Ann Josselyne of Marlborough claimed that John Harrington of the same town was the father of her illegitimate child born in June 1768. At the Middlesex General Sessions, Concord, September 1769, she was fined five shillings for fornication, and her accusations were tried.1 After hearing evidence and the oath of the complainant that Harrington was the father, the court ordered him to pay support for the child and give bond to indemnify the town (Document I).

In the same month Samuel Fitch, acting for Harrington, moved the Superior Court sitting at Worcester for a writ of certiorari returnable at the October 1769 Cambridge term. The writ issued and the case was docketed in Middlesex County.2 The first two errors assigned by Fitch (Document II) are the same kind of omission from the record of findings of statutory requirements which Adams urged in Essane v. Dotey, No. 28. The third error, seemingly based on the reasons stated by the court for its decision in the latter case, was that the judgment of the Sessions had been founded only upon the complainant's oath. Finally, Fitch urged that the complainant 330had not in fact been examined in her “travel” (travail), and that she had not accused Harrington until after the event. He had previously assigned as error the failure of the record to recite these facts, but he now seemed to be going behind the record and asserting a failure of proof.

The case was continued from term to term until April 1771, when the court held “that there is no Error either in the Record and proceedings aforesaid, or in the Rendition of the Judgment aforesaid, and that the said Record is in no wise vitious, or defective.” The judgment of the Sessions was affirmed with costs.3 After Essane v. Dotey, the question of what recitals, in addition to the complainant's oath, were necessary to the record had remained open. Josselyne v. Harrington indicates that none of the requirements of the statute were considered “jurisdictional” in the sense that the record was faulty without them. Fitch had apparently urged that the court read the record (Document I) so that the word “thereupon” in the phrase “they do thereupon adjudge” referred back to the oath only.4 The record also recites that the Sessions heard “Evidence,” a statement not present in Essane. This distinction may have been the basis upon which the Superior Court rejected Fitch's reading and upheld the record in the present case.

Adams' minutes (Document III) present the further interesting possibility that the Superior Court heard evidence on at least one of the points raised by Fitch's fourth assignment of error, despite the fact that it had seemed to find the matters there asserted nonjurisdictional in the sense that they need not appear of record. This is a possibility only, because Adams' minutes cannot be dated precisely by either internal or external evidence. The fact that they are headed “Ann Josselyne vs. John Harrington. Bastardy,” and the English rule that on certiorari nonjurisdictional questions were to be dealt with only on the basis of the record, suggest that the document dates from the Sessions.5

On the other hand, there is much to support the theory that it is a minute of proceedings in the Superior Court. It opens with a question asked by the “C.J.,” or Chief Justice, relative to the validity of circumstantial evidence as a substitute for the statutory requirement of examination during travail. Since this was precisely one of the points which Fitch had raised on certiorari, the question was a logical one to be asked at those proceedings. Moreover, the usage “Chief Justice” indicates the Superior Court. The statutes establishing the court system expressly provided such an officer for that tribunal, but did not so provide for the Inferior Court of Common Pleas, or the Court of General Sessions. In fact the presiding justice of those courts was usually known as “First Justice,” a reference to the position of his name in the commission appointing the court.6 Finally 331the language of the court's decision, already quoted, is not inconsistent with the view that the court had gone behind the record as Fitch had asked. The finding of no error in “the rendition of the judgment” is stated disjunctively from the findings regarding the record,7 indicating a separate finding that there was evidence to support the judgment.

If Adams' minutes are in fact from the Superior Court, the procedure followed can be rationalized with the usual understanding of the scope of review on certiorari only on the assumption that the court ignored the English view that “jurisdictional” facts had to appear of record, but went into the questions here raised because they were “jurisdictional” in the sense that they reflected the requirements of the statute.

At a Court of General Sessions of the Peace begun and Held at Concord within and for the County of Middlesex on the Second Tuesday of September being the twelfth Day of said Month Annoque Domini 1769.

John Harrington of Marlborough in the County of Middlesex Husbandman being bound by Recognizance for his Appearance at this Time to answer to the Complaint of Anna Josslin of Marlborough aforesaid Spinster for begetting her with Child of a Bastard, (of which she was delivered in Marlborough aforesaid on the twenty fourth Day of June AD 1768) And the said John being now in Court and charged by the said Anna with being the Father of the said bastard Child born of her Body as aforesaid, denied the said Charge and Accusation; and after a full hearing of the Parties and their Evidence, it appears to the Court and they adjudge that the said Anna Josslin be admitted to her Oath, and she being Sworn, upon her Oath, in Court, says that the said John Harrington is the Father of the bastard male Child born of her Body as aforesaid.

It's thereupon Considered by the Court and they do thereupon adjudge 2 the said John Harrington to be, and he is hereby adjudged 332to be the reputed Father of the same Child and order that he stand chargeable with the Maintenance thereof with the Assistance of the said Anna Josslin the Mother; and that he pay the said Anna the Sum of forty eight Shillings for the first four Weeks next after the Birth of the Said Child towards the defreying the Charges and the Maintenance of the Same Child to that Time, and that he also pay her two Shillings per Week from thence to this Time, and also that he the said John pay to the said Anna from hence forward two Shillings per Week, weekly, towards the Maintenance of the Same Child untill the further Order of this Court. Also it's Ordered by the Court that the said John Harrington give Security, himself as Principal in the Sum of one hundred Pounds with two Sureties in the Sum of fifty Pounds each for his Performance of the above Order with Respect to the Maintenance of the said Child. And also that he give Security, himself as Principal in the Sum of fifty Pounds with two Sureties in the sum of twenty five Pounds each to save the Town of Marlborough, where the same Child was born, harmless and free from any Charge for the Maintenance of the said Child; And that he pay Fees and Costs of this Prosecution; Standing committed 'till performed.