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Colonial Period (1620-1686) – Plymouth Colony
The Peirce Patent was a charter from the Virginia Company issued to the Merchant Adventurers in 1620 for the settlement of the Pilgrims in the northerly part of the Virginia territory. This patent was never in use because the Pilgrims settled outside this territory. Thus, the adult male passengers created the document they called a “combination” and now called the “Mayflower Compact” to give a governance structure to the Plymouth settlement. The Second Peirce Patent was issued in 1621 from the Council for New England for the area they settled. The Bradford Patent of 1629 (of “purchasers”) gave the settlers legal status as residents, but did not create a basis for laws as royal charters would did for other colonies.
Though having no legal authority to do so, but in the best interest of the settlers, the “combination” was an agreement of the adult males of the settlement to establish a “civil body politic” and make just laws, acts, etc. for the general good of the colony. From this single act, the group elected a governor and several assistants to govern them (though we do not have knowledge of how that was decided). On 17 December 1623 (but recorded in 1627), the first order of the Court was that all criminal acts, matters of trespass, and debts between men would be tried by a jury of twelve honest men. Historians have determined that they cobbled together Common Law and filled it in with Mosaic Law. The laws were first codified in 1636 and revised in 1658, 1672, and 1685.
By 1636, the Governor and seven Assistants were elected annually by the freemen of the colony for the term of one year according to the former custom and that constables and other inferior officers also were chosen. The Governor, Board of Assistants (being seven freemen of the colony), and the freemen of the colony met quarterly as the General Court (1623-1692). They functioned as the legislature and court. They heard capital cases of treason, rebellion, willful murder, conversing with the devil by way of witchcraft, burning of ships or houses, sodomy, rapes, and buggery. The Magistrate Court (1623?-1692) heard cases of fornication, swearing, lying, stealing, embezzling, drunkenness, gaming, lascivious carriage, burning fences, defacing boundary markers, using tobacco, setting fires in the woods, forgery, stealing public records, denying the Scriptures as the rule of life, being absent from church, and keeping the Sabbath. The Court of Assistants (1623-1692) was the meeting of the Governor and at least two Assistants and handled all cases under £40 penalty.
County Courts (1685-1692) were established when the counties were created following the model of Massachusetts Bay Colony.
Colonial Period (1629-1686) – Massachusetts Bay
The Charter of 1629 issued by the King established the General Court (1629-1692) that met quarterly to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions, and instructions not contrary to the laws of England and to settle the forms and ceremonies of government and magistracy fit and necessary so that the people may be religiously, peaceably, and civilly governed. All the freemen met and acted as the General Court. The court chose annually the governor, deputy government, and eighteen assistants who acted as the Court of Assistants (1630-1692) when the General Court was not in session and with its full authority to correct, punish, pardon, govern, and rule. Members of the Assistants were given the powers of Justices of the Peace and called Magistrates. These magistrates could hear civil suits under than 20 shilling (increased to 40 shillings in 1647) and handle misdemeanors such of profanity or drunkenness in their own towns.
The Inferior Quarter Courts were established in 1639 as a circuit county court composed of the county magistrates where the court was sitting with a jury in Ipswich, Salem, Cambridge (Newtown), and Boston. This court took over all the cases of the Court of Assistants except those with damages over £10, divorce, and cases of life, member, and banishment. These courts were renamed County Court (1636-1692).
This three-tiered system was in place throughout the colonial period. It focused on the magistrates who controlled the legal affairs. When they sat alone in their town, they handled all the minor cases for the town. The more serious cases rose to the level where all the magistrates of the county sat together with a jury to decide the cases. The most serious issues were handled the eighteen magistrates assembled together (called the “Assistants”) with the Governor and Deputy Governor, or with the freemen of the colony, to pass judgment on the major cases of the day.
Dominion of New England (1686-1689)
The charter of Massachusetts Bay was revoked in 1684 by King Charles II who tried to reign in this theocratically ruled colony while also streamlining the administration of several other nearby colonies. Initially, the Dominion comprised Massachusetts Bay, Plymouth Colony, Province of New Hampshire, Province of Maine, and the Narragansett Country of present-day Washington Co., R.I. Formal change did not occur until 1686 with the arrival of Joseph Dudley in Boston and the assent of King James II. Dudley added the colonies of Connecticut and Rhode Island before Edmund Andros arrived at the end of the year. Andros attempted to design Dominion laws to more closely mirror those in England. By 1688, Andros added the provinces of New York, East Jersey, and West Jersey to the Dominion though governance of these areas was weak because the distance from the seat at Boston was too great even with a satellite office in New York City. King James II was overthrown in the Glorious Revolution of 1688. This news traveled back to Boston where the local mob jailed Andros in April of 1689 which officially ended the Dominion.
During this period, the General Court was abolished and the Court of Assistants replaced by a Governor and Council (1686-1689) appointed by the Crown. A Superior Court of Judicature (1686-1689) was established as the highest authority. The County Court was split between the Court of Common Pleas for civil cases and the Court of General Sessions for criminal cases. Magistrates were replaced by Justices of the Peace with the same powers. All this ended in April of 1689 and the former colonies and provinces returned to their former structure until new royal charters were issued in 1692.
Provincial Period (1692-1780)
In 1692, the General Court was restored as the legislative body with jurisdiction over all of Massachusetts Bay Colony (that comprised present-day Massachusetts and Maine). The province maintained the three-tiered court system. It immediately established the Governor and Council (1692-1780) that had authority over divorce and probate appeals. The Superior Court of Judicature (1692-1780) was the highest appellate (i.e. appeals court) and the trial court for capital criminal cases, civil cases over £10, and some equity matters. It was a circuit court moving between counties with a grand jury and at times two trial juries.
The county Court of General Sessions (1692-1827) heard all criminal cases before a bench of justices of the peace. They also had authority over county affairs (levying taxes, highways, licenses for liquor, jails, and administration of poor laws). Its partner, the Inferior Court of Common Pleas (1692-1859), heard the civil cases of the county. These courts met quarterly and handled no cases under £40 unless it was on appeal from the lower court. The lowest court was the Justice of the Peace (1687-present) and these justices were appointed by the governor. The justices heard criminal cases (drunkenness, rioting, and violations of Sabbath) and civil cases under £40. This court sat in the justice’s house where he kept the minutes and collected the fines. Defendants appeared by summons via the county sheriff or town constable.
Note that though there were interruptions on the courts sitting in Boston in 1775 and 1776, the court’s jurisdiction and process remained unchanged.
Commonwealth Period (1780-present)
The Massachusetts Constitution of 1780 created a separation of powers and allowed that the other branches may require an opinion from the Supreme Judicial Court on questions of law. This was one of the few instances where advisory jurisdiction was given in the country and is found nowhere at the federal level. The highest courts from other states needing to rule on a Massachusetts state law that had not been previous rendered could send the question to the court for their ruling. Judges for the Supreme Judicial Court were allowed to hold their office as long as they “behaved themselves” and all current appointments prior to the Constitution were continued thus keeping the legal authority of this court from its establishment as the Superior Court of Judicature in 1692, but renaming it as the Supreme Judicial Court (1780-present). Its jurisdiction was codified in 1782 as taking cases by appeal, writ of error, capital offenses, and “every Crime whatsoever that is against the public good” [St.1782, c.9].
Divorce was moved from under the Governor and Council to the Supreme Judicial Court in 1785 [St.1785, c.69]. The court continued as a circuit court, sitting in various counties by mandate of the legislature. To this point, all records were recorded and maintained by the clerk in Boston (Suffolk County). Starting in 1797, the records were recorded in the county the court sat by the clerk of that county’s Court of Common Pleas (being made a clerk of the Supreme Judicial Court for that county when the court was in session there). The exception to that rule was that Suffolk County recorded the sessions held in Nantucket County; Barnstable County recorded the sessions held in Dukes County; and Lincoln County recorded the sessions for Lincoln, Hancock, and Washington counties. [St.1796, c.95]
There were two sessions of the court. One heard capital offenses, appeals from probate, and all issues in law that were tried by three or more judges (the number of judges varied over the years between four and seven) and the other heard all other actions (i.e. cases not being appealed by a lower court) and was tried by a single judge that was subject to review by the whole court. This was also the year that the Reports of Supreme Judicial Court started publishing annually [St.1804, c.105]. This practice of taking actions not on appeal was called nisi prius (Latin for “unless first”), meaning it became the court of original jurisdiction. A second trial on the facts on appeal to this court was abolished in 1817. The legislature clarified the jurisdiction between the Supreme Judicial Court and the then statewide Court of Common Pleas in 1840 [St.1840, c.87] that remained in effect until the reorganization of the court system in 1859.
The changes in 1859 did not affect this court as the streamlining generally reshaped the lower courts. Over time, the Supreme Judicial Court’s focus was narrowed (see Menand’s book, pages 39 to 41, cited in the references). Divorce was removed to a lower court in 1887 [St.1887, c.332]. An Appeals Court (1972-present) was added with the Supreme Judicial Court to help with the backlog of cases and covers all the state, but normally sits in Boston [St.1972, c.740]. The Supreme Judicial Court is the superintendent over all inferior courts and maintains full authority over all court records.
Lower Courts (i.e. Trial Courts)
The middle tier courts continued to function as before the Constitution. Specific jurisdictions shifted back and forth between the two middle-tier courts. Boston and Suffolk County developed a separate court system in this tier. In 1799, the Municipal Court of the Town of Boston (1799-1859) had been given authority over all criminal cases in Boston [St.1799, c.81] and renamed the Municipal Court of the City of Boston in 1822 [St.1822, c.13]. The Boston Court of Common Pleas (1813-1820) was created to handle all civil case that would have gone to the Suffolk County Court of Common Pleas in 1813 [St.1813, c.173]. After Maine separated from the Commonwealth in 1820, the Circuit Court of Common Pleas and the Boston Court of Common Pleas was replaced by a Court of Common Pleas for the Commonwealth (1820-1859) that heard both civil and criminal cases [St.1820, c.79]. The Court of General Sessions was phased out and by 1827 ceased to exist in all counties. A Superior Court for Suffolk County (1855-1859) was established in 1855 to handle all civil cases in that county [St.1855, c.449].
This entire system was reorganized in 1859 and born out of this was the new Superior Court (1859-present) that combined the powers of all the previous courts into one. The court sat four, instead of two, times to accommodate both the criminal and civil case load. There were tweaks to this system along the way. The major changes were bringing general equity jurisdiction to the court in 1883 [St.1883, c.223], having Middlesex and Suffolk counties keep a separate docket for this in 1892 [St.1892, c.439 – though changed with uniform civil procedures in 1974], and the court having exclusive original jurisdiction over capital crimes in 1891 [St.1891, c.379]. See Menand’s book, pages 53 to 57, for further details on jurisdiction changes and description of the Appellate Division (1943-present) and the court reorganization in 1978.
The lowest court as discussed above was the Justice of the Peace. The powers established in 1687 were continually eroded away and now they only have the authority to perform marriages, acknowledgements (i.e. notary), administer certain oaths, take depositions, and call meetings of various proprietor groups and corporations. These were technically court records though the justice sat in their own dwelling, the records often passed off as personal papers that are commonly found in historical societies and university libraries. The Boston Police Court (1821-1866) was established as the first police court in the Commonwealth with the authority of the Court of Commons Pleas for the Commonwealth in Suffolk County [St.1821, c.79 and St.1822, c.109]. More such police courts were created starting in 1831 with separate parameters for each of them. In every instance, the police court exclusively assumed most of the powers from the Justice of the Peace. Criminal cases were removed from the justices in 1856 [St.1856, c.138] and civil cases in 1877 [St.1877, c.211].
The court reorganization of 1859 standardized the work and function of the police courts. The District Court concept started in Berkshire County with the District Court of Central Berkshire that had jurisdiction over Pittsfield and seven adjacent towns with the powers of a police court centralized over a larger area [St. 1869, c. 416]. The rest of Berkshire County was divided into two more districts in the following year and this style of the lowest court spread across the Commonwealth. By 1921, the remaining thirteen police courts were renamed and the establishment of the District Court (1921-present) was solidified and uniform across the entire Commonwealth [G.L.1921, c.218]. These courts had jurisdiction over crimes punishable by jail sentences up to five years and some felony crimes up to ten years, and some juvenile matters where Juvenile Courts did not exist. They shared responsibility over probate matters involving children. The court sat for small claims and civil actions where the plaintiff did not wish to have a jury trial. An Appellate Division (1922-present) was added for civil actions.
The Massachusetts court system has maintained a three-tiered system for most of history. As the case load of special area grew, the Commonwealth created special courts for these cases while preserving the basic structure.
These maritime cases were first heard by the Court of Assistants in Massachusetts Bay Colony. Under the second charter in 1692, this court was pulled out as a separate civil law court with judges appointed by the King and not part of the provincial court system. During the Revolution and after, this court was established in Plymouth, Ipswich, and North Yarmouth. These courts ceased with the adoption of the federal constitution in 1786 and these matters transferred to the new U.S. District Court. The records of these courts are part of the Suffolk Files Collection.
Appointed coroners along with a jury made inquests on deaths and reported their findings to the County Court. After the second charter in 1692, the findings were reported to the Court of Assize and the Court of General Sessions.
Boston Municipal Court (1866-present)
Though basically a district court, it is administered separately [St.1866, c.279]. It is the heir of the Boston Police Court (1821-1866) which met daily for criminal cases and bi-weekly for civil cases. The jurisdiction extends over all of Suffolk County for certain cases (see Menand’s book, pages 71 to 73, cited in the references). An Appellate Division was created in 1912 [St.1912, c.649]. With the court reorganization of 1978, it became the Boston Municipal Court Department of the Trial Court [St.1978, c.478].
Probate Court (1783-present)
This type of court case has always been present and the records reach back unbroken to the settlement of the two colonies, but it was first the County Court and then the Governor and Council who handled probate cases. The Constitution of 1780 mentioned probate judges, but the legislature codified the scope as the probate of wills, administration of estates, and appointment of guardians for minor and “distracted persons” [St.1783, c.46]. It is a court of equity, not common law, and provides remedies. Because of legislation, the probate courts have added jurisdiction over adoption (1851), divorce (1887/1922), change of name (1854), and domestic relations. Marriage was never based in common law in Massachusetts and was performed by magistrates. As such, it has always been a civil contract. The Royal Charter allowed for marriages to be performed by justices of the peace or by a settled minister in 1692 [P.L.1692-3, c.25], but it remained a contract. All issues relating to marriage are handled by the probate court, such as women’s petitions for separate estates, annulment, and affirmation of marriages. The names of this court have evolved from Probate Court (1783-1858) and that had an Insolvency Court (1856-1858). These two combined to be called the Probate and Insolvency (1858-1978). The court reorganization in 1978 renamed it to Probate and Family Court (1978-present).
Land Court (1898-present)
The Court of Registration (1898-1900) was legislated to register title of land to deal with real and personal property (generally of deceased persons) while simplifying land transfers [St.1898, c.562]. The name was changed to the Court of Land Registration (1900-1904) and then the present Land Court in 1904. The court normal sits in Boston, but can sit in other locations and covers the entire Commonwealth. The court oversees foreclosures, redemption from tax titles, recovery of freehold estates, petitions to try, and determines the validity of encumbrances and discharges of mortgage. It has authority over interest in real estate and petitions to determine boundaries of flats, county, city, town, or districts, can enforce restrictions, and validate municipal zoning ordinances and bylaws. Appeals from zoning board decisions are handled here.
Children were identified as a special class tracing back to 1641 in Massachusetts Bay Colony. The probate wing of a court first handled children and then these family matters fell under the Probate Court. The first specialized court was the Boston Juvenile Court (1906). Young offenders were to be treated as children in need of aid, not as a criminal. A delinquent child was defined as between seven and seventeen years who violated a town ordinate or committed an offense not punishable by death or life imprisonment. Courts have been since been opened in Springfield (1969), Worcester (1969), and New Bedford (1972). These courts were reorganized in 1978 as the Juvenile Court Department.
Matters relating to State Sanitary Code, building regulation and inspection, fire precaution, rubbish disposal, landlord and tenant disputes, and any other law concerning health, safety, or welfare of any occupant of any place of human habitation are handled by District Courts. A Boston Housing Court (1971), Hampden County Court (1973), and Worcester Housing Court (1983) [to which Bellingham was added in 1985] were created for these areas. They are now all divisions of the Housing Court Department of the Trial Court.
The records from the above courts are reviewed on the Massachusetts, Massachusetts Bay Colony, Plymouth Colony, and appropriate county pages. All records are under the authority and control of the Supreme Judicial Court.
The court records have three general types of records: docket books, record books, and file papers. Docket books for civil actions outline the actions heard by the court in chronological order. Cases are routinely continued to another term of the court. In criminal cases, these books are called minute books. Record books are summaries made at the end of a case about the plaintiff, defendant, the action, damages sought, and the history of the case. The file papers are the original documents submitted to the court. There are rarely more than a few documents in the case before the nineteenth century. All documents provide an insight into the case, but genealogists tend to look for the summaries, depositions from witnesses (to learn more about the witness more than the parties to the case), and warnings out.
Legal Definition of Age
This series of definitions of the age someone can legally do something comes from Giles Jacob, A New Law-Dictionary (Savoy, 1750):
- 12: take an oath of Allegiance to the King.
- 14: “age of discretion” so that he can consent to marriage and chose a guardian.
- 21: may alien his lands, goods, and chattels.
- 24: can be ordained a priest.
- 30: can be a bishop.
- 09: is dowable, i.e. able to have / receive a dower.
- 12: may consent to marriage.
- 14: “age of discretion” and may chose a guardian.
- 21: may alien her lands, goods, and chattels.
- 14: may dispose of goods and personal estate by will, though not of land until 21. They are generally not punishable for crimes, but must pay damages for trespass. They may be witnesses in any court action or function, and in some ages give evidence by age 9.
- 21: full age to contract and manage for themselves, and can be executor of a will before this time. They can be a member of Parliament.
A person becomes of age at the end of the day preceding the day of their birth. A minor person may purchase something, but arriving at 21 can disagree to it. Age Prier is an action being brought against a person under age for lands which he has by descent. He may petition the court to stay the action until he is of full age (21) to which a court general agrees, but this does not hold for if the minor is the purchaser of the land.
- Catherine S. Menand, A Research Guide to the Massachusetts Courts and Their Records (Boston, 1987). [OCLC 18835405]
- Michael S. Hindus, et al., The Records of the Massachusetts Superior Court and Its Predecessors: An Inventory and Guide (Boston, 1977). [OCLC 5650520]
- William Jeffrey, Early New England Court Records: A Bibliography of Published Materials (Cambridge, Mass., 1954). [OCLC 2086374]
- Mary Ann Neary, et al., Handbook of Legal Research in Massachusetts (Boston, rev. ed., 2002). [OCLC 744462697]
- Diane Rapaport, New England Court Records: A Research Guide for Genealogists and Historians (Burlington, Mass., 2006). [OCLC 64588953]
Records and inventories:
- David T. Konig, ed., Plymouth Court Records, 1686-1859 (Wilmington, Del., 1978-1981), in 16v. [OCLC 15549735] and computer file (Boston, 2002) [OCLC 53914071]
- Charles T. Libby, Robert E. Moody, and Neal W. Allen Jr., Province and Court Records of Maine (Portland, Me., 1928+), in 6v. [OCLC 1424267]
- List of Persons Whose Names Have Been Changed in Massachusetts, 1780-1892 (Boston, 1893; rep. Baltimore, 1972). [OCLC 4985756 and 235696]
- John Noble, “The Early Court Files of Suffolk County” in the Publications of the Colonial Society of Massachusetts, 3 : 317-326. [OCLC 489901478]
- John Noble, “The Records and Files of the Superior Court of Judicature, and of the Supreme Judicial Court, Their History and Places of Deposit” in the Publications of the Colonial Society of Massachusetts, 5 : xx-xx. [OCLC 489901478]
- John Noble and John F. Cronin, eds., Records of the Court of Assistants of the Colony of the Massachusetts Bay, 1630-1692 (Boston, 1901-1928), in 3v. [OCLC 5312701]
- Nathaniel B. Shurtleff, ed., Records of the Governor and Company of the Massachusetts Bay in New England (Boston, 1853-1854; rep. New York, 1968; computer file, Columbia, Md., 2006), 5v. in 6. [OCLC 3522063 and 13598931 and 665895979]
- Nathaniel B. Shurtleff and David Pulsifer, eds., Records of the Colony of New Plymouth in New England (Boston, 1855-1861; rep. New York, 1968), 12v. in 10. [OCLC 2535001 and 347595]
- Robert N. Toppan, “Council Records of Massachusetts under the Administration of President Joseph Dudley” in Proceedings of the Massachusetts Historical Society, 2nd Series, 13 : 237-268. [OCLC 1695300]
- Robert N. Toppan, ed., “Andros Records” in Proceedings of the American Antiquarian Society, New Series, 13 : 237-168, 463-499. [OCLC 1479298]
- Carroll D. Wright, Report on the Custody and Condition of the Public Records of Parishes, Towns, and Counties (Boston, 1889), Courts, pp. 305-379. [OCLC 5321644]
- Viola F. Barnes, The Dominion of New England, a study in British Colonial Policy (New Haven, Conn., 1923). [OCLC 245633]
- Zechariah Chafee Jr., “Colonial Courts and the Common Law” in David F. Flaherty, ed., Essays in the History of Early American Law (Chapel Hill, N.C., 1969). [OCLC 19322]
- Daniel R. Coquillette, ed., Law in Colonial Massachusetts 1630-1800 (Boston, 1984), being v. 62 of the Publications of The Colonial Society of Massachusetts. [OCLC – search title]
- James Deetz and Patricia Scott Deetz, The Times of Their Lives: Life, Love, and Death in Plymouth Colony (New York, 2000). [OCLC 44267850]
- Alan J. Dimond, The Superior Court of Massachusetts: Its Origin and Development (Boston, 1960). [OCLC 2106314]
- Julius Goebel Jr., “King’s Law and Local Custom in Seventeenth Century New England” in David F. Flaherty, ed., Essays in the History of Early American Law (Chapel Hill, N.C., 1969). [OCLC 19322]
- George L. Haskins, Law and Authority in Early Massachusetts: A Study in Tradition and Design (New York, 1960). [OCLC 420744]
- George L. Haskins, “Reception of the Common Law in Seventeenth Century Massachusetts: A Case Study” in George Althan Billias, ed., Law and Authority in Colonial America (Barre, Mass., 1965). [OCLC 225438]
- George L. Haskins, “The Legal Heritage of Plymouth Colony” in David F. Flaherty, ed., Essays in the History of Early American Law (Chapel Hill, N.C., 1969). [OCLC 19322]
- George L. Haskins, “The Beginnings of Partible Inheritance in the American Colonies” in David F. Flaherty, ed., Essays in the History of Early American Law (Chapel Hill, N.C., 1969). [OCLC 19322]
- Hendrik Hartog, “The Public Law of a County Court; Judicial Government in Eighteenth Century Massachusetts” in American Journal of Legal History, 20 : 282-329. [OCLC 1480152] also JSTOR
- George D. Langdon Jr., Pilgrim Colony: A History of New Plymouth, 1620-1691 (New Haven, Conn., 1966). [OCLC 475810]
- William E. Nelson, Americanization of the Common Law: The Impact of Legal Change in Massachusetts Society, 1760-1830 (Cambridge, Mass., 1975). [OCLC 1399551]
- John Noble, “A Few Notes on Admiralty Jurisdiction in the Colony and in the Province of the Massachusetts Bay” in the Publications of the Colonial Society of Massachusetts, 8 : 3-38. [OCLC 489901478] and http://books.google.com/books?id=Q3ue5-co-zkC&pg=PA3
- Russell K. Osgood, ed., The History of the Law in Massachusetts: The Supreme Judicial Court 1692-1992 (Boston, 1992). [OCLC 27700531]
- D. C. Parnes, Plymouth and the Common Law, 1620-1775 (Kingston, 1971). [OCLC 567839]
- Plymouth Colony Archives Project at the University of Illinois at Urbana-Champaign, “Legal Structure” at <www.histarch.uiuc.edu/plymouth/ccflaw.html>.
- Edwin Powers, Crime and Punishment in Early Massachusetts, 1620-1692: A Documentary History (Boston, 1966). [OCLC 413349]
- Joseph H. Smith, Colonial Justice in Western Massachusetts (1639-1702) (Cambridge, Mass., 1961). [OCLC 345561]
- Eugene Aubrey Stratton, Plymouth Colony: Its History & People 1620-1691 (Salt Lake City, 1986). [OCLC 15349442]
- Robert N. Toppan, ed., “Council Records of Massachusetts under the Administration of President Joseph Dudley” in Proceedings of the Massachusetts Historical Society, 2nd Series, 13 : 222-286. [OCLC 1695300]
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