Editorial Note
Editorial Note
As in England, the Massachusetts justices of the peace, singly and in their joint capacity as the Court of General Sessions of the Peace for each county, formed a kind of all-purpose administrative tribunal with jurisdiction in a wide variety of local government questions. Matters within their power included tavern licensing; the construction, repair, and use of highways; militia service; assessment and collection of taxes; regulation of weights and measures, as well as the quality of food and other products; shipbuilding; land use; violation of the Sabbath; support of the ministry and schools; and welfare. In the last category were two important problems which produced substantial amounts of litigation—the settlement and removal of paupers, and the support of illegitimate children. John Adams had a number of cases in both of these fields, which demonstrate the early operation of administrative law in Massachusetts.1 The present case and Nos. 25, 26, and 27 concern paupers. Nos. 28, 29, and 30 are examples of bastardy proceedings, as they were called.
The poor relief system rested on the principle that a town was responsible for the support of all indigent persons having a “settlement” within it. Under statutes in force until 1767 a pauper gained a settlement if he remained within a town for twelve months without being “warned” by the selectmen to depart. Once the pauper had been warned, he could be removed to another town by the constable under the warrant of a justice of the peace. Litigation over those provisions generally concerned the contention of the town to which a pauper had been removed that it should not be charged with his keep. The town would apply to the county Court of General Sessions for decision of the question, a matter within that court’s statutory jurisdiction.2 Usually the court would determine the town of settlement and would order that town to pay all charges incurred by the other town on account of the pauper.
Although a statute provided an appeal to the “court of assize and general gaol delivery” from “sentences” of the General Sessions,3 there was no specific provision for review of orders in cases under the poor laws. The courts had developed the remedy of certiorari, following English practice in this and other cases in which no other appellate relief was provided.4 On writ of certiorari, the Superior Court limited its review to matters appearing on the face of the record, except for jurisdictional questions. The procedure on appeal in the Superior Court, however, as it was applied in civil actions and presumably in appeals from the Sessions, involved a trial de novo before a jury at which new evidence and matters outside the record could be freely offered.5 In the case of Roxbury v. Boston, the party aggrieved at Sessions sought to obtain this broader measure of relief.
The case concerned the status of one Rebecca Choate, who had allegedly been warned from Roxbury with her husband in 1738. On 31 December 1763, having at some point returned, she was removed from Roxbury to Boston by warrant of a justice of the peace. There she became and remained a public charge, except for a brief stay in Roxbury occasioned by a smallpox epidemic in Boston.
In January 1765 the Selectmen of Boston petitioned the Suffolk County Court of General Sessions for her removal to Roxbury and the return of their expenditures for her, urging that the original warrant of removal had been issued by a justice who was a Roxbury inhabitant, and therefore interested, and that Rebecca was in fact an inhabitant of Roxbury. Jeremy Gridley, who appeared for Roxbury at the April 1765 Sessions, denied that Rebecca was an inhabitant as alleged. After several continuances the case was heard in July 1766. The court found that Rebecca was not an inhabitant of Boston at the time of her warning in Roxbury or afterward, but was an inhabitant of Roxbury, and ordered the latter town to pay her charges and costs of court to Boston. The record reflects that the Selectmen of Roxbury “appealed” to the Superior Court, giving bond as the statute provided.6
The precise reason why an appeal was sought instead of certiorari cannot be determined. It is possible that Gridley wanted the case tried to a jury rather than by the court. Suffolk jury panels included jurors from the country towns, who might tend to favor Roxbury’s cause against the larger Boston.7 The reason might also have been a desire to offer evidence or raise issues not in the record. It is not clear whether “the record” for purposes of certiorari was merely the usual formal statement of pleadings and proceedings below taken from the record book of the lower court or whether it also included other papers from the files. If the former, there was evidence in the file from the trial in Sessions, which probably would not have been admissible on certiorari. Since this evidence tended to show that Rebecca Choate was not an inhabitant of Roxbury, Gridley may have wanted the Superior Court to consider it in reaching a decision.8 Whether or not this evidence was thought part of the record, it is also possible that Gridley was seeking the admission of oral testimony or additional documentary material not preserved in the file.
Whatever the reasons for taking an appeal, the case came on in the Superior Court at the August 1766 term, with Adams and Gridley arguing for Roxbury and Otis and Fitch for Boston. Adams’ notes, printed below, indicate that the only question raised was whether an appeal lay. The Province statute providing an appeal from the Sessions seems to have been offered as the basis for the proceeding, but Otis and Fitch argued that this Act did not include determinations under the poor laws, presumably because it was limited to criminal matters. The judges apparently agreed, because they dismissed the case, “being of the opinion that an appeal does not ly, by the Province Law in this case.”9
1. For a summary of the jurisdiction of Massachusetts Justices of the Peace and Courts of General Sessions, see p. xxxix–xl above; see note 5 below. For the English practice, see Edith G. Henderson, Foundations of English Administrative Law 18–25 (Cambridge, Mass., 1963). For another JA case under the poor laws, see “the Case of Dumb Tom the Pauper” (Scituate v. Pembroke), 17 May 1767, 1 336; SF 142416. For a pioneering discussion of such matters, see Charles F. Adams, Three Episodes of Massachusetts History, 2:722–781 (Boston and N.Y., 1892).
2. For the principal statutory provisions involved, see notes 2, 3, and 4 below; No. 25, notes 2, 4; No. 27, note 2.
4. The earliest use of the writ found in Massachusetts for a case under the poor laws is Waltham v. Weston, SCJ Rec. 1760–1762, fol. 161 (Middlesex, 1761). The writ, in the form printed in No. 27, Doc. V, was issued in 1759.
The first certiorari of any kind known to have issued from the Superior Court is that in Boxford Parish v. Rogers, SCJ Recs. 1753–1754, fol. 101d (Essex SCJ, Oct. 1753), a case involving a minister’s salary. Edith G. Henderson, Certiorari and Mandamus in Massachusetts and Maryland 3–4 (Unpubl. paper, Harvard Law School, 1955). Prior to 1720 at least, appeals from Sessions seem to have been allowed in such matters, as well as in poor law, bastardy, and highway cases. Id. at 4–5. In 1747, however, the Superior Court dismissed the appeal in Bodfish v. Barnstable, a case under the poor laws. See note 3 below. The use of certiorari may have developed in response to this decision. The English practice is covered in Henderson, Foundations of English Administrative Law 83–116, 143–159.
5. The procedure and scope of review on certiorari are discussed more fully in No. 27. As to appeal in civil cases, see generally p. xlii above. That there was to be a jury in appeals from Sessions appears in the provision that the appellant in such cases should pay the same fee to jurors required in a civil appeal. Act of 16 June 1699, c. 1, §3, 1 368. For a case in which the Superior Court may have gone outside the record, see No. 30.
6. See the warrants of warning and removal, the petition of Boston, and the record of the Court of Sessions in SF 100839. For the requirement of bond with two sureties in appeals from “sentences” of the Sessions, see Act of 16 June 1699, c. 1, §3, 1 368, discussed further in note 7 below. Boston’s charges, “allow’d by the Court,” amounted to £47 3s. id. for Rebecca’s board in the Alms House until her death in March 1766 and for medical care. SF 100839.
7. See, for example, the Suffolk venire, Aug. term 1766, which included 48 petit jurors, 16 from Boston, 6 from Roxbury, the rest in ones and twos from 16 other towns. SF 100784.
8. As to “the record” in certiorari, see No. 27, note 8. The evidence included Rebecca Choate’s own deposition, dated 28 Jan. 1766, and those of three other witnesses, dated 20 May 1766, which indicated that she and her late husband had lived in Roxbury until some time in the fall of 1735, but during the next two and a half years had lived successively in Dedham, Stoughton, Dorchester, and Boston. SF 100839. The dates are somewhat vague, but it would have been possible to conclude that the Choates had lived without being warned in either Dedham or Boston for the year necessary to gain a settlement. In March or April 1738 they moved back to Roxbury but a copy of a warrant in the file shows that they were warned from that town in May 1738. Ibid. The file also contains an attested list of the selectmen of Roxbury for 1763, showing that Joseph Williams, the justice of the peace who ordered Rebecca’s removal, held the former office as well. Ibid. This document had presumably been put in evidence for Boston on the trial, to support the contention that Williams was interested. The list would also have been admissible on an appeal, but Gridley may have intended to contest this point on legal rather than factual grounds, since he had not denied the allegation to this effect in the Sessions. The issue had not yet been ruled upon against the jurisdiction by the Suffolk Court of Sessions. See No. 27, text at note 11.
9. Min. Bk. 81, SCJ Suffolk, Aug. 1766, N–24. See SCJ Rec. 1766–1767, fol. 98. Boston was allowed costs of £1 os. 2d.