History of Middlesex County, Massachusetts - citizen hylbom blog

APPENDIX
JUDICIAL HISTORY AND CIVIL LIST.
3!3Sk^^HE first step looking to the establishment
'-'-'"*'*
of courts in the colony was taken by the
Court of Assistants of August 23, 1630,
\vliicli constituted those persons holding
the offices of governor and deputy-gov-
irf^ ernor, justices of the peace. Saltonstall,
Johnson, Endicott, and Ludlow were also appointed justices,
with the same jurisdiction as the law conferred on
such officers in England.
Except in those cases where justices liad jurisdiction,
the judicial authority, in both civil and criminal causes,
was exercised by the Court of Assistants. Juries of inquest,
and also for the trial of persons presented by such juries,
were impanelled by the govenior. In Kovember, 1633,
the court ordered the secretary to issue his process to the
beadle for summoning twenty-four jurors, who were to be
named by the secretary. In 1634 an order was made that
no trial affecting life should be held without a jury regu-
'
larly chosen by the freemen. Grand juries were first
established in September, 1635.
After the division of the colony into shires counly
courts were established,' which were held by the m.igistrates
who lived in the county, or any others who would
attend, togetlier with such other persons as the freemen of
the county should from time to time nominate and the
General Court approve ; making the whole number five,
of whom three were competent to hold a court. The
county courts had jurisdiction in testamentary matters,
but without any well-settled form of procedure, the
judges, in most cases, exercising discretionary power
in the distribution of estates. When they established a
general rule tliey nearly conformed to the rules governing
personal estate in England, except that the eldest son was
given a double portion. In the distribution of real prop-
erty the widow usually received only her dower; but Ihe
circumstances of the family were taken into consideration.
The conveyance by an inhabitant of one town or plantation
of lands allotted to him to the inhabitant of another town
was at first strictly prohibited.
Tiie courts thus established had power to determine all
civil causes, and all criminal the penalty of which did not
1 See Vol. I. p. 73, for times and places of holding county
extend to life, member, or banishment. Grand and petit
juries were summoned to attend them. Appeals from them
lay to the Court of Assistants, and then to the General
Court. According to Hutchinson, from whose digest of
the laws our account is cliiefiy derived, " the higher
offences against law were cognizable by the assistants only,
except upon application, by appeal or petition, to the
General Court. In all actions, civil or criminal, in which
any stranger was a party, or interested, who could not
stay without damage to attend the ordinary courts of jus-
tice, the governor or deputy-governor, with any two magistrates,
liad power to call a special court to hear and
determine the cause if triable in a county court." The
record was to be made on the records of the Court of As-
sistants. " In divers towns a petty court was established
for small debts and trespasses under twenty shillings; and
in every town the selectmen, who were annually chosen by
the town, had power to hear and determine all oifences
against the by-laws of the town."
For more than ten years after tlie settlement the parties
to a suit spoke for themselves. When the importance of
the cause required it they were sometimes assisted by a
" patron, or man of superior abilities," who received neither
fee nor reward. Thomas Lechford adds to this (16il), that
the parties were warned to challenge any juryman before
he was sworn. Jurors were returned by the marshal,
who was first called a beadle, the title being changed in
1634. James Penn was the first beadle. His successor
was Edward Michelson, of Cambridge, appointed Novem-
ber, 1637.
Lechford complains that as none but church-members -
were eligible to any office or to serve upon juries, great
injustice was felt by tlie majority of persons in the colony
wlio were not church-members, but who were liable to be
tried for ofi'ences touching life or limb by those whom they
regarded in the light of adversaries. Oaths were admin-
istered, as now, by holding up the hand.
In 1640 provision was made for a public registry, and
no mortgage, bargain, sale, or grant of any realty was good
where the grantor remained in possession, against any persons,
except the grantor and his heirs, unless the same was
acknowledged before a magistrate and recorded. All grants
made before that time were to be acknowledged and re-