Knopf, 1955), 143.

454 See, e.g., Report #11 (1884): Records of Boston Selectmen, 1701 to 1715, 18. This report for 16 March 1702 is typical:

March 16.

At a meeting of the Justices of y^e Peace & Select men within the Town of Boston viz^t. John Foster, Esq., Elisha Cook, Esq^r., Eliak^m Hutchinson, Esq, Sam^ll Sewall Esq^r., Jer. Dummer Esq^r., Elisha Hutchinson Esq^r., 2^d Edw^d Brumfield Esq^r., Penn Townsend Esq^r., John Clark, Esq^r., Isaac Addington Esq^r.

The Select men then present were

It was then by the Said Justices & Select men Agreed That the Bakehouse belonging to the Rev^d M^r. James Allen being on the Back side of the Town, and the Grainary belonging to M^r. Arthur Mason butting on the Common or Training field and the ware house belonging to John Foster Esq^r. Night unto the great Still house at the north end of Boston be the Houses at present improved for the Lodging of Gunpowder in until Other & better provision be made for the Same.

And that Cap^t John Fairwether be treated with about his takeing care to receive in and deliver out S^d powder.

At a meeting of y^e Select men March 23^d. M^r. John Stevens his Petition for a Timb^r building was approved.

455 Ibid.

456 At the meeting on 27 January 1706/07 the three groups appointed sixteen individuals labelled “Esq.,” including the ten or so regulars, to “Visit the Families of the Town on Wednesday the 5th of February next.” Ibid., 55–56.

457 Acts & Resolves, i, 185.

458 See, e.g., Book, 26 July 1700, i.

459 Acts & Resolves, i, 449.

460 Ibid.

461 Ibid., 51 (chapter 18 of the Acts of 1692–3). Punishment in the stocks was added by chapter 9 of the Acts of 1693. Ibid., 122–123. Drunkenness fines also went to the poor. See, e.g., Book, 10 December 1706, 44.

462 See, e.g., Book, 7 September 1701, 7.

463 Ibid., 28 October 1700, 2.

464 Acts & Resolves, i, 681 (Chapter 6 of the Acts of 1711–12).

465 Ibid., 298.

466 See, e.g., Book, 6.

467 Chapter 25 of the Acts of Second Session of 1692–3 gave a justice of the peace, within his county, and an ordained minister, within his town, the power to solemnize marriages, but only after publication by way of posting or saying of the banns. The statute set a fee of three shillings for this service. Acts & Resolves, i, 61.

468 Book, 4.

469 Acts & Resolves, i, 136.

470 Book, 23–24.

471 Different people would no doubt tally the sometimes ambiguous entries differently. Chart A of the Appendix shows aggregate figures for the book. The proportion of criminal matters is significantly higher than Richard Gaskins found in similar books for Connecticut for later periods. Gaskins, “Changes in the Criminal Law in Eighteenth Century Connecticut,” American Journal of Legal History, xxv (1981), 309.

472 Acts & Resolves, i, 52 (Chapter 18 of the Acts of 1692–3, 2d Sess.).

473 See, e.g., Book, 1 March 1705/06, 34.

474 See, e.g., Book, 10 January 1709/10, 70.

475 Ibid.

476 Ibid., 7 May 1711, 90.

477 Acts & Resolves, i, 122–123 (Chapter 9 of the Acts of 1693).

478 See, e.g., Book, 20 May 1726, 268.

479 Acts & Resolves, i, 51 (chapter 18 of the Acts of 1692–3, 2d Sess.).

480 See, e.g., Book, 10 December 1706, 44.

481 Acts & Resolves, i, 51 (Chapter 18 of the Acts of 1692–3, 2d Sess.).

482 Ibid., 122–123 (Chapter 9 of the Acts of 1693).

483 Book, 7.

484 Acts & Resolves, i, 53.

485 The punishments were prescribed in Section 7, as well. Ibid. For a typical case, see Book, 30 August 1710, 77. Ester (sic) Flag was convicted for “publishing a false report . . . by saying that . . . Catherine was drunk at a burial. . . .” Mrs. Flag was fined five shillings and required to find two sureties five pounds each to guarantee her appearance at the next sessions.

486 Book, 40.

487 A similar legal phenomenon is discussed in Dalton, Countrey Justice, 71–73, note 34. Many felonies were technically triable by English justices of the peace, but were dealt by binding over the accused to some other court. Blackstone, writing some sixty years after Clark, noted a similar reluctance of English justices of the peace, sitting as the court of general sessions, to tackle serious criminal matters even if within their jurisdiction. W. Blackstone, Commentaries (Oxford: Clarendon Press, 1st ed. 1769), iv, 268–269.

488 Acts & Resolves, i, 52.

489 Book, 108.

490 Ibid., 109.

491 Ibid., 38.

492 Dalton, Countrey Justice, 2758.

493 Ibid., 278–279. The use of this punishment as an instrument of social control is discussed briefly in A. H. Manchester, Modern Legal History (London: Butterworths, 1980), 194–198.

494 See above, 118, text accompanying footnote 4.

495 M. Farrand, The Laws and Liberties of Massachusetts, reprint of 1648 edition (Cambridge: Harvard University Press, 1929), 5.

496 Acts & Resolves, i, 55 (Chapter 19 of the Acts of 1692–3, 2d Sess.).

497 Ibid., 297 (Chapter 20 of the Acts of 1697, 3d Sess.).

498 Ibid., 58–59 (Chapter 22 of the Acts of 1692–3, 2d Sess.).

499 See, e.g., Book, 6 June 1701, 6.

500 Book, 23 February 1711/12, 101.

501 Sewall Diary, 336–337.

502 Acts & Resolves, I, 682 (Chapter 6 of the Acts of 1711–12, 6th Sess.).

503 Chapter 11, Article 7 of the Acts of 1692–3, 2d Sess., attempted to establish the “grand inquest” in all capital cases as one of the “rights and liberties of the people.” Acts & Resolves, i, 40. The Privy Council disallowed this statute.

504 Book, 48.

505 Ibid., 16 July 1707, 49.

506 Acts & Resolves, i, 171 (Chapter 5 of the Acts of 1694–5, 1st Sess.) established a variety of savage, but non-deadly, punishments for adultery. Polygamy remained a capital offense.

507 Book, 4 May 1705, 25, and 17 April 1706, 36.

508 Ibid., 3 February 1710/11, 84–85 and 24 February 1710/11, 86–87.

509 Ibid., 13 January 1712/13, 123.

510 See, e.g., Report #8 (1883): The Boston Records from 1700 to 1728. At the freeholders meeting of 9 March 1701/02 all four people elected constable, including Adam Winthrop, refused to serve and had to be replaced. Chapter 28 of the Acts of 1692–3 (2d Sess.) imposed a fine of £5 for refusing to serve as constable of any community other than Boston or Salem and £10 for refusing to serve in the latter two communities. Acts & Resolves, i, 67.

511 Acts & Resolves, i, 345 (chapter 16 of the Acts of 1698 [1st Sess.]).

512 Book, 13 March 1704/05, 23–24.

513 It is interesting that article 3 of the act, which purported to recognize “the rights and liberties of the people,” only protected a person from being “twice sentenced for one and the same crime, offense or trespass.” Acts & Resolves, i, 40 (Chapter 11 of the Acts of 1692–3, 2d Sess.). This act was disapproved by the Privy Council on 22 August 1695. William Nelson has stated that protection against double jeopardy in something like its modern form was in existence in early nineteenth century Massachusetts. W. E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge: Harvard University Press, 1975), 99, note 141.

514 Book, 11 October 1715, 200.

515 Ibid., 20 May 1726, 268.

516 Ibid., 2 June 1712, 106.

517 Ibid., 17 February, 1706/07, 46.

518 Ibid., 16 July 1703, 17.

519 Ibid., 26 May 1712, 106.

520 Acts & Resolves, i, 368 (Chapter 1 of the Acts of 1699, 1st Sess.).

521 See, e.g., Book, 25 October 1701, 10.

522 Ibid., 13 April 1716, 213 and 24 February 1710/11, 86–87.

523 Ibid., 26 December 1718, 272.

524 Ibid., 15 December 1715, 204.

525 See Chart B, which classifies all matters during the period from 1 January 1713/14 until 31 December 1714.

526 Ibid.

527 See below, 150–151.

528 See above, 117–118, text accompanying notes 2 and 3.

529 Book, 19 March 1707/08, 54.

530 See, e.g., The Laws and Liberties of Massachusetts, 25.

531 Acts & Resolves, i, 378. Both the abhorrence of idleness and the institution of a house of correction, by the justices in session, were directly imported from England. See Dalton, Countrey Justice, 112–113.

532 Book, 19 March 1707/08, 54.

533 Ibid., 6 August 1705, 26.

534 Ibid., 27 August 1705, 29.

535 Ibid., 30 August 1706, 41; 16 September 1706, 41; 13 November 1708, 60; 5 October 1713, 147, and 29 February 1715/16, 211.

536 Ibid., 23 February 1715/16, 210.

537 Ibid., 11 October 1715, 200.

538 Ibid., 6 May 1715, 191.

539 Ibid., 31 July 1718, 237.

540 Ibid., 19 May 1715, 192. Bull, a victualler, who surely lived near Clark, appears in the book on over two dozen occasions. He was a civil plaintiff, civil defendant, and criminal defendant at various times.

541 Ibid., 4 October 1712, 116.

542 Ibid., 28 May 1711, 91.

543 Acts & Resolves, i, 52–53 (Chapter 18 of the Acts of 1692–3, 2d Sess.). An assault on a woman in any “fields, streets, or lanes” was cognizable at the general sessions or when out of sessions before two justices of the peace. Ibid., 673–674 (chapter 2 of the Acts of 1711–12 [1st Sess.]). It may have been that these offenses lacked any public “peace” aspect.

544 W. E. Nelson, Americanization of the Common Law, 15.

545 See, e.g., Report #13 (1885): Records of Boston Selectmen, 1716 to 1736, 25 (7 August 1717).

546 Ibid., 81 (8 May 1721).

547 Ibid., 82 (12 May 1721).

548 Acts & Resolves, i, 377 (Chapter 7 of the Acts of 1699–1700, 1st Sess.).

549 Ibid.

550 Report #13 1885: Records of Boston Selectmen, 1716 to 1736, 122.

551 Ibid., 154–155 (11 July 1726). The power of licensure was given to the Selectmen and to the justices in session in certain situations. Acts & Resolves, i, 56 (Chapter 20 of the Acts of 1692–3, 2d Sess.) and at 475–478 (Chapter 15 of the Acts of 1701–02, 1st Sess.).

552 Book, 14 August 1706, 39.

553 Although this term is never used in the Book, Dalton does use it to refer to prosecutions of this type. Dalton, Countrey Justice, 525–526.

554 Acts & Resolves, i, 56 (Chapter 20 of the Acts of 1692–3, 2d Sess.) and at 475–478 (Chapter 15 of the Acts of 1701–02, 1st Sess.).

555 Book, 30 May 1709, 67.

556 Ibid., 7 August 1710, 76.

557 Ibid., 10 March 1706/07, 47.

558 Ibid., 6 February 1701/02, 11–12.

559 Acts & Resolves, v, 128 (1st Sess.).

560 Book, 3 October 1715, 200.

561 Ibid., 28 December 1709, 70. Adam Winthrop, it will be recalled, refused to serve as a constable for Boston. See above, 124–125, note 2.

562 Report #11 (1884): Records of Boston Selectmen 1701 to 1715, 19 (16 March 1702/03).

563 Ibid., 101 (23 January 1709). The formal structures for control and support of the poor resemble those of Elizabethan England. See Dalton, Countrey Justice, 146–173.

564 Ibid., 151 (10 December 1710).

565 Book, 2 January 1710/11 at 82.

566 Ibid., 30 July 1713 at 139.

567 Ibid., 181.

568 Ibid., 3 March 1715/16, 211.

569 Ibid., 6 September 1712, 113.

570 Acts & Resolves, i, 282–283 (Chapter 8 of the Acts of 1697, 1st Sess.).

571 See, e.g., Book, 2 March 1701/02, 13.

572 Some slight support for this may be found in the fact that in the 1780’s agrarian reformers obtained an enlargement of the jurisdictional amount in single justice civil matters. See W. E. Nelson, Americanization of the Common Law, 70.

573 Book, 3.

574 William Nelson seems to suggest that executions on confessions of judgment without a law suit were not possible until the Confession Act of 1782. W. E. Nelson, Americanization of the Common Law, 148. Clark’s book does not support this suggestion.

575 See, e.g., Book, 15 December 1712, 121.

576 Ibid., 2 January 1715/16, 207.

577 Ibid., 8 December 1707, 52.

578 J. H. Baker, An Introduction to English Legal History, 2d ed. (London: Butterworths, 1979), 56.

579 Acts & Resolves, i, 447–448 (2d Sess.).

580 Another case which mentions the three times rule involved a Thomas West of Martha’s Vineyard. Book, 15 May 1710, 74.

581 Ibid., 8.

582 Ibid., 3 January 1714/15, 181.

583 Ibid., 1 October 1705, 31.

584 Ibid., 14 April 1718, 235.

585 Ibid., 8 October 1711, 94.

586 Ibid., 18 August 1705, 26.

587 Dalton has a lengthy entry on relief in the form of restitution in the context of the crime of forcible entry and detainer. Dalton, Countrey Justice, 312–319.

588 Book, 22 May 1702, 14.

589 Ibid., 28 April 1703, 17.

590 Ibid., 21 March 1714/15, 187.

591 Ibid., 23 January 1715/16, 207.

592 Ibid., undated, 3.

593 Ibid., 4 January 1701, 3.

594 Ibid., undated, 2.

595 Ibid., 24 October 1709, 68.

596 Acts & Resolves, i, 282–283 (Chapter 8 of the Acts of 1697, 1st Sess.).

597 Ibid., 324–325 (Chapter 7 of the Acts of 1698, 1st Sess.).

598 Book, 1 December 1702, 16; 27 April 1713, 131; 18 September 1713, 1455 and 31 October 1715, 202.

599 Book, 15 May 1710, 74.

600 Ibid., 29 June 1711, 135. See also 23 March 1718/19, 245.

601 Ibid., undated, 2.

602 Ibid., 17 August 1713, 141, and 13 January 1715/16, 206.

603 Acts & Resolves, i, 282–283 (Chapter 8 of the Acts of 1697, 1st Sess.).

604 Book, 136.

605 Ibid.

606 Ibid., 104. The meaning of the term “costs” is unclear, but it may have included the prevailed reasonable attorney’s fees.

607 Ibid., 14 December 1713, 150.

608 Ibid., 9 November 1713, 148.

609 Chart B is included in the appendix.

610 See, e.g., Book, 1 October 1705, 31.

611 Ibid., 3 May 1714, 161.

612 Ibid., 75.

613 Winthrop’s attitude was attributable in part to his experience with the decaying Court of Wards in England. E. S. Morgan, The Puritan Dilemma: The Story of John Winthrop, edited by Oscar Handlin (Boston: Little Brown Co., 1958), 22–26.

614 Acts & Resolves, i, 467 (1st Sess.).

615 Book, 6 September 1705, 25.

616 Ibid., 93.

617 Ibid., 17 October 1701, 10, and 28 April 1706/07, 47.

618 Ibid., 18 February 1711/12, 99.

619 Ibid., 7 June 1708, 55.

620 Ibid., 18 May 1719, 246.

621 Ibid., 14 January 1716/17, 225.

622 Ibid.

623 Ibid., 8 August 1718, 238.

624 The best recent book on the institution has been a purely institutional study. J. H. Gleason, The Justices of the Peace in England 1558 to 1640 (Oxford: Clarendon Press, 1969).

625 D. T. Konig, Law and Society in Puritan Massachusetts: Essex County, 1629–1602 (Chapel Hill: University of North Carolina Press, 1979).

626 W. E. Nelson, Dispute and Conflict Resolution in Plymouth County, Massachusetts, 1725–1825 (Chapel Hill: University of North Carolina Press, 1981).

627 D. T. Konig, Law and Society in Puritan Massachusetts, xvi.

628 Black, Book Review, Yale Law Journal, xc (1980), 232, reviewing Konig’s book.

629 An assistant was originally an enfranchised member of the Massachusetts Bay Company. “The Charter of the Colony of the Massachusetts Bay in New England 1628–29,” reprinted in The Founding of Massachusetts, E. S. Morgan, ed. (Indianapolis, Bobbs-Merrill, 1964), 314.

630 W. E. Nelson, Dispute and Conflict Resolution, 22–23.

631 See W. E. Nelson, The Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830, 133–152.

632 Gaskins, “Changes in the Criminal Law in Eighteenth Century Connecticut,” 310.

633 K. T. Erikson, Wayward Puritans: A Study in the Sociology of Deviance (1966).

634 R. W. Gordon, Book Review, New York University Law Review, Li (1976), 686.

636 Financial support for this research was provided by the National Endowment for the Humanities, the Charles Warren Center of Harvard University, and Tufts University. The author wishes to thank Virginia Drachman and the editors of this volume for suggested revisions, and Edward Hanson and Dane Morrison for their research assistance.

637 For example, see Douglas Lamar Jones, “The Strolling Poor: Transiency in Eighteenth-Century Massachusetts,” Journal of Social History, viii (1975), 28–545 Allan Kulikoff, “The Progress of Inequality in Revolutionary Boston,” William and Mary Quarterly, xviii (1971), 375–412; Gary B. Nash, “Urban Wealth and Poverty in Pre-Revolutionary America,” Journal of Interdisciplinary History, vi (1976), 545–5845 Gary B. Nash, The Urban Crucible: Social Change, Political Consciousness, and the Origins of the American Revolution (Cambridge, Mass., 1979), especially chapters seven, eight, and nine; Steven Wiberley, “Four Cities: Public Poor Relief in Urban America, 1700–1775,” unpublished Ph.D. dissertation, Yale University, 1975; David J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (New York, 1971), chapters one through three.

638 Douglas Lamar Jones, Village and Seaport: Migration and Society in Eighteenth-Century Massachusetts (Hanover, 1981); Kenneth A. Lockridge, A New England Town: The First Hundred Years (New York, 1970); Philip J. Greven, Jr., Four Generations: Population, Land and Family in Colonial Andover, Massachusetts (Ithaca, 1970); Kulikoff, “The Progress of Inequality”; Robert A. Gross, The Minutemen and Their World (New York, 1976).

639 Nash, Urban Crucible, chapters three, six, seven, and nine.

640 Ruth Crandall, “Wholesale Commodity Prices in Boston during the Eighteenth Century,” Review of Economic Statistics, xvi (1934), 117–128; Arthur Harrison Cole, Wholesale Commodity Prices in the United States, 1700–1861 (Cambridge, Mass., 1938), Appendix A; Andrew McFarland Davis, Currency and Banking in the Province of the Massachusetts-Bay, 2 vols. (New York, 1900–1901), i. 172–173, 378–379; Carl Bridenbaugh, “The High Cost of Living in Boston, 1728,” New England Quarterly, v (1932), 800–811.

641 Scholars have tended to view the emergence of poor laws in colonial America as essentially a replication of the English poor laws. This essay suggests that the actual process of adaptation of poor laws in colonial Massachusetts arose from the particular economic and social conditions of eighteenth-century American life as much as from the inherited legal tradition of English poor relief policies and practices. Compare Caleb Foote, “Vagrancy-Type Law and its Administration,” University of Pennsylvania Law Review, civ (1956), 603, 615–617 and William B. Chambliss, “A Sociological Analysis of the Law of Vagrancy,” Social Problems, xii (1964), 67–77.

642 See Stephen Foster, Their Solitary Way: The Puritan Social Ethic in the First Century of Settlement in New England (New Haven, 1971), chapter five.

643 The quoted passages are from the Petition of Daniel Giddinge and others, 1760, Record Book, vol. 1749–1763, Essex County Court of General Sessions of the Peace, 301, hereafter cited as Essex Sessions. These records are now located in the Essex Institute, Salem, MA.

644 Historians have tended to view colonial systems of social welfare and social control as mutually exclusive. For the former, see Walter I. Trattner, From Poor Law to Welfare State: A History of Social Welfare in America (New York, 1974), chapters two and three; William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge, Mass., 1975), 48; and Gerald Grob, Mental Institutions in America (New York, 1973), chapter one. The social control perspective is more pervasive in the literature; for example, see Jones, “The Strolling Poor”; Rothman, Discovery of the Asylum; Nash, Urban Crucible; David H. Flaherty, “Crime and Social Control in Provincial Massachusetts,” The Historical Journal, xxiv (1981), 339–360; Julius Goebel, Jr., and T. Raymond Naughton, Law Enforcement in Colonial New York (Montclair, 1970), 101, 107–108; and John K. Alexander, Render Them Submissive: Responses to Poverty in Philadelphia, 1760–1800 (Amherst, 1980).

645 Useful theoretical perspectives which bear on the issue of legitimacy include Eugene D. Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York, 1974); E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (New York, 1975); and Douglas Hay, “Property, Authority and the Criminal Law,” Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Douglas Hay et al. (New York, 1975), 17–63.

646 Records of the Governor and Company of the Massachusetts Bay in New England, 5 vols., ed. Nathaniel B. Shurtleff, M.D. (Boston, 1853), i. 264.

647 Ibid., iii. 15.

648 Ibid., ii. 180.

649 Ibid., iv. Part i, 365. For the concern over “strangers,” see ibid., i. 192, 241, 264; iii. 376.

650 Acts and Resolves, i (1692–93), ch. 28, 67; (1703–04), ch. 14, 538–539; (169–394), ch. 19, 151–152.

651 Acts and Resolves, iii (1742–43), ch. 18, 37–385 quote at 37.

652 For the seventeenth-century practices, see John Demos, A Little Commonwealth: Family Life in Plymouth Colony (New York, 1970); and Edmund S. Morgan, The Puritan Family: Religion and Domestic Relations in Seventeenth-Century New England (New York, 1966).

653 Wenham Town Records, 4 vols. (Wenham, 1940), III, 163, 166–171, 174, 179, 182, 187, 190.

654 Judd Manuscript, Northampton, vol. 3, 56. Taken from Northampton Treasurer’s Papers, Forbes Library, Northampton, MA.

655 John Bridges Petition, File Papers, 1764–1765, Middlesex Sessions; located in the Middlesex County Court House, Cambridge, MA.

656 Wenham Town Records, iii. 212.

657 Apprenticing of poor and orphaned children occurred not only in Boston but in the country towns as well. Indeed, substantial numbers of Boston’s poor apprentices were sent to country towns; see Lawrence W. Towner, “The Indentures of Boston’s Poor Apprentices: 1734–1805,” Colonial Society of Massachusetts, Publications, xliii (1966), 417–468; and W. Graham Millar, “The Poor Apprentices of Boston: Indentures of Poor Children Bound by the Overseers of the Poor of Boston, 1734–1776,” unpublished M.A. thesis, College of William and Mary, 1958, Appendix B, Table 2, 69–71.

658 Acts and Resolves, i (1692), ch. 28, 67. For a more general discussion of the distinctions between lineally- and laterally-extended families in early New England, see James H. Henretta, “Families and Farms: Mentalité in Pre-Industrial America,” William and Mary Quarterly, xxxv (1978), 3–32.

659 Case of Widow Froe, Record Book, 1724, Hampshire Sessions, 215; located in the Hampden County Court House, Springfield, MA. For similar cases, see Petition of the Town of Rowley, File Papers, 1769, Essex Sessions; Petition of Tho. Rowell, Etc. for Mary Flanders, File Papers, 1759, Essex Files; and Petition of H. Long, File Papers, 1757, Essex Sessions.