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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 loss 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 jo, justice,” the Governor or Deputy-Governor, with ** 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 jou, 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 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 Isa. and Ipswich had.” Appeals lay from the Town “”. 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,” 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 attach- ieu. ment 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 were chosen for a year, first by the General Court, and afterwards by the towns, and who in the early times were taken from among men of property and consequence. 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 inno quest and a petit jury were impanelled within a * 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." Grand Juries in due time ico, became a permanent institution, and two were ** 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.” The business of Town Courts, as of Justices' Courts now, was conducted without it. In Connecticut, while trial by jury loss. was practised from the first, the Grand Jury of "y" Inquest appears to have been a later institution.” And the difficulty of bringing trial juries to unite in a verdict where there was so little of definite law for their guidance, led to the singular provision, that, on a continued failure to agree, after conference with the Court, a majority of the jury should decide the issue, and, if they were equally divided, it should be determined by the sitting Magistrates.” There were no professional advocates." A prisoner or suitor might plead his own cause, or a friend might appear in his behalf. The methods of process had a general conformity to those of the Common Law, with which some of the leading men were familiarly acquainted. Issues of debt and account were to be tried by the Court nearest to the defendant's place of residence ; “other actions, within that jurisdiction where the cause of action did arise.” Attachments were to be made by notice left at the defendant's house; and, in his absence, judgment against him was not to be executed till the plaintiff should have given a bond to make indemnity in case of a reversal on appeal." The only ceremony attendant upon an oath was the lifting of the right hand. The English practice of kissing the book was rejected as idolatrous. The earliest colonial code of statutes was that of Plymouth.' Not framed upon any theory of con- 1693. formity to the Jewish law, or to the law of Eng- .

Sept. 9

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

* Mass. Rec., I. 239; comp. 328. “Ibid., 276. These Courts might

* Ibid., 264. These were after- impose a fine of twenty pounds.

* Mass. Rec., I. 325.

* Ibid., II. 28.

* Body of Liberties, Art. 72.

* “In the General Court are tried all actions and causes, civil and criminal, and also ecclesiastical, especially touching non-members; and they say that in the General and Quarterly Courts they have the power of Parliament, King's Bench, Common Pleas, Chancery, High-Commission, and StarChamber, and all other courts of England.” (Lechford, 26.)

* 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.

* Ibid., 344.

* Ibid., 40, 128, 351.

* Ibid., 182, 217, 226, 262, 345. —


I cannot determine the time when
there began to be more than one Mar-
shal. 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 Decem-
ber 10, 1641 (Mass. Rec., I. 345), im-
plies, though not unequivocally, that
there was more than one Marshal in
the Colony; but later records (Ibid.,
II. 30, 44, 107, &c.) suggest the oppo-
site inference. I think, at all events,
there were Marshals in 1647 (Ibid.,
* Ibid., 76.

* 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.

* See Vol. I. 340; Brigham, 41.

* Mass. Rec., I. 77, 78, 81.

* Ibid., 110.

* Ibid., 143.

! Ibid., II. 21.

* Ibid., 28.

Statutes of land, it consisted of such provisions as on general Plymouth.

April 13.


* Conn. Rec., I. 9. Hist. Coll., XXVIII. 220. Winthrop, * Ibid., 91. II. 36. * Ibid., 84. * Mass. Rec., I. 169, II. 16, 17.

* See Vol. I. 553. Lechford, 28. " Ibid., II. 80. Body of Liberties, Art. 26, in Mass. " See Vol. I. 340 et seq., 546 et seq.

principles of jurisprudence, and after sixteen years' local experience, appeared suitable to secure the well-being of the little community. It was digested under about fifty titles. It asserted a right of exemption from all laws “but such as should be made or imposed by consent” of the body of the associates, or their representatives legally assembled. It recognized eight capital offences; namely, “treason or rebellion against the person of the King, State, or Commonwealth either of England or these colonies,” wilful murder, witchcraft, arson of ships or houses, adultery, rape, and crimes against nature. Other crimes it made punishable “at the discretion of the Magistrates.” It ordained, that offences should be presented by juries of inquest, and “that all trials, whether capital or between man and man,” should “be tried by juries according to the precedents of the law of England, as near as might be.” It allowed persons not possessing the franchise to be jurymen. It obliged towns to build and maintain roads, stocks, cages for the confinement of prisoners, and whipping-posts. In transfers of real estate, it required acknowledgment before a magistrate, and a public record. Inheritances were to “descend according to the commendable custom of England and hold of East Greenwich.” A widow was entitled to the use, during her life, of a third part of her husband's real estate, and to “a third part of his goods, to be at her own disposing.” Men and property might be impressed for the public service; the latter, or its use, was to be paid for, and soldiers disabled in war were to be maintained for life at the public charge. A uniform standard of weights and measures was prescribed. Marriages, even without the approval of parents, might be contracted, “with the consent of the Governor or some Assistant, to whom the persons were known.” Every resident was to provide himself with certain arms and accoutrements. “None might retail wine, strong water, or beer, either within doors or with

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