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This entry was originally written by Alice Eichholz, Ph.D., CG, for Red Book: American State, County, and Town Sources.
During the seventeenth century, both colonies’ court systems included, from highest authority to the lowest: the colony’s general court, a court of assistants, inferior quarter courts, and local magistrates. The general court met quarterly to create laws to insure religious, peaceful government; it was composed of chosen freemen of the colony, the governor, deputy-governor, and assistants. Functioning somewhat as an executive session of the general court, the governor, deputy-governor, and assistants formed the court of assistants, which met more regularly, carried out general court business, and heard jury cases. Individually, assistants acted as local magistrates (justices of the peace) for civil suits in their respective towns. Additionally, magistrates who were not assistants were eventually added as the judicial need in towns arose.
Inferior quarter courts of first instance, later called county courts, were established in 1636 and were composed of the magistrates with a jury. This court’s functions included civil actions, criminal actions, and administrative concerns. The three-tier court system (individual magistrates, county courts, court of assistants) continued until reorganization in 1692 after Plymouth Colony and Massachusetts Bay Colony merged by executive order of the English Crown. Previous county court functions were divided between a court of general sessions (criminal actions) and a common pleas court (civil actions) for each county, with one superior court of judicature (1692–1780) overseeing the entire colony. The latter became the supreme judicial court after 1780, handling appeals from lower courts and originating actions in some capital offenses. The separate county sessions and common pleas courts were reorganized into county superior courts in 1859.
Comprehensive discussions of the court system can be found in George Lee Haskins, Law and Authority in Early Massachusetts: A Study in Tradition and Design (New York: Archon Books, 1968), and Catherine S. Menand, A Research Guide to the Massachusetts Courts and Their Records (Boston: Massachusetts Supreme Judicial Court, Archives and Records Preservation, 1987). Michael S. Hindus’s Law in Colonial Massachusetts, 1630–1800, in Publications of Colonial Society of Massachusetts, vol. 62. (Boston: Colonial Society of Massachusetts, 1984), lists various courts, their periods of operation and what kinds of records were kept. An earlier publication by Hindus (see Massachusetts Vital Records) indicates what might be found and where. However, with the transfer of pre-1860 judicial records to the Judicial Archives at the Massachusetts Archives and much post-1859 material presently being held in storage, the Hindus listing is now very much dated and needs to be used accordingly.
Essex (1636–83), Suffolk (1671–80), Hampshire (1639–1702), and Plymouth (1686–1859 on searchable CD-ROM, produced by New England Historic Genealogical Society) county court records have been published, as well as those for Massachusetts Bay (1628–86) and Plymouth (1633–91) colonies. The Plymouth County court records are taken from the record books at the Pilgrim Society (see Massachusetts Archives, Libraries, and Societies) and are being indexed. The Hampshire County court records can be found in William Pynchon papers, Joseph H. Smith, ed. Colonial Justice in Western Massachusetts, 1639–1702 (Cambridge, Mass.: Harvard University Press, 1961). Essex County Quarterly Court records, currently held at the Peabody Essex Institute (see Massachusetts Archives, Libraries, and Societies), are published in their nine-volume publication with an index. Microfilm copies are at the Massachusetts Archives. See also online sources at http://etext.lib.virginia.edu/salem/witchcraft. Those unpublished for 1687–98 are also at the Peabody Essex Institute with a typescript index by the Works Progress Administration (WPA). Mayflower Descendant (see Massachusetts Periodicals, Newspapers, and Manuscript Collections) has serially indexed the Suffolk County Inferior Court (common pleas). The surviving Suffolk Quarterly Court records are published in volumes 29 and 30 of Publications of the Colonial Society of Massachusetts (Boston: the society, 1933) and on microfilm at the state archives.
Towns issued “warnings out” to those poor for whom they would not assume responsibility. Although instituted by towns, the warnings were recorded in the county seat in Massachusetts. Those for Worcester County have been published. See Francis Blake, Worcester County Warnings Out, 1737–1788 (1899; reprint. Camden, Maine: Picton Press, 1992). Others may also be in print or available online.
Seventeenth-century divorces were granted by the court of assistants until 1692 when authority transferred to the governor and council. The state’s constitution gave that authority to the supreme judicial court in 1785. The county superior courts took over divorce cases from the supreme judicial court in 1887 and began sharing that authority with probate courts in 1922.