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Browsing: Legal Papers of John Adams, Volume 1

Docno: ADMS-05-01-02-0006-0007-0004

Author: Wetmore, William
Date: 1771-06

Wetmore's Minutes of the Smith Trial1

Essex Superior Court, Ipswich, June 1771
June 1771
Smith and Wilkins [v.] Fuller. Bacon Trespass 212. Contin[uand]o in trespass may be waved and evidence given of any trespass before the action.2
See 2 Barn[ardisto]n 120. Trespass for disturbance in freehold; title allow'd to be given in evidence by defendant and Com[yn]s said that any possession longer than 7 or 8 years was evidence of it.3
This action is trespass for erecting a dam on plaintiffs land and flowing it from 1765. Evidence was offered of erecting dam in 1762, { 279 } but objected to it as excluded by limitation Act. Answered that it's repealed. J[udge] Trowb[ridge] seem'd to think it not repeal'd by the tempo[rary] law,4 and that on declaration for trespass done between 2 days certain, evidence was not admissible without5 those days.
1. Wetmore Notes, No. 2, Adams Papers, Microfilms, Reel No. 184. The minutes seem to refer only to Smith's case. The reporter's title, “Smith and Wilkins [v.] Fuller,” suggests, however, that he deemed the cases to be related. The relationship is borne out by the fact that the Wetmore minutes of Wilkins' case (Doc. I) appear in the MS several pages after these minutes.
2. 5 Bacon, Abridgment 212: “If the Trespass charged in this Action is laid with a Continuando for the whole Time, from a Day on which the first Trespass is charged in the Declaration until a subsequent Day therein mentioned, it is not necessary for the Plaintiff to prove a Continuance of the Trespass for this whole Time: But he must prove a Trespass within it; unless he chooses to waive the Continuando entirely, in which Case he may give Evidence of any one Trespass committed before the Action was brought.”
3. Baynes v. Reeves, 2 Barn. 120, 94 Eng. Rep. 394 (Lent Assizes 1732), tried before Baron Comyns.
4. The Act of 7 July 1740 had set limitation periods for various personal actions; that for “trespass upon lands” was five years. 2 A&R 1020. A clarifying Act of 1 Feb. 1749 established a four-year limitation period for “actions of account, or upon the case, grounded on any lending or contract.” 3 A&R 444, 445. In a series of “temporary” Acts, subsequent legislatures successively extended the deadline for existing causes of action. Act of 5 June 1752, 3 A&R 609; Act of 19 April 1754 3 A&R 727; Act of 31 Oct. 1755, 3 A&R 886; Act of 31 Aug. 1757, 4 A&R 26, 27; Act of 16 Jan. 1760, 4 A&R 280. And in 1767, the limiting date was made 1 July 1770. Act of 20 March 1767, 4 A&R 920. But the legislature did not consider the problem again until the fall of 1770, at which time it passed an Act repealing every previous limitation statute and providing that “all actions of trespass quare clausum fregit; all actions of trespass [de bonis asportatis] ...; all actions of account and upon the case, other than such accounts as concern the trade of merchandize” brought after 1 Dec. 1770 should be commenced as follows: “the said actions upon the case (other than for slander), and the said actions of account, and the said actions of trespass [d.b.a.] ... and trespass [q.c.f.], within six years from [1 Dec. 1770], or within six years next after the cause of such actions or suits, and not after.” Act of 20 Nov. 1770, 5 A&R 109–110.
The “tempo[rary] law” referred to by Trowbridge in the minute was apparently the 1770 Act. According to Lieutenant Governor Thomas Hutchinson's letter transmitting the legislation of the session just concluded to England for approval, the 1770 Act was “not a Temporary Law but placed among them [i.e. in the compilation of all laws passed at the session] through inattention which must be corrected.” Hutchinson to Lords of Trade, 21 Dec. 1770, in 5 A&R 143 note. The plaintiff seems to have argued that under the 1770 Act matters arising at any time prior to 1 Dec. 1770 were not barred until 1 Dec. 1776. Trowbridge's point was probably that the 1770 Act did not repeal the 1740 Act as to causes of action on which suit had been brought before 1 Dec. 1770. Since the 1740 limitations on trespass q.c.f. had not been among those extended by later legislation, the 1762 evidence was clearly barred when this action was brought in 1770. For JA's role in the passage of the 1770 Act, see p. lxxxvii, note 204, above.
5. That is, “before or after.” The comma following “certain” has been supplied.

Docno: ADMS-05-01-02-0007-0001-0001

Editorial Note

At twenty-four Adams could ask, “But Quere, if Dissonance of Dispositions is a sufficient Reason [for allowing a divorce]? This may be known, if sufficient Caution is taken beforehand.”1 Some twelve years later as counsel for Abigail Broadstreet in a divorce case involving domestic discord of the type dear to the readers of women's magazines today, he may well have had cause to ponder this proposition again.
Abigail Fuller had married Dr. Joseph Broadstreet of Topsfield in February 1770. Although Abigail had recently bought a small farm in nearby Middleton, the town in which her family lived, the couple, apparently for financial reasons, chose to move in with her brother Jacob. Within a few months Broadstreet became extremely restive, proclaiming to all who cared to hear that he had made a poor choice of wife in marrying a woman with no fortune but some unprofitable real estate. He said that “he was a damned fool for having of her and that he should rather have married a Negro if She had money.”2 Such pronouncements were accompanied by frequent threats to sell all that Abigail had and to depart with the proceeds to a more desirable location.
By the fall of 1770 Abigail was well along with child. Her mother, hearing that Broadstreet was “very uneasy” with his wife and still threatening to leave her, summoned him to the matriarchal presence. There followed a stormy scene in which she tried to persuade her son-in-law to stay with his wife “in her difficult circumstances, she being very unwell and unfit to care for herself.” Pleas and offers of assistance were of no avail. All that Broadstreet would say was “that he was a fool for having her and that he would not tarry with her for he had much rather be in the Mines.”3
Perhaps in reaction to this interview, Broadstreet then left home. He soon returned, however, and, repenting past excesses and promising future good behavior, persuaded Abigail to move with him into her own house, about half a mile distant. Almost at once he began to threaten abandonment again. According to Abigail's sister Mehitabel, who helped her to move, “He appeared very ill-natured, cursed his wife and cursed himself { 281 } and behaved like a man in distraction, wishing that he was in Salem Gaol or in the Spanish Mines, or in the worst place in the world other than there, and screaming and hallowing and slapping his hands together.”4 There were moments of respite, but on the whole Broadstreet's unsettled and unsettling conduct worsened during the next two weeks. He would waken Abigail in the middle of the night, ranting of money or screaming that the devil was coming, so that periodically she was forced to take refuge with her mother, who also lived nearby, just to get a night's sleep. Finally, early in December, Broadstreet departed once more, taking his possessions and vowing never to see his wife again.
After waiting a few days for her husband's return, Abigail took up permanent residence at her mother's in order to obtain the bare necessities of existence. Here, Broadstreet, accompanied by friends who sought to reunite the couple, visited her on several occasions. In these interviews she conceded that he had not harmed her, other than by his nocturnal out-bursts and perhaps a certain overinsistence on his connubial prerogatives. She remained adamant in her refusal to rejoin him, however, at least until winter and her pregnancy had run their courses, for she feared that an irremediable lack of funds sufficient to maintain Broadstreet in his desired style would quickly reawaken all the old dissatisfaction and lead to a resumption of his rantings. Without some security for his good behavior, which was not forthcoming, she “durst not [return], for he behaved like a madman and ... he would infallibly be the death of her: not in laying violent hands upon her, but by worrying and frighting her and hindering her from sleep.”5
On several occasions Abigail agreed to go to some other location, away from her family, which Broadstreet saw as the evil influence upon her. His efforts to find a place for them to live were inconclusive, however, and each meeting seemed to end on a similar note. Broadstreet would formally invite his wife to come and live with him again, but in the same breath aver that he did not care if she ever did. In March 1771 Abigail's child was born. Thereafter, her husband grew increasingly embittered. In calmer moments he blamed the separation on family influence, but more and more frequently he stated that he wished wife and child were dead and expressed his seeming hatred of them in a series of drastic epithets. It was reported that in February he had rented Abigail's house, sold off her hay, and “advertised” her—that is, publicly disclaimed responsibility for her debts.
As her strength returned, Abigail sought a divorce in a proceeding before the Governor and Council, who had jurisdiction of such questions under a Province Act of 1692.6 In England, questions of divorce were within the competence of the ecclesiastical courts, which applied the canon law. These courts could decree an absolute divorce, a vinculo matrimonii (from the bonds of matrimony), only when the marriage itself { 282 } was a nullity because of such defects as consanguinity or impotence. In such a case the parties were free to remarry. When the grounds were adultery, cruelty, or the like, the marriage itself was held valid and unbreakable, and the ecclesiastical courts would grant a divorce a mensa et thoro (from bed and board). This was in effect only a decree of separation and maintenance, each party being barred from remarriage during the other's lifetime. If the aggrieved party in a divorce a mensa wished further relief, he or she might, at least in a case where the grounds had been adultery, apply to the House of Lords, which would, upon appropriate investigation, order the marriage dissolved, permitting remarriage.7
In Massachusetts, because of the power of the Governor and Council, the location of jurisdiction to grant divorces a vinculo was ambiguous. The Court of Assistants in the old Colony seems to have granted this relief in cases of desertion, bigamy, and adultery, acting in its judicial capacity;8 but after 1692 the Governor and Council did not follow suit. From 1755 to 1757 the General Court took to itself the powers of the House of Lords, granting divorces a vinculo in cases in which the Governor and Council had previously granted decrees a mensa9 It was perhaps in response to these proceedings that Governor Pownall in a 1760 message to the Council raised the question whether that body had jurisdiction of divorces a vinculo as a civil, rather than a spiritual, court under the Province Act of 1692. “If not,” the Governor continued, “the Doubt then remains whether this Power lies with the Legislature of this Province or only with the Parliament of Great Brittain.”10 The Board of Trade had referred this question of legislative power to the Privy Council, but, although hearings were scheduled in 1759, none of the private acts granting divorces seems to have been disallowed.11 Perhaps through Pownall's influence, however, the General Court granted no further divorces, and the Divorce Records of the Governor and Council show that the latter body thereafter issued numerous decrees a vinculo in cases of adultery.12 The relief which in { 283 } England could be had only by the petitioner who could afford to go to the House of Lords, was thus available in Massachusetts in the ordinary course.
Abigail's libel, filed by Jonathan Sewall in July 1771, alleged Broad-street's departure in December of the preceding year, his failure to support his wife since that time, and his constantly expressed threats to her fortune and wishes for her death. It concluded with a prayer “that by your Excellency's and Honors' Decree she may be divorced from Bed and Board with the said Joseph and thereby be intitled to the separate and sole use and improvement of her own Estate for the maintenance of herself and Child.” Broadstreet's answer, propounded by Josiah Quincy Jr., denied Abigail's allegations and attributed the separation to the efforts of “dark and mercenary Enemies to his household,” who by “insinuating arts withdrew the affections of his Wife.” Two justices of the peace were assigned to take testimony for both sides, and on 17 October, before the Governor and Council, the depositions were read and the parties heard.13
Adams' notes of the proceedings, printed below, indicate that he argued Abigail's case, probably with Sewall. The authorities which he collected show that the canon law, as applied in the ecclesiastical courts in England, was an important source of the Massachusetts law of divorce. He thus limited himself to questions concerning the divorce a mensa as the canon law defined it, seeking to establish that desertion and cruelty were grounds, and were present in this case.
Under canon law the husband could be required to pay alimony after a divorce from bed and board, the theory being that, since the marriage still existed, he was merely continuing to perform the duty of support which he would have had in normal course. Since the wife by her conduct could forfeit alimony, Adams also endeavored to lay the groundwork for an argument that Abigail had not done so in this case, despite her coolness toward Broadstreet's attempts at reconciliation. The arguments were apparently successful on all counts, for with the sole dissent of Governor Hutchinson, who did not agree “that there was a sufficient cause for a separation,” the Council decreed a divorce from bed and board. Abigail was awarded alimony of £25 per year, payable in quarterly installments, plus the costs of the proceedings.14
That the separation which Abigail sought ensued seems clear. What is less clear is her success in obtaining alimony. In 1774 she was forced to { 284 } petition the Council again, because Broadstreet had paid her nothing. In accordance with the statutory procedure for the enforcement of its decrees, the Council ordered a warrant to issue for Broadstreet's arrest.15 He could be held in prison until he chose to comply. Whether he was actually taken, and whether the pains of incarceration eventually triumphed over his enmity toward Abigail do not appear in the record.
1. Diary, Summer 1759. 1 JA, Diary and Autobiography111.
2. See the deposition of Mehitabel Fuller, 21 Sept. 1771, in the file. SF 129762. The account which follows is pieced together from numerous depositions found there.
3. Deposition of Abigail Fuller, widow, 21 Sept. 1771. SF 129762.
4. Deposition of Mehitabel Fuller, note 2 above.
5. Deposition of Archelaus Fuller, 21 Sept. 1771. SF 129762.
6. Act of 3 Nov. 1692, c. 25, §4, 1 A&R 61.
7. See Richard Burn, Ecclesiastical Law, 2:428–431 (London, 2d edn., 1767); 1 Holdsworth, History of English Law 622–624; 10 id. at 608; 11 id. at 622–623; 12 id. at 685–686. Compare Quincy, Reports (Appendix) 577. See also No. 23, note 5.
8. See George L. Haskins, Law and Authority in Early Massachusetts 195 (N.Y., 1960); Petition of Mary Sanders (1674), 1 Records of the Court of Assistants 1630–1692 30 (Boston, ed. John Noble, 1901); Petition of Hope Ambrose (1678), id. at 127; Petition of Susannah Goodwin (1680), id. at 168.
9. See Act of 10 Jan. 1755, No. 81, 6 A&R 165; Act of 10 June 1755, No. 82, id. at 169; Act of 15 April 1756, No. 83, id. at 170; Act of 18 April 1757, No. 84, id. at 173; Act of 22 April 1757, No. 85, id. at 174; Act of 14 June 1757, No. 86, id. at 177.
10. Supreme Court Probate Rec. 1760–1830, fol. 1, printed in Quincy, Reports (Appendix) 577.
11. Preface, 6 A&R v–vi; Smith, Appeals to the Privy Council 582–585.
12. See, for example, No. 23. There were at least thirty-five divorce proceedings in Massachusetts between 1760 and 1775, of which twenty were decrees a vinculo for adultery; five were annulments for prior marriages; and seven were divorces from bed and board for cruelty and the like; in at least two cases a decree was denied for insufficient evidence. Divorce Recs. In the latter category was Shank v. Shank (1772), in which a divorce a vinculo sought for adultery was denied on evidentiary grounds. The libel in the file is in JA's hand. SF 129766. The first Massachusetts Divorce Act after the Revolution empowered the Supreme Judicial Court to grant divorces a vinculo, not only on the traditional canon-law grounds, but for bigamy and adultery as well, thus adopting what seems to have been the pre-Revolutionary practice. The court could also decree divorce a mensa for extreme cruelty. Mass. Acts 1785, c. 64, §3 (1786).
13. Divorce Recs., fols. 68–70. See the libel and answer in SF 129762. The Commission to Andrew Oliver Jr, and William Brown, dated 12 Sept. 1771, and a deposition of Daniel Bixby, 5 Oct. 1771, are in MHi:Photostats; for other depositions, see notes 2–52, 3, 4, and 5 above; note 2712 below.
14. See Divorce Recs., fols. 68–70. JA received a fee of 48s. JA, Office Book, MQA.
15. See her petition in SF 129762. The statutory authority is that cited by JA, note 249 below.

Docno: ADMS-05-01-02-0007-0001-0002

Author: Adams, John
Date: 1771-10-17

Adams' Notes of Authorities and Minutes of the Hearing1

Governor and Council, Boston, 17 October 1771
Abigail Broadstreet vs. Joseph Broadstreet
Godolphin's Repertorium Canonicum 507.2
“Wife libelled Husband in the Ecclesiastical Court for Alimony because he beat her so as she could not live with him. A Prohibition was prayed, but denied by the Court; and it was held in this Case, that the Wife might have the Peace vs. her Husband for unreasonable Correction.” Sir Thos. Simmonds Case. Mores Rep.3
508. §13. Definition of Alimony, and Elopement.4
509. §14. Vid.5
{ 285 }
510. §16.6
511. §18.7
Prov. Law, page 59, 60. An Act to prevent incestuous Marriages.8
Prov. Law. 8 G. 2, c. 10, page 371. Impowered to inforce their decrees by Imprisonment.9
Burn. Ecc. Law. Vol. 2. 430. 431.10
Woods, civ. Law. 124. middle11
Drs. Wit[nesse]s.12
J. Wilkins
E. Knight
[J.] Town.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. John Godolphin, Repertorium Canonicum 507 (London, 3d edn., 1687).
3. This notation appears in the margin in Godolphin, Repertorium Canonicum 507, cited in note 172 above. JA's quote from Godolphin is in turn an almost verbatim borrowing by Godolphin of the report of “Sir Tho. Simonds Case” in An Exact Abridgment in English of the Cases Reported by Sr. Francis More Kt. 263 (London, ed. Hughes, 1665). The original report of the case is found sub nom. Sir Tho. Seymours Case, in Moore K.B. 874, 72 Eng. Rep. 966 (K.B. undated).
4. That is, Godolphin, Repertorium Canonicum 508. The definitions are “Alimony .... that proportion of the Husbands Estate, which the Wife sues in the Ecclesiastical Court, to have allowed her for present subsistence and livelyhood, according to Law, upon any such separation from her Husband, as is not caused by her own elopement or Adultery.... Elopement ... that voluntary departure of a Wife from her Husband to live with an Adulterer.”
5. Godolphin, Repertorium Canonicum 509. A qualification of the passage in note 4note 19 above, to the effect that, although in most cases of separation not occasioned by elopement, adultery, or a legal impediment to marriage, the husband is held to pay alimony, he need not pay if the wife departs of her own accord through no default of his, even where she is not chargeable with adultery. When the reason of her departure is some default in the husband, such as cruelty, she is then entitled to alimony, if she is blameless. If the wife repents of any flight save elopement, adultery, or a legal impediment, the husband must take her back or pay alimony. Conversely, where a blameless wife has fled, if the husband repents and offers security that will assure his good behavior, he need not pay alimony if his wife then refuses to return.
6. Godolphin, Repertorium Canonicum 510, setting out John Owen's Case, Hetley 69, 124 Eng. Rep. 349 (C.P. undated) (Prohibition granted to the Council of the Marches of Wales, which had seized Owen and sequestered his property for non-payment of a decree of maintenance made in a case where the husband was living apart by the Bishop of Bangor and confirmed in the Council. Semble, the only remedy for disobedience of an ecclesiastical decree is excommunication). This case and the following one were apparently cited by JA as examples of the action of the Ecclesiastical Courts, rather than for the precise holdings on the prohibitions.
7. Godolphin, Repertorium Canonicum 511–512, setting out Cloborn v. Cloborn (cited incorrectly as Clobery v. Clobery), Hetley 149, 124 Eng. Rep. 414 (C.P. 1631) (Prohibition to the Ecclesiastical Court refused in award of alimony for cruelty including physical violence and insults, where the husband had merely denied the allegations. His grounds for the prohibition were that he had chastised his wife for reasonable cause and that there had been a subsequent reconciliation. The court held that it could not “examine what is cruelty,” and that moreover the actions here were cruelty. If the husband had pleaded some justification and it had been refused, then the prohibition might lie).
8. Acts and Laws, Of His Majesty's Province of the Massachusetts Bay in New-England 59–60 (Boston, 1759); Act of 19 June 1695, c. 2, 1 A&R 208. Section 3 provides in part that “it shall be in the power of the justices of the superiour court of judicature to assign unto any women so separated [i.e. divorced or marriage annulled] such reasonable part of the estate of her late husband as in their discretion the circumstances of the estate may admit, not exceeding one-third part thereof.” Id. at 209. For a case of JA's illustrating the operation of the statute, see the petition of Sarah Griffin (Gould), SF 91716; Min. Bk. 98, SCJ Suffolk, Aug. 1773, N–47. This arose from Gould v. Gould, SF 129772; Divorce Recs., fols. 78–79.
9. Acts and Laws 371–372 (1759); Act of Jan. 1755, c. 15, 3 A&R 782. The Act provides that upon refusal or neglect of any person to obey the decree of Governor and Council in a controversy concerning marriage and divorce, the secretary of the Province, upon their order, may issue a warrant for the arrest and commitment to prison of that person without bail until he complies with the decree.
10. 2 Burn, Ecclesiastical Law 430–431. The passage deals with the nature and incidents of divorce a mensa et thoro. See text at note 7 above.
11. Wood, New Institute of the Civil Law 124, a passage setting forth the grounds of divorce under the civil law, which include irreconcilable hatred, intolerable cruelty, and “when one party shall unjustly forsake and live apart from the other. ”Wood then states that the law of England, following the canon law, will not permit divorce from the bonds of matrimony, but does not raise the question of divorce from bed and board.
12. That is, evidence presented on behalf of Dr. Broadstreet. See note 13 above. See the depositions of Joshua Wilkins, Enos Knight, and Jonathan Town in SF 129762. Wilkins testified that the hay sold by Broadstreet was not actually Abigail's. The other two depositions describe the Jan. 1771 meetings between the parties in terms favorable to Broadstreet.

Docno: ADMS-05-01-02-0007-0002-0001

Editorial Note

Today we would probably call this action tort for loss of consortium by seduction. In 18th-century England and Massachusetts, the cuckold's remedy was an action of trespass for an assault on his wife, better known as “criminal conversation,” or just “crim. con.”1 Adams represented the defendant Little in the Inferior Court, and the testimony recorded in his minute fairly states the story. Further details emerge from the file of the divorce suit which Dougherty was prosecuting simultaneously with his action at law.2
Dissatisfied with the £60 verdict in the Inferior Court, Dougherty appealed to the April 1768 Charlestown Superior Court; there, with Adams no longer representing Little, the jury awarded Dougherty £400 and £27 4s. 9d. costs.3 Meanwhile the grand jury indicted Mrs. Dougherty and Little twice, once for adultery and once for lewd, lascivious, and wanton behavior.4 Finally, the Governor and Council, sitting in exercise of their exclusive jurisdiction in divorce, on 15 June 1768 granted Dougherty an uncontested divorce a vinculo, a copy of the Superior Court judgment being a part of the evidence “by which it appears that the said James [Dougherty] hath fully proved his libel.”5
1. F. Buller, Introduction to the Law relative to Trials at Nisi Prius 26–28 (London, 1772); 3 Bacon, Abridgment 581.
“The proponent doth alledge that in August A.D. 1764 he sailed for the Island of Newfoundland and that he continued there 'till the month of December last.... That when your proponent returned from the said Island of Newfoundland, to his great grief he found his said Wife Mary big with Child, and has great reason to suspect that the said Thomas Little is the Father thereof your proponent not having cohabited but been absent from his said Wife for the space of three years last past.” The libel was filed 26 Feb. 1768. SF 129750.
See also note 105 below. For Dougherty's disclaimer of his wife's debts, dated 24 Dec. 1767, see Boston Gazette, 7 March 1768, p. 4, col. 3.
3. Min. Bk. 88, SCJ Charlestown, April 1768, N–13; Rec. 1768–1769, fols. 163–164; SF 147615.
4. SF 147605. No record of the disposition of Mrs. Dougherty's case seems to have survived. Little's case was called at the Cambridge Superior Court, Oct. 1768, but he defaulted and was fined £200 and costs. Min. Bk. 88, SCJ Cambridge, Oct. 1768, N–15.
5. Divorce Recs. 45–48 (1768). See also Boston Gazette, 25 April 1768, p. 3, col. 2. As to the divorce jurisdiction see No. 22. In England in a proceeding for divorce a vinculo in the House of Lords (No. 22, text at note 7), the applicant had to establish that he or she not only had obtained a divorce a mensa in the ecclesiastical courts but had recovered for criminal conversation at law. 1 Holdsworth, History of English Law 623.

Docno: ADMS-05-01-02-0007-0002-0002

Author: Adams, John
Date: 1768-03

Adams' Minutes of the Trial1

Middlesex Inferior Court, Charlestown, March 1768
Dougherty vs. Little
Dougherty at Newfoundland, 3 Years, Little breakfasted dined suppd and lodgd there. Lodgd with her, got her with Child, and was seen in the Act of Copulation with her.
Revd. Whitney. Rode to Meeting with her.
Thos. Nicholls. Frequently there. Candle put out and two Persons went out, and Little and she came in.
Wm. Little. Was left with the Care of Mrs. Dougherty and got his Brother to bring her up from Charlestown and desired his Brother to take some Care of her and her Negro when I was sick. Talk about the Parson. Am not knowing to her being with Child. The Woman poorly at Meeting. But I know not the Cause. The last Time I saw her it did appear to me, that she was belyed. He always denyd it to me.
Mrs. Little. I thought her with Child. Have not seen her since.
Thos. Trowbridge. He told me that he could have as good a Lodging with Mrs. Dougherty, as I should have with that Woman. Hints. Infirmations.3
Chaise coming from Boston.
Mrs. Nicholls. Never saw any Indecency, any unhansum Carriage. Seen his Horse stand there. Common fame, that he used to frequent the House. Not common Report that he staid o Nights. Common Report that she with Child. I thought she was with Child 7 months gone, not sure she was.
Mrs. Nicholls lodged with her. I discoverd4 that I thought she was pregnant. It seemd like a living Child.
Negro's. Riding a trotting Horse. Into Bed. Saw em twice in Bed. Moonlight went thro the Room once.5
{ 288 }
Dinah. Saw the same. Man upon the Woman.
Children. Boy. Saw em on the Bed, with Arms round each others Necks.
Actually with Child. Mrs. Little and Mrs. Nicholls.
[ . . . ]. And carnally knew.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Jonathan Sewall, Dougherty's counsel. See Inferior Court record, SF 147615.
3. The MS is clear. JA may have meant “Informations,” or perhaps he actually intended “Infirmations,” “the action of weakening or invalidating (evidence).” OED.
4. That is, disclosed.
5. This is probably the testimony of one Jacko, whose deposition in the divorce proceedings, dated 6 May 1768, is as follows:
“Jacko twenty-two years of age Testifys and says that In the winter Season in the year 1767 he Came to the house of Mr. James Dougherty in Sherly District and that Soon after he Came there, Thos. Little of said Sherly Came to said Doughertys house Mary the wife of said Dougherty being and liveing at said house <about a fortnight after he said Jacko Came> said Little Came and put his horse into the Chase and road with said Mary and used freequantly so to Do and also Breakfast Dine and Drink Tea with the said Mary, in the <month of> beginning of the Summer in the year 1767 the said Jacko says he saw said Little and said Mary <Standing against said fence> standing by the fence said Mary, Back to the fence said Littles Belly to her Belly, Some time after said Little Came to said Doughertys house and in the Evening said Little sent him said Jacko to said Littles house with his horse and Told him he must lodge there that night, between nine and ten o Clock that same Evening he said Jacko Came back from said Littles house said Little asked why he Came back, he answered he would not lye out of the house that night, said Little Bid the people in the house a Good night and went out of the house, said Jacko went out after him, then said Little went round to another Doar where said Mary met said Little and opened the Doar with a Candle in her hand and let him said Little in, and Shut up the house, which obliged said Jacko to go in at a Celler window, and when he Came up into the Entry way he said Jacko Saw said Littles Cloaths lye on the floar by said Marys bed, and then he said Jacko went up Chamber over her said Marys Bedroom, there being only some Boards thrown Down loose for a floar, there being Considerable Distances between the Boards saw said Little and said Mary in Bed together (the moon shining that nite), a few nights afterwards (the moon shining) the said Jacko being in said Chamber he heard Some body Come into the said Marys Bedroom before Discribed, she then being in Bed, Saw said Little In the Bed with said Mary, and upon her, and the Bed Cloaths in Constant motion. Some time after said Little Came to said Doughertys house aforesaid in the Evening the said Jacko being then in bed, and Called him up and asked him where said Mary was, and said Mary and said Little went out of the house and Tarryd about one Quarter of an hour, then said Mary Came in, (and went to bed) and Early next morning found said Little in said house, and said Little Told him said Jacko that he Came over to ask said Mary whether she wanted his plow that Day. Some time after said Jacko took a lite in the Evening to go Down Seller to Draw Drink, and saw in the Entry said Mary <leaning over> setting against a Chest, and said Little on his Knees <... her> before her.”
[signed] Jacko

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

Editorial Note

As in England, the Massachusetts justices of the peace, singly and in their joint capacity as the Court of General Sessions of the Peace for each county, formed a kind of all-purpose administrative tribunal with jurisdiction in a wide variety of local government questions. Matters within their power included tavern licensing; the construction, repair, and use of highways; militia service; assessment and collection of taxes; regulation of weights and measures, as well as the quality of food and other products; shipbuilding; land use; violation of the Sabbath; support of the ministry and schools; and welfare. In the last category were two important problems which produced substantial amounts of litigation—the settlement and removal of paupers, and the support of illegitimate children. John Adams had a number of cases in both of these fields, which demonstrate the early operation of administrative law in Massachusetts.1 The present case and Nos. 25–2725, 26, and 27 concern paupers. Nos. 28–3028, 29, and 30 are examples of bastardy proceedings, as they were called.
The poor relief system rested on the principle that a town was responsible for the support of all indigent persons having a “settlement” within it. Under statutes in force until 1767 a pauper gained a settlement if he remained within a town for twelve months without being “warned” by the selectmen to depart. Once the pauper had been warned, he could be removed to another town by the constable under the warrant of a justice of the peace. Litigation over those provisions generally concerned the contention of the town to which a pauper had been removed that it should not be charged with his keep. The town would apply to the county Court of General Sessions for decision of the question, a matter within that court's statutory jurisdiction.2 Usually the court would determine the town of set• { 290 } tlement and would order that town to pay all charges incurred by the other town on account of the pauper.
Although a statute provided an appeal to the “court of assize and general gaol delivery” from “sentences” of the General Sessions,3 there was no specific provision for review of orders in cases under the poor laws. The courts had developed the remedy of certiorari, following English practice in this and other cases in which no other appellate relief was provided.4 On writ of certiorari, the Superior Court limited its review to matters appearing on the face of the record, except for jurisdictional questions. The procedure on appeal in the Superior Court, however, as it was applied in civil actions and presumably in appeals from the Sessions, involved a trial de novo before a jury at which new evidence and matters outside the record could be freely offered.5 In the case of Roxbury v. Boston, the party aggrieved at Sessions sought to obtain this broader measure of relief.
The case concerned the status of one Rebecca Choate, who had allegedly been warned from Roxbury with her husband in 1738. On 31 December 1763, having at some point returned, she was removed from Roxbury to Boston by warrant of a justice of the peace. There she became and remained a public charge, except for a brief stay in Roxbury occasioned by a smallpox epidemic in Boston.
In January 1765 the Selectmen of Boston petitioned the Suffolk County Court of General Sessions for her removal to Roxbury and the return of their expenditures for her, urging that the original warrant of removal had been issued by a justice who was a Roxbury inhabitant, and therefore interested, and that Rebecca was in fact an inhabitant of Roxbury. Jeremy Gridley, who appeared for Roxbury at the April 1765 Sessions, denied that Rebecca was an inhabitant as alleged. After several continuances the case was heard in July 1766. The court found that Rebecca was not an inhabitant of Boston at the time of her warning in Roxbury or afterward, but was an inhabitant of Roxbury, and ordered the latter town to pay her { 291 } charges and costs of court to Boston. The record reflects that the Selectmen of Roxbury “appealed” to the Superior Court, giving bond as the statute provided.6
The precise reason why an appeal was sought instead of certiorari cannot be determined. It is possible that Gridley wanted the case tried to a jury rather than by the court. Suffolk jury panels included jurors from the country towns, who might tend to favor Roxbury's cause against the larger Boston.7 The reason might also have been a desire to offer evidence or raise issues not in the record. It is not clear whether “the record” for purposes of certiorari was merely the usual formal statement of pleadings and proceedings below taken from the record book of the lower court or whether it also included other papers from the files. If the former, there was evidence in the file from the trial in Sessions, which probably would not have been admissible on certiorari. Since this evidence tended to show that Rebecca Choate was not an inhabitant of Roxbury, Gridley may have wanted the Superior Court to consider it in reaching a decision.8 Whether or not this evidence was thought part of the record, it is also possible that Gridley was seeking the admission of oral testimony or additional documentary material not preserved in the file.
Whatever the reasons for taking an appeal, the case came on in the Superior Court at the August 1766 term, with Adams and Gridley arguing for Roxbury and Otis and Fitch for Boston. Adams' notes, printed below, indicate that the only question raised was whether an appeal lay. The Province statute providing an appeal from the Sessions seems to have { 292 } been offered as the basis for the proceeding, but Otis and Fitch argued that this Act did not include determinations under the poor laws, presumably because it was limited to criminal matters. The judges apparently agreed, because they dismissed the case, “being of the opinion that an appeal does not ly, by the Province Law in this case.”9
1. For a summary of the jurisdiction of Massachusetts Justices of the Peace and Courts of General Sessions, see p. xxxix–xl above; see note 145 below. For the English practice, see Edith G. Henderson, Foundations of English Administrative Law 18–25 (Cambridge, Mass., 1963). For another JA case under the poor laws, see “the Case of Dumb Tom the Pauper” (Scituate v. Pembroke), 17 May 1767, 1 JA, Diary and Autobiography336; SF 142416. For a pioneering discussion of such matters, see Charles F. Adams, Three Episodes of Massachusetts History, 2:722–781 (Boston and N.Y., 1892).
2. For the principal statutory provisions involved, see notes 11–132, 3, and 4 below; No. 25, notes 42, 64; No. 27, note 162.
3. See note 167 below.
4. The earliest use of the writ found in Massachusetts for a case under the poor laws is Waltham v. Weston, SCJ Rec. 1760–1762, fol. 161 (Middlesex, 1761). The writ, in the form printed in No. 27, Doc. V, was issued in 1759.
The first certiorari of any kind known to have issued from the Superior Court is that in Boxford Parish v. Rogers, SCJ Recs. 1753–1754, fol. 101d (Essex SCJ, Oct. 1753), a case involving a minister's salary. Edith G. Henderson, Certiorari and Mandamus in Massachusetts and Maryland 3–4 (Unpubl. paper, Harvard Law School, 1955). Prior to 1720 at least, appeals from Sessions seem to have been allowed in such matters, as well as in poor law, bastardy, and highway cases. Id. at 4–5. In 1747, however, the Superior Court dismissed the appeal in Bodfish v. Barnstable, a case under the poor laws. See note 123 below. The use of certiorari may have developed in response to this decision. The English practice is covered in Henderson, Foundations of English Administrative Law 83–116, 143–159.
5. The procedure and scope of review on certiorari are discussed more fully in No. 27. As to appeal in civil cases, see generally p. xlii above. That there was to be a jury in appeals from Sessions appears in the provision that the appellant in such cases should pay the same fee to jurors required in a civil appeal. Act of 16 June 1699, c. 1, §3, 1 A&R 368. For a case in which the Superior Court may have gone outside the record, see No. 30.
6. See the warrants of warning and removal, the petition of Boston, and the record of the Court of Sessions in SF 100839. For the requirement of bond with two sureties in appeals from “sentences” of the Sessions, see Act of 16 June 1699, c. 1, §3, 1 A&R 368, discussed further in note 7note 16 below. Boston's charges, “allow'd by the Court,” amounted to £47 3s. id. for Rebecca's board in the Alms House until her death in March 1766 and for medical care. SF 100839.
7. See, for example, the Suffolk venire, Aug. term 1766, which included 48 petit jurors, 16 from Boston, 6 from Roxbury, the rest in ones and twos from 16 other towns. SF 100784.
8. As to “the record” in certiorari, see No. 27, note 8. The evidence included Rebecca Choate's own deposition, dated 28 Jan. 1766, and those of three other witnesses, dated 20 May 1766, which indicated that she and her late husband had lived in Roxbury until some time in the fall of 1735, but during the next two and a half years had lived successively in Dedham, Stoughton, Dorchester, and Boston. SF 100839. The dates are somewhat vague, but it would have been possible to conclude that the Choates had lived without being warned in either Dedham or Boston for the year necessary to gain a settlement. In March or April 1738 they moved back to Roxbury but a copy of a warrant in the file shows that they were warned from that town in May 1738. Ibid. The file also contains an attested list of the selectmen of Roxbury for 1763, showing that Joseph Williams, the justice of the peace who ordered Rebecca's removal, held the former office as well. Ibid. This document had presumably been put in evidence for Boston on the trial, to support the contention that Williams was interested. The list would also have been admissible on an appeal, but Gridley may have intended to contest this point on legal rather than factual grounds, since he had not denied the allegation to this effect in the Sessions. The issue had not yet been ruled upon against the jurisdiction by the Suffolk Court of Sessions. See No. 27, text at note 11.
9. Min. Bk. 81, SCJ Suffolk, Aug. 1766, N–24. See SCJ Rec. 1766–1767, fol. 98. Boston was allowed costs of £1 os. 2d.

Docno: ADMS-05-01-02-0008-0001-0002

Author: Adams, John
Date: 1766-08

Adams' Minutes of the Argument and Decision1

Suffolk Superior Court, Boston, August 1766
Town of Boston vs. Roxbury.
Fitch. 1st Question whether Appeal will lie?
Page 33 of tem[porary] Acts. Art —.2
Otis. Case of Barnstable vs. Bodfish. June 1747, in Sessions. Superior Court, Barnstable July 1747.3
Prov. Law 21. Relations.4
{ 293 }
Lynde. Bastardy, Highways—Ministers and Paupers, no Appeal has been allowed.5
Gridley. This not taking up the Law upon the sense of it: but is taking up one Part of the Law to make it militate vs. another. This is nothing but an Apex Juris,6 that never occurrd to the Legislature.
Otis. The Q. is whether an Appeal will lie, from an order of Sessions, concerning the Maintenance of a Pauper.
No Appeals lie at Common Law. No Appeal in England upon Facts, nor ought there to be here.
This is not an Appeal from a Sentence, but an Order.7
Judicium i.e. quasi Juris dictum. Ld. Coke.8
Court unanimously, The appeal must not be allowed.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Presumably a reference to the Act of 15 Jan. 1743, c. 18, §1, 3 A&R 37, which appears at p. 33 of a volume supplementary to the Temporary Acts and Laws (Boston, 1763), entitled The Acts Contained in this Book were ordered to be left out of the last Impression of Temporary Laws and printed by themselves (Boston, 1763). The section provided that all doubts or controversies concerning which town was liable for a pauper's support, or whether a pauper's condition was sufficiently “necessitous” to entitle him to relief, “shall be determined by the justices of the court of general sessions of the peace, in the county to which such poor person doth belong; and the said justices are hereby fully authorized and impowered fully to determine the same, upon application to them made for that purpose.”
3. A reference to Bodfish et al. v. Selectmen of Barnstable, SCJ Rec. 1747–1750, fol. 3 (Barnstable, July 1747), an appeal from an order of the Court of General Sessions of the Peace for Barnstable County in June 1747, directing the appellants to pay to the selectmen £2 17s. 6d., which the latter had advanced to one Thomas Haddeway, an indigent person. The appeal was dismissed with costs of £3 2s. 6d, to the selectmen. The proceeding was probably one against the relatives of the indigent, who were liable for his support under the provision next cited by Otis (note 4note 13 below). That Act was apparently construed as giving the justices sitting in sessions jurisdiction in such matters without regard to their powers under the Act of 1743, cited in note 2note 11 above. See Tomlin's Petition (1735), Records of the Court of General Sessions of the Peace for the County of Worcester, Massachusetts, from 1731 to 1737 133 (Worcester, Mass., ed. F. P. Rice, 1882); Petition of Southboro (1737), id. at 177. Any doubt that this procedure was correct was removed by Act of 12 June 1764, c. 2, 4 A&R 705.
4. The reference is to the Act of 16 Nov. 1692, c. 28, §9, 1 A&R 67–68, which appears at Acts and Laws, Of His Majesty's Province of the Massachusetts Bay in New England 21 (Boston, 1759). The section, which is set out at length in No. 25, note 42, provided that a person who had been in a town for three months without being warned out, should be considered “the proper charge of the same in case through sickness, lameness, or otherwise they come to stand in need of relief, to be born by such town, unless the relations of such poor impotent person in the line or degree of father or grandfather, mother or grandmother, children or grandchildren be of sufficient ability; then such relations respectively shall relieve such poor person in such manner as the justices of the peace in that county where such sufficient persons dwell shall assess.”
5. These were the principal areas of the General Sessions' administrative jurisdiction. See Act of 1 Nov. 1692, c. 18, §5, 1 A&R 52 (Sessions to determine paternity and order father to pay maintenance of bastard; see No. 28); Act of 19 Feb. 1757, c. 18, 3 A&R 1001 (appeal to Sessions on damages for highway land-taking); Act of 4 Feb. 1734, c. 14, 2 A&R 834 (Sessions may award damages for town's refusal to allow a private way); Act of 7 June 1698, c. 2, 1 A&R 311, as amended by Act of 4 July 1734, c. 2, 2 A&R 711 (Sessions may order removal of structures encroaching on highways; see No. 33, note 117); Act of 4 Nov. 1692, c. 26, §§1, 2, 1 A&R 62 (Sessions may order town to provide and maintain a minister and charge inhabitants; see Parsons' Petition [1732], Worcester Sessions Records 47); Act of 14 Nov. 1706, c. 9, 1 A&R 597 (Grand jury to present delinquent towns to Sessions. If towns do not comply with Sessions' orders, General Assembly will provide minister). As to the last two acts, see No. 37, note 2.
6. Literally, the summit of the law. Here used in the sense of a legal subtlety or technicality that carries a rule to an extreme beyond even strict application. Black, Law Dictionary.
7. The Act of 16 June 1699, c. 1, §1, 1 A&R 367, established the justices of the peace for each county as the Court of General Sessions “impowred to hear and determin all matters relating to the conservation of the peace, and the punishment of offenders, and whatsoever is by them cognizeable according to law, and to give judgment and award execution therein.” The act provided in §3, p. 368, “That it shall and may be lawful for any person agrieved at the sentence of the justices in any court of general sessions of the peace, to make his appeal from such sentence (the matter being originally heard and tryed in said court) unto the next court of assize and general goal delivery to be held within or for the same county, there to be finally issued,” if the appellant gave security, and filed reasons of appeal and copies of the sentence appealed from and the evidence with the clerk of the court to which the appeal was taken.
8. Probably Coke, Littleton 39a: “Judgement. Judicium quasi juris dictum, the very voice of Law and Right, and therefore, Judicium semper pro veritate accipitur. The ancient words of Judgment are very significant, Consideratum est, &c., because that Judgment is ever given by the Court upon due consideration had of the Record before them.” Compare id. at 168a, 226a. Otis may mean that in the absence of statute providing an appeal the court is bound by the record.

Docno: ADMS-05-01-02-0008-0002-0001

Editorial Note

Josiah Marshall had lived in Plympton from 1747 until 1753, and had then spent five years at Middleboro as master of the grammar school. In 1758 he returned to Plympton, but in either 1760 or 1762 moved again, to teach school at Pembroke. According to his own testimony, he remained in the latter town for two years and two months. His next stop cannot be determined with certainty, but at some point in his wanderings he was warned and removed from Plympton. It was Plympton, however, which petitioned the Plymouth County Court of General Sessions in July 1766 for a determination of his status.1 Since such petitions were usually brought by the town in which a pauper was actually residing, it is probable that Marshall went from Pembroke to Middleboro and was removed from the latter town to Plympton, and that his removal from Plympton had occurred earlier in his career. It is also possible that he went from Pembroke to Plympton and that Plympton then removed him, subsequently petitioning to recover its charges for the period prior to his departure.
Whatever the facts, the case was tried at the October 1766 Sessions, with Adams as counsel for Middleboro and Paine apparently arguing for Plympton. According to their minutes (Documents I, II), the principal issue was the validity of Marshall's removal from Plympton. Adams argued against both the warrant of warning and the warrant to remove. Against the former he raised a series of formal objections, including the failure of the selectmen to make return of the warning to the clerk of the Court of General Sessions within the time required by statute. He also attacked the removal warrant on formal grounds and raised an issue that was to be important in later cases (No. 26, No. 27), that the justice who issued it was an inhabitant of Plympton, and so interested in the outcome. The court ruled in favor of Middleboro, according to Adams' account, because of the lack of a timely return to the warrant of warning.2
1. See JA, Docket, Plymouth Inferior Court, July 1766, a listing covering both the Inferior Court and General Sessions, which sat together. Adams Papers, Microfilms, Reel No. 182. The facts of the case cannot be stated with certainty because the only sources of information available are the docket and JA's and Paine's minutes (Docs. I, II), which are incomplete and not entirely consistent with one another.
2. Middleboro received its costs. See JA, Docket, Plymouth Inferior Court, Oct. 1766. Adams Papers, Microfilms, Reel No. 182. This entry and the docket for July 1766 show that JA received a retainer of 6s. and a fee of £1 10s.

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

Author: Adams, John
Date: 1766-10

Adams' Minutes of the Argument1

Plymouth Court of General Sessions, October 1766
Plymton vs. Middleborough.
Benja. Shurtliff. Deer. 21st 1753. Marshall went from Plympton to Middleborough.
Josa. Marshall. 25 Aug. 1747 came to Plympton first, to 10 Novr. 1753. 7 July 1758, returned to Plympton from Middleborough, where I went first 21st Deer. 1753.
2 Years and 2 months at Pembroke. Came from there 4 Years ago last Spring.
Mem. This Cause was decided in my favour, who was for Middleborough, by a great Majority of the Court, upon this single Point, vizt. that Caution was not entered in the Clerks office within the Year. The Q. was upon the Words of Prov. Law. 4. Wm. & Mary, C. 12, the Act for Regulating Townships &c. The 9th Clause in the Act is “if any Person &c. sojourn or dwell &c. 3 months, &c. not having been warned by the Constable, and the Names, Abode and Warning returnd unto the Court of Quarter Sessions, &c. shall be reputed an Inhabitant, &c.”2 Not having been warned, and the Warning &c. not having been returned, within 3 months, in [is?] the obvious and grammatical Construction.
'Tho many other Points were stirred by me, particularly the Warrant to carry out, was given by Justice Bradford of Plympton, and so { 296 } a Person interested, and I produced the Case of the two Parishes of Great Charte and Kennington B.R. 16. G. 2. Strange Rep. 1173. Order of 2 Justices quash'd, because one was an Inhabitant of the Parish from whence the Pauper was removed.3
Making an order of removal a Judicial Act, and the Party interested is tacitly excepted out of 13 & 14th C[harles] 2d, c. 12, which gives the Power to any 2 Justices of Peace, as our Prov. Law does to the next Justice.4 Lord Raymond went off the Bench when an order of Abbotts Langley the Parish where he lived came before the Court.5
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Closing quotation marks supplied. JA is citing “An Act for Regulating of Townships, Choice of Town Officers, and Setting Forth Their Power,” 16 Nov. 1692, c. 28, §9, 1 A&R 67: “[I]f any person or persons come to sojourn or dwell in any town within this province or precincts thereof, and be there received and entertained by the space of three months, not having been warned by the constable or other person whom the selectmen shall appoint for that service to leave the place, 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, every such person shall be reputed an inhabitant of such town or precincts of the same,” so as to charge the town for his support if he stands in need of relief, subject to a proviso if there are relatives, set out in No. 24, note 134. By the Act of 12 March 1701, c. 23, §§4, 5, 1 A&R 453, no town was to be charged with a newcomer unless his presence had been approved by the selectmen of the town, or “unless such person or persons have continued their residence there by the space of twelve months next before, and have not been warned in manner as the law directs, to depart and leave the town, any law, usage or custom to the contrary notwithstanding.” The requirements for approval were made more stringent by the Act of 5 Jan. 1740, c. 9, §1, 2 A&R 995. The time period was eliminated altogether and approval made the only basis for gaining a settlement in the Act of 19 March 1767, c. 17, §6, 4 A&R 911.
3. Here and in the following paragraph, JA has paraphrased the case of Parish of Greate Charte v. Parish of Kennington, 2 Str. 1173, 93 Eng. Rep. 1107 (K.B. 1742). The order of the two justices had been quashed in Sessions. In favor of the order it was argued before the King's Bench that the practice was authorized by statute (note 64 below), was necessary because there might be a corporation with only two justices, and was saved because there was an appeal on the merits to the Sessions. For the result, see note 75 below.
4. In Greate Charte v. Kennington, note 53 above, it had been argued that the practice complained of was authorized by the statute, 13 & 14 Car. 2, c. 12, §1 (1662), which provided that upon complaint made to a justice by the churchwardens of any poor person within forty days after his arrival, it should be lawful “for any two justices of the peace, whereof one to be of the quorum, of the division where any person or persons that are likely to be chargeable to the parish shall come to inhabit, by their warrant to remove and convey such person or persons to such parish where he or they were last legally settled.” By §2, an appeal to the Quarter Sessions was provided for any person aggrieved. The “Prov. Law” referred to by JA is the Act of 16 Nov. 1692, c. 28, §10, 1 A&R 68: “That any person orderly warned as aforesaid [under id., §9, note 42 above] to depart any town whereof he is not an inhabitant, and neglecting so to do by the space of fourteen days next after such warning given, may by warrant from the next justice of the peace be sent and conveyed from constable to constable unto the town where he properly belongs or had his last residence at his own charge, if able to pay the same, or otherwise at the charge of the town so sending him.” This provision was also eliminated by the Act of 19 March 1767, note 42 above, which, in §7, authorized removal of all persons not approved by the town. There is evidence, however, that the practice of warning was still followed. See 5 A&R 260.
5. This paragraph is based on the conclusion of the court's opinion in Greate Charte v. Kennington, note 53 above: “But the court held, that this was a judicial act, and the party interested is tacitly excepted. Lord Raymond, who lived in the parish of Abbotts-Langley, went off the Bench, when one of their orders came before the court. They said the practice could not overturn so fundamental a rule of justice, as that a party interested could not be a Judge. And as to the case of corporations, they said that if it appeared that there were no other justices, it might be allowed; to prevent a failure of justice. And therefore they confirmed the order of sessions.” The reporter adds, “Vide the act 16 Geo. 2, c. 18. to remedy this.” For this statute, see No. 27, note 2810. The court's last point is an interesting contrast to the absolute force given the proposition that a man may not be judge in his own cause in the authorities cited in the argument on the writs of assistance in 1761. See No. 44, note 7119. For another Massachusetts case in which both Greate Charte and the latter authorities were cited, see Jeffries v. Sewal (Suffolk Inferior Court, Nov. 1762), reported in 1 JA, Diary and Autobiography230–231. As to the parish of Abbotts Langley, see King v. Inhabitants of Abbots Langley, 1 Barn. K.B. 148, 94 Eng. Rep. 103 (1729), in which Lord Raymond, “being of this parish, ... said he would give no opinion.”

Docno: ADMS-05-01-02-0008-0002-0003

Author: Paine, Robert Treat
Date: 1766-10

Paine's Minutes of the Argument1

Plymouth Court of General Sessions, October 1766
Plympton vs. Middleborough
Shurtleffe. J. Mar[shall] went from Plym[pton] to Mid[dleborough] 21. Dec. 1753.
Mr. Josiah Marshal. Came to Plymp[ton] Augt. 1747 till 20th Novr. 1753.2 Then to Midd[leborough], returned to Ply[mpton] 7th July 1758. Was Grammar School Master at Midd[leborough]. I went to Pembroke 4 yr. ago and kept school there 2 yr. and 2 months.
Capt. Sprout. Mr. Marshal kept School at Midd[leborough] 5 years.
Pity there should be a dispute.
Warrant of Warning no Seal no mention made of his Wife and children, not to depart within 14 days. A man and his family means nothing more than the man; Marshals Wife was born at Plymton.
Warrant to remove, not setting forth the cause, given by a Justice in the same Town
Strange. 1163.3
1. In Paine's hand. Paine Law Notes.
2. Thus in MS. JA's notes read 10 November.
3. That is, Greate Charte v. Kennington, note 53 above. Paine has erroneously written “1163.”

Docno: ADMS-05-01-02-0008-0003-0001

Editorial Note

In August 1768, William Dix, a pauper, was removed from Boston to Chelsea by virtue of the warrant of John Hill, a Boston justice of the peace. The selectmen of Chelsea petitioned the Suffolk General Sessions in April 1769 for his return to Boston and for reimbursement of their expenses in his behalf. The petition, which was drafted by John Adams and is printed below, urged that Dix was not an inhabitant of Chelsea, and had not been alleged or adjudged to be such in the removal proceedings. Adams also raised the point that Justice Hill was disqualified by virtue of his residence in Boston.
The case was heard at a May adjournment of the court and then continued. In August, at an adjournment of the July term, the court was “unanimously of opinion that Justice Hill who granted the warrant men• { 298 } tioned in said Petition, being at that time an inhabitant of said town of Boston had no legal power so to do and therefore that the prayer of the Petition be granted.” Boston was accordingly ordered to pay Chelsea its charges of £20 7s. 4d. and costs of £5 18s. 2d., and to accept Dix back.1
1. Sess. Min. Bk., Aug. 1769. As to the question of an interested judge, see No. 25, notes 5–73, 4, and 5; No. 27, text at notes 11–14.

Docno: ADMS-05-01-02-0008-0003-0002

Author: Adams, John
Date: 1769-04

Adams' Petition1

Suffolk Court of General Sessions, Boston, April 1769
Suffolk Ss. To the Honorable his Majestys Justices of his Court of General Sessions of the Peace held at Boston in and for the County of Suffolk on the Third Tuesday of April in the Ninth Year of his Majestys Reign Annoque Domini 1769.
Humbly Shew Thomas Pratt, Gentleman, Samuel Sprague, Yeoman, Samuel Serjeant, Gentleman, Samuel Watts Jnr, Gentleman, Samuel Pratt, Gentleman, all of Chelsea in said County and Select Men and overseers of the Poor of the Said Town,
That on the Twenty third day of August Anno Domini 1768, one William Dix, a poor impotent Man, was, by Force of a Warrant given by John Hill Esqr. a Justice of the Peace for Said County, on the Twentyeth day of August A.D. 1768, <at the prayer of> on the Complaint of John Sweetser, by order of Joseph Jackson Esq. and other the select Men of the Said Town of Boston, removed from thence into the aforesaid Town of Chelsea, as the proper Place of his Abode, there to be relieved and Supported, at the Charge of the Inhabitants of Said Town of Chelsea. That the Said William is poor, lame, and utterly unable to support himself, and has been relieved and supported by the Inhabitants of Said Chelsea ever since his Removal to that Town at the Expence of Twelve Pounds six shillings and Eight Pence of lawfull Money.
Now your Petitioners apprehend and aver that the aforesaid Removal was and is contrary to Law for these Reasons among many others.
1. Because the Said William Dix was not at the Time of his said Removal an Inhabitant of Chelsea nor had any legal settlement there, nor was the Poor of that Town, nor was Chelsea the Town where he had his last Residence.
{ 299 }
2. Because the said Dix is not alledged in the aforesaid Complaint of John Sweetser by order of the select Men of said Boston, to be an Inhabitant of said Chelsea, or to have a legal settlement there, or to be the proper Poor of that Town or to have had his last Residence there nor are any of these Things alledged or averred in the said Warrant of the said Justice.
3. The said Dix is not adjudged, by said Justice in said pretended Warrant, to be an Inhabitant of said Chelsea, nor to have a legal settlement there, nor is there in said Warrant any Adjudication that said Dix had his last Residence in said Town of Chelsea.
[4.] The said worshipfull John Hill Esq. was at the Time when said pretended Warrant was given an Inhabitant of said Town of Boston, and Rated for the support of the Poor there, and therefore interested in Said Removal, and disqualifyed for that Reason for giving a Warrant in such Case.
For these Reasons and many others your Petitioners say that the said William Dix was illegally removed from Boston aforesaid into Chelsea aforesaid, and that the Inhabitants of Chelsea aforesaid ought not to be at that Charge and Expence of relieving or Supporting him, but that the Inhabitants of Boston aforesaid ought to be at that Charge: And your Petitioners humbly pray your Honours would accordingly order that the said William Dix be removed back again from said Chelsea to Boston aforesaid, there to be relieved and supported at the Charge of the Inhabitants of said Boston for the future and that the Inhabitants of Chelsea may be reimbursed the Expences they have been been at and may be at for such support untill such Removal back into Boston aforesaid, together with the Costs and Charges of this supplication.
And your Petitioners as in Duty bound will ever pray.
[signed] John Adams for said Pet[itioner]s
1. In JA's hand, and signed by him “for said Pet[itioner]s.” SF 88992. The court's April 1769 order of service on the Selectmen of Boston in the hand of Ezekiel Goldthwait, Clerk, which follows JA's signature on the last sheet, has been omitted here.

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.

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.

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

Date: 1768-11


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.

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  
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      
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.

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

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.


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.

Docno: ADMS-05-01-02-0008-0005-0001

Editorial Note

The jurisdiction of the Court of General Sessions of the Peace in cases of bastardy originated in its role as a conservator of public morals. The effect of bastardy proceedings, however, was less to punish the guilty than to provide for the support of the innocent and save the town from charge; thus they may properly be viewed as a phase of the court's administrative powers in welfare matters. The jurisdiction was established by a statute dealing with a number of noncapital offenses, including swearing, drunkenness, burglary, breach of the peace, forgery, and perjury. The section on bastardy, after establishing pecuniary and corporal penalties { 320 } for fornication, provided, “And he that is accused by any woman to be the father of a bastard child, begotten of her body, she continuing constant in such accusation, being examined upon oath, and put upon the discovery of the truth in the time of her travail, shall be adjudged the reputed father of such child, notwithstanding his denial, and stand charged with the maintenance thereof, with the assistance of the mother, as the justices of the quarter sessions shall order; and give security to perform the said order, and to save the town or place where such child is born, free from charge for its maintenance and may be committed to prison until he find sureties for the same, unless the pleas and proofs made and produced on the behalf of the man accused and other circumstances be such as the justices shall see reason to judge him innocent and acquit him thereof, and otherwise dispose of the child.”1
Cases under this Act were a frequent item on the dockets of the Courts of General Sessions (successors to the quarter sessions), and Adams tried a substantial number of them.2 They are of interest both for the social problem which they reveal and because of the procedural steps adopted for its solution.
Jane Dotey, of “Duxborough” (Duxbury) in Plymouth County, gave birth to an illegitimate child in September 1767. In July she had been examined by Gamaliel Bradford, a Justice of the Peace, and had made oath that one Manuel Essane was putative father of the child with which she was then pregnant (Document I). On Bradford's warrant, Essane, a minor apprenticed to Rouse Bourne of Marshfield, was brought before the Plymouth Court of General Sessions then sitting and was apparently bound over to abide the event by virtue of another provision of the statute.3 Finally at the December Sessions, Jane appeared, was fined for the crime of fornication, and again made oath that Essane was responsible for her { 321 } plight. The court adjudged Essane “reputed father of the said child,” and ordered him to pay maintenance and costs, and to give bond to indemnify the towns of Plymouth, Duxbury, and Marshfield from charges for the child (Document II).4
On the motion of Adams, who had represented Essane at Sessions, the Superior Court at its March 1768 Suffolk Term ordered a writ of certiorari to issue returnable at Plymouth in May.5 Adams filed an assignment of errors (Document III), in which he attacked the Sessions proceedings on six grounds. The first three errors assigned alleged the absence from the record of any findings of compliance with the statutory requirements of accusation and examination before and during delivery. The other assignments were that the order for maintenance was either beyond the court's jurisdiction, or void for uncertainty; that as a minor Essane could not be ordered to give bond; and that the portion of the order requiring Essane to indemnify the three towns was void because there was no finding or evidence as to the child's birthplace, and because, in any event, only the town in which the birth occurred was liable for his charges.
When the case was heard at Plymouth in May, the Court quashed the order of Sessions and filed a memorandum of its reasons, an unusual item, which is printed as Document IV.6 The first reason, the omission of the child's birthplace from the record, was probably considered “jurisdictional”; that is, the fact omitted was necessary to a valid order, at least one requiring that indemnity be given to a town.7 In its second reason, that the judgment was based only on the complainant's oath, the court avoided a direct confrontation of the jurisdictional issues in Adams' first three assignments of error, stating in effect only that the facts alleged were insufficient, without saying what particular additional facts would have been necessary.8 The final reason, that the order should have required the father to indemnify only the town of the child's birthplace, could either be said to go to an excess of jurisdiction or could be considered the correction of an order inconsistent on its face.9 The presence in the Superior { 322 } | view Court file of Jane Dotey's examination (Document I), and the warrant issued by Justice Bradford on the basis of it, suggest an unsuccessful attempt to cure some of these errors by material not strictly speaking in “the record.”10
1. Act of 1 Nov. 1692, c. 18, §5, 1 A&R 52. See also notes 3, 5, below.
2. Other JA cases in addition to No. 29 and No. 30, include Johnson v. Hunter (Concord Sess. Sept. 1768), and Turner v. Reynolds (Taunton Sess. Aug. 1769). His minutes for both are in the Adams Papers. See also his diary entry for 29 July 1766: “At Boston. . . . Heard some Cases of Bastardy in the Sessions. William Douglass was charged by a Dutch girl with being the father of a Bastard Child born of her Body.” 1 JA, Diary and Autobiography317. This was the case of Susanna Strater, who was presented for and convicted of fornication at the Suffolk Sessions on 29 July 1766. She then swore that William Douglass of Boston, a minor, was the father and produced witnesses to the fact. Douglass was ordered to pay maintenance. Sess. Min. Bk., 29 July 1766. See also Hewet v. Clear, ibid. For some indication of the number of such cases, see Records of the Court of General Sessions of the Peace for the County of Worcester, Massachusetts, from 1731 to 1737 (Worcester, Mass., ed. F. P. Rice, 1882). As to the state of morality generally, see Charles Francis Adams, “Some Phases of Sexual Morality and Church Discipline in Colonial New England,” 6 MHS, Procs. (2d ser.) 477–516 (1890–1891).
3. For the warrant, dated 6 July 1767 and returned to the Sessions on 11 July, see SF 142245. The section of the bastardy statute quoted above, text at note 1, also provided that “every justice of the peace upon his discretion may bind to the next quarter sessions him that is charged or suspected to have begotten a bastard child; and if the woman be not then delivered, the sessions may order the continuance or renewal of his bond, that he may be forthcoming when the child is born.”
4. The order to give bond for all three towns was probably based on Bradford's warrant of 6 July, which gave as a reason for Essane's apprehension that “the said Child when Born May be Chargeable to the said Mother, or to the Towns of Plymouth, Duxborough or Marshfield.” SF 142245.
5. Min. Bk. 86, SCJ Suffolk, March 1768. The writ and notification to Jane Dotey, both dated 8 April 1768, are in SF 142245. They are substantially similar in form to those printed in Brookline v. Roxbury, No. 27, Docs. V, VII. The penalty for fornication provided by the section of the statute at note 1 above was a fine not to exceed £5, or whipping not to exceed ten stripes, in the discretion of the Sessions. JA received a fee of “12” (presumably shillings) from one Elisha Ford. JA, Docket, Plymouth Inferior Court, Dec. 1768. Adams Papers.
6. Min. Bk. 82, SCJ Plymouth, May 1768, N–12; SCJ Rec. 1767–1768, fol. 189. See note 141 below. See also JA, Docket, Plymouth SCJ, May 1768, Adams Papers, where JA's fee is noted as “12,” again presumably shillings.
7. As to the scope of review on certiorari, see No. 27, notes 7–97, 8, and 9.
8. For further discussion of this point, see No. 30.
9. See Edith G. Henderson, Foundations of English Administrative Law 144–145 (Cambridge, Mass., 1963).
10. For Bradford's warrant, see SF 142245; notes 3, 4, above. As to “the record,” see No. 27, notes 6–86, 7, and 8.

Docno: ADMS-05-01-02-0008-0005-0002

Author: Bradford, Gamaliel
Date: 1769-07-06

Jane Dotey's Examination1

Plymouth, 6 July 1769
Plymouth Ss. The Information of Jane Doty now Residing in Duxborough single woman taken before me Gamaliel Bradford Esqr. one of his Majestys Justices of the Peace for the said County this <Eighth> Sixth Day of July 1767.
Q. Are you now with Child.
A. Yes.
Q. Who is the father of the Child you are now Big with.
A. Mannuel Essane of Marshfield servant to Rouse Bourne <Between> on the <Seventeenth and> twenty seventh and thirtyeth Days of January Last did enter and had Carnal Knowledge of her Body two several times.
Q. Had any other man Carnal Knowledge of your Body aboute that time.
A. No nor Never in all her Lifetime.
Q. Where was the place he had Carnal Knowledge of your Body.
A. In the House My Gradmother now Lives in in Duxborough.
[signed] her
Jane X Doty
[signed] Sworn the Day and year above said before Me, Garni. Bradford Justice of peace.
1. SF 142245. The document seems to be the original in the hand of Justice Bradford.

Docno: ADMS-05-01-02-0008-0005-0003

Date: 1769-12


Plymouth Court of General Sessions, Plymouth, December 1767
Plymouth Ss. At his Majesty's court of general sessions of the peace, began and held at Plymouth within and for the county of Plym• { 323 } outh on the second tuesday of december being the eighth day of said month, in the eighth year of our Sovereign Lord George the third by the Grace of God of Great-Britain, France and Ireland, King, Defender of the Faith, &c. annoque Domini 1767.
Jane Doten [Dotey] a late resident in Duxborough in the county of Plymouth single woman, appeared at this court and confessed that she had been guilty of the crime of fornication. The court having considered her offence (she being poor) sentence her to pay a fine of twelve shillings to his majesty, or be whipped ten stripes on her naked body, to pay costs of prosecution, and stand committed until sentence be performed.
At said court Jane Doten late residing in Duxborough in the county of Plymouth single woman appeared, who having while pregnant, and now before this court made oath that Manuel Esseane was the father of the bastard child born of her body in September last. And after a hearing of the parties in the case. It is considered by the court that the said Manuel Esseane be adjudged to be the reputed father of the said child, that he stand charged with the maintenance thereof, that he pay the sum of three pounds, it being one half of the charge of her lying in, &c., for the first month. And also that he pay the sum of twenty one shillings, it being for keeping said child to the eleventh of december instant, that he pay costs of prosecution taxed at one pound, thirteen shillings and two pence. And also that the said Manuel enter into recognizance with two sureties in the sum of forty pounds that he shall pay quarterly until the further order of said court, at the rate of three shillings a week towards the support of said child. And also that he recognize in the like sum of forty pounds with sureties to secure and save harmless the towns of Plymouth, Duxborough and Marshfield from all charges and damages that may arise by said child. And that he stand committed until sentence be performed.
1. SF 142245. Subscribed: “A true copy of record examined per Ed. Winslow Junr. Cler.” In the MS the numbers of the paragraphs are written in the margin.

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

Author: Adams, John
Date: 1768-04

Adams' Assignment of Errors1

Plymouth Superior Court, Plymouth, April 1768
In the Case of Jane Dotey vs. Manuel Essane heard and adjudged at the Court of General Sessions of the Peace held at Plymouth within and for the County of Plymouth on the <first> second Tuesday of December being the Eighth day of said Month in the Year of our { 324 } Lord 1767, the Errors assigned by said Manual, on the Certiorari are as follow viz.
1st. It does not appear by the Record of the Judgment or Sentence of said Court of General Sessions of the Peace in said Case that Manual Essane was ever accused by the said Jane, to be the Father of the Bastard Child born of her Body, in September last, before the said Child was born.
2d. It does not appear by the Record of said Judgment or Sentence, nor by any other Record of any Proceedings in the Case, that the said Jane, continued constant in her Accusation, of the said Manual to be the Father of said Bastard Child.
3d. It does not appear by said Record of said Sentence, or Judgment, that said Jane was ever examined upon oath while she was pregnant with said Bastard Child, nor that she was put upon the Discovery of the Truth in the Time of her Travail, all of which by Law ought to have appeared.
4. The said Court have, by their Sentence aforesaid, ordered the said Manual, “that he pay the sum of Three Pounds it being the one half of the Charge of her lying in &c. for the first Month, and allso that he pay the sum of Twenty one shillings, it being for Keeping said Child to the Eleventh Day of December,” in which the said Court have exceeded their Jurisdiction they not having Authority by Law to make such an order, and if they had such Authority, in this Case the order is uncertain, insensible and void, the said Court not having ordered the said Manual to pay the aforesaid Sums to any Person whatever in certain.
5. The said Court has ordered the said Manual to enter into Recognizance with two sureties, &c. which the said Manual was then and still is by Law incapable of doing as he then was and still is an Infant under the Age of Twenty one Years
6. The said Court have by the sentence aforesaid ordered the said Manual, that he recognize in the sum of Forty Pounds with two sureties to Secure and Save harmless the Towns of Plymouth, Duxborough and Marshfield from all Charges and Damages that may arise by said Child which the said Court had no Authority by Law to do, for it does not appear by said sentence, or any Record in said Case, that said Bastard Child was born in any of those Towns, and if it did, it would still be certain that said <Town> Child could not be born in more than one of said Towns, and therefore in that Case, said Manual could be obliged only to give security to Save that Town harmless where said Bastard Child was born.
{ 325 }
Where fore the said Manual prays that the aforesaid order, Sentence, Judgment, and Proceedings of the said Court of Sessions may be quashed.
[signed] John Adams for said Manual
1. In JA's hand. SF 142245.

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

Date: 1768-05

Reasons for the Judgement1

Plymouth Superior Court, May 1768
Order'd that the aforesaid Judgment and proceedings of the Court of General Sessions of the peace be quash'd—1st. Because it doth not appear in the Record aforesaid where the Child aforesaid was born.
2. It appears by the Record aforesaid that the aforesaid Judgment was founded on the Oath of the said Jane and on that only.
3. The said Manuel is ordered to recognize in £40 with Sureties to save the Towns of Plymouth Duxborough and Marshfield from all Charge and Damages that may arise by the said Child. Whereas the said Court of General Sessions of the peace, if the said Manuel has been duely adjudged the reputed Father of the Child abovesaid could only have ordered the said Manuel to give Security to save the Town or Place where the Child was born from Charge for its maintenance.
[signed] S. Winthrop Cler.
1. SF 142245, in the hand of Samuel Winthrop, Clerk of the Superior Court. This is evidently the document referred to in the court's decision: “After a due inspection of the Record of the order complained of, and a full hearing of the Parties upon the Errors assigned: Judgement that the Order of the Court of Sessions be quashed for the Reasons on file on the back of the Writ.” Min. Bk. 82, SCJ Plymouth, May 1768, N–12; SCJ Rec. 1767–1768, fol. 189. The reasons actually appear on the verso of the notification to Jane Dotey, cited in note 5 above.

Docno: ADMS-05-01-02-0008-0006-0001

Editorial Note

This was a proceeding at the Middlesex General Sessions for September 1768, in which Lydia Gage accused Josiah Headley of being the father of her bastard child. Adams' docket for this term shows that he took Headley's case and that he “rec'd £1 4s. at one Time and 12s. more at another.”1 { 326 } Adams did not note the result, however, and, although some of the files of the case have survived, the records of the Middlesex Sessions for this term cannot be located. His minutes of the trial are printed here as an example of the testimony and argument in such a case. James Putnam appeared for Lydia.
In the files of the Middlesex Sessions, there remain five depositions in this case, none of them given by the witnesses in Adams' minutes.2 The depositions contain conflicting testimony as to whether Headley or Zachaus Parkes had offered Lydia £300 to accuse the other. The deponents also reported that she had at various times accused Parkes, Headley, and one Simeon Hagar, and that before Colonel Jones, presumably a Justice of the Peace,3 she had accused an unknown transient. It also appeared that she had earlier had an illegitimate daughter by Parkes, which was now being “kept” by the latter's brother Ephraim. According to one witness, she at one point threatened to accuse Ephraim because he was going to “put out” her first child, then stated that she had been forced to accuse someone other than Zachaus Parkes, lest Ephraim turn the child out.4 The pattern of instability suggested in these depositions and in the testimony in Adams' minutes is borne out by the fact that an order of the General Court dated 25 February 1762 had given Theophilus Mansfield of Weston (a deponent here) power to sell the real estate of his ward, Lydia Gage of Lincoln, a non compos mentis.5
1. JA, Docket, Concord Inferior Court, Sept. 1768. Adams Papers. The two were also bound over on the charge of fornication. See recognizances in Files, Middlesex Court of General Sessions, 1768. Office of the Clerk, Middlesex County Superior Court, East Cambridge, Mass. The child was a son born 30 March 1768 and named Josiah, doubtless in honor of the putative father. Vital Records of Lincoln 38 (Boston, 1908).
2. See Files, Middlesex Court of General Sessions, 1768. The depositions are those of James Adams, Lydia Farrar, Moses Underwood, Sarah Mansfield, and Theophilus Mansfield.
3. Both Elisha and John Jones were Justices of the Peace and of the Quorum in Middlesex County. See Whitmore, Mass. Civil List 138.
4. Deposition of Sarah Mansfield. Ephraim Parkes' testimony to the contrary appears in JA's minutes.
5. The order empowered Mansfield to sell real estate for his ward's support. See Order of 25 Feb. 1762, c. 390, 17 A&R 166. Mansfield's deposition in the Middlesex Files (note 2 above) seems to favor Headley.

Docno: ADMS-05-01-02-0008-0006-0002

Author: Adams, John
Date: 1768-09

Adams' Minutes of the Testimony1

Middlesex Court of General Sessions, Concord, September 1768
Lidia Gage vs. Josiah Headley.
Sarah Garfield.
D[eaco]n Farrar.2 Last of Deer. It is Josiah Headleys. The next Saturday, she said she was sorry she had told me what she did. Not { 327 } because it want true, but because he said he'd get her whipped. 10 days after she said if the Premisses were not fullfilled, she would tell the whole Truth. Afterwards she said Headly [hired?] her to lay it to Zack Parkes, Simeon Hagar, or some body else. Said she had 2 or 3 meetings, with Headley. Parkes told me, that Headly said he would come and settle it. At the Groaning, I heard her say that it was Josiah Headleys of Weston the Miller and Tavernkeeper. Knew that she had chargd Parkes but never mentiond it to her.
Rebecca Brown.<Deposition vide—Aug.> I talked with her before and after she went before Coll. Jones. A Month before. She said she had Promisses of £300 and other Gifts, and her Brother Robert was to receive it. That Headly asked her to lay it to Zack Parkes, Simeon Hagar, or a transient Person unknown. She had wronged her soul, by clearing Headley. She lived with me 20 Year, never afraid to Trust her. Not given to lying. Robert Gage told me a week before his death, Mr. Headly a friend of his, and he did not choose to say any Thing unless under Oath.
Mrs. Horsemore. Last Winter, Lidia said she was sorry she had been to clear him up before his Wife. Headly had perswaded her in the shed under the Tree, nobody present. She said that it was Headleys to Deacon Farrar, and got soon after the Trooping at Sudbury. I've seen him, and you never see any poor Creature take on so. Deacon Farrar asked her how she came to lay it to Zach Parks.
Susannah Gage. Wife of Robt. Gage. January. I shant tell. Tis not a Man I can have, but a Man that can pay. Headly ta[l]ked so, that he convinced my Husband she had wronged Mr. Headley. She said that it was Headleys as true as a God in Heaven. That he perswaded her, and promised her Money. She came and asked my Husband if Money was left for her.
Lidia Parks. At Mr. Underwoods as she came from Horsemores. Lidia Gage said she would not damn her own Soul any longer for any Body. Headley told me, she had better take what she had and go off, or else he'd Send her to the Devil. Sister in Law to Zach. Parks. If he had not rid her skimmington3 he had some other Way.
Sufferana Hagar. Lived in the House with Lidia Gage. I knew She { 328 } was with Child, as soon as she did. She said she never had accused him of this Child, and was not a going to. Middle of July, I knew she was with Child. Never knew H[e]adley at the House. She never told me, who was the father, but she gave me two Hints, she said if Headleys family were affronted with her for such Things, they should be affronted worse before long. Latter End of Octr. or Beginning of Novr. I told Headley. He said he would take his Gun and shoot her. But I did not think, he intended to shoot deeper than some People think he had done. His General Character very good, till this came out.
Sarah Garfield. I asked her who was the father, 30 March, in Extremity, she said Headley and no Man else. I asked her how she came to clear him before Coll. Jones. She said He promised her Money and that she should never want. As she expected to answer it before God.4
Mrs. Allen. At the Travel [Travail]. She came in to our House a few days before her Travel. I charged her. She said she was told, that if she laid it to Parks she should get nothing, that Daniel Parks had been to a Lawyer, and told her those stories. That all Zack had was made over to maintain Phoebe, i.e. her last Child. Robert Gage told me there was no Truth in the story, that Headly had never offerd a farthing.
Mrs. Gage. At the Travel, as before. Headly came to our House and said he had an Arrant [Errand?] to do to Lidia from a Gentleman. She said Twas a transient Person, and Hagar and Pucker, a poor Toad. In January Headley calld her out under the shed, and talked with her. The family suspected Headley, before she chargd any Body. Under Guardian.
Ephraim Parks. Brother to Zach and Guardian. Zach denyd it. I went to her, and Asked her if she could clear him. She said Zack is clear, and I never laid it to him and ant a going to. He has had nothing to do with me. Did not threaten to put away Phoebe, nor say that she could get nothing.
Wm. Horsemore. Town ant so devilish good to me. They need not concern themselves. She did not lay it to any Body.
Simeon Hager. James Parks. Week before Trav[ail] talked with <Lidia Gage> Headley. Said he was going to Deacon Farrar to settle that Affair. Would you have me pay, if clear? No. I'm as clear as the sun.
{ 329 }
Putnam. If the Inconstancy can be accounted for, from a natural Source, so that she is believed, it is within the Law. The only Question is whether her Charge is true.
Her weakness, no Impeachment of her Veracity.
She would tell Deacon Parks the Truth. And she told him, it was Headley. Deacon Farrar meets with Headley. Headley said it was a Matter he would consider of. Tho he denyed the Charge.
A Difficulty arises, and a great deal is to [be] made of it. The next Time she told the Deacon she was sorry she had laid it to Headley. She did not pretend to say she had chargd him wrongfully. A Temptation—a snare—a Trap.
Another Objection, she is not the most chaste Woman. A common Strum.5 She may know, notwithstanding her Inchastity, who is the father. The law does not confine it, to any Number of Times.
Another Objection that being a Lyar, will discredit her Testimony.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Probably the Humphry Farrar in whose family Lydia's child was at the time of his baptism, 31 Oct. 1773. Vital Records of Lincoln 38. The names of most of the other witnesses, including Hosmers (“Horsemores”) and Hagars, are found in the Vital Records, showing the local nature of the affair.
3. “To ride skimmington” in rural England was to hold “a ludicrous procession” of villagers intended to ridicule a shrewish woman, an unfaithful husband, or, alternatively, the victim of such a person. OED. Here the term is apparently extended to include the conduct which would cause such ridicule to fall either upon Headley's wife or upon Lydia. In Massachusetts, the word also seems to have connoted “mobbing.” See 1 JA, Diary and Autobiography291; JA's minutes, Hodges v. Gilmore, Adams Papers, Microfilms, Reel No. 185.
4. According to the deposition of Lydia Farrar in the Middlesex Files (note 2 above), “Mrs. Sarah Garfield” was a midwife present at Lydia's labor, who asked her who the father was. 30 March 1768 was the date of the child's birth. See note 1 above.
5. “A handsome wench or strumpet.” OED.

Docno: ADMS-05-01-02-0008-0007-0001

Editorial Note

Ann Josselyne of Marlborough claimed that John Harrington of the same town was the father of her illegitimate child born in June 1768. At the Middlesex General Sessions, Concord, September 1769, she was fined five shillings for fornication, and her accusations were tried.1 After hearing evidence and the oath of the complainant that Harrington was the father, the court ordered him to pay support for the child and give bond to indemnify the town (Document I).
In the same month Samuel Fitch, acting for Harrington, moved the Superior Court sitting at Worcester for a writ of certiorari returnable at the October 1769 Cambridge term. The writ issued and the case was docketed in Middlesex County.2 The first two errors assigned by Fitch (Document II) are the same kind of omission from the record of findings of statutory requirements which Adams urged in Essane v. Dotey, No. 28. The third error, seemingly based on the reasons stated by the court for its decision in the latter case, was that the judgment of the Sessions had been founded only upon the complainant's oath. Finally, Fitch urged that the complainant { 330 } had not in fact been examined in her “travel” (travail), and that she had not accused Harrington until after the event. He had previously assigned as error the failure of the record to recite these facts, but he now seemed to be going behind the record and asserting a failure of proof.
The case was continued from term to term until April 1771, when the court held “that there is no Error either in the Record and proceedings aforesaid, or in the Rendition of the Judgment aforesaid, and that the said Record is in no wise vitious, or defective.” The judgment of the Sessions was affirmed with costs.3 After Essane v. Dotey, the question of what recitals, in addition to the complainant's oath, were necessary to the record had remained open. Josselyne v. Harrington indicates that none of the requirements of the statute were considered “jurisdictional” in the sense that the record was faulty without them. Fitch had apparently urged that the court read the record (Document I) so that the word “thereupon” in the phrase “they do thereupon adjudge” referred back to the oath only.4 The record also recites that the Sessions heard “Evidence,” a statement not present in Essane. This distinction may have been the basis upon which the Superior Court rejected Fitch's reading and upheld the record in the present case.
Adams' minutes (Document III) present the further interesting possibility that the Superior Court heard evidence on at least one of the points raised by Fitch's fourth assignment of error, despite the fact that it had seemed to find the matters there asserted nonjurisdictional in the sense that they need not appear of record. This is a possibility only, because Adams' minutes cannot be dated precisely by either internal or external evidence. The fact that they are headed “Ann Josselyne vs. John Harrington. Bastardy,” and the English rule that on certiorari nonjurisdictional questions were to be dealt with only on the basis of the record, suggest that the document dates from the Sessions.5
On the other hand, there is much to support the theory that it is a minute of proceedings in the Superior Court. It opens with a question asked by the “C.J.,” or Chief Justice, relative to the validity of circumstantial evidence as a substitute for the statutory requirement of examination during travail. Since this was precisely one of the points which Fitch had raised on certiorari, the question was a logical one to be asked at those proceedings. Moreover, the usage “Chief Justice” indicates the Superior Court. The statutes establishing the court system expressly provided such an officer for that tribunal, but did not so provide for the Inferior Court of Common Pleas, or the Court of General Sessions. In fact the presiding justice of those courts was usually known as “First Justice,” a reference to the position of his name in the commission appointing the court.6 Finally { 331 } the language of the court's decision, already quoted, is not inconsistent with the view that the court had gone behind the record as Fitch had asked. The finding of no error in “the rendition of the judgment” is stated disjunctively from the findings regarding the record,7 indicating a separate finding that there was evidence to support the judgment.
If Adams' minutes are in fact from the Superior Court, the procedure followed can be rationalized with the usual understanding of the scope of review on certiorari only on the assumption that the court ignored the English view that “jurisdictional” facts had to appear of record, but went into the questions here raised because they were “jurisdictional” in the sense that they reflected the requirements of the statute.
1. See her recognizance, dated 9 Aug. 1769, and bill of costs. Rex v. Joslin, Files, Middlesex Court of General Sessions, Sept. 1769. Office of the Clerk, Middlesex County Superior Court, East Cambridge, Mass.
2. Min. Bk. 90, SCJ Worcester, Sept. 1769, following N–79; SF 147733; Harrington v. Josselin, Min. Bk. 88, SCJ Middlesex, Oct. 1769, N–10.
3. Harrington v. Josselin, SCJ Rec. 1771, fol. 72. See also Min. Bk. 88, SCJ Middlesex, April 1771, C–8. Compare the decision of the court in No. 28, note 141.
4. See text at note 92 below.
5. As to the English rule, see No. 27, text at note 7. The court refused to hear evidence outside the record without indicating whether the matter was jurisdictional in Pond v. Medway, Quincy, Reports 193 (Mass. SCJ, 1765).
6. See Act of 26 June 1699, c. 1, §1, 1 A&R 367; Act of 26 June 1699, c. 2, §1, 1 A&R 369; Act of 26 June 1699, c. 3, §1, 1 A&R 370. As to the usage “First Justice,” see No. 27, Doc. V. See also the writ of certiorari in Harrington v. Jocelin, SF 147872; Whitmore, Mass. Civil List 79.
7. Text at note 3 above.

Docno: ADMS-05-01-02-0008-0007-0002

Date: 1769-09


Middlesex Court of General Sessions, Concord, September 1769
[seal] Middlesex Ss. Anno Regni Regis Georgii Tertii magnae Brittanicse Francae et Hibernise nono.
At a Court of General Sessions of the Peace begun and Held at Concord within and for the County of Middlesex on the Second Tuesday of September being the twelfth Day of said Month Annoque Domini 1769.
John Harrington of Marlborough in the County of Middlesex Husbandman being bound by Recognizance for his Appearance at this Time to answer to the Complaint of Anna Josslin of Marlborough aforesaid Spinster for begetting her with Child of a Bastard, (of which she was delivered in Marlborough aforesaid on the twenty fourth Day of June AD 1768) And the said John being now in Court and charged by the said Anna with being the Father of the said bastard Child born of her Body as aforesaid, denied the said Charge and Accusation; and after a full hearing of the Parties and their Evidence, it appears to the Court and they adjudge that the said Anna Josslin be admitted to her Oath, and she being Sworn, upon her Oath, in Court, says that the said John Harrington is the Father of the bastard male Child born of her Body as aforesaid.
It's thereupon Considered by the Court and they do thereupon adjudge2 the said John Harrington to be, and he is hereby adjudged { 332 } to be the reputed Father of the same Child and order that he stand chargeable with the Maintenance thereof with the Assistance of the said Anna Josslin the Mother; and that he pay the said Anna the Sum of forty eight Shillings for the first four Weeks next after the Birth of the Said Child towards the defreying the Charges and the Maintenance of the Same Child to that Time, and that he also pay her two Shillings per Week from thence to this Time, and also that he the said John pay to the said Anna from hence forward two Shillings per Week, weekly, towards the Maintenance of the Same Child untill the further Order of this Court. Also it's Ordered by the Court that the said John Harrington give Security, himself as Principal in the Sum of one hundred Pounds with two Sureties in the Sum of fifty Pounds each for his Performance of the above Order with Respect to the Maintenance of the said Child. And also that he give Security, himself as Principal in the Sum of fifty Pounds with two Sureties in the sum of twenty five Pounds each to save the Town of Marlborough, where the same Child was born, harmless and free from any Charge for the Maintenance of the said Child; And that he pay Fees and Costs of this Prosecution; Standing committed 'till performed.
1. SF 147872. Subscribed: “A true Copy as of Record. Examined per Thad. Mason Cler. Pac.” (Clerk of the Peace).
2. Italics in MS. See text at note 4 above.

Docno: ADMS-05-01-02-0008-0007-0003

Author: Fitch, Samuel
DateRange: 1769-10 - 1769-11

Fitch's Assignment of Errors1

Middlesex Superior Court, Cambridge, October–November 1769
In the Case of Ann Jocelin against John Harrington heard and Adjudged at the Court of General Sessions of the Peace held at Concord within and for the County of Middlesex on the Second Tuesday of September in the Year of our Lord 1769. The Errors Assigned by the said John on the Certiorari are as follows vizt.
1. It doth not Appear by the Record of the Judgment or Sentence of said Court of General Sessions of the peace, or by any part of the Record in said Case That the said John Harrington was ever accused by the said Ann Jocelin of being the Father of the Bastard Child born of her Body in June 1768 before the said Child was born nor 'till more than Twelve Months after:
2. It doth not Appear by the Record of said Judgment or Sentence nor by any other Record of any proceedings in said Case That the { 333 } said Ann Continued Constant in her Accusation of the said John to be the Father of the said Bastard Child, or That She was ever Examined upon Oath while She was pregnant with said Bastard Child, touching the same, nor that she was put upon the Discovery of the Truth relative thereto, in the Time of her Travail, all which by Law ought to have Appeared;2
3. It doth Appear by the Record of the said Judgment and Sentence of said Court in said Case, That The said Judgment was founded upon the Oath of the said Ann in said Court, That the said John was the Father of said Bastard Child, and upon that only;
4. The said Ann was not put upon the Discovery of the Truth relative to said Bastard Child during the Time of her Travel nor did she Charge the said John with being the Father of said Child during said Time, nor till long after.
Wherefore the said John prays That the said Order Sentence Judgment and proceedings of said Court of General Sessions of the peace, may be quashed and That he be allowed his Charges occasioned thereby and Costs.
[signed] Saml. Fitch for the said John Harrington
1. SF 147872, presumably in Fitch's hand. The paragraphs are numbered in the margin. The date has been supplied from the fact that the notification to Ann Josselin issued on 2 Nov. 1769. Min. Bk. 88, SCJ Middlesex, Oct. 1769, N – 10. Compare No. 27, Doc. VII.
2. The statutory requirements. See No. 28, text at note 1.

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

Author: Adams, John
Date: 1771-04

Adams' Minutes of the Testimony1

Middlesex Superior Court, Charlestown, April 1771
Ann Josselyne vs. John Harrington. Bastardy.
C.J. If there is other Evidence of Circumstances that tend to render it probable, will not that answer the End of that Prerequisite, of Examination in the Time of Travail?2
Jerusha Newton. In feby. she sent for the Man and Jno. Harrington came. She was very suddenly taken in Travel, and very bad. Midwife not there till an Hour after the Child was born. That very day before her Delivery she said Jno. Harrington was the father. She was then very comfortable and well. No Question was put, in the Time [of] her Travail. She said she wonderd how any Man could serve any Woman as Jno. Harrington did.
{ 334 }
Mary Morse. Did not examine her. There was Something Said after the Birth, of the Childs looking like Jno. Harrington.
Adonijah Newton. I went and found him at a Burying. All I had to do was to ask him to come, I did not know she was with Child. Some time after she wanted to see him again. Then I mistrusted she was with Child. He wonderd what she wanted to see him for. She told me, before the Child was born, that she was like to have a Child by Harrington.
Thos. Josselyne. Harrington Said, I f——d her once, but I minded my pulbacks. I sware I did not get it.
Rebecca Drummond. 2 Months ago. He denyed it, &c. That all the Money they had of him was for work.
Joshua Newton. I think he said she should not have no more Money than she had got. 3 or 4 Pistareens, and 10 dollars.
Gershom Newton. Knew of his coming to see her often and staying all Night. I carried a Letter from her [to?]3 the Monadnocks.4 He admired she should send to him for Money for he had left her some. He gave me a Note for £20 which I gave him up again, because he said his father would cut him off.
Never knew him there but two Nights.
Solomon Wheeler. Jno. Harrington was there once, and laid on the Bed alone. He afterwards called me a fool for telling of it. He said it would make a Talk.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. The date is only tentatively assigned. See text at note 6 above.
2. Evidently a question by Chief Justice Benjamin Lynde, put at the beginning of Putnam's argument, as recorded by JA. See text at note 6 above. The Minute Book and files do not indicate for whom Putnam appeared, but if the witnesses that follow are his, he must have been for Ann.
3. MS torn.
4. “The Monadnocks” was a term commonly used for Mount Monadnock, or Grand Monadnock, near present Jeffrey, N.H. See 3 JA, Diary and Autobiography268–269.
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, 2018.