[947] On the "divorce suit as civil or criminal" see, however, Bishop, Marriage, Divorce, and Separation, II, secs. 483-88, pp. 218-20; also Kent, Commentaries, 100.
[948] Hutchinson, Hist. of Mass., I, 393.
[949] Whitmore, Col. Laws of Mass. (1660-72), 36; (1672-86), 143.
[950] It is ordered "that such of the magistrates as shall reside in or near Boston, or any 5, 4, or 3 of them, the Governor or Deputy to be one, shall have power to assemble together upon the last fifth day of the eighth, eleventh, second, and fifth month, every year, and then and there to hear and determine all civil causes whereof the debt or trespass and damages shall not exceed £20, and all criminal causes not extending to life, or member, or banishment, according to the course of the Courts of Assistants, and to summon juries out of the neighboring towns."—Mass. Col. Rec., I, 276. In 1648 the number of such courts was reduced to two: ibid., II, 286; III, 175.
[951] In the petition for divorce in the Halsall case the counsel for the plaintiff says: "But considering the power of divorce doth properly belong to the Honored Court of assistants as is expressed in an order of the general Court (May 16, 1656) & a president ther is for it (namly Mr. freeman sometimes of Watertowne) & the law admitts it (page 17)."—MSS. Early Court Files of Suffolk, No. 257. From the last phrase (in which he reads "submitts" for "admitts") Whitmore thinks it "a reasonable surmise that this clause stood in the code of 1649, under the title Courts": Bibliog. Sketch, 101, note. The general court, referring to the same case, declares that it "doth properly belong" to the court of assistants: Mass. Col. Rec., IV, i, 272. Cowley, Our Divorce Courts, 10, mentions the error of Palfrey, Hist. of U. S., II, 17, who says the superior "courts had jurisdiction in cases of divorce."
[952] Cowley, Our Divorce Courts, 28-31; Whitmore, Biog. Sketch, 99-101, note; Newhall, Ye Great and General Court, 380-84; Goodwin, Pilgrim Republic, 596.
[953] Mass. Col. Rec., I, 283. For this case and that of Frier v. Richardson see above, chap. xii, p. 159.
[954] Elizabeth Frier v. John Richardson: Records of Court of Assistants, 1641-1643/44 (Barlow MS.): published in Whitmore, Bibliog. Sketch, xlii; also in Mass. Col. Rec., II, 86.
[955] N. = Noble's Records of the Court of Assistants, I; W. = Record of the Court of Assistants, in Whitmore's Bibliog. Sketch.
[956] Records of Court of Assistants, 1641-43 (Barlow MS.): published in Whitmore, op. cit., xlii.