The constable of Roxbury had conveyed John Chaddock (alias Chadwick, Chattuck, or Shattuck), his wife, three children, and assorted household goods, to Brookline in January 1767, pursuant to a warrant of removal issued by a Roxbury justice of the peace. In 1760 the selectmen of Roxbury had warned a John Chaddock, or Chadwick, and family, out of the town after a two months’ stay. They now asserted that these families were the same, so that the statutory prerequisite of warning within a year after arrival had been complied with.1
Brookline contested the removal, petitioning the Suffolk General Sessions in May 1767 for the return of Chaddock to Roxbury and for the town’s expenses. Jeremy Gridley signed the petition, but Adams’ list of questions presented (Document I) and notes of authorities (Document II) indicate that it was he who argued the case when it finally came on after numerous continuances in November 1768, Gridley having meanwhile died. The petition, which sets forth other documents in the case, appears below as part of the record of the Sessions proceedings (Document III). It urges ten grounds for quashing the removal order, which are principally attacks upon the formal sufficiency of the warrants of warning and removal. Gridley had also contended, however, that the man removed was not the man warned, and that the removal warrant was void because the justice issuing it was an inhabitant of Roxbury and thus interested in the outcome.
Adams’ questions presented (Document I) correspond with the grounds of the petition, with two additions: (1) whether a Justice in such a case acted ministerially or judicially (which was related to the problem of interest); (2) whether evidence beyond what Adams called “the Records of this Court” (the warrants and returns) was admissible. Probably Roxbury sought to establish the identity of various persons named in the warrants and thus to cure the alleged defects in them.2 It is not clear why Adams raised this point. In Roxbury v. Boston, No. 24, depositions and other documentary evidence seem to have been at least offered in the trial at Sessions, and were probably accepted, since they formed part of the file of the case. The issue was not reached on the trial in the present case, however, in view of the court’s ruling on the merits, to be discussed below.
The three groups of authorities which Adams had prepared for the trial (Document II) give some indication of the issues which he sought to emphasize in argument. The first group deals with the necessity for particularity in naming persons ordered to be warned or removed. The second group consists principally of the forms followed in English removal proceedings, which were based upon a statute similar in its generality to the Province Act here involved, but which set forth in detail just those matters which were unclear in the warrant now before the court. Finally, Adams raised the issue of the interested justice, citing authorities which he had used in Plympton v. Middleboro, No. 25.
At the trial, Robert Auchmuty, counsel for Roxbury, in effect demurred to the petition. Upon motion the court gave its opinion, set out in the record (Document III), that Brookline’s allegations were not sufficient to entitle the town to a trial of the question whether Chaddock and family had a settlement there or in Roxbury. This ruling in effect meant that the 1760 warning was effective to prevent the Chaddocks from gaining a settlement in the latter town. Roxbury then moved to dismiss, but on further argument the court instead upheld the petition, presumably on the ground that the removal warrant was in some way faulty. Roxbury was ordered to pay Brookline Chaddock’s charges and costs of court; and the Chaddocks were to be returned. Brookline’s account for £67 16s. 4 ¾d., which was approved by the court in January 1769, is set out as an example of the scope and quantity of 18th-century poor relief (Document IV). Execution issued for the sum there stated and costs of £6 3s. 4d. on 9 March 1769.3
At the March 1769 term of the Suffolk Superior Court, Fitch moved in Roxbury’s behalf for a writ of certiorari. This process, by which a higher court could command an inferior court to certify and send up the record of its proceedings, had been used in England since some time in the 17th century to quash an order of Sessions, but had been adopted in Massachusetts at a relatively recent date.4 The documents involved in this case, which are an interesting example of the adoption of English forms to local needs, are set out below. The writ issued in July, returnable at the August term (Document V). Return was duly made both of the Sessions record (Document III) and of copies of other formal papers from the file.5 Fitch then filed an assignment of errors sometime before March 1770 (Document VI). This form, not used in the English practice, suggests that in Massachusetts certiorari was viewed as not differing materially from the writ of error, in which the assignment was part of the proceedings both in England and in the Province.6
The errors which Fitch assigned are of interest in light of the 18th-century English limits on the scope of review in certiorari to quash. In the English practice, through an accident of historical development, only matters denominated “jurisdictional” had to appear on the face of the record, but an order could be quashed if such matters did not appear. If jurisdictional matter was set out, however, evidence outside the record, in the form of affidavits, was admissible to attack it. Matter of record that was not “jurisdictional” could be attacked if on its face it was not consistent with the order, but no additional evidence was admissible for this purpose. Naturally enough, this practice gave rise to much doubt as to the meaning of “jurisdictional,” and the term was often expanded to include issues which might not ordinarily seem to be within it. It should further be noted that the “record” in the English practice was only the formal statement of the court’s judgment and order, not the entire pleadings and proceedings below, which the term usually signifies.7
The first four errors assigned by Fitch (Document VI) were jurisdictional in the broadest sense. Together they were to the effect that only the merits of the question of a pauper’s settlement, and not errors of law in the proceedings had with regard to him were within the court’s jurisdiction. This order had to fall, because it granted the petition not only in the absence of necessary allegations or findings on the merits, but despite a specific finding that there was no question on the merits. The second assignment of error, attacking the petition, would presumably have been irrelevant under the English practice whereby jurisdiction had to appear in the judgment or order itself.8 The fifth error assigned attacked the absence of various findings in the record. In the English view, if any of these had been “jurisdictional” the order would have been fatally defective for lack of them.9
After notification of Brookline to appear in March 1770 (Document VII), the case was further continued until February 1772, when with Adams and Fitch arguing, it finally came on for hearing. According to a note in Adams’ docket, the matter was “determined for Brooklyne, 7[th] d[ay] upon Arg[ument] of all the Errors filed.” The Superior Court affirmed the judgment, with further costs of £9 13s. 3d.10 In the narrowest view this decision held only that the Court of General Sessions had jurisdiction to deal conclusively with errors of law in the record before it and that the matters set forth in the fifth assignment as omitted from the order were not “jurisdictional.” But it is possible, in light of Adams’ description of the result, that the court, in examining “all the Errors,” looked to the record itself and affirmed the decision of the Sessions on the legal questions.
Whatever the force of the court’s holding, the decision in this case seems to be related to a statutory change made several months later. In Chelsea v. Boston, No. 26 (1769), the Suffolk Sessions, after its decision in the present case, had expressly held that a removal warrant was void because issued by a Justice who was an inhabitant of the removing town. The court must have followed this rule in other cases as well, because in June 1771 the Selectmen of Boston petitioned the General Court for a change in the law, complaining “that the Court of General Sessions of the Peace for this County have of late construed said Acts11 in a different manner, by adjudging that a removal by virtue of a Warrant from a Justice of the Peace of this Town is not a legal removal as said Justice is somewhat interested therein, and that it properly lays with one of His Majesty’s Justices of the Peace of a Neighbouring Town to grant said Warrant—That in consequence of this novel construction of said Acts this Town has already been put to considerable charge and difficulty, which from its peculiar situation and circumstances, and the great number of Vagrants and other poor Strangers which dayly flow in upon us, is like greatly to increase.”12
The Committee to which this petition was referred recommended that it be put over until the next session.13 On 14 July 1772 an act was passed which recited that the practice of which Boston had complained was followed in “the courts of general sessions of the peace for several counties . . . whereby a number of towns in the province, more especially the town of Boston, have been put to much inconvenience and charge, and the expence of the province is likely to be greatly encreased.” The act went on to provide that “the removal of any person, by a warrant obtained from one of his majesty’s justices of the peace residing in the town from whence the person is to be sent or conveyed, to any other town, either in or out of the province, shall, to all intents and purposes, be deemed as legal a removal as if the warrant had issued from a justice of the peace living in any other town.”14
On the trial of Brookline v. Roxbury at the Sessions in 1768, Adams had urged the invalidity of the warrant on the grounds of the Justice’s residence, but the issue had not been expressly referred to by the court as part of the basis for its decision. The question was an important one, however, and may well have been the principal defect which the court found in the warrant of removal. If this was so, it is possible that legislative action was deferred pending the outcome of the proceedings on certiorari, with the hope that the Superior Court might overrule the Sessions on the point. When, instead, the result was a holding which at least recognized the power of the Sessions to rule on such questions without interference from above, and may even have gone so far as to indicate approval of the rule followed in the lower court, the only remedy left was the legislation which was forthcoming.
2. The files contain subpoenas to the Aug. term of the Suffolk Sessions and its Oct. adjournment, summoning six witnesses, including John and Martha Shattuck of Brookline, and William Borrough of Roxbury, the Chaddocks’ alleged host there in 1760. SF 102089. See Doc. III.
3. Sess. Min. Bk., 7 Nov. 1768. A copy of the bill of costs in SF 102089 shows a total of £6 3s. 8d. It is not clear whether the discrepancy is due to a copyist’s error or represents a reduction by the court. See also note 3 below.
4. The motion and the court’s order granting it appear in Min. Bk. 89, SCJ Suffolk, March 1769. For the development of the writ in England, see Edith G. Henderson, Foundations of English Administrative Law 83–116 (Cambridge, Mass., 1963). As to the Massachusetts development, see No. 24, note 4.
5. These included copies of Brookline’s account (Doc. IV), the Sessions bill of costs, two subpoenas (note 2 above), the two warrants, Brookline’s petition, and the court’s opinion on the question of dismissal. The last three items appear virtually verbatim in the Sessions record (Doc. III).
6. As to the proceedings in error in England, see Sutton, Personal Actions description begins Ralph Sutton, Personal Actions at Common Law, London, 1929. description ends 136–144. See also note 8 below. For other evidence that little distinction was seen between error and certiorari, see Edith G. Henderson, Certiorari and Mandamus in Massachusetts and Maryland 9–10 (Unpubl. paper, Harvard Law School, 1955).
8. This would seem to be a natural result of the fact, already noted in the text at notes 5, 7, above, that in England only the judgment and order were sent to the higher court on certiorari to quash, while in Massachusetts, the whole record (including the pleadings), as well as other formal documents, was sent up. It is not clear whether all of this material would be considered of “record.” See No. 24, text at note 8. Pond v. Medway, Quincy, Reports description begins Josiah Quincy Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772, ed. Samuel M. Quincy, Boston, 1865. description ends 193 (SCJ Suffolk, 1765), SF 100637, is ambiguous on this point. For indications that the “record” for review purposes meant only the document containing pleadings, procedural steps, and judgment, see No. 28.
9. For examples of fatal defects in English practice, see Henderson, Foundations of English Administrative Law 149–154.
10. See JA, Docket, Suffolk, Feb. 1772, Adams Papers, Microfilms, Reel No. 183; Min. Bk. 95, SCJ Suffolk, Feb. 1772, C–9; SCJ Rec. 1772, fol. 2. “7th day” is the seventh day of the court’s sitting.
12. Printed in 5 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 261, from 47 Mass. Arch. 551.
13. 5 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 261.