Gambar halaman
PDF
ePub

exercise of its rights, of ownership and jurisdiction, over the territory within its boundaries, granted a tract of land to a company of persons understood to be capable of supporting a minister, and authorized them to establish a plantation and a church. The land, when its bounds had been set out by a committee of the Court, was held at first by the company as proprietors in common.1 To transact the joint business,- to build the meeting-house, choose and support the minister, admit new associates, distribute the lands among individuals, make the roads, preserve order, attend to weights and measures, and regulate a variety of miscellaneous affairs, -the organization of a local authority was immediately needed. With the growth of numbers and of interests, the town meetings, town by-laws, town offices and elections would assume more importance, and come to be regulated with more system, but still with irregularities and differences in different places, which at length would require to be reduced to some uniformity; and as, step by step, the relations of the towns to their own people, to one another, and to the whole community were developed, they led to new provisions of the central government, defining the municipal powers and obligations.

Almost from the beginning, each town had the following civil officers, chosen by its own freemen; namely, a board of Selectmen, varying in number from three to nine; a Clerk; a Treasurer; a Sealer of Weights and Measures; one or more Surveyors of Highways; a Constable; and one or more Tithing-men. Meanwhile the persons exercising ecclesiastical functions were officers of the same community, elected by the same constituents; for not only was there a church wherever there was a town, but the church was the nucleus about which the neighborhood constituting a town was gathered. It was

1 Mass. Rec. I. 136, 141, 146, 156, I. 36, 37, 58, 59. Comp. Gorges, Amer157, 179, 271, 279, 319; Conn. Rec., ica painted to the Life, 42.

not till after several generations, that the towns released themselves from the ecclesiastical element that belonged to their original constitution; and down to the present century, in most of the towns of Massachusetts, the proceedings and records of the municipality and of the religious congregation continued to be the same.

1640.

No want presses itself sooner on the attention of a community, than that of a regular administration of justice among its members. In the beginning Courts of of the Colonies, whatever of the judicial author- justice. ity was not exercised by the body of freemen, resided in the central board of Magistrates. As litigation increased with the increase of numbers, inferior courts were instituted to exercise local jurisdiction. When the settlements of Plymouth had begun to extend, “two sufficient men, one of Yarmouth and another of Barnstable," were annually empowered, in association March 3. with an Assistant, "to hear and determine suits and controversies, betwixt party and party within the township, not exceeding three pounds." 1 Besides courts of this description, we read of no inferior tribunals in that Colony for many years; nor, in the primitive times, does any judicial authority, except the Court of Magistrates (or Assistants) and Plantation (or Town) Courts (both borrowed from Plymouth and Massachusetts), appear to have been instituted in either Connecticut or New Haven.

1

2

In Massachusetts, "Inferior Courts" were early established, consisting each of five judges, one at least being a Magistrate resident within the jurisdiction of 1636. his Court, the others being persons appointed by March 3. the General Court from a list nominated by the freemen

1

Brigham, Compact, &c., 66. Comp. sums not greater than forty shillings. Plym. Rec., II. 73, 118. In New Haven they might decide questions to the amount of twenty pounds, and inflict fines not exceeding five pounds, and the punishments of whipping and setting in the stocks.

2 N. H. Rec., I. 113; Conn. Rec., I. 130; comp. 12, 21, 69. The Plantation Courts of Connecticut had jurisdiction only in controversies involving

1638. Sept. 6.

1

of the towns within the same circuit. They were to hold a session every three months, with authority to "try all civil causes, whereof the debt or damage should not exceed ten pounds, and all criminal causes not concerning life, member, or banishment." Town Courts, " for avoiding of the country's charge by bringing small causes to the Courts of Assistants," were empowered to "hear and determine all causes, wherein the debt, or trespass, or damage, &c. did not exceed twenty shillings." These Courts "to order small causes" consisted of a single Magistrate, if there was one, resident in the town; for towns in which no Magistrate resided, three freemen were appointed by the General Court, any two of whom might exercise the same authority. For the accommodation of persons temporarily in the country, "who cannot stay to attend the ordinary courts of 1639. justice," the Governor or Deputy-Governor, with June 6. two Assistants, might hold a Court with all the powers of a Court of Magistrates; and before long, on account of the increase of business, quarterly Courts, consisting of "the Governor or Deputy," and two Magistrates residing "in or near to Boston," were invested with a jurisdiction similar to that exercised by the Inferior Courts. "To ease the country of all unnecessary travels and charges," the system of Inferior Courts was amended, and those which met at Ipswich and Salem, now made to consist of the Magistrates there residing, with other persons to be designated by the General Court, were directed to sit at each of those places twice in every year, and were invested with all powers possessed by Courts of Assistants, "except trials for life, limbs, or

Sept. 9.

1641. June 2.

3

1 Mass. Rec., I. 169; see Vol. I. wards called Merchants' or Strangers' 431, 617. Courts.

2 Mass. Rec., I. 239; comp. 328.
* Ibid., 264. These were after-

* Ibid., 276. These Courts might impose a fine of twenty pounds.

1

[ocr errors]

banishment." Accordingly, these Courts thenceforward had jurisdiction in cases of Divorce and of Probate of Wills. Next, "Boston Small Court" received "power to end any cause under a hundred pounds, as Salem 1642. and Ipswich had."2 Appeals lay from the Town Sept. 27. Courts to the Inferior or County Courts; from them to the Court of Assistants; and from the Court of Assistants to the General Court. To this the pardoning power exclusively belonged; and this, like the British Parliament, was the tribunal of final jurisdiction. Suitors could not appeal from it to the King in Council, to a Commission for the Colonies, or to any other authority beyond sea. Massachusetts, alone of the four Colonies, appointed Justices of the Peace,5 though essentially the functions appurtenant to that office were exercised in all the Colonies by the Magistrates. The local courts may be presumed to have had at first their records and processes under their own charge. In Massachusetts, after a while, the office of "clerks of the writs" was instituted; it was made their duty to "grant summons and attachment in all civil actions;" one was appointed for each town; and they held their place for a year. Courts, according to their dignity, were attended by the Beadle (afterwards called Marshal) of the Colony, who was appointed by the General Court, and who received a liberal compensation in salary and fees, or by Constables, who

[blocks in formation]
[ocr errors]

1641.

Dec. 10.

5 Winthrop, Dudley, Saltonstall, Endicott, and Ludlow were invested with this dignity, August 23, 1630. (Mass. Rec., I. 74.) I do not find that there was any subsequent appointment of a Justice by that name. The Magistrates and the Commissioners of the Courts of Small Causes had the authority of Justices.

• Ibid., I. 275, 276.
7 Ibid., 344.

Ibid., 40, 128, 351.

• Ibid., 182, 217, 226, 262, 345. —

were chosen for a year, first by the General Court,1 and afterwards by the towns, and who in the early times were taken from among men of property and consequence.

Juries.

The system of trial by jury was in force, except in New Haven, which could find nothing of jurymen in the Old Testament. In Plymouth, that institution is the only fruit that remains of the legislation of the first five years; and a Grand Jury was provided for in the earliest code. In Massachusetts, juries of inquest and a petit jury were impanelled within a September. few months after the arrival of Winthrop's company. The rule in that Colony was for the Secretary, fourteen days before a Court was held; to name twentyfour jurymen, and issue a precept to the Marshal to require their attendance.5 Grand Juries in due time

1630.

1635.

became a permanent institution, and two were March 4. summoned every year. Judges might at their discretion declare the law to the jury, or refer to them the questions of both law and fact. But the perpetually recurring dispute upon the respective provinces of court and jury did not fail to arise in the young community, and even the utility of the trial by jury was once, at least, brought into serious debate.8 The business of

I cannot determine the time when there began to be more than one Marshal. It would be natural to identify it with the time of the institution of Counties, in 1643, so that each County should have the officer whom we now name Sheriff. The record of December 10, 1641 (Mass. Rec., I. 345), implies, though not unequivocally, that there was more than one Marshal in the Colony; but later records (Ibid., II. 30, 44, 107, &c.) suggest the opposite inference. I think, at all events, there were Marshals in 1647 (Ibid., 204).

1 Ibid., 76.

2 Hubbard (General History, &c., 321) seems to have attributed the absence of a provision for trial by jury, in New Haven, to a preference formed by Eaton for the juridical practice witnessed by him on the continent of Europe. But it is more naturally ascribed to the aim to assimilate the institutions of that Colony to the Jewish standard.

3 See Vol. I. 340; Brigham, 41.
+ Mass. Rec., I. 77, 78, 81.
❝ Ibid., 110.

• Ibid., 143.

' Ibid., II. 21.

* Ibid., 28.

« SebelumnyaLanjutkan »