Legal Papers of John Adams, volume 1
The jurisdiction of the Court of General Sessions of the Peace in cases of bastardy originated in its role as a conservator of public morals. The effect of bastardy proceedings, however, was less to punish the guilty than to provide for the support of the innocent and save the town from charge; thus they may properly be viewed as a phase of the court's administrative powers in welfare matters. The jurisdiction was established by a statute dealing with a number of noncapital offenses, including swearing, drunkenness, burglary, breach of the peace, forgery, and perjury. The section on bastardy, after establishing pecuniary and corporal penalties 320for fornication, provided, “And he that is accused by any woman to be the father of a bastard child, begotten of her body, she continuing constant in such accusation, being examined upon oath, and put upon the discovery of the truth in the time of her travail, shall be adjudged the reputed father of such child, notwithstanding his denial, and stand charged with the maintenance thereof, with the assistance of the mother, as the justices of the quarter sessions shall order; and give security to perform the said order, and to save the town or place where such child is born, free from charge for its maintenance and may be committed to prison until he find sureties for the same, unless the pleas and proofs made and produced on the behalf of the man accused and other circumstances be such as the justices shall see reason to judge him innocent and acquit him thereof, and otherwise dispose of the child.”1
Cases under this Act were a frequent item on the dockets of the Courts of General Sessions (successors to the quarter sessions), and Adams tried a substantial number of them.2 They are of interest both for the social problem which they reveal and because of the procedural steps adopted for its solution.
Jane Dotey, of “Duxborough” (Duxbury) in Plymouth County, gave birth to an illegitimate child in September 1767. In July she had been examined by Gamaliel Bradford, a Justice of the Peace, and had made oath that one Manuel Essane was putative father of the child with which she was then pregnant (Document I). On Bradford's warrant, Essane, a minor apprenticed to Rouse Bourne of Marshfield, was brought before the Plymouth Court of General Sessions then sitting and was apparently bound over to abide the event by virtue of another provision of the statute.3 Finally at the December Sessions, Jane appeared, was fined for the crime of fornication, and again made oath that Essane was responsible for her 321plight. The court adjudged Essane “reputed father of the said child,” and ordered him to pay maintenance and costs, and to give bond to indemnify the towns of Plymouth, Duxbury, and Marshfield from charges for the child (Document II).4
On the motion of Adams, who had represented Essane at Sessions, the Superior Court at its March 1768 Suffolk Term ordered a writ of certiorari to issue returnable at Plymouth in May.5 Adams filed an assignment of errors (Document III), in which he attacked the Sessions proceedings on six grounds. The first three errors assigned alleged the absence from the record of any findings of compliance with the statutory requirements of accusation and examination before and during delivery. The other assignments were that the order for maintenance was either beyond the court's jurisdiction, or void for uncertainty; that as a minor Essane could not be ordered to give bond; and that the portion of the order requiring Essane to indemnify the three towns was void because there was no finding or evidence as to the child's birthplace, and because, in any event, only the town in which the birth occurred was liable for his charges.
When the case was heard at Plymouth in May, the Court quashed the order of Sessions and filed a memorandum of its reasons, an unusual item, which is printed as Document IV.6 The first reason, the omission of the child's birthplace from the record, was probably considered “jurisdictional”; that is, the fact omitted was necessary to a valid order, at least one requiring that indemnity be given to a town.7 In its second reason, that the judgment was based only on the complainant's oath, the court avoided a direct confrontation of the jurisdictional issues in Adams' first three assignments of error, stating in effect only that the facts alleged were insufficient, without saying what particular additional facts would have been necessary.8 The final reason, that the order should have required the father to indemnify only the town of the child's birthplace, could either be said to go to an excess of jurisdiction or could be considered the correction of an order inconsistent on its face.9 The presence in the Superior 322 image Court file of Jane Dotey's examination (Document I), and the warrant issued by Justice Bradford on the basis of it, suggest an unsuccessful attempt to cure some of these errors by material not strictly speaking in “the record.”10
Act of 1 Nov. 1692, c. 18, §5, 1 A&R 52. See also notes 3, 5, below.
Other JA cases in addition to No. 29 and No. 30, include Johnson v. Hunter (Concord Sess. Sept. 1768), and Turner v. Reynolds (Taunton Sess. Aug. 1769). His minutes for both are in the Adams Papers. See also his diary entry for 29 July 1766: “At Boston. . . . Heard some Cases of Bastardy in the Sessions. William Douglass was charged by a Dutch girl with being the father of a Bastard Child born of her Body.” 1 JA, Diary and Autobiography
317. This was the case of Susanna Strater, who was presented for and convicted of fornication at the Suffolk Sessions on 29 July 1766. She then swore that William Douglass of Boston, a minor, was the father and produced witnesses to the fact. Douglass was ordered to pay maintenance. Sess. Min. Bk., 29 July 1766. See also Hewet v. Clear, ibid. For some indication of the number of such cases, see Records of the Court of General Sessions of the Peace for the County of Worcester, Massachusetts, from 1731 to 1737 (Worcester, Mass., ed. F. P. Rice, 1882). As to the state of morality generally, see Charles Francis Adams, “Some Phases of Sexual Morality and Church Discipline in Colonial New England,” 6 MHS, Procs.
(2d ser.) 477–516 (1890–1891).
For the warrant, dated 6 July 1767 and returned to the Sessions on 11 July, see SF 142245. The section of the bastardy statute quoted above, text at note 1, also provided that “every justice of the peace upon his discretion may bind to the next quarter sessions him that is charged or suspected to have begotten a bastard child; and if the woman be not then delivered, the sessions may order the continuance or renewal of his bond, that he may be forthcoming when the child is born.”
The order to give bond for all three towns was probably based on Bradford's warrant of 6 July, which gave as a reason for Essane's apprehension that “the said Child when Born May be Chargeable to the said Mother, or to the Towns of Plymouth, Duxborough or Marshfield.” SF 142245.
Min. Bk. 86, SCJ Suffolk, March 1768. The writ and notification to Jane Dotey, both dated 8 April 1768, are in SF 142245. They are substantially similar in form to those printed in Brookline v. Roxbury, No. 27, Docs. V, VII. The penalty for fornication provided by the section of the statute at note 1 above was a fine not to exceed £5, or whipping not to exceed ten stripes, in the discretion of the Sessions. JA received a fee of “12” (presumably shillings) from one Elisha Ford. JA, Docket, Plymouth Inferior Court, Dec. 1768. Adams Papers.
Min. Bk. 82, SCJ Plymouth, May 1768, N–12; SCJ Rec. 1767–1768, fol. 189. See note
As to the scope of review on certiorari, see No. 27, notes
For further discussion of this point, see No. 30.
See Edith G. Henderson, Foundations of English Administrative Law 144–145 (Cambridge, Mass., 1963).
For Bradford's warrant, see SF 142245; notes 3, 4, above. As to “the record,” see No. 27, notes
Plymouth Ss. The Information of Jane Doty now Residing in Duxborough single woman taken before me Gamaliel Bradford Esqr. one of his Majestys Justices of the Peace for the said County this Eighth Sixth Day of July 1767.
Q. Are you now with Child.
A. Yes.
Q. Who is the father of the Child you are now Big with.
A. Mannuel Essane of Marshfield servant to Rouse Bourne Between on the Seventeenth and twenty seventh and thirtyeth Days of January Last did enter and had Carnal Knowledge of her Body two several times.
Q. Had any other man Carnal Knowledge of your Body aboute that time.
A. No nor Never in all her Lifetime.
Q. Where was the place he had Carnal Knowledge of your Body.
A. In the House My Gradmother now Lives in in Duxborough.
Jane X Doty
Mark
SF 142245. The document seems to be the original in the hand of Justice Bradford.
Plymouth Ss. At his Majesty's court of general sessions of the peace, began and held at Plymouth within and for the county of Plym-323outh on the second tuesday of december being the eighth day of said month, in the eighth year of our Sovereign Lord George the third by the Grace of God of Great-Britain, France and Ireland, King, Defender of the Faith, &c. annoque Domini 1767.
Jane Doten
At said court Jane Doten late residing in Duxborough in the county of Plymouth single woman appeared, who having while pregnant, and now before this court made oath that Manuel Esseane was the father of the bastard child born of her body in September last. And after a hearing of the parties in the case. It is considered by the court that the said Manuel Esseane be adjudged to be the reputed father of the said child, that he stand charged with the maintenance thereof, that he pay the sum of three pounds, it being one half of the charge of her lying in, &c., for the first month. And also that he pay the sum of twenty one shillings, it being for keeping said child to the eleventh of december instant, that he pay costs of prosecution taxed at one pound, thirteen shillings and two pence. And also that the said Manuel enter into recognizance with two sureties in the sum of forty pounds that he shall pay quarterly until the further order of said court, at the rate of three shillings a week towards the support of said child. And also that he recognize in the like sum of forty pounds with sureties to secure and save harmless the towns of Plymouth, Duxborough and Marshfield from all charges and damages that may arise by said child. And that he stand committed until sentence be performed.
SF 142245. Subscribed: “A true copy of record examined per Ed. Winslow Junr. Cler.” In the MS the numbers of the paragraphs are written in the margin.