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Browsing: Legal Papers of John Adams, Volume 1


Docno: ADMS-05-01-02-0008-0004

Brookline v. Roxbury

DocGroupNo:

1767–1772

Docno: ADMS-05-01-02-0008-0004-0001

Editorial Note

The constable of Roxbury had conveyed John Chaddock (alias Chadwick, Chattuck, or Shattuck), his wife, three children, and assorted household goods, to Brookline in January 1767, pursuant to a warrant of removal issued by a Roxbury justice of the peace. In 1760 the selectmen of Roxbury had warned a John Chaddock, or Chadwick, and family, out of { 300 } the town after a two months' stay. They now asserted that these families were the same, so that the statutory prerequisite of warning within a year after arrival had been complied with.1
Brookline contested the removal, petitioning the Suffolk General Sessions in May 1767 for the return of Chaddock to Roxbury and for the town's expenses. Jeremy Gridley signed the petition, but Adams' list of questions presented (Document I) and notes of authorities (Document II) indicate that it was he who argued the case when it finally came on after numerous continuances in November 1768, Gridley having meanwhile died. The petition, which sets forth other documents in the case, appears below as part of the record of the Sessions proceedings (Document III). It urges ten grounds for quashing the removal order, which are principally attacks upon the formal sufficiency of the warrants of warning and removal. Gridley had also contended, however, that the man removed was not the man warned, and that the removal warrant was void because the justice issuing it was an inhabitant of Roxbury and thus interested in the outcome.
Adams' questions presented (Document I) correspond with the grounds of the petition, with two additions: (1) whether a Justice in such a case acted ministerially or judicially (which was related to the problem of interest); (2) whether evidence beyond what Adams called “the Records of this Court” (the warrants and returns) was admissible. Probably Roxbury sought to establish the identity of various persons named in the warrants and thus to cure the alleged defects in them.2 It is not clear why Adams raised this point. In Roxbury v. Boston, No. 24, depositions and other documentary evidence seem to have been at least offered in the trial at Sessions, and were probably accepted, since they formed part of the file of the case. The issue was not reached on the trial in the present case, however, in view of the court's ruling on the merits, to be discussed below.
The three groups of authorities which Adams had prepared for the trial (Document II) give some indication of the issues which he sought to emphasize in argument. The first group deals with the necessity for particularity in naming persons ordered to be warned or removed. The second group consists principally of the forms followed in English removal proceedings, which were based upon a statute similar in its generality to the Province Act here involved, but which set forth in detail just those matters which were unclear in the warrant now before the court. Finally, Adams raised the issue of the interested justice, citing authorities which he had used in Plympton v. Middleboro, No. 25.
At the trial, Robert Auchmuty, counsel for Roxbury, in effect demurred to the petition. Upon motion the court gave its opinion, set out in the { 301 } record (Document III), that Brookline's allegations were not sufficient to entitle the town to a trial of the question whether Chaddock and family had a settlement there or in Roxbury. This ruling in effect meant that the 1760 warning was effective to prevent the Chaddocks from gaining a settlement in the latter town. Roxbury then moved to dismiss, but on further argument the court instead upheld the petition, presumably on the ground that the removal warrant was in some way faulty. Roxbury was ordered to pay Brookline Chaddock's charges and costs of court; and the Chaddocks were to be returned. Brookline's account for £67 16s. 4 ¾d., which was approved by the court in January 1769, is set out as an example of the scope and quantity of 18th-century poor relief (Document IV). Execution issued for the sum there stated and costs of £6 3s. 4d. on 9 March 1769.3
At the March 1769 term of the Suffolk Superior Court, Fitch moved in Roxbury's behalf for a writ of certiorari. This process, by which a higher court could command an inferior court to certify and send up the record of its proceedings, had been used in England since some time in the 17th century to quash an order of Sessions, but had been adopted in Massachusetts at a relatively recent date.4 The documents involved in this case, which are an interesting example of the adoption of English forms to local needs, are set out below. The writ issued in July, returnable at the August term (Document V). Return was duly made both of the Sessions record (Document III) and of copies of other formal papers from the file.5 Fitch then filed an assignment of errors sometime before March 1770 (Document VI). This form, not used in the English practice, suggests that in Massachusetts certiorari was viewed as not differing materially from the writ of error, in which the assignment was part of the proceedings both in England and in the Province.6
The errors which Fitch assigned are of interest in light of the 18th-century English limits on the scope of review in certiorari to quash. In the English practice, through an accident of historical development, only matters denominated “jurisdictional” had to appear on the face of the record, but an order could be quashed if such matters did not appear. If jurisdictional matter was set out, however, evidence outside the record, in { 302 } the form of affidavits, was admissible to attack it. Matter of record that was not “jurisdictional” could be attacked if on its face it was not consistent with the order, but no additional evidence was admissible for this purpose. Naturally enough, this practice gave rise to much doubt as to the meaning of “jurisdictional,” and the term was often expanded to include issues which might not ordinarily seem to be within it. It should further be noted that the “record” in the English practice was only the formal statement of the court's judgment and order, not the entire pleadings and proceedings below, which the term usually signifies.7
The first four errors assigned by Fitch (Document VI) were jurisdictional in the broadest sense. Together they were to the effect that only the merits of the question of a pauper's settlement, and not errors of law in the proceedings had with regard to him were within the court's jurisdiction. This order had to fall, because it granted the petition not only in the absence of necessary allegations or findings on the merits, but despite a specific finding that there was no question on the merits. The second assignment of error, attacking the petition, would presumably have been irrelevant under the English practice whereby jurisdiction had to appear in the judgment or order itself.8 The fifth error assigned attacked the absence of various findings in the record. In the English view, if any of these had been “jurisdictional” the order would have been fatally defective for lack of them.9
After notification of Brookline to appear in March 1770 (Document VII), the case was further continued until February 1772, when with Adams and Fitch arguing, it finally came on for hearing. According to a note in Adams' docket, the matter was “determined for Brooklyne, 7[th] d[ay] upon Arg[ument] of all the Errors filed.” The Superior Court affirmed the judgment, with further costs of £9 13s. 3d.10 In the narrowest view this decision held only that the Court of General Sessions had jurisdiction to deal conclusively with errors of law in the record before it and that the matters set forth in the fifth assignment as omitted from the order were not “jurisdictional.” But it is possible, in light of Adams' description of the { 303 } result, that the court, in examining “all the Errors,” looked to the record itself and affirmed the decision of the Sessions on the legal questions.
Whatever the force of the court's holding, the decision in this case seems to be related to a statutory change made several months later. In Chelsea v. Boston, No. 26 (1769), the Suffolk Sessions, after its decision in the present case, had expressly held that a removal warrant was void because issued by a Justice who was an inhabitant of the removing town. The court must have followed this rule in other cases as well, because in June 1771 the Selectmen of Boston petitioned the General Court for a change in the law, complaining “that the Court of General Sessions of the Peace for this County have of late construed said Acts11 in a different manner, by adjudging that a removal by virtue of a Warrant from a Justice of the Peace of this Town is not a legal removal as said Justice is somewhat interested therein, and that it properly lays with one of His Majesty's Justices of the Peace of a Neighbouring Town to grant said Warrant—That in consequence of this novel construction of said Acts this Town has already been put to considerable charge and difficulty, which from its peculiar situation and circumstances, and the great number of Vagrants and other poor Strangers which dayly flow in upon us, is like greatly to increase.”12
The Committee to which this petition was referred recommended that it be put over until the next session.13 On 14 July 1772 an act was passed which recited that the practice of which Boston had complained was followed in “the courts of general sessions of the peace for several counties . . . whereby a number of towns in the province, more especially the town of Boston, have been put to much inconvenience and charge, and the expence of the province is likely to be greatly encreased.” The act went on to provide that “the removal of any person, by a warrant obtained from one of his majesty's justices of the peace residing in the town from whence the person is to be sent or conveyed, to any other town, either in or out of the province, shall, to all intents and purposes, be deemed as legal a removal as if the warrant had issued from a justice of the peace living in any other town.”14
On the trial of Brookline v. Roxbury at the Sessions in 1768, Adams had urged the invalidity of the warrant on the grounds of the Justice's residence, but the issue had not been expressly referred to by the court as part of the basis for its decision. The question was an important one, however, and may well have been the principal defect which the court found in the warrant of removal. If this was so, it is possible that legislative action was deferred pending the outcome of the proceedings on certiorari, with the hope that the Superior Court might overrule the Sessions on the point. When, instead, the result was a holding which at least recognized the { 304 } power of the Sessions to rule on such questions without interference from above, and may even have gone so far as to indicate approval of the rule followed in the lower court, the only remedy left was the legislation which was forthcoming.
1. The warrants are set out in Doc. III. As to the statutory requirement, see No. 25, notes 42, 64.
2. The files contain subpoenas to the Aug. term of the Suffolk Sessions and its Oct. adjournment, summoning six witnesses, including John and Martha Shattuck of Brookline, and William Borrough of Roxbury, the Chaddocks' alleged host there in 1760. SF 102089. See Doc. III.
3. Sess. Min. Bk., 7 Nov. 1768. A copy of the bill of costs in SF 102089 shows a total of £6 3s. 8d. It is not clear whether the discrepancy is due to a copyist's error or represents a reduction by the court. See also note 483 below.
4. The motion and the court's order granting it appear in Min. Bk. 89, SCJ Suffolk, March 1769. For the development of the writ in England, see Edith G. Henderson, Foundations of English Administrative Law 83–116 (Cambridge, Mass., 1963). As to the Massachusetts development, see No. 24, note 4.
5. These included copies of Brookline's account (Doc. IV), the Sessions bill of costs, two subpoenas (note 2 above), the two warrants, Brookline's petition, and the court's opinion on the question of dismissal. The last three items appear virtually verbatim in the Sessions record (Doc. III).
6. As to the proceedings in error in England, see Sutton, Personal Actions 136–144. See also note 8 below. For other evidence that little distinction was seen between error and certiorari, see Edith G. Henderson, Certiorari and Mandamus in Massachusetts and Maryland 9–10 (Unpubl. paper, Harvard Law School, 1955).
7. See Henderson, Foundations of English Administrative Law 143–145. That this practice was not strictly followed in Massachusetts is suggested by Josselyne v. Harrington, No. 30. Compare No. 28.
8. This would seem to be a natural result of the fact, already noted in the text at notes 5, 7, above, that in England only the judgment and order were sent to the higher court on certiorari to quash, while in Massachusetts, the whole record (including the pleadings), as well as other formal documents, was sent up. It is not clear whether all of this material would be considered of “record.” See No. 24, text at note 8. Pond v. Medway, Quincy, Reports 193 (SCJ Suffolk, 1765), SF 100637, is ambiguous on this point. For indications that the “record” for review purposes meant only the document containing pleadings, procedural steps, and judgment, see No. 28.
9. For examples of fatal defects in English practice, see Henderson, Foundations of English Administrative Law 149–154.
10. See JA, Docket, Suffolk, Feb. 1772, Adams Papers, Microfilms, Reel No. 183; Min. Bk. 95, SCJ Suffolk, Feb. 1772, C–9; SCJ Rec. 1772, fol. 2. “7th day” is the seventh day of the court's sitting.
11. That is, the removal provisions, set out in No. 25, note 64.
12. Printed in 5 A&R 261, from 47 Mass. Arch. 551.
13. 5 A&R 261.
14. Act of 14 July 1772, c. 4, 5 A&R 198. A similar English provision is set out in note 2810 below.

Docno: ADMS-05-01-02-0008-0004-0002

Author: Adams, John
Date: 1768-11

Adams' List of Questions Presented1

Suffolk Court of General Sessions, Boston, November 1768

Town of Brooklyne vs. Town of Roxbury
A great Number of Questions arise upon this Petition.
1 st. Whether a Justice of the Peace, can by Law, issue a Warrant for the Removal of a Pauper, from the Town where the Justice is an Inhabitant?
2. Whether a Warrant from the Select Men or Overseers of the Poor in a Town, to warn Strangers to depart, is good without warning those Strangers particularly?
3. Whether the Person warned in this Warrant of the Select Men is the Same Person, named in the Return of the Constable, and whether the Person named in the Justices Warrant is not a different Person from that named in the select Mens Warrant, and different also from him named in the Constables Return?
4. Whether the Justices Warrant, commanding the Constable <of Roxbury to deliver the Pauper to the Cons> of Brooklyne to receive the Pauper, and deliver him to the Select Men, is good, not being directed to the Constable of Brookline or Select Men of Brookline, or any Body else, but to the Constable of Roxbury?
5. Whether the Justices Warrant can be good, as it admits that the Pauper had lived Six Years in Roxbury, and only Says under Warning. i.e. when it appears upon the Face of the Warrant, that the Pauper had lived in the Town long enough to gain a Settlement by Law, whether the Particulars of his Warning out should not be set forth, i.e. the Time when, and the Authority by which, he was warnd to depart.
6. Whether a Warrant of Removal can be good, without setting forth with Certainty, one of these Things, vizt. Either that the Paupers legal settlement was at the Town he is to be removed to, or that he is an Inhabitant of that Town, or the Poor of that Town, or { 305 } had his last Residence in that Town? Now in this Warrant it is only set forth disjunctively, Either that the said Pauper properly belongs to Brookline, or had his last Residence there.
7. Whether there is any Authority in Law for a Justice to command a Constable in his Warrant to remove the Goods and Effects of the Pauper?
8. Whether a Warrant of Removal should by Law be made returnable to the Clerk of the Peace, or the Justice who issued it.
9. Whether, in the Discussion of this Case, we must not be confined to the Records? Or Whether Roxbury shall be admitted to give any Kind of Evidence in Explanation or Reconciliation of these Records, i.e. these Warrants and Returns? For these Warrants and Returns are all of them Records. Even the Warrant of the Select Men must by Law be returned to the Clerk of the Peace and made a Part of the Records of this Court.2
10. Whether a Justice of the Peace, in granting a Warrant of Removal, is a Judicial or merely a ministerial officer?3
11. Whether a Justices Warrant of Removal ought not to be quashed for Uncertainty when it orders the Removal of a Person and his family, without naming Wife or Children, or when it orders the Removal of a Pauper and his Children or 5 Children, without naming those Children or ascertaining their ages.
12. Whether the Select Men in their Warrant for Warning, requiring the Constable to warn John Chaddock and Family, Jonathan Smith, Jona. Smith Jnr. and Mrs. Cammell all and every one of the above said Persons, to depart in 14 days, or give security, from all Charge that may arise by means of any or Either of the said Persons, have not renderd their own Warrant void? For by Law, no Person warned out is obliged to give security for 20 other Persons, it is sufficient if he gives security for him self and his own family.4
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. In the MS there is a plus sign or dagger at the beginning and end of each numbered paragraph. These may be notations made by JA as each question was reached and considered. They are not here reproduced.
2. By virtue of the Act of 16 Nov. 1692, c. 28, §9, 1 A&R 67, set out in No. 25, note 42.
3. See Greate Charte v. Kennington, discussed in No. 25, note 53.
4. No provision of the Province law on warning and removal has been found which permits the selectmen to take security from the pauper himself in lieu of removal. As the Act is worded, however, removal after warning is not mandatory, so that presumably security would be permissible. See Act of 16 Nov. 1692, c. 28, §§9, 10, 1 A&R 68, set out in No. 25, notes 42, 64. Such a practice was sanctioned by the English statute, 13 & 14 Car. 2, c. 12, §1 (1662), set out in part in id.,note 64, which provided that two Justices could give their warrant to remove any poor persons to their place of last abode, “unless he or they give sufficient security for the discharge of the said parish, to be allowed by the said justices.” There was a Massachusetts provision that a person “entertaining” someone for nursing, education, or medical care should be “the town's security” for any charges. Act of 16 Nov. 1692, c. 28, §9, 1 A&R 68. Although the warrant (text at notes 36–388–12 below) is ambiguous enough to have been addressed to the persons named as keeping the paupers, there is no evidence that the latter fell within this provision.
{ 306 }

Docno: ADMS-05-01-02-0008-0004-0003

Author: Adams, John
Date: 1768-11

Adams' Notes of Authorities1

Suffolk Court of General Sessions, Boston, November 1768

Brooklyne vs. Roxbury.
Prov. Law. Page 23. Names returned.2
2. Salk. 482. Anonimous. 3 Men and families.3
2 Salk 485. Sylvanus Johnson.4
Foleys Poor Laws 427. Lenham vs. Peckham.5
Foley 426. Flixton vs. Roston.6
Form of an order of Removal, Burn V. 3, P. 378. V. 3, Page 377.7
{ 307 }
13 [&] 14 Car. 2, Chap. 12, cited in Burn V. 3, P. 375.8
Prov. Law, 4 W. & M. c. 12.9
Justice shall not act in his Town.
2 Strange 1173 Great Charte and Kennington. Foley Page 104. Statute, 16 G[eorge] 2d, c. 18. Act to impower Justices.10
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. The present dating is based on the fact that the MS appears on a leaf with cases decided in April 1768 and May 1769 at Plymouth.
2. The reference is to the Act of 16 Nov. 1692, c. 28, §9, 1 A&R 67. JA is here citing Acts and Laws, Of His Majesty's Province of the Massachusetts Bay in New England 23 (Boston, 1742). Compare the citation to the same act in the 1759 edition, No. 24, note 134. The section cited, set out in full in No. 25, note 42, provided that persons remaining in the town for more than three months without being warned to leave, “and the names of such persons with the time of their abode there, and when such warning was given them, returned unto the court of quarter sessions,” should be reputed inhabitants for relief purposes. The time period was extended to twelve months in 1701 and eliminated altogether in an Act of 1767 passed too late to be applicable to this case. Ibid.
3. Anonymous, 2 Salk. 482, 91 Eng. Rep. 415 (K.B. 1698): “An Order made to remove three Men and their Families was quashed, quia too general; for some of their Family might not be removeable.”
4. Case of Sylvanus Johnson, 2 Salk. 485, 91 Eng. Rep. 417 (K.B. ca. 1698). At sessions, “ordered that Johnson and his Wife and Family, should be removed to Sandherst, which was quashed; because Non constat what is meant by his Family, and some of them may have a legal Settlement [in the town removing], tho' J. had not.”
5. Robert Foley, Laws Relating to the Poor 427 (London, 4th edn., 1758), citing the unreported case of Inhabitants of Lenham v. Inhabitants of Peckham (Q.B. 1711): “Upon Complaint that A. was likely to become chargeable, the Justices make an Order to remove the Pauper, his Wife and Family; quash'd as to the Family.” There follow citations of the cases in notes 213 and 224 above.
6. Foley, Laws Relating to the Poor 426, citing the unreported case of Flixton v. Roston (Q.B. 1710): “This was a Motion to quash an Order of two Justices, which was made for the Removal of one Jane Smith and her five children. Exception. It's too uncertain; for it neither tells the Name or Ages of the Children: Wherefore the Order was quash'd as to the Children.”
7. The precise edition of Richard Burn, The Justice of the Peace and Parish Officer, cited by JA has not been located. “The form of a general order of removal” appears both in the 6th edition, London 1758, at 3:83–84, and in the 11th edition, London, 1769, at 3:432–433. It is here set out from the latter:
“Westmorland. To the churchwardens and overseers of the poor of the parish of Orton in the said county of Westmorland, and to the churchwardens and overseers of the poor of the parish of Penrith in the county of Cumberland, and to each and every of them.
Upon the complaint of the churchwardens and overseers of the poor of the parish of Orton aforesaid in the said county of Westmorland, unto us whose names are hereunto set and seals affixed, being two of his majesty's justices of the peace in and for the said county of Westmorland, and one of us of the quorum, that John Thomson, Mary his wife, Thomas their son aged eight years, and Agnes their daughter aged four years, have come to inhabit in the said parish of Orton, not having gained a legal settlement there, nor produced any certificate owning them or any of them to be settled elsewhere, and that the said John Thomson, Mary his wife, and Thomas and Agnes their children, are likely to be chargeable to the said parish of Orton; We the said justices, upon due proof made thereof, as well upon the examination of the said John Thomson upon oath, as otherwise, and likewise upon due consideration had of the premisses, do adjudge the same to be true; and we do likewise adjudge, that the lawful settlement of them the said John Thomson, Mary his wife, and Thomas and Agnes their children, is in the said parish of Penrith in the said county of Cumberland: We do therefore require you the said churchwardens and overseers of the poor of the said parish of Orton, or some or one of you, to convey the said John Thomson, Mary his wife, and Thomas and Agnes their children, from and out of the said parish of Orton, to the said parish of Penrith, and them to deliver to the churchwardens and overseers of the poor there, or to some or one of them, together with this our order, or a true copy thereof, at the same time shewing to them the original; And we do also hereby require you the said churchwardens and overseers of the said parish of Penrith, to receive and provide for them as inhabitants of your parish. Given under our hands and seals the [] day of [] in the [] year of the reign of his said majesty king George the third.
On the preceding pages are forms of summonses to paupers lacking settlement and to the churchwardens of a parish to which removal is sought to appear before a justice or justices for examination and adjudication of removal. Id. at 430–432.
8. 13 & 14 Car. 2, c. 12, §1 (1662), set out in Burn, Justice of the Peace 428–429 (1769), appears in pertinent part in No. 25, note 64.
9. That is, the Act of 16 Nov. 1692, c. 28, 1 A&R 64–68, the basic Province poor law. Sections pertinent to removal are set out in No. 24, note 134; No. 25, notes 42, 64. JA's point here and at note 268 above seems to be that the English forms cited in note 257 above are not dictated by statute, because the English and Massachusetts acts are similarly general in their language.
10. For the case of Greate Charte v. Kennington, set out from Strange's Reports in Foley, Laws Relating to the Poor 104, see No. 25, note 53. The statute, 16 Geo. 2, c. 18, §1 (1743), noted by the reporter as passed “to remedy this” (i.e. the ruling in the case that the order of a Justice was void when it concerned his own town) is set out here from a copy in JA's hand in the Adams Papers:
“16 G. 2, c. 18. Statutes at large. V. 6th, Page 501. An Act to impower Justices of the Peace to act in certain Cases relating to Parishes and Places, to the Rates and Taxes of which they are rated or chargeable. [§1][ . . . ] 'It shall be lawfull to and for all and every Justice or Justices of the Peace for any County, Riding, City, Liberty, Franchise, Borough, or Town Corporate within their respective Jurisdictions, to make, do, and execute all and every Act or Acts, Matter or Matters, Thing or Things, appertaining to their office, as Justice or Justices of the Peace, so far as the same relates to the Laws for the Relief, Maintenance and settlement of Poor Persons, &c. Not with standing any such Justice or Justices of the Peace is or are rated to or chargeable with the Taxes, Levies, or Rates within any such Parish Township or Place affected by any such Act or Acts of such Justice or Justices as afore Said.'”
At the “&c.” JA has omitted provisions covering vagrants, highways, and taxes. JA must have argued or assumed that this Act was not applicable in the colonies. For a similar Province Act, passed in 1772, see note 14 above.
{ 308 }

Docno: ADMS-05-01-02-0008-0004-0004

Author: UNKNOWN
Date: 1768-11

Record1

Suffolk Court of General Sessions, Boston, November 1768

Suffolk Ss:[seal]At a Court of General sessions of the peace held at Boston within and for the county of Suffolk by adjournment on Monday the seventh day of Novr. A.D. 1768.
The Petition of the Selectmen of the Town of Brookline in the county of Suffolk, setting forth2 that on the thirtieth day of January 1767 the worshipful Joseph Williams Eqr. issued a warrant in these words, vizt., Suffolk Ss.3 Complaint being made to me the Subscriber, one of his Majestys Justices of the peace for said county, by Mesrs. John Child, Aaron Davis, and Eleazer Weld, Gentlemen and Selectmen of Roxbury and overseers of the poor in said Town, that one John Chaddock alias Chadwick alias dictus Chattuck or Shattuck late of Brookline with his family, vizt. a wife and four Children, all4 in distressed circumstances, the said John being delirious so as to become chargeable to the Town of Roxbury where they have resided and5 under warning between six and seven years, praying that a Warrant may issue forthwith to remove the said John and family back to Brookline from whence they came. These are therefore in his Majesty's name to will and require you and either of you to apprehend the Body and Bodies of the said John Chattuck and family with their effects and them safely remove and convey by the best way and means you can to the constable of the Town of Brookline who is alike required to receive them and take all due care to notify the Selectmen of Brook• { 309 } line or overseers of the poor of said Town to which he properly belongs or had his last residence, that such care may be taken and provision made for their support as may be needful. And you are to remove the said Chattuck and family &c. at his own charge if able to pay the same, otherwise at the charge of the Town of Roxbury, for all which this shall be a Sufficient warrant. Fail not and make due return of this warrant and your Doings thereon to the Clerk of the Court of General Sessions of the peace for said county of Suffolk as soon as may be. Given under my hand and Seal at Roxbury this thirtieth day of January A.D. 1767 and seventh year of King Georges reign. Joseph Williams. Which was afterward delivered to John Wood a constable of the said Town of Roxbury to be executed who returned his doings thereon in these words, viz. Suffolk Ss. Roxbury January 30 1767. By virtue of this warrant I have taken the Body of the within written John Shattuck and his wife and a Bed and beding and delivered them to William Davis constable of Brooklyn. February the 3 & 4th, I have further taken three children of the said John, viz. Martha and John and Mary and two beds and beding, a Pork tub, pots and kettles, brass and pewter knives and forks, corn and meal tubs, Chairs, Cyder, Cyder-barrels &c. being all the Indoor moveables of the aforesaid John Chattuck alias John Shattuck and conveyed them to the Town of Brooklyn and delivered them to the wife of the said John Shattuck at Brooklyn aforesaid. John Wood constable. And the said William Davis constable of the Town of Brooklyn made his Indorsement on said warrant in these words: Suffolk Ss. Brooklyn, January the 30. 1767. By virtue of this warrant I have received the within written John Shattuck and his wife and bed and beding and delivered them [to] Isaac Gardner Esqr. one of the Selectmen of Brooklyn aforesaid. William Davis constable.6 And the said John Shattuck his wife and three children are now in consequence of said warrant resident in said Brooklyn at the expence of the same Town for their maintenance which ought not to be for that it is acknowledged in said warrant that the said poor had lived above six years at said Roxbury and by Law therefore were their poor and ought not to have [been] removed then7 unless lawfully warned from the same Town. Tis true there was a warning in the year 1760 hinted in the said warrant which the said Town of Roxbury relies upon for good and sufficient warning in this case, the warrant for which and the Return of it are { 310 } in these words, viz. Suffolk Ss.8 In his Majestys name you are hereby required forthwith to warn John Chaddock and family at Mr. Bourroughs, Jonathan Smith at Mr. Ebenezer Whitings, Jonathan Smith junr. at Thomas Lyons, and Mr[s?]. Campbel at Mr. Whitings, also all9 and every one of the abovesaid Persons to depart the Town of Roxbury in fourteen days or give Security to the Selectmen to Indemnify the Town from all charge that may arise by means of any or either of the said persons, and you are to make Return hereof10 to the Clerk of the General Sessions of the peace in said county together with a certificate of the place of their last abode and the time [of their] residence here as the Law directs. By order of the Selectmen of Roxbury aforesaid, Samuel Gridley Town Clerk, Augt. 1st, 1760. Suffolk Ss. August the 1st. 1760. By virtue of the within I have warn'd the11 John Chadwick and family, viz. his wife and four children, to depart this Town who came from Brooklyn and had resided in Roxbury about two months, Jonathan Smith and Jonathan Smith junr. who had resided in Town three or four months and came last from Woodstock, and Mrs. Mary Campbel who had resided in Town two months and came from Boston. All and every of the above I have warned to depart the Town in fourteen days or give bond to Indemnify the Town. Attest, per Nathaniel Davis constable.12 Whereupon the complainants say that one John Chadwick was the Person warned to depart the said Town of Roxbury by force of the first of said warrants and John Shattuck was the Person removed by force of the second of said warrants which are two different names and denote two different familys. The first of said warrants requires John Chaddock and his family to be warned to depart said Roxbury or give Security but does not mention the Persons of his family ordered to be so warned by name as it ought to have done, and the constable in his return to it says that he has warned the [said] John Chattuck and family, viz. his wife and four children, to depart said Town but has not returned their names as he ought to have done. The constable of the said Town of Roxbury is required by the first of said warrants to warn diverse persons and John Chattuck among the rest, as therein is set forth, all and every one of them to depart the said town of Roxbury in fourteen days or give security to the Selectmen to indemnify the { 311 } Town from all charge that may arise by means of any or either of the said persons. The constable of the Town of Brookline is required by the second of said warrants to receive the persons so removed and to notify the Selectmen of said Brooklyn, and yet the warrant which requires it is not directed to him as it ought to have been. The same warrant does not mention either of the three children thereby required to be removed by name as it ought to have done. The same warrant admits that John Chattuck required13 to be removed has resided in said Roxbury more than six years last past and alledges it to be under warning but does not set forth of what nature this warning was. The same warrant as the Gist of it sets forth disjunctively that the said John Chattuck properly belongs to the said Town of Brookline or had his last residence there but does not set forth either of them in certain as it ought to have done and is not traversable. The constable of said Roxbury is by the same warrant ordered to take the effects and deliver them with the Body of the owner of them which is against Law.14 The said Joseph Williams who subscribed and issued the same Warrant as a Justice of the peace was then, had been many years before and is now an Inhabitant of the said Town of Roxbury and rated for the taxes set for the poor there. The said warrant issued by Joseph Williams Esqr. is therein made returnable to the Clerk of the Court of the General Sessions of the peace and it ought to have been made returnable to the said Joseph Williams Esqr. the Justice of the peace who issued it. Wherefore the Selectmen of the said Town of Brooklyn, inasmuch as its confessd above that the said John Shattuck had lived more than six years last past before said removal in the said Town of Roxbury, for want of any sufficient warrant for warning him to depart said Town of Roxbury or giving security to the Selectmen of it, and for want of any sufficient warrant to remove him to the said Town of Brooklyn, and for the illegality of said warrant and the return thereupon, prays judgment that the said John Shattuck, his wife, and children, Martha, John, and Mary, so removed, may be returned to the said Town of Roxbury, and for the said Town of Brooklyn's expences for his wifes and three children, maintenance and other incidental necessary expences for them since their said removal, and for the costs.15 This Petition was pre• { 312 } ferred to the Court at its Sessions by adjournment on the fifth day of May A.D. 1767 when it was read and then ordered that the Selectmen of the Town of Roxbury should be served with a copy thereof, that they appear on Wednesday the tenth day of June following to shew cause if any they had why the prayer thereof should not be granted. And they being served with a copy appeared and by Robert Auchmuty Esqr. their Council said first that this honorable Court ought not to take cognizance of the matters and things shewn forth herein by the said Selectmen of the Town of Brooklyn because the same are only such matters as are properly enquirable into as error and not appertaining to the merits of the cause, and secondly that the matters and things offered and objected by the said Selectmen of Brooklyn aforsaid are not sufficient for this Court to grant the prayer of said Selectmen of Brooklyn on. Wherefore the Selectmen of said Roxbury pray the Court to dismiss this petition and for their reasonable costs. And then the same was continued to the next sessions in July following and from thence to the next Court and so from Court to Court until this time by order of Court and with the consent of parties. And they being now heard upon said pleas,16 the Council for the Town of Roxbury moved that the opinion of the Court may be taken whether there is Sufficient matter alledged in the petition of the Town of Brooklyn for the Court to proceed to the tryal of the merits, and thereupon the Court deliver it as their opinion that there is not matter sufficient in said petition whereby the Court may proceed to an hearing of the merits so far as to determine whether said Shattuck and family are the proper poor of Roxbury or Brookline. Then it was moved that said petition be dismiss'd, but the Court are of opinion that it be not dismiss'd and upon a further hearing of the parties it is Considered by the Court that the prayer of said petition be and hereby is granted and ordered that the Inhabitants of the Town of Roxbury pay and refund unto the Selectmen of the Town of Brooklyn all such charge and expence as has arisen to them for the support and Maintenance17 of said John Chadock alias Chadwick alias Chattuck or Shattuck and his said wife and children untill this time and that they be returned to the said Town of Roxbury and also pay to said Selectmen of Brookline all the Costs that have been occasioned on their application to this Court in this matter.
1. SF 102089, in unknown hand. Minimal punctuation supplied. The last page is missing from the files. The final words of the record have been supplied from the original in Sess. Min. Bk., Suffolk, Nov. 1768. See note 4517 below.
2. A separate copy of the petition in the files is addressed “To the Honorable his Majestys Justices of the Court of General Sessions of the Peace in the county of Suffolk,” and begins, “The Selectmen of the Town of Brookline in said county humbly Shew.” SF 102089.
3. The file copy of the warrant is headed, “to each or either of the constables of Roxbury within said county of Suffolk, Greeting.” SF 102089.
4. In the file copy of the warrant the reading is “are.” The file copy of the petition reads “all.” SF 102089.
5. Word omitted in the file copy of the warrant. SF 102089.
6. On the file copy of the warrant is the additional notation, “Returned Feby. 7, 1767.” SF 102089.
7. The file copy of the petition reads “thence.” SF 102089.
8. The file copy of the warrant is headed, “To Mr. Nathaniel Davis constable of Roxbury in said county, Greeting &c.” SF 102089.
9. Word omitted in the file copy of the warrant. SF 102089.
10. “Thereof,” in the file copy of the warrant. SF 102089.
11. Thus in MS. The file copy of the warrant omits “the.” SF 102089.
12. On the file copy of the warrant is the additional notation, “Filed Octr. 21. 1760.” SF 102089.
13. The file copy of the petition reads, “The said John Chattuck thereby required.” SF 102089.
14. Perhaps “against law” in the sense that the statutory provision for removal does not refer to effects. Act of 16 Nov. 1692, c. 28, §10, 1 A&R 68, set out in No. 25, note 64.
15. The file copy of the petition shows that it was signed by “Jer. Gridley for the Selectmen of said Brooklyn.”
16. The file copy of the court's opinion, “filed by consent of both the parties,” begins, “After long debate.” SF 102089.
17. The remainder of the record is supplied from Sess. Min. Bk., 7 Nov. 1768.
{ 313 } | view

Docno: ADMS-05-01-02-0008-0004-0005

Author: Roxbury, town of
Author: White, Benjamin
Author: Gardner, Isaac
Author: Harris, John
Author: Goddard, Jonathan
Author: Griggs, Thomas
Author: Avery, John
Recipient: Brookline, town of
Date: 1768-11-08
Date: 1769-01-31

Brookline's Account1

Suffolk Court of General Sessions, Boston, November 1768

The Town of Roxbury to the Town of Brookline
1767     Dr.  
Jan. 30   To Isaac Gardner Esqr. for boarding Jno. Shattuck and wife 3 days to two mens watching and Attendance     18      
Feby.   To 2 days spent upon said Shattuck [account?]     8      
  To 1 Day Ditto     3      
6   To Deacon Ebenr. Davis for supplying to said Shattuck family     5   8    
  To keeping said Shattuck's horse 18 days     7   8    
  To cash to said Shattuck's wife     6      
  To ½ day his mans attendance on said Shattuck     4      
  To sundry to said Shattucks Family     3   1    
  To 2½ days Attendance on said Shattuck     10      
Mh. 2   To keeping said Shattucks horse 13 weeks @ 3 per week     1   19    
  To Danl. Sanders for watching 4 Nights with said Shattuck     6      
  To Fish and Greenwood for watching with Ditto 1 night     3      
  To Antho. Marion for watching with Ditto 4 nights     6      
  To Edward Williams for Ditto 2 nights     3      
  To George Brown for Ditto 3 nights     4   6    
  To Micah Grout for Ditto 1 night     1   6    
  To Capt. Parker for 2 [ . . . ] candles for Shattuck     1   5   ¾  
Feby. 12   To Benja. White for time and expence to Andover with said Shattuck     14      
22   To time and expence to Ditto     12   11    
  To 2 days on Shattucks Account     8      
  To his mans Attendance on Shattuck     4      
{ 314 } | view
12th   To Majr. Robert Sharp for time and expence to Andover and cash to the Doctor for said Shattuck   1   13   4    
  To 2½ days Attendance on said Shattuck     10      
  To his sons Attendance on Ditto     1   6    
  To keeping Shattucks horse     3      
  To Mr. John Harris for time and expences to Andover with Shattuck   1   9      
22   To time and expence to Andover and cash to the Doctor for Ditto   1   18      
  To Wood and other Supplies to said Shattuck and family     18   5    
  To Docr. Eliphalet Downer for keeping said John Shattuck and Attendance 8 weeks from the 23d. Feby. 1767 @ 13 per week   5   6   8    
  To Alexdr. Young for Bread and milk for Breakfasts for said Shattuck while in Goal 17 weeks @ 2 per week   1   14      
    £22   2   3   ¾2  
1767            
July 29   To Mr. Enoch Brown for 2 check shirts for said Shattuck   0   15      
Apl. 19   To Benja. White for boarding Mrs. Shattuck and daughter Mary 26 weeks at 10 per week   13   0      
  To keeping Ditto 21 weeks @ 7/4 per week   7   14      
  To keeping Shattuck 24 weeks from the last Octr. @ 8 per week   7   4      
  To keeping said Shattucks horse 25 weeks to grass @ 2 per week   2   10      
1768            
March 15   To keeping Ditto 11 weeks to hay @ 5/4 per week   2   18   8    
  To keeping Mrs. Shattuck and Daughter Mary 23 weeks @ 6 per week   9   18      
{ 315 } | view
  To nursing said Shattucks daughter Mary in Sickness   0   6   8    
  To keeping Shattuck himself 8 weeks @ 5/4 per week   2   2   8    
  To nursing Ditto in his late sickness   0   5   4    
  To Stephen Brewer for house rent for said Shattucks goods and damages done to His house   1   16      
  To Docr. Jona. Davis for medicine and Attendance for Jno. Shattuck wife and daughtr. Mary from Octr. 2. 1767 to Apl. 29, 1768   4   9   8    
  To Ditto for 1 weeks board   0   12      
    53   12      
  Brot from the other side   22   2   3   ¾  
    75   14   3   ¾  
  Deduct by order the whole keeping of the horse   7   17   11    
  Allowd by the Court and Costs.   £67   16   4   ¾  
Brookline Novr. 8. 1768. Errors Excepted per Benja. White Isaac Gardner John Harris, Jno. Goddard, Thos. GriggsSelectmen of Brookline
We the Subscribers having Attended the Selectmen of Roxbury and considered the Account exhibited by the Town of Brookline relative to the Pauper Shadwick who was removed from Roxbury to Brookline do report that the Town of Roxbury pay to the Town of Brookline Seventy one pounds fourteen shillings and 3¾3 being in full for their charges in maintaining and supporting said Pauper with their legal costs of prosecution in behalf of John Hill, Samuel Pemberton Esqr. and self John Avery.
1. SF 102089.
2. Subtotal taken at the end of the first page of the MS account.
3. This figure is £0 1s. 7d. less than the amount for which execution issued in March 1769, perhaps reflecting an incomplete computation of costs at this stage. See note 3 above.
{ 316 }

Docno: ADMS-05-01-02-0008-0004-0006

Author: UNKNOWN
Date: 1769-07-27

Writ of Certiorari1

Suffolk Superior Court, Boston, July 1769

[seal] Province of the Massachusetts Bay Suffolk SsGeorge the third by the grace of God of Great Britain France and Ireland, King Defender of the Faith &c.
To our trusty and well beloved Samuel Welles Esqr. first Justice of our Court of General Sessions of the peace for the said county, Greeting.
Willing for certain causes to be certified of the Record of the process Order and Sentence of a Court of general Sessions of the peace held at Boston in and for said county by adjournment on the seventh day of November last, upon a petition of the selectmen of Brooklyn in said county, then and there heard and adjudged (as it is said) before you and your Companions Justices of the same court: We therefore command you that the said Record, with all things touching the same fully and entirely as the same remains before You, You send before Us in our Superiour court of Judicature, Court of Assize and general Goal Delivery, to be held at Boston in and for the county of Suffolk on the last tuesday of August next, under your Seal together with this writ: hereof fail not; Witness Thomas Hutchinson Esquire, at Boston the twenty seventh day of July in the ninth year of our Reign, Annoque Domini 1769.
[signed] Nat. Hatch Cler.
To the Honorable His majesty's Justices of His Superior court of Judicature &c. above mention'd I herewith send the Record within mention'd with all things touching the same.
[signed] Samuel Welles
1. SF 102089, in unknown hand. The form seems to translate literally the Latin form used in England. See, for example, 1 Gardiner, Instructor Clericalis 157. It may be a local product, since it varies in detail, though not in substance, from the translated forms found in English books. See William Bohun, The English Lawyer 221–243 (London, 1732); Michael Dalton, The Country Justice 476 (London, 1746); compare Thomas Chitty, Forms of Practical Proceedings 651 (London, 2d edn., 1835).

Docno: ADMS-05-01-02-0008-0004-0007

Author: Fitch, Samuel
Date: 1770-03

Fitch's Assignment of Errors1

Suffolk Superior Court, Boston, March 1770

In the Case of the Select-Men of the Town of Brooklyn against the Town of Roxbury heard and adjudged at the Court of General Ses• { 317 } sions of the Peace held at Boston in and for the County of Suffolk by Adjournment on Monday the Seventh Day of November A.D. 1768. The Errors assigned by the Select-Men of the Town of Roxbury, which appear by the Records and Proceedings of said Court in said Case, on the Certiorari are as follows Vizt.
First, For that it appears by the Records of said Court of Sessions in said Case, that the Matters and things set forth and alledged in the Petition of the Select-Men of the Town of Brooklyn to the said Court were only Matters of supposed Error, and enquirable into as such; and that therefore the said Court; which is not a Court for the Tryal of Errors, could not by Law take Cognizance of, or determine upon the same.
2dly. The said Select-Men in their said Petition do not alledge that the Paupers therein mentioned, were not the Poor of the said Town of Brooklyn, and properly belonging to them to Maintain, nor do they shew forth any Facts whereon that Matter could be properly Enquired into and determined, or desire that it should be: And yet they pray that the said Paupers may be removed from Brooklyn to Roxbury and that the Town of Roxbury should Repay to Brooklyn the Expences they had been at in Supporting said Paupers with their Costs and the said Court Granted the said prayer of their Petition as appears by their Records of Proceedings in said Case.
3dly. The Select-Men of the said Town of Roxbury in their Answer to the said Petition Alledged, first that the said Court ought not to take Cognizance of the Matters and things shewn forth therein by the said Select-Men of said Brooklyn; Because the same were only such Matters as were properly enquirable into as Error, and not appertaining to the Merits of the Cause: and secondly that the Matters and things offered and objected by the said Select-Men of Brooklyn, were not sufficient for said Court to Grant the Prayer of said Select-Men of Brooklyn on: And the said Court Thereupon Determined and delivered their Opinion, that there was not Matter sufficient in said Petition whereby the said Court, might proceed to an hearing of the Merits so as to determine whether the said Paupers were the proper Poor of Roxbury or Brooklyn; but yet notwithstanding, the said Court, would not dismiss the said Petition (when it was moved that it should be dismissed) but sustained the same, and Granted the Prayer thereof as aforesaid; which is absurd and Contradictory: All which appears by the Records and Proceedings of said Court in said Case.
4thly. The said Court of Sessions cou'd not with any propriety or Consistancy grant the said Prayer of said Petition without Enquiring { 318 } into the Merits of said Cause and Determining whether the said Paupers were the proper Poor of the said Town of Brooklyn, or of the said Town of Roxbury: And yet the said Court did Grant the said Prayer of said Petition as aforesaid, without Entering into, or making any such Enquiry or Determination, as appears by their Records and Proceedings in said Case.
5thly. There appears by the said Records of the said Court of Sessions to be no Adjudication that the said Paupers or any of them are or were the proper Inhabitants of the said Town of Roxbury, or that they be, or should be, or ought to be supported and maintained by said Town; or that they had been illegally or improperly removed from said Town, to the said Town of Brooklyn or that the Order for removing them be Quash'd: and yet it appears, by the same Records that the said Court ordered, that the said Paupers should be returned to the said Town of Roxbury, and that the Inhabitants of said Town should pay and Refund unto the Select-Men of the Town of Brooklyn all such Charge and Expence as had arisen to them for the support and Maintenance of said Paupers; therefore the said Order of the said Court of Sessions for the Removal of said Paupers and for Refunding said Charges, is not founded on any direct Adjudication, but at best is founded on an uncertain adjudication, by Implication only; and it is repugnant and Contradictory to and inconsistant with the other Parts of said Record as beforementioned, and is altogether illegal and Erronious in Substance.
Wherefore the said Select-Men of the Town of Roxbury pray that the Order, Sentence, Judgment and proceedings of said Court of Sessions, may be Quashed, and the said Town of Roxbury restored to what they have suffered and paid in Consequence thereof and be allowed their Costs.
[signed] Saml. Fitch for the Select Men of Roxbury
1. SF 102089, presumably in Fitch's hand. The document is dated by the reference to it in Doc. VII.

Notification1

Suffolk Superior Court, Boston, ca. 1769–March 1770

[seal] Province of Massachusetts Bay Suffolk SsTo the Selectmen of the Town of Brooklyn in said County Greeting
You are hereby notified that by his Majestys Writ of Certiorari bearing Test the 27th. day of July last, the Record of the Process { 319 } Order and Sentence of the Court of general Sessions of the peace held at Boston in and for said County of Suffolk by adjournment on the 7th day of November last2 upon your petition relating to the Charge and Expence of supporting John Chaddock with his Wife and Children, paupers, are removed before his Majesty in his Superior Court of Judicature &ca. now holden at Boston aforesaid for said County of Suffolk: and that the Town of Roxbury have alledged certain Errors in the said Record, and pray'd that the said Order and Judgment may be reversed annulled and vacated: and further that the same be tried and finally adjudged before his Majesty in his superior Court of Judicature &ca. now holden at Boston aforesaid for said County and that you may be present and heard thereon if you see meet.
[signed] By order of Court, Saml. Winthrop Cler.
I have Notified Benja. White and Isaac Winchester the Select men of the town of Broockline to be present a Cording to this Sitation By Reading and Suffering them to Read the Same.
[signed] Per Benja. Cudworth Deputy Sheriff
The Services 2/
1. SF 102089, signed and subscribed as printed.
2. An inadvertence for Nov. 1768, the date of the Sessions hearing. See Doc. III. The error is probably accounted for by the language of the writ itself, dated 27 July 1769, which referred to the hearing in “November last.” See Doc. V.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/