In many ways it is reasonable to consider this period of Paine’s life to be the most important of his professional career. No longer simply the conscientious committeeman, he became individually responsible for a wide range of issues that would affect society. During his tenure, Paine would reshape the office of attorney general by being much more proactive than his predecessors and riding the full circuit of the court rather than assigning outlying districts to surrogates. He would also help to reshape the law itself by participating in the construction of the state constitution in 1780 and the subsequent revision of the state’s legal code.


At this time the role of the attorney general was still in flux, and Paine occasionally turned to the General Court for advice on particular matters; the reverse held true as well. One example of this occurred in February 1779 when a J. Greenleaf4 wrote to Paine as attorney general “desiring his advice relative to two of Col. Crafts’s Regiment committed for theft.” Paine brought the letter before his fellow councilors, who recommended a joint committee to discuss the matter with Paine himself representing the Council. The House appointed Colonel Peck and Major Page.5 Although the outcome of this particular case is unknown, it shows the cooperative nature of the government as it attempted to establish boundaries among the various departments.


For the period of Paine’s tenure as attorney general, there are few surviving letters which relate directly to his work in that office, but details R11 of his work emerge from legislative papers, legal notes, and case files. In 
addition to the routine duties associated with prosecuting criminal cases in the continuing circuit of the Superiour Court, the state legislature added new responsibilities to the attorney general’s role through various acts and resolves. These pieces of legislation are printed here within the chronological order when they relate to general issues. Acts or resolves obliging the attorney general to prosecute specific individuals for specific crimes are mentioned in footnotes or occasionally printed in full.


Despite the lack of official attorney general correspondence for this period, Paine left voluminous notes on cases which he brought before the Superiour Court of Judicature and (after 1780) the Supreme Judicial Court. Volume four of The Papers of Robert Treat Paine includes sample cases from each year of his term as attorney general. This is by no means comprehensive, as Paine’s court notes are extensive if cryptic. Cases were selected to offer a wide array of crimes and jurisdictions. Generally, each case is kept together as a unit and placed chronologically at the beginning of the court session in which the jury trial occurred, unless the grand jury and trial jury fall into different years. Usually the treatment of a case includes the grand jury testimony from Paine’s notes, the indictment from the official court record, trial notes and notes on the defense again from Paine’s notes, and finally a result to the trial and sentencing, if applicable. The case notes are supplemented by the Suffolk Files series in the Massachusetts Judicial Archives, which includes all the surviving file papers for the Supreme Judicial Court and its predecessor courts before 1799. These files contain the indictments, which are usually in 
Paine’s handwriting. 


The documents in this volume are arranged in a chronological progression and demonstrate the manner in which various issues conflate, but a thematic consideration provides a different lens. The following pages first consider the changed structure of the law through the 1780 state constitution’s implementation, which resulted in revision of the legal code and the creation of the state Supreme Judicial Court. The next section, “Crimes and Punishments,” considers how both crimes and punishments changed during Paine’s attorney generalship. The final sections look at two specific areas of legal contention at that time—the treatment of loyalist estates as both a punitive exercise and a fundraising attempt and the early actions on abolition and equality under the law.


The town of Taunton chose Paine and George Godfrey as representatives to the constitutional convention, which met at Cambridge on September 1, 1779, to devise a new frame of government for the province.6 The matter of a new governing document for Massachusetts had been discussed as early as 1776,7 and in the winter of 1777–1778 a legislative convention proposed a constitution, but it was overwhelmingly rejected by town meetings across the province. The task was now assigned to a popularly elected convention. Along with the attorney general, all the justices of the Superiour Court were elected from their respective towns, together with a wide-ranging cross section of the province.8


From the larger convention, a committee of thirty-one was chosen to draft the constitution. One or two delegates from each county plus four delegates-at-large formed the committee, which included Paine and Rev. Samuel West of Dartmouth representing Bristol County, and also notably James Bowdoin, John Adams, Theophilus Parsons, James Sullivan, and David 
Sewall. Paine’s activities at the convention fell into several areas. Along with Judge Nathaniel Peaslee Sargeant and Theophilus Parsons, Paine was to study the twelfth article of the proposed declaration of rights, which concerned the rights of prisoners. As finally accepted, the article read:


Paine also served on a committee to consider amendments to Article III, which concerned the support of public worship, but their report was “very largely debated.”9 Determining that required payment for support of R13 religious worship was “necessary to the preservation of civil society,” the eventual article provided that rates collected under this act could be applied to “the support of the teacher or teachers of” any rate-payer’s “own religious denomination, if there be such whose ministry he attends upon”; otherwise the taxes went to the town parish. On the day after Article III was accepted, Baptist minister Isaac Backus met with four of the Baptist delegates and “They informd. me that mr. John Adams and mr. Paine gave the convention a false acct. of the affair of my going to Philadelphia [in 1774] which had some influence toward procuring an article that passed yesterday which incroached upon our religious rights.”10 Backus refuted their claims in the Independent Chronicle on November 16, 1778, and announced that he was “ready to meet them before any proper judges, when called, to answer for every word therein [the memorial of 1774] and to suffer deserved punishment if I am convicted of advancing any one accusation against my country or against any person therein that I cannot support.”11


Paine’s other committees recommended the regularization of senatorial elections, the abolition of the old Court of General Sessions of the Peace and annexing its business to the Court of Common Pleas,12 a determination on “who are, or shall be deemed subjects of the Commonwealth of Massachusetts,” and finally a further convention to ratify the proposed constitution. Other articles adopted which directly affected Paine were the prohibition of various civil officers—including judges, registers of deeds and probate, and the attorney general—from serving in either house of the legislature and the decision that thereafter the office of attorney general would be made an appointment of the governor with the approval of the Council rather than an act of the House of Representatives.13


In regard to these new appointments and elections, a distinctly anti-lawyer sentiment was developing which would soon blossom into rebellious R14 actions against the whole legal system, particularly in the western counties. In an open letter to the freeholders of Massachusetts about to elect new representatives, the Continental Journal sandwiched this warning between others against Tories and “enemies to freedom of speech”:


Paine was not a visionary—that very fact had gotten him into trouble with his congressional colleagues, who attempted to dump him from the delegation in 1775 when he was reluctant to encourage the independence movement. His instructions from the Massachusetts General Court did not go that far, and he would not exceed those instructions. As attorney general, Paine also followed the book to the letter of the law. However, he did have the extraordinary opportunity to actually re-write that book. 


On November 27, 1780, the House appointed a seven-man committee to revise the laws of the Commonwealth in accordance with the new constitution. Chosen for this task were James Bowdoin, William Cushing, Nathaniel Peaslee Sargeant, David Sewall, James Sullivan, Robert Treat Paine, and John Pickering.15 Their mandate was to “enter upon the revision of all acts and laws which have heretofore been in use and practised in this Commonwealth . . . [and to] select, abrige, alter, digest, and methodize the same, so as to make them consistent with the constitution, and intelligible to the common people; . . . frame such other acts and laws as you shall think necessary to the good government and happiness of this Commonwealth, and also such modes of proceeding in courts of justice, and such blank forms of all processes as you shall judge usefull and best to be known and observed.”16 One supporter hopefully expected “the Names R15 of a Justinian an Alfred & an Edwd. will be lost in the Lustre of the Authors of our new code.”17


The commission,18 under the chairmanship of James Bowdoin, began its task by examining the Perpetual Laws of Massachusetts and dividing it up amongst the commissioners for specific bills to be written and proposed.19 Paine’s assignment was the entire “System of Criminal Law, and punishment of all offences criminalliter,” including his own particular area of concern: counterfeiting.


Paine noted in his diary that the committee met occasionally.20 In June 1781 the General Court directed the committee specifically to “take into consideration the laws for the due bill for preventing drunkenness and other atrocious vices.”21 In January 1782 the General Court provided the committee with a room in the house of William Jackson, an absentee, and hired two secretaries to assist in their tasks.22 On January 25 the entire committee appeared before the Council for a first reading of seventeen proposed acts and returned on the 29th for a second reading of the bills. This first set of bills laid out a wide-ranging establishment of fundamental mechanics for operating the courts.23


Among these proposed laws was one to establish the Supreme Judicial Court. Although heavily amended by the General Court, the bill was engrossed by the Senate and sent down for concurrence on February 8.24 Over 150 of the old laws were revised and consolidated by the commission, but the state legislature pushed for more work. James Bowdoin chose this point to resign his chairmanship, claiming that his recent election as governor R16 
would not allow sufficient time for his committee responsibilities.25 Chief Justice William Cushing was appointed his successor. Paine evaluated the new system for a friend on Cape Cod: “How well they will please I can’t tell, but I know there has been great pains taken to make them consistent, concise, intelligible & applicable, & if they are finished as begun, I venture to say they will not be worse than the old ones.”26


In November 1785 the committee to revise met at Salem while the Supreme Court was sitting there and over the course of two weeks “determined a Number of law matters, leaving some of the more knotty ones” for a latter meeting.27 Judge David Sewall came down from Maine in January 1786 for another session, and he reported to Judge Nathaniel Peaslee Sargeant that they “for two Weeks spent the time diligently & I hope profitably for the public as the following important Reported Bills will show.” The various revised laws included several reported in by Paine: laws to punish fornication and provide for illegitimate children, to combat counterfeiting and uttering counterfeit money, to regulate licensed houses and suppress houses that were unlicensed, and finally, to regulate the trial of seizures for breach of law.28 


The work of the revising committee came to fruition on July 3, 1782, when the General Court enacted legislation to create the Supreme Judicial Court.29 In November 1783 Paine was nominated as a justice of the Supreme Judicial Court, but he eventually declined the commission.30 In his letter to Governor Hancock, Paine recalled the first time he had been offered a position on the bench and somewhat rosily remembered his reason for refusing that time as being “incompatible with my Engagements in the Political line on which Line I considered the Salvation of R17 

my Country to depend.” He was very clear that this time the reason was 
strictly financial: it hath been my Fortune to have attended so intirely to the Concerns of the Revolution from its beginning, as to have lost the Prospects of the business I was in when it began, and to have neglected my private Interest very detrimentally; mean while my Family has encreased to the number of seven children from fourteen years old & downwards to an Infant; the unavoidable expences of Supporting which to a Person in a Rank of Life no higher than that in which I have always been, must needs be great.
 Even by retaining the attorney generalship, Paine felt that he “must endeavour to bear in a humble Scituation such Poverty as the fruit of my Patriotism,” which the acceptance of a judgeship would render “more grevious.”31


Throughout Paine’s time as attorney general, from 1777 to 1790, the pattern of criminal judicial actions changed considerably. In the early days, crimes against the state and counterfeiting took the strongest lead in 
statistics, while as the years went by property crimes became overwhelmingly more numerous. Personal crimes (including murder, sexual crimes, and assault) ran in an uneven pattern throughout the period. Crimes against property quickly rose as military action moved further away from Massachusetts, a trend which continued throughout the immediate post-war period.


In the year 1778 (the first full year of his tenure), Paine prosecuted fifteen cases that could be considered “crimes against the state”—that is, against law and order—which included multiple charges brought against a group of men who did “traiterously levy war” against the state, a charge against a man attempting to enlist soldiers into the British army and one against a man for carrying supplies to the enemy. Although Paine certainly considered counterfeiting as a crime against the state, in this table it is set as a separate figure, as otherwise it would simply swamp the other categories. In this year, there were twenty-two indictments for counterfeiting, compared with three for murder (although one of those indictments was against multiple individuals in the notorious Spooner case discussed below), one for burglary, and two for highway robbery.


By 1785 the picture had changed dramatically. In that year, there were the first trials against those attempting to stop the courts, a case of perjury, one of barratry (in this situation, the bringing of nuisance cases), two for attempted jail breaks, and one for setting fire to the Plymouth jailhouse. This compares with thirteen charges of counterfeiting and three cases of personal crimes—two for the murder of bastard children and the other for “negro fornication.” However, there were fifty-five indictments for crimes against property that year, mostly dealing with theft and burglary but also including fraud and forgery.


The following chart shows the number of criminal cases brought before the Superiour Court of Judicature and its successor, the Supreme Judicial Court, during Paine’s time as attorney general. The cases are arranged into three major categories: crimes against the state (including treason, sedition, perjury, jailbreaks), against people (including murder, assault, rape, adultery), and against property (burglary, theft). The category of crimes against the state is further subdivided into counterfeiting and forgery (which included both forgeries of bank notes and deeds, but excluded two known cases which involved the forging of a bill and a receipt, which have been included in the category of crimes against property).


Crimes against the state had two peaks in the 1780s when western Massachusetts was in particular turmoil following statewide riots stemming from the troubling economic situation—especially in regard to unpaid taxes. A large number of the resultant indictments and trials—some of which were categorized as treason trials—followed the popular uprising generally known as Shays’s Rebellion.32


One lesser example occurred in 1783 in Paxton, when there was a “riot” after locals tried to prevent the auction of cattle which had been seized in lieu of taxes. When the Paxton rioters were brought before the court, the principal litigant, Asa Stearns, complained that his cow had been taken for taxes, arguing that if he had paid the required £5 he would have had no money left to buy flip, the local brew. He also rather illogically stated that if he paid any more taxes, he would no longer have any money to pay his taxes. There were ten men charged with rioting offenses, all of them found guilty after a jury trial. Asa Stearns, for his trouble, was ordered to pay a fine of £7 to the Commonwealth, recognize a sum of £50 with sufficient surety to guarantee three years of good behavior, pay the costs of prosecution, and stand committed until the sentence was complete.33


Even after the Revolution’s active fighting shifted to other parts of the continent, many crimes in Massachusetts continued to reflect the ongoing war. In one case in 1780, nine prisoners of war from a guard ship anchored off Lechmere’s Point were charged with the murder of the sergeant of the guard. Three other prisoners were stricken from the original indictment when they turned state’s witness. The prisoners petitioned the court, stating that each of them was a British subject and was captured while actively fighting for His Majesty the King. They claimed that the civil court in Massachusetts had no authority in such a case, but in his response to the petition, Paine claimed that the state did indeed have proper jurisdiction, and so the case proceeded. To get around that point, when the indictment was drawn up, each man was listed a laborer of Boston even though they were in fact British prisoners of war. However, the defense team—Increase Sumner and Benjamin Hichborn—argued that as enemy soldiers they had every right to use all means to seek their freedom from capture, and this R20 included killing the guard. They were to be treated as soldiers doing their duty to escape, and the death was a normal consequence of enemy actions. They even cited the Boston Massacre trials, which Paine himself had prosecuted, as precedent for the action of combatants, none of them responsible for the actions of the others. Witnesses emphasized the foreignness of the men—McGregor in particular was noted to be wearing his “kelts” and “Scotch stockins”—and the others carrying guns that they had brought from Ireland. The jury followed the defense reasoning, and all the men were found not guilty.34


In capital cases, being foreign was particularly difficult. When John Dixon was executed at Taunton for shopbreaking and theft in 1784, the Massachusetts Spy observed that “It is worthy of remark that the various culprits that have been executed, and are now under sentence of death, within this commonwealth, since the revolution, have been chiefly foreigners. Out of 16 that have suffered, but four of them were Americans, and but two belonged to this State.”35


Not only was execution still regularly employed, but so were other, older methods of punishment. When John Bartlett pleaded guilty to stealing notes due to a soldier on depreciated wages in 1781, he was fined £50, sentenced to six months imprisonment, and ordered to pay costs. However, at the same court, he pleaded guilty to another of the same type of fraud, and for this he was sentenced to pay costs, spend one hour in the pillory, and have his right ear cut off. For a third similar charge, he was to pay costs and spend one hour on the gallows.


A number of cases carried penalties which seem more in keeping with the Puritan era than the Early Republic. Priscilla Warfield was charged in the case of “negro fornication” mentioned earlier. She was to spend one hour on the gallows, be whipped twenty times, and to “forever hereafter wear a capital A of two Inches long, and proportionable Bigness, cut out in Cloth of a contrary colour, to her cloaths and sewed upon her upper garment on her back in open view.” And, of course, to pay court costs.36


There was some equal treatment between genders, as when Amos Marsh and Jerusha Doolittle pleaded guilty to adultery: each of them was sentenced to spend an hour on the gallows, to be whipped ten stripes on R21 the way from the common jail to the gallows, and to wear that two-inch letter “A” on their outer clothing.37


While western Massachusetts became embroiled in political unrest, the eastern part of the state seemed more concerned with property crimes. A particularly heavy docket of cases faced the Supreme Judicial Court when it met for its August 1784 session in Boston. Seven men were indicted for burglary, of those two were found guilty and were later executed; six more men were charged with theft or stealing, five of them were convicted; two were charged with “breaking shop & stealing,” one was convicted; five more were charged with theft after a first conviction, three of them were found guilty; one man was found guilty of receiving stolen goods; another was found guilty of breaking jail; and three were found guilty of various counterfeiting charges. The only woman brought before this 
session, Mercy Young, was found guilty of forgery, fined £20, sentenced to three months in prison, and ordered to post a bond of recognizance in the sum of £100 for two years.


The punishments that the men received generally included paying treble damages plus costs, as well as whipping (ranging from ten to thirty stripes in these particular cases). One man, Thomas Joyce, convicted of breaking shop and stealing, not only had the regular punishments inflicted but was also ordered to be branded on the forehead with the letter “B” and, since he could not pay, was disposed of for eighteen months. Indentured servitude for non-payment of court fines was still commonplace. These could be ordered for as short as six months, but as long as fifteen years. That longer term, for example, was meted out in 1793 to Catharine McCarty upon a conviction for theft, while her male partner in the crime was sentenced to five years of hard labor on Castle Island.38


It was the opening of a state prison on Castle Island in Boston Harbor in October 1785 that radically changed the types of punishments that could be provided. The men who were sentenced to hard labor at Castle Island—and it was exclusively a male prison—were almost all guilty of relatively minor property crimes, including housebreaks and thefts, horse stealing, passing counterfeit money, and particularly stealing from shops. But it was most often used for recidivists, those seemingly incapable of R22 correcting their behavior after a first offense. Ten men were taken there in the first year. This new punishment for the court to impose proved popular with the justices, and the following year they imprisoned thirty-eight more. Three years later, thirty-six men were sent to the Castle, and forty-four more were added in 1790. The inmate population of the prison ebbed and flowed over the years as new prisoners were admitted while others were “liberated” at the conclusion of their sentences, escaped, or died. The highest number ever reached was on June 25, 1791, when a combination of a higher conviction rate and longer sentences brought the total to ninety men at hard labor. The Supreme Judicial Court issued approximately two-thirds of the sentences to Castle Island, and one-third came from the county courts of General Sessions.39


While counterfeiting and its effect on the fragile economy were major concerns of the Superiour Court during the Revolutionary era, the whole criminal docket “expanded with unprecedented rapidity” with cases in treason, theft, perjury, murder, and lesser offenses.40 Among the criminal proceedings, in April 1778 the attorney general acted for the state in two murder trials of some note. The first was held at Worcester for the murder of Joshua Spooner at the instigation of his wife, Bathsheba, who recruited her teenage lover and two former British soldiers, probably deserters from Burgoyne’s army, to commit the crime.41 Because of the prominence of the families concerned and the conspiratorial nature of the murder, this trial attracted great attention at the time, and its aftermath would prove even more sensational. Bathsheba Spooner, “the inventor of the murder,”42 was the daughter of Gen. Timothy Ruggles and connected with some of the most notable families in Worcester County. General Ruggles with several of his sons adhered to the loyalist side during the Revolution and settled in Nova Scotia, leaving behind in Worcester County a legacy of resentment toward his family, which would become a factor in the trial.43 


Chief Justice William Cushing presided at the trial, complemented by the full bench of justices Jedediah Foster, Nathaniel Peaslee Sargeant, R23 David Sewall, and James Sullivan. Levi Lincoln, a local lawyer, was assigned as counsel to the prisoners, while Paine acted for the state. In his minutes for the case Paine notes: “Mrs. Spooner must be out of her head to comit this crime & orphanize her Children.”44 The indictment read by Paine not only resonates with reminders of the law’s medieval heritage but also reinforces the concept that crimes of violence were crimes against the 
community:
 And that Bathsheba Spooner, of Brookfield, in the County of Worcester, Widow, late Wife of the said Joshua Spooner, not having God before her Eyes, but being seduced by the Instigation of the Devil, before the felony and murder aforesaid . . . in manner and form aforesaid to be done and committed maliciously, willfully, and of her malice aforethought did incite, move, abett, counsel and procure, against the peace of the Government and people aforesaid.45


In his opening remarks for the defense, as reported by Peleg W. Chandler, Lincoln “begged the jury to banish all feeling and prejudice—all indignation at the enormity of the offence—all opinions from hearsay—all political feelings.” Since all three men had confessed and implicated Mrs. Spooner, and she herself had admitted her involvement, Lincoln was forced to base his defense on technical points, particularly on the role of principal or accessory in the crime. The defense, although “some portions of it were ingenious,” raised no real doubts about the culpability of the defendants. As a result, “it required but little effort, on the part of the attorney for the state [Paine], to expose the fallacy of the technical points, in their application to the facts as proved.”46 The trial lasted for sixteen hours, and all the defendants were found guilty and condemned to hanging. At this point the proceedings took an unexpected turn. Mrs. Spooner, who had accepted judgment, requested a respite from execution claiming that she was “quick with child.”47 A panel of male and female midwives inspected her and ruled that she was not with child, and therefore R24 the executions were carried out on the Worcester common.48 Rev. Thaddeus Maccarty, one of the few who believed Mrs. Spooner’s concern about her unborn child, preached the execution sermon on the text: “The Guilt of Innocent Blood Put Away.” An autopsy later revealed that she had indeed been carrying a five-month-old fetus. The horror that spread through the Commonwealth on the spilling of “Innocent Blood” in this manner wiped out any feelings of justification in the state’s conviction.


At a second murder trial the same month, the Superiour Court met at Northampton on April 30, when the state brought a case against Maj. Nathaniel Danielson for the murder of Jabez Nichols. The trial proceeded expeditiously until the jury returned with its verdict. As Paine recorded in his diary: “The Jury in sd. case being asked if the Prisoner at the Bar was guilty or not guilty said not guilty wch. being recorded & a motion made for the Prisoner to be discharged without day one of the Jury said the Foreman had not delivered all the Verdict, & that they want to say he was guilty of manslaughter, & expected to be asked another Q: but the Court sd. the Verdict was recorded & could not be altered & the Prnr. was discharged.”49 Purely technical procedural points could still determine the course of law.


Although day-to-day activities usually consumed the attentions of Paine and the rest of the Massachusetts legal community, the war against Great Britain still raged elsewhere and occasionally demanded their full attention. The war had effectively left Massachusetts at the evacuation of Boston in March 1776, and since that time the military concerns of the 
legislature revolved mainly around supply procurement for the Continental Army. This was reminiscent of Paine’s role at the Continental Congress, where armaments and munitions claimed a larger portion of his attention than did military tactics or political maneuvers. However, when legal and military concerns collided in the autumn of 1778, Paine became involved in a series of military treason trials. 


The full Superiour Court of Judicature sat at Springfield in October 1778 for the session which tried eighteen individuals for treason after they R25 were accused of deserting to the enemy. The full charge read that they did “traiterously levy war against this and every of the united States of America; and repair and go to the Encampment & within the lines of the Enemies . . . and put himself under their direction and gave them ayd and comfort.” From among the first group of eleven prisoners, the jury found all not guilty, but in each case the attorney general moved that the prisoner “be not discharged & go without Day, but that he be recognized to keep the Peace & be of good Behaviour; for that tho the Jury have doubted whether the Evidence against him was sufficient to convict him of the Treason charged yet That the evidence amounted to proof of a high misdemeanor, & shows it not to be safe for this state that he go with out Bonds.” The court levied bonds against each ranging from £200 to £600 plus two sureties apiece.50 The next day, seven others were also tried on the same charge, but this time the “Jury brought in five not guilty & two vizt. Philemon Lee & Wm. Brown guilty.”51 Curiously, this second case does not appear in the minute book for the Supreme Judicial Court but is included in Paine’s case notes which list the case as “State vs. Thos. Rogers, Simeon Franklin, John Franklin, John Gardner, Benja. Gardner, William Brown, Philemon Lee.” Theodore Sedgwick, who acted for the defendants, argued that there was no treason since there was “no Evidence of a conspiracy,” and “the crime is not of a secret kind (is not conspiring secret).” And in any event, he pointed out that “Political disputes run high & people differ in opinion clergy as well as others. 
Torys are hated.”52


In the spring of 1779, when the court traveled to Great Barrington for the May session in Berkshire County, they found “a No. of people met from several Towns to prevent the sitting of the Court.” A committee came “from the Convention of a No. of Towns with a written representation desiring the Court not to sitt & the people found & voted that it ought not to sitt, & thereupon the Justices of the Court sent a written answer than they would not sit.”53 The “Berkshire Constitutionalists” were not antagonistic to the courts per se, but rather used the court closure as a maneuver to oppose the legislature and its adoption of the Charter of 1692 R26 as a temporary constitution for the province rather than the old Charter of 1629, which had granted more individual rights.54 When the court decided that it would be counterproductive to attempt a session “while the People are thus averse to it,” they specifically avoided any reference to the legality of the issue.55 This general issue of court closures would reemerge several times in various permutations during the next decade.


The judicial system also became involved when the state’s economic system appeared to be failing the populace, and in July 1786 a county convention met at Taunton to discuss common problems of scarcity of money, high taxes, tight credit, and strict measures against debtors.56 Since the legislature had ignored the petitions of “honorable gentlemen of the county” concerning these difficulties, the convention resolved to prevent the further “ruin of many honest men and their families” and a large number pledged their “utmost to “oppose and prevent” the next sitting of the Court of Common Pleas at Taunton.57 Similar techniques, reminiscent of the those effectively used to force Peter Oliver from office little more than a decade previously, prevented the Courts of Common Pleas at Worcester and Concord from sitting in early September 1786. At Taunton the Common Pleas was continued only when Paine’s brother-in-law David Cobb switched from his role as a justice to that of commander of the county militia and allegedly told the crowd he would “sit as a judge or die as a general.”58 The court proceeded but the justices chose to immediately adjourn until December.


Paine was present for the October session of the Supreme Judicial Court at Taunton. Militia came in from Raynham, Bridgewater, and other surrounding towns to bolster Cobb’s local troops, while “the mobb” was “collecting around about to stop the Court.” On the 25th the mob converged on the town green, but when faced by Cobb’s 380 “well armed & officerd” troops they “marched off & disbursed & we heard no more of them.”59 The Taunton session then proceeded upon its assigned business and adjourned two days later.


A riot in Worcester County constituted one of the few times Paine allowed mitigating factors to affect his judgments. The only known instance when he varied from this was the case of a father and son who were convicted “of a Riot” in Worcester county. Both were jailed pending the payment of a fine plus costs. When informed that the son’s fine and half his costs could be paid, Paine recommended to the justices of the Supreme Judicial Court that he be released.
 From what I heard at the Tryal as well as what Capt. Josselyn [the local representative] now tells me I beleive the Son to deserve a good Character saving this particular, (to the Commission of which he was compelled by his Father), there is no great prospect that the father will be able to pay the Costs & I submit it to your Honor’s Consideration whether it is not best to permit the Sherriff to take the sons fine & half the costs & release him that he may return to his family & go to work. Capt. Josselyn’s proposal in this matter appears to me to be so reasonable & expedient that I take the Liberty to address you on the subject.60
 Other than this, Paine’s trademark as prosecuting attorney was his strict adherence to the letter of the law, including the issuance of punishments.


Summing up his work as attorney general when petitioning the legislature for payment for some of his work in February 1784, Paine asked: 
 what numbers of Plotts have been suppressed, what combination of secret Enemies & Villains have been broken up, & dispersed, & their Conspiricies defeated: during this time there was the greatest number of capital Tryals and those of the great importance, & also of other crimes of a most destructive nature to the existence & peace of Government that had been known for a very long time before, and for a great number of crimes that required discretion in the prosecution of the: the whole burthen of the Propriety, discretion, conduct & method of prosecution resting wholly on his own Judgment.61


On February 5, 1780, Paine noted in his diary that he “filed a No. of Information agt. Estates of Absentees.” The whole issue of loyalist estates and their disposition lingered throughout Paine’s term of office. Even after R28 his retirement from the bench, Paine was still petitioning the legislature for reimbursement on his legal work in this area. 


The early treatment of absentee estates in Massachusetts transpired whilst Paine was at Philadelphia during the Continental Congress. The first steps in the process in June 1775 concerned the protection of property abandoned as refugees either fled into Boston for the military protection of the British troops or left for other provinces. Abandoned properties were consigned to the protection of local committees of safety.62 Although personal property, particularly crops and other perishables, could be sold by local authorities, absentee real estate was safeguarded. However, the evacuation of Boston quickly changed the situation. On March 19, 1776, the House moved for the creation of a list of Boston loyalists and created a committee to bring in a bill for the confiscation of the estates of persons who had aided the enemy. Movement on this latter question by the House was temporarily held in check by the Council.63 However, on April 19 the House passed a far-reaching resolve in which the Council concurred four days later. This legislation authorized committees of safety to take possession of any property owned by absentees, as defined by the official list of loyalists, and to manage such properties to the best of their abilities. One-year leases to private individuals were now permitted on impounded estates. News of the Declaration of Independence provided the next impetus in confiscation actions. When the question of confiscation came before the legislature in October, Joseph Palmer wrote to Paine favoring the sales of estates, suggesting that such an action “will Sink a very large part of the public Debts.”64


By April 1777, when Paine was back in Boston as attorney general, the General Court passed a more stringent “Act to prevent the waste, destruction and embezzlement of the goods or estates of such persons who have left the same, and fled to our enemies for protection; and also for the payment of their just debts, out of their estates.”65 This act authorized judges of probate to appoint an agent over each loyalist estate, the agent to have full authority over the property “in as full and ample a manner as though R29 the absent persons was naturally dead and the said agent was appointed administrator of his or her estate.”


Following upon a recommendation from Congress, the General Court began discussing a confiscation act in January 1778, and the House reported a bill to this effect within a month, but by the end of the year the only result of these discussions within the General Court resulted in a bill “to prevent the return to this State of certain persons therein named and others who have left this State or either of the United States and joined the enemies thereof.”66 Opponents to confiscation continued to block the passage of effective legislation.67 James Warren, writing to Samuel Adams, expressed his thought that “some People of Influence” were against confiscation on general principle, although “some other Great Ones, haveing no principle themselves but their own Ambition and popular Applause, will Contend with violence for the Principle and then reduce it to Nothing by the small Number [of loyalists] to be Inserted.”68 Finally, on April 30, 1779, two sweeping confiscation acts were passed. The first appropriated the estates of twenty-nine individually named mandamus councilors, commissioners of customs, and certain other royal officeholders, including Gov. Thomas Hutchinson and Solicitor-General Samuel Quincy, without further hearing; and the second was against the estates of refugees in general and set up a procedure of public notification prior to sales.69


The first sale under these acts involved the Dorchester estate of Gov. Francis Bernard, which was sold to a local merchant on June 1, 1779. Bernard’s Roxbury estate was sold in July to another merchant, and by early September, fifteen more parcels had been sold. As a result, £123,784 in depreciated Massachusetts currency was paid into the treasury.70


Although action against the conspirators named in the first confiscation act was clearly defined by the statute, determining the status of absentees under the second act was still obscure. Paine, as attorney general, was responsible for filing libels against individuals before condemning estates to sale. Paine also relied upon the individual town committees to provide R30 information on absentees, and some were not very stringent in their proceedings. In Salem, for example, the committee was dominated by men of “liberal sentiments & moderate principles” who did not report all potential estates. Those of Samuel Curwen and Benjamin Pickman, in particular, were “winked out of sight,” until John Hancock personally intervened and provided Paine with the information necessary to file a libel against Pickman.71 In Berkshire County, the court-appointed representative, Truman 
Wheeler, submitted such inaccurate descriptions of loyalist real estate for twenty-four libels that Paine had to write to Theodore Sedgwick for 
assistance.72


A further resolve of September 23, 1779, directed that all improved property of the conspirators named in the first confiscation act should be sold as quickly as possible, and set up a mechanism whereby three-man committees arranged sales in each county.73 Profits from the sales were to be paid out to creditors, and any balance would revert to the state treasury. Beginning in October and continuing into 1780, auctions were held throughout Massachusetts. In Suffolk County, the committee consisted of Caleb Davis, Richard Cranch, and Ebenezer Wales. By April 19, 1780, when the General Court temporarily suspended sales there, sales in Suffolk County alone totaled £464,814. The 18 lots sold in Boston and 17 in other Suffolk towns—all formerly owned by conspirators—were sold to 18 merchants, 3 mariners, an attorney, a baker, a farmer, an upholsterer, and an innholder.74 Dissatisfaction over the prices realized, which Cranch admitted to John Adams were “very advantageous terms,” led to the suspicion that bids were kept artificially low for the benefit of a few individuals.75 When sales resumed in Suffolk County in 1781, the number of properties involved was dramatically higher. By 1783, this second round of sales had included 110 properties—formerly the property of 4 conspirators and 39 absentees—sold to 37 merchants, 17 gentlemen and esquires, 17 artisans, 2 physicians, 2 distillers, 2 mariners, 2 yeomen, 2 widows of absentees, and a shipbuilder for £46,148 in the new Massachusetts currency.76


These figures reflect Paine’s laxness in filing libels. Although he began in Suffolk County in January 1780, no others were filed until 1782. Of those which were filed, all but two were awarded to the state without lawyer representation. For the most part, Paine was remiss in following through most of the libels which he did write. Throughout his jurisdictions in Massachusetts and Maine, less than half were ever fully executed. The impact of the whole loyalist estate venture has been a matter of some difference in opinion among historians; for example, Richard Brown cites Richard Cranch’s inability to purchase the Borland estate in Braintree as proof of his contention that sales were not “especially beneficial to ‘insiders,’” and that since 70 percent of sales were through public auction, cash rather than connections were “the ultimate determinant” in the sales.77 David Maas, however, found that while some average citizens benefitted from the sales, it was the prominent leaders who had the edge in obtaining profit from the absentee estates. He invoked the example of Joseph Palmer, who ousted James Hayward as tenant to this same Borland estate in Braintree and obtained a lease from the local committee of safety. Although Hayward protested to the General Court, Palmer’s influence carried the issue in 
his favor.78


The provisional treaty of peace between the United States and Great Britain, concluded in November 1782 and signed in January 1783, intimated the clauses which would affect the issue of loyalist property in the final treaty. Indeed, the final Treaty of Paris, signed September 1783 and confirmed by Congress on January 14, 1784, recommended an end to confiscation of absentee estates. On October 4, 1783, the General Court passed a resolve directing committees involved in selling estates “to surcease the sale of the said estates until the further order of the General Court.”79


To effect the provisions of the treaty, the legislature on March 16, 1784, ordered the registers of probate to return the agents’ accounts to the secretary’s office before June 10. Committees still holding property were also to report to the secretary, and failing this would be reported to the attorney general, who in turn would prosecute any delinquents. It also provided that there would be no further sales without orders from the 
General Court.80


However, the conciliatory aim of certain treaty articles was overlooked by Massachusetts, which on March 24, 1784, enacted a bill “asserting the right of this free and sovereign Commonwealth, to expel such aliens as may be dangerous to the peace and good order of government.”81 Although Article Six of the treaty included a ban on further confiscations and recommended restoration of estates, this new bill specifically excluded people named in the 1779 Confiscation Act from the benefit of this provision. As a result, on July 2, 1784, the General Court ordered that confiscated estates, with the exception of insolvent ones, should be sold by auction for public securities.82 Because titles to some of these auction-sold properties were questioned, the attorney general was instructed by a resolve of October 28, 1784, to appear and defend the titles of confiscated estates.83 


Paine himself, as a member of the committee to revise the laws, was called upon to help shape the laws that he would enforce against the absentees. The legislature specifically instructed the committee “to revise the Laws already in being, respecting, the mode of admitting, or excluding persons commonly called Absentees; and consider what further measures are necessary to be taken for that purpose.”84


In regard to the fee bill established for the costs of prosecuting claims against absentee estates, Paine claimed that it was “the promise of Govt. to the Atty. Genl. to induce him to prosecute that ungrateful business of Confiscating Estates.”85 Many of the libels which were filed in county courts languished there unfulfilled.


One of the returning loyalists, John Temple, placed Paine in the middle of a political thicket in early 1783. Temple, who had served as a British customs official before the Revolution and was allied by family ties to the prominent families of Massachusetts (as son-in-law of Gov. James Bowdoin) as well as the British nobility, spent the war in occupied New York. He now returned to Massachusetts, where he applied for citizenship. James Sullivan, then a judge of the Supreme Judicial Court and a close political ally of Governor Hancock, suspected Temple’s loyalty and convinced the governor to order an investigation. 


Paine, as attorney general, was directed by the General Court to look into the question. One of the few men in Massachusetts who could claim allegiance to both camps, Paine was closely linked to Hancock and Bowdoin, particularly the latter through both political and social ties. For once (perhaps the only time in his career), Paine chose to ignore an order, in this case a directive of the General Court. That lasted until the end of January 1783, when the House ordered the attorney general to report “what measures he has taken” in the affair. The next day, Paine attended the House session “& said that he had not taken any measures relative to Mr. Temple’s affairs for which he gave his reasons.”86 However, at least in the opinion of one anonymous broadside claiming insider knowledge, it was considered “a very frivolous (and in the opinion of some of the Members a very impertinent) excuse or apology for such his total neglect of positive orders given the preceding session!”87 The House ordered an explication in writing. The written argument presented by Paine was that the case was at least partially “bottomed upon great political questions . . . & therefore not cognizable by or suitable to be submitted to the determination of a Grand Jury.” Furthermore, if he had prosecuted Temple for the alleged crimes, it would have been a de facto acknowledgment of his questioned citizenship.88 The House then referred the issue back to the governor, but Temple soon resolved the situation himself by accepting the British consulship to New York and removing himself from consideration as a 
Massachusetts citizen.


Among the many legal issues which the state brought before the Supreme Judicial Court during the 1780s, none had more long-term effects (despite scant immediate notice) than the several cases related to slavery.


As was common with many of the merchant and clerical families of Boston, Paine was raised with a black slave in the household.89 And dur­R34ing his merchant days in the Carolinas, he sold at least one black slave as a commodity.90 However, there was also a large free black community in Boston, and, as a lawyer, he recognized their legal standing. In 1767 he stood as attorney for two free blacks in civil cases in Plymouth County.91 


During the Revolution, black people raised questions as to their legal status by serving in the military. Two African Americans who had signed aboard the armed brig Freedom were apparently seized and offered for sale, but, as Paine wrote to an unidentified correspondent, they should “be Considered in the same light as any other Sailors, and [were] by no means liable to be sold meerly because they are black and their masters have a property in their Service.”92 However, the slave-freeman question continued, and as late as 1779, Paine, as attorney general, was obliged to call upon the Taunton magistrate Robert Luscombe to either issue a formal manumission to Prince Harden or face an action that “will be commenced to next Court that so if he be yr. slave you may have an opportunity to prove it.”93


The series of cases which putatively eliminated slavery in Massachusetts under the new state constitution revolved around a former slave named Quock Walker. Walker had escaped from servitude in western Massachusetts and was working as hired labor when his former master discovered him and beat him in order to force Walker’s return. Suits were brought in the Inferior Court of Common Pleas by both parties—by Nathaniel Jennison for return of his property, and by Quock Walker against Jennison for assault. Jennison lost both cases, and Walker v. Jennison ruled that Quock Walker was indeed a freeman although there is no record that the state constitution was specifically invoked. Both decisions were appealed to the Supreme Judicial Court; although Jennison defaulted on the property case, the assault charge reached the court, where Paine acted for the Commonwealth and the decision was upheld. The first acknowledgment of the role of the constitution in the matter came in Jennison’s own words when he filed a remonstrance with the General Court that “he was deprived of ten Negro Servants by a Judgment of the Supreme Judicial Court on the R35 
following clause of the constitution, ‘That all men are born free and equal’ and praying that if said judgment is approved of, he may be freed from his obligations to support said negroes.”94 Over the course of three years, the Senate and House debated this issue, but never came to any resolution. Other cases, including the famous Brom and Bett v. Ashley, in which Theodore Sedgwick took a leading role, would continue to arise over the next few years to strengthen the rather shaky start to emancipation within Massachusetts. By 1785 the General Court was studying a bill “to prevent the practice of kidnapping of Stealing persons for the purpose of making Sale of them” and sent it to the Committee on Revising the Laws, on which Paine was serving, “that the said Committee be instructed to revise all the Laws respecting Negroes & Molattoes & to report a Bill . . . to discountenance and prevent any Inhabitant of this Commonwealth being concerned in the Slave trade & that the said Committee also consider & report what measures are necessary to be taken relative to Negroes who now are within the Commonwealth & who may here after be brought or come within the same.”95


On New Year’s Day in 1781, the Paine family moved from Taunton to Boston. That “morning at 5 oClock Porters sat out with [a] Waggon laden wth. books & household goods for Boston.”96 The new house was located on Milk Street at the corner of Long Lane (renamed Federal Street in 1788). It was a large, two-story, gambrel-roof brick building with extensive gardens extending back towards Long Lane. If the concept of conflict of interest existed at the time, it certainly would have applied in this case for the house was one of the absentee estates which reverted to the owner when the state-forced leases ended and in default of an executed libel, which Paine had neglected to prosecute. On May 6, 1784, Paine “took a Lease of Leonard Vassal Borland of the house I live in for 3 yrs. from April 1st Int. & paid him 160£.”97 On April 15, 1785, he purchased for £1,050 R36 the house from Borland, who had inherited the house from his father, the loyalist John Borland.98 As a point of comparison, another Borland family home located in Braintree was briefly owned in the 1780s by Royall Tyler before reverting to Leonard Vassall Borland, who sold it to John Adams on September 26, 1787, for £600.99


The town into which the Paines moved had rebounded from the desolate state in which returning refugees had found it in March 1776. Beyond the physical scars left on the face of the town, its very soul—the population—had transmogrified. In 1779 James Warren wrote to John Adams that “fellows who would have cleaned my shoes five years ago, have amassed fortunes, and are riding in chariots. Were you to be set down here you could not realize what you would see. You would think you was upon enchanted Ground in a world turned topsy turvy.”100 By the end of the war James Bowdoin would write to former governor Thomas Pownall, who was anticipating a return to Boston: “When you come you will scarcely see any other than new faces . . . the change wch. in that respect has happened within the few years since the revolution is as remarkable as the revolution itself.”101 


When active hostilities ended with the surrender of Lord Cornwallis to General Washington at Yorktown in October 1781, the news was met with “Rejoicing” in Boston. There were “Prayers & Anthems in South Meeting Old Brick & old North” churches, and at noon Robert Treat Paine “met in Council Chamber, dind with Gov: Hancock & Officers of French & [American?] Army Council & Civil Officers, at Marston’s by Invitn. of Govr.” In the evening, he went to the governor’s home, and there were fireworks, although it was “so windy it was not safe to fire the Pile erected for a Bonfire.”102 


Summing up the long struggle, Paine wrote to a friend that 
 my observation of this Revolution teaches me that scarce any thing has turn’d out according to expectation. Matters of greatest reliance have failed us, & little unexpected matters have saved us; our most flushed Enterprises R37 & veiws have disappointed us & in the great distress & darkness of Embarrassments we have suddenly had the greatest relief. I have sometimes thought that the Cloud & the Light have been as visible to us as to the Israelites breaking from the Bondage of Egypt.
 Nonetheless (and although Paine was undoubtedly the only one ever to use the term “Enthusiast” about himself), he continued:
 You’ll call me an Enthusiast; pray what have we all been thro’ the war; we now have the conduct of our own affairs; if we were under the Government of Great Britain we should not, nor have any controul; pray which is best Enthusiasm or Abject Submission.103


Despite this “Enthusiasm,” there were some undoubted domestic concerns that needed immediate attention. In March 1782 Paine received some disturbing news from this same friend concerning mob violence. Himself the recent victim of a tar-and-feather incident, Nathaniel Freeman asked: “What think you of a new revolution? it is talkd. of this way I am told among the disaffected and those fainting under what they call the intollerable oppressive Burthen of the Taxes &c: Berkshire (tis said) have revolted at least have stopt the Courts by 500 people rais[ed] under Arms &c. Hampshire threatend & obliged to adjourn—and tis suggested this will soon be the Case in all the other countys.”104 Paine was none too certain that “if we are not more earnest to support our Liberty we shall not relish it when we have got it . . . & unless we keep up our martial spirit we may expect a Revolution of another nature than what you allude to.”105 These debt problems were left to deteriorate over the years and would spring forth fully grown at the end of the decade.


Although the family’s social life revolved around a small circle of friends, Paine himself was deeply involved in the ceremonial aspects of being a public figure. For example, in August 1782, the French admiral Vaudreuil arrived in Boston with thirteen ships of the line in a celebration of the Franco-American alliance. On August 21 Paine dined at Faneuil Hall in company with the governor, Admiral Vaudreuil, the French officers, and gentlemen of the town. In September, there was a ball for the French officers on the evening of the 5th, and on the 19th Paine dined with the admiral at his home.106 On December 3 the first division of French troops R38 arrived in town, and by the 7th “the french Troops [were] all in Town.” In the midst of the celebrations of Francophilia, Sally Paine gave birth to her third daughter, who was baptized when she was six days old with the name Marie Antonietta, in honor of the French queen.


Paine’s relationships with his wife and children ebbed and flowed over the years, partly due to his peripatetic lifestyle as lawyer and judge, partly due to his personality. He seems to have been particularly close to his eldest son and eldest daughter, while he was often violently at odds with his second son. His relationship with his wife grew and deepened as the years passed and they spent more time together. These connections are given greater voice in the next and final volume of this series.


The period covered by volume four of The Papers of Robert Treat Paine began in a winter thaw but ended in bitter cold and snow:
 This Month has been the severest through for Quantity of Snow & Cold I ever knew a December, the two Snow Storms which came so early were of the most violent kind, & more lives were lost by shipwreck than I remember in so short a pace of time by Severe weather; the Year is now ended, very gloomy times, uneasiness, Commotions, no money; it is farther to be remarked that the old Rule “that Winter never sitts in till the Springs & Swamps are full” has failed this year, for the County has sufferd much for want of Water many wells and brooks, being dry & People were obliged to drive their cattle & go very far for water for their familiys & when the Snow came they used it for their family water.107