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    FOCUS ON COUNTY COURTS

    Introduction

    Of the many original sources exploited in the preparation of Great Migration sketches, none provides a wider range of information than the records of the county courts. Furthermore, aside from such sources as private letters and diaries, court records frequently provide the greatest insights into the individual personalities of the immigrants. To better understand this class of records, we will examine the early county courts of Massachusetts Bay.

    For the first six years of its existence, Massachusetts Bay was served by a single court, presided over by the Governor, Deputy Governor and Assistants, meeting usually at Boston or Cambridge. With the great growth in the population of the colony in the middle years of the 1630s, the General Court decided on 3 March 1635/6 to institute another layer of courts, to be held on a quarterly basis [MBCR 1:168]:

    Further, it is ordered, that there shall be four Courts kept every quarter, 1, at Ipswich, to which Newberry shall belong; 2, at Salem, to which Saugus shall belong; 3, at Newe Towne [Cambridge], to which Charlton, Concord, Meadford, & Waterton shall belong; 4th, at Boston, to which Rocksbury, Dorchester, Weymothe, & Hingham shall belong.

    These courts were tasked with both civil and criminal jurisdiction, but, as we shall see, this did not limit the varieties of business that would be transacted at these venues. The Quarter Court to be held at Boston was considered superior to the other three. On 25 May 1636, the succeeding General Court appointed the first groups of magistrates to preside over each of the four courts [MBCR 1:175]. On this occasion, the Quarter Courts were also referred to as Particular Courts, a designation more frequently seen in some of the other New England colonies.

    With the continued growth in population over the next few years, and the concomitant increase in the number of new towns, the General Court on 10 May 1643 divided the colony into four counties: Norfolk, Essex, Middlesex and Suffolk [MBCR 2:38]. (Norfolk County as originally created was not the same as the modern Norfolk County. As defined in 1643, Norfolk encompassed the towns north of the Merrimack River: Salisbury, Haverhill, Exeter, Hampton, Dover and Strawberry Bank [later Portsmouth].) The Quarter Courts then became associated with the counties.

    NORFOLK: Norfolk court sat at both Salisbury and Hampton. Surviving records for these courts have been published in the same volumes with the Essex records, as described in the next paragraph. Although included in Norfolk County, Dover and Portsmouth already had a functioning court prior to 1643, with its own records [NHPP 40]. This court at times had independent status as a separate county. In 1679, with the establishment of the Province of New Hampshire, Norfolk County was dissolved, with the first tier of towns north of the Merrimack being absorbed in Essex County.

    ESSEX: As created in 1643, Essex County included all the towns comprised in the two Quarter Courts erected in 1636 at Ipswich and Salem. These courts continued to sit separately. The records from 1636 through 1686 have been published in nine volumes, in the set we refer to as EQC.

    MIDDLESEX: Although erected in 1643 along with the other three counties, Middlesex did not take on a separate existence until 1649. Prior to that time all Middlesex court business, included probate matters and registration of deeds, may be found in Suffolk records. None of the surviving Middlesex court records have yet been published in extenso. We refer to the manuscript volumes containing the minutes of this court as MCR.

    SUFFOLK: For a brief period after the establishment of the Quarter Courts, the records for the Boston court were recorded in the same volume with the records of the General Court and the Court of Assistants (e.g., 7 June 1636, 6 July 1636, 4 December 1638, 7 September 1641 [MBCR 1:176- 77, 245-48, 334-36]). Eventually, the records for this Quarter Court were maintained in separate volumes. The records of the Suffolk County Court from 1671 through 1680 were edited and published in 1933 (Records of the Suffolk County Court, 1671-1680, 2 vols., in Publications of the Colonial Society of Massachusetts, vols. 29 and 30 [Boston, 1933], cited herein as SCC).

    For the remainder of this article, we will examine in detail a single session of the Middlesex County Court [MCR 1:246- 257]. (Click here to see images of the original court records for this session.) We will make occasional reference to single sessions of Dover, Ipswich and Suffolk courts, for purposes of comparison, and to describe transactions not seen in the Middlesex session. Dover: 29 June 1675 [NHPP 40:314-22]. Ipswich: 26 September 1654 [EQC 1:362-68]. Suffolk: 30 January 1671/2 [SCC 31-96].

    Personnel

    All properly recorded Quarter Court sessions begin in a formulaic way. First comes a heading defining the session then being held:

    At a County Court held at Cambridge
    October 6th, 1663

    The heading is followed by lists of the court personnel for that sitting, first the magistrates, then the grand jury, and finally the trial jury.

    On the Bench
    Ri[chard Bellingham, Deputy Governor
    Mr. Francis Willoughby
    Capt. Daniel Gookin
    Major Simon Willard
    Mr. Richard Russell
    Thomas Danforth, Recorder

    At this period in the colony’s history, the county magistrates were generally also men who held high colony office. In this instance, Richard Bellingham had been elected Deputy Governor in the Court of Elections on 27 May 1663, and all the other magistrates in this list, including Danforth, but excepting Willoughby, were elected Assistants at the same court [MBCR 4:2:71]. Willoughby had been an Assistant in the past, and would be elected to that office again on 18 May 1664 [MBCR 1:99].

    The Grand Jury that
    was impannelled in April
    was summoned and
    attended this Court

    Looking back to the session of 2 April 1663, we find a list of fourteen names of men on the Grand Jury [MCR 1:233]. In the margin of the April session is the annotation “6.8.63, Thom[a]s Fuller, Jno. Blanchard added.” In other words, the October Grand Jury consisted of the fourteen men who had been impannelled in April, with two more men added, but the information on the men added for the October session is found only in the record of the April session.

    On the Jury of
    Trials
    Impannelled & Sworn

    This last heading for personnel is followed by a list of twelve names: John Parker, William Hailstone, Anthony Peirce, Zachariah Hickes, Walter Hastings, John Smedley, George Fowle, John Smith, John Call, Thomas Peirce, Samuel Stratton and Abraham Hill. While not all of these men can be placed in a particular Middlesex town at this date, we may tentatively allocate them as follows: Cambridge (Hastings and Hicks), Charlestown (Call and Fowle), Watertown (Stratton and Anthony Peirce), Woburn (Parker and Thomas Peirce), Chelmsford (Hailstone), Malden (Hill) and Concord (Smedley), with John Smith unallocated. In general, the towns which were the oldest in the county or the closest to Cambridge, or both, had two trial jurymen apiece, while the towns that were most recently settled or the farthest from Cambridge, or both, were not represented at all (Billerica, Groton, Marlborough, Reading, Sudbury).

    Each town was apparently allocated a specific number of trial jurymen per session, and the town meetings made the appointments. This is clearly seen in the Salem and Essex records. On 18 November 1657, for example, a “general town meeting” at Salem chose “Mr. Conant, Mr. Price, Samuel Gardner, Robert Lemon, John Putnam, William Dodge” for the jury of trials, and these are the men seen actually serving at the court of 24 November 1657 [STR 1:206; EQC 2:58-59].

    Civil

    In most of the county courts, the first business taken up were the new civil suits. We will look closely at two cases from the Middlesex session under consideration, and then make a few comments about the selected Suffolk session.

    Moses Eyres plaintiff against Theod[o]re Adkinson defendant in an action of the case, for not fulfilling his covenant with him by indenture of apprenticeship, to learn him his art of a feltmaker. Both parties appeared & joined issue in the case.

    The jury having heard & considered their respective pleas brought in, their verdict finding for the plaintiff damages twenty shillings, & costs of court sixteen shillings, and the plaintiff to give the defendant a release of his covenant by indenture for the learning him the art of a feltmaker.

    This case poses some interesting problems. When these courts were first established, one of the procedural conditions was that “All actions shall be tried at that Court to which the defendant belongs” [MBCR 1:169]. Theodore Atkinson came to New England in 1634 as a servant, settled at Boston where he became a feltmaker and prominent merchant, and resided there without interruption until his death in 1701 [GM 2:1:95-103].

    Much less is known about the plaintiff. “Moses Eyres was married unto Bethiah Millet” at Dorchester on 3 August 1666 [DVR 21], and he lived there and in Boston, both Suffolk County towns [NEHGR 15:56]. His parentage is not known, and so he also has no known connection with Middlesex County. Based on this court record alone, there seems no reason for bringing this action in this county.

    Mr. Jno. Shearman, attorney of Mr. Edmund Shearman of Dedham in Essex, old England, plaintiff, against John Shearman & John Livermore, executors of the last will & testament of Thomas Hammond of Watertowne, deceased, in an action of the case for an account of two broadclothes, committed to his custody about 13 years since, on attachment September [blank] 1663.

    The jury having heard the pleas & evidences of both parties which are on file with the records of this court brought in their verdict finding for the plaintiff damages of forty pounds to be paid in money or goods at money price, & costs of Court one pound, three shillings and six pence.

    This case raises a different set of interesting issues. We see that both principals in the original business transaction, Edmund Sherman and Thomas Hammond, are represented in court by other men. Edmund Sherman was the son of an earlier Edmund Sherman, who had settled briefly at Watertown in 1635, then moved on to Wethersfield and New Haven, where he died in late 1640 or early 1641. The younger Edmund, plaintiff in this case, probably never came to New England. His attorney was his younger brother, who was also the minister at Watertown. At this early date, there were very few men with legal training in the colony, and Rev. John Sherman was undoubtedly acting on the authority of a letter of attorney issued for this particular occasion.

    The statement of the action taken by the court refers to the “evidences of both parties which are on file with the records of this court.” At least one document pertaining to this case does survive in the loose court papers for the county, a contract dated 14 April 1648 for the delivery of two broad-clothes to Thomas Hammond by Edmund Sherman, witnessed by John Livermore [MCF Folio #34]. When this instrument was presented in court, Thomas Danforth, court recorder, added this note:

    Jno. Livermore, executor to the last will of Thomas Hammond, appearing in Court 6.8.63, acknowledged this to be a true bill & just debt & signed by Th[omas] Hammond deceased.

    Extensive files of such supporting documents survive for many of the early courts. We obtain a better feel for this phenomenon by looking at the Suffolk Court session for 30 January 1671/2. In editing this set of court minutes, Samuel Eliot Morison scoured the Suffolk files for all relevant documents and included many of them in the published volume. These records may be found in the files of the Supreme Judicial Court, which we refer to as SJC.

    The first case in this Suffolk session was Peck v. Bonner et al., involving the hire of “the ketch called the Recovery.” Morison comments that “Several hundred documents in the Suffolk Files … relating to this case, and the subsequent litigation between Lawton, Bonner, and Ashton, enable one to reconstruct the story of the ketch Recovery’s voyage” [SCC 31]. Not all cases are as voluminous as this, but we are reminded that behind each of these cases is a complicated personal story, and we are fortunate when even a few of the supporting documents survive to help us understand the lives of these immigrants.

    Old Business

    After concluding work on the new civil cases, Middlesex Court turned to some matters still pending from previous court sessions.

    Mercy Rice, relict widow of Edm[und] Rice, deceased, appearing in Court, presented her request, that the order of the last Court, for the division of her husband’s estate, so far as it refers to Benjamin Rice, may be suspended until there may be a clearing up & right understanding of what he received of his father as a part of his portion or is otherwise justly indebted to that estate, pleading that otherwise both herself, & her children by the said Rice, deceased, would be inevitably injured.

    The Court on hearing of her complaint ordered that the order of the last Court for the division of the said estate, so far as it refers to Benjamin Rice his proportion thereby granted, be suspended until there may be a full hearing of the case from both parties therein concerned.

    Edmund Rice of Marlborough had died intestate in early 1663 and the widow and children had signed a petition for division on 16 June 1663, which was presented at Middlesex Court on the same day. That court appointed the widow administratrix and approved the petition for division, and we see here in the October session her request for an adjustment in that order. In a later section of this article we will look more closely at the probate jurisdiction of the county courts in the seventeenth century.

    Marmaduke Johnson, being formerly sentenced to depart home to his wife & not observing the order of the Court therein, is fined twenty pounds, unless he give security to depart home to his wife by the first opportunity & that he stands convicted until he perform this order of Court.

    Marmaduke Johnson, Samuel Goffe and John Barnard appearing in Court do acknowledge themselves jointly & severally to stand bound to the Treasurer of this County in the penal sum of forty pounds sterling on condition that the said Marmaduke Johnson shall depart this jurisdiction, according to the order of the Court, within six weeks time next ensuing, or by Christopher Clark’s ship now bound for England.

    Marmaduke Johnson had first arrived in New England at the end of July 1660, having been sent by Society for the Propagation of the Gospel to work at Cambridge with Samuel Green in printing the Indian Bible. (The biographical detail given here is taken from George Parker Winship, The Cambridge Press, 1638-1692 [Philadelphia, 1945].) By the fall of the following year, he was courting Elizabeth Green, daughter of Samuel Green, without her father’s permission. By October of 1661 Johnson was before the Middlesex Court for his misbehavior, and by the time of the court of 1 April 1662, the court had learned that he already had a wife in old England and ordered him to return to her.

    The above court record shows that he had still not left New England as of October 1663, and in fact he would not do so until 1664. By 1665, however, he had returned to New England, apparently having satisfied the authorities that his wife in England had died. On 28 April 1670 he married at Cambridge Ruth Cane, daughter of Christopher Cane [GM 2:2:5]. He soon moved to Boston where he died in 1675. His widow died a year later, naming no children of her own in her will, but bequeathing to “my brother Jonathan Cane that house and land at Cambridge in case that my husband’s son (whom I never saw) come not to demand it” [SPR 6:180].

    Criminal

    After completing these odds and ends of old business, the court then turned to its second major category of business, the trial of criminal cases, of which there were half a dozen at this session of Middlesex Court. In most instances, these cases would have come before the county court pursuant to presentments by the Grand Jury.

    Robert Parris inhabitant at a farm near Chelmsford bounds, appearing in Court, and being by his own confession convicted of fornication committed with his wife before marriage is sentenced to be whipped 20 stripes.

    Robert Parris, W[illia]m Bachelder & W[illia]m Attwood appearing in Court, do jointly & severally acknowledge themselves, their executors & administrators to stand bound to the Treasurer of this County in the penal sum of £20 sterling on condition that the wife of the said Robert Parris shall make her appearance at the next session of this Court, by adjournment to the 16th of this instant, then & there to answer for fornication committed before marriage, & that she shall abide the order of this Court & not depart without license.

    At the adjourned session on 16 October 1663, the only recorded business was the appearance of the wife of Robert Parris.

    Seaborne the wife of Robert Parris being by her own confession convicted of fornication before marriage and being a second offense of this kind, the Court sentenced her to be openly whipped 15 stripes on her naked body.

    “Roberd Paris and Seaborne Cromwell” were married at Chelmsford on 22 May 1663 and their son Thomas was born there on 23 July 1663, thus providing evidence for the charge of “fornication before marriage.” The wife of Robert Parris (or Parish) was daughter of William Bachelor, who had settled at Charlestown by 1634 [GM 2:1:122-26].

    The evidence for the first offense of fornication comes from colony records six years earlier. On 6 May 1657, the General Court ordered in “the case of Seaborne Batchiler, now Cromwell, bound over by the Court of Assistants for committing folly with Ezekiell Everell, being with child by him & marrying with Jno. Cromwell, & not discovering the same to him, which she confessed, the whole Court, having heard the case, sentenced her to be whipped with twenty stripes” [MBCR 4:1:295].

    On 12 May 1657 a group of midwives examined “Seaborn Cromwell” and determined that “it is more probable by what we find she is with child than other…. We are jointly doubtful in our spirits that if Seaborn have any bodily correction at present it may prove dangerous and hurtful to her.” “The magistrates know no time fitter to whip her than what is appointed & therefore see no cause on this motion to alter their judgment.” The deputies thought otherwise [MA Arch 38B:240], but we don’t know the outcome.

    Seaborn (Bachilor) (Cromwell) Parish died at Chelmsford on 28 September 1664, less than a year after her appearance at Middlesex Court, and not yet thirty years old. Robert Parish moved to Groton and married twice more [Sarah Hildreth Anc 49-51].

    Ezekiel Everill, the father of Seaborn’s first child, was himself no stranger to scandal. He had been baptized at Boston on 15 May 1636, son of James Everill [GM 2:2:469-76]. On 3 April 1653, “Ezekiell Everill son of our brother James Everill of the age of 16 years born and baptized into the fellowship of the Covenant for his choosing evil company and frequenting a house of ill report and that at unseasonable times with bad persons was called before the church and admonished” [BChR 54]. On 28 June 1657, “Ezekiel Everill being of the age of 21 years born and baptized in the fellowship of this church, for his committing the sin of fornication and his contempt of the church that would not come to hear them was in the name of the Lord Jesus and with the consent of the church excommunicate” [BChR 56]. No further record has been found for Ezekiel. No reference to him or any issue was made in James Everill’s will of 11 December 1682.

    Ursilla the wife of John Cole of Charlstowne being convicted of reviling the Reverend Mr. Simes & Mr. Shepard, ministers of God’s word at Charlstowne, saying she had as lief hear a cat meow, as them preach, is fined five pounds, or to be openly whipped, and she being also convicted of meeting with sundry Quakers at Ben[anue]ll Bowers house, was admonished of her evil & sin therein, & warned to attend the worship of God on the Lord’s Days in the public assembly, with more frequency & delight. Costs three shillings to the witnesses. John Coale her husband appearing in Court engaged to pay her fine of five pounds.

    John Cole was son of Rice Cole who had come to New England in 1630 and settled at Charlestown [GMB 1:426-29; TAG 78:183-84]. John had married Ursula by 23 November 1655 [MLR 2:35]; her parentage remains unknown.

    Much of the attention of this court was taken up by concerns about the Quakers and Benanuel Bowers.

    Sarah the wife of W[illia]m Osburne of Charlstowne being convicted of meeting with some Quakers at Ben[anue]ll Bowers, was admonished in Court to beware of the cursed tenets & practices of those heretics, & to return herself to the fellowship of God’s people, and attendance on his ordinances. Costs three shillings to the witnesses.

    Thomas Danforth seems to have gone astray in entering this case, for there was no early William Osburne in early Charlestown [Wyman 716-17]. There was, however, a Thomas Osburne with wife Sarah, and this must be the couple intended.

    Shortly after the court session the Charlestown church took action. On 18 November 1663, “Brother Thomas Osburn being leavened with principles of Anabaptism was … admonished for frequent irregular withdrawing himself from the public worship of God…. On the same day also, it was consented to by the brethren, that his wife, leavened with principles of Anabaptism, & Quakerism, should receive an admonition, for her notorious neglect of the public worship of God, denying our churches to be true churches, & denying her membership with us, & also the churches power over her, & continuing impenitent in her sin” [NEHGR 24:10].

    On 30 July 1665, after repeated attempts to bring this couple back into the fold, “nothing of repentance intervening, brother Thomas Gool, brother Thomas Osburn, & his wife our sister Osburn, were … excommunicated, for their impenitency in their schismatical withdrawing from the church, neglecting to hear the church” [NEHGR 24:133].

    (to be continued)

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