Browsing: Legal Papers of John Adams, Volume 1

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

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

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

Where fore the said Manual prays that the aforesaid order, Sentence, Judgment, and Proceedings of the said Court of Sessions may be quashed.

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.

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

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.

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.

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.

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.

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.

Putnam.

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.

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.