USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 2 > Part 15
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52
The position of Hutchinson in his dealings with the Assem- bly is very simple. As a lawyer and a constitutional statesman
152
THE ROYAL GOVERNORS
he never doubted the supremacy of Parliament. As a loyal son of Massachusetts, it was his wish that that supremacy, once acknowledged, should remain unexercised. It was his tragedy that he was called upon, when an old man, to choose between his duty as a magistrate and a lawyer and his natural sympathies. He chose to abide by the letter of the law. In an address to the Assembly, soon after he assumed power, he thus stated his position: "You will always endeavor, in vain, to move me to give up to you any part of the Prerogative of the Crown; I will never make any encroachment upon the Rights of the People."
The General Court that had been prorogued by Bernard met at Cambridge, March 15, 1770; they protested strongly against being called together outside of Boston, raising the old argu- ment that this was in violation of the Charter; and expatiated upon the "outrages" of the troops, demanding that the Gover- nor remove them. Hutchinson pointed out that the removal of the soldiers was beyond his power; and showed that it was within the power of the Crown to instruct the Governor as to the place for the meeting of the Assembly. The New Gen- eral Court in May 1770 reiterated their position as to the in- ability of the Governor to convene it in Cambridge and would do no business. On being reconvened in July it protested against the placing of Castle William in the hands of the King's troops. The Lieutenant Governor showed his instructions and pointed out that his authority, as Commander-in-Chief, had not been lessened thereby, as the House feared. A minor dispute, which is significant as showing how far the House had gone in as- serting independence, was raised at this time over the form used by the House in enacting laws, which were described as "enacted by the Governor, Council and House of Representa- tives," to which were now added the words, "in general Court Assembled," after the manner of Parliamentary enactments.
GOVERNOR THOMAS HUTCHINSON (1771-1773)
When the aged Hutchinson, much against his will, was made Governor, in the spring of 1771, the House violently op- posed the new course of the Governor's receiving his salary from England. At once, with a promptness never hitherto
153
GOVERNOR THOMAS HUTCHINSON
seen, they voted his salary and demanded that he refuse the salary from over seas, a demand with which he refused to comply. All these controversies were comparatively mild as compared to the disputes with Bernard. In the absence of any great grievance, the radicals had hard work to keep up their agitation. The years of 1772 and 1773 were periods of com- parative quiet, as a result of the tactful administration of the aged Governor.
At this time John Hancock, who had become the mainstay of the radicals among the upper classes, left their camp for a while. Upon the House again pointing out the inconvenience of meeting at Cambridge, the Governor instantly removed it to Boston, because removal had not been demanded as a right. The next important dispute arose over the payment of the sal- ary of the judges by the Crown. The radical organization was put in motion to coerce the justices into submission through fear of violence, and all gave way except the old Chief Justice, Peter Oliver. The House attempted to impeach him before the Governor and Council. Upon Hutchinson's pointing out that the proper procedure was through the courts, Sam Adams still persisted in the proceedings before the Council, stating that the absent Governor was "presumed to be present." This matter was still pending when Hutchinson departed.
In 1773 the House, under the leadership of Adams, adopted a resolution looking to a union of all the colonies ; the distribu- tion of the Virginia resolves to all the Speakers of Colonial Assemblies; and the creation of standing "committees of cor- respondence" to act between sessions. It is hard to see how the last resolution could be squared with strict parliamentary law, as it implied delegation of powers from only one chamber, and also a delegation of authority to be exercised after the delegating power had lapsed; but it may be justified as the re- sult of overwhelming public necessity. The episode of the Hutchinson letters and the eventual retirement of the Gover- nor to England are related in another chapter of this volume.
SELECT BIBLIOGRAPHY
ADAMS, JAMES TRUSLOW .- Revolutionary New England (Boston, Atlantic Monthly Press, 1923)-Antipathetic to the Puritan influence. An excellent history.
ANDREWS, CHARLES MCLEAN .- Colonial Self-Government in America 1652- 1689 (N. Y., Harper, 1904)-Excellent on English control of the Colo- nies.
BANCROFT, GEORGE .- History of the United States; author's last revision (6 vols., N. Y., Appleton, 1887) .- Vol. II.
BARRINGTON, WILLIAM WILDMAN BARRINGTON, 2nd viscount AND BERNARD, Sir FRANCIS .- The Barrington-Bernard Correspondence and Illustra- tive Matter, 1760-1770, drawn from the "Papers of Sir Francis Ber- mard" (Harvard Historical Studies, Vol. XVII, Cambridge, 1912), Edited by Edward Channing and A. C. Coolidge.
BARRY, JOHN STETSON .- History of Massachusetts (3 vols., Boston, Phillips, Sampson, 1855-1857,-Volume II deals with the Provincial Period.
BURNS, JOHN F .- Controversies between Royal Governors and their As- semblies in Northern American Colonies (Boston, Wright & Potter Printing Co., 1923)-Covers the period 1688-1783.
CHANNING, EDWARD, HART, A. B. AND JACKSON, FREDERICK TURNER .- Guide to the Study and Reading of American History (Boston, Ginn, 1912) -See pp. 285-287.
CUSHING, HARRY A .- History of the Transition from Provincial to Com- monwealth Government in Massachusetts (Columbia Studies in His- tory, Economics and Public Law, Vol. VII, No. 1, N. Y., 1896).
DOUGLAS, CHARLES HENRY JAMES .- Financial History of Massachusetts, from the Origination of Massachusetts Bay Colony to the American Revolution (Columbia Studies in History, Economics and Public Law, Vol. I, N. Y., 1892).
ELLIS, GEORGE E .- "The Royal Governors" (JUSTIN WINSOR, Memorial His- tory of Boston, 4 vols., Boston, Osgood, 1882-1886)-See Vol. II, pp. 27-92.
FISKE, JOHN .- The American Revolution (2 vols., Houghton, Mifflin, 1896)-See Vol. I, chap. I.
FOLLETT, MARY PARKER .- The Speaker of the House of Representatives (N. Y., Longmans, Green, 1896)-Introduction by Albert Bushnell Hart.
GREAT BRITAIN : PRIVY COUNCIL OF ENGLAND .- Acts, Colonial Series (6 vols., Hereford, London, 1906-1912)-Volume VI contains the "un- bound papers."
GREENE, EVARTS BOUTELL .- Provincial America, 1690-1740 (American Na- tion : a history, Vol. VI, N. Y., Harper, 1905).
HUTCHINSON, THOMAS .- History of the Colony of Massachusetts-Bay from 1628. Until 1691 (Boston, Thomas and John Fleet, 1764).
HUTCHINSON, THOMAS .- History of the Province of Massachusetts-Bay from 1691. Until 1750 (Boston, Thomas and John Fleet, 1767).
154
155
SELECT BIBLIOGRAPHY
HUTCHINSON, THOMAS .- History of the Province of Massachusetts Bay from 1749 to 1774 (London, John Murray, 1828)-Published post- humously.
LECKY, WILLIAM EDWARD HARTPOLE .- A History of England in the Eight- eenth Century (8 vols., N. Y., Appleton, 1888-1891)-See Vol. II.
MASSACHUSETTS (Commonwealth) .- Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay; to Which Are Prefixed the Charters of the Province (21 vols., Boston, 1869-1922).
MASSACHUSETTS (Province) : GENERAL COURT, HOUSE OF REPRESENTA- TIVES .- Journals, 1715-1774 (8 vols., Boston, 1919-1927)-The Mass. Historical Society has published those for 1715-1729. The file at the State House (Archives Division) is complete for 1730-1773).
POWNALL, CHARLES ASSHETON WHATELY .- Thomas Pownall, Governor of Massachusetts Bay, Author of "The Letters of Junius"; with a supple- ment comparing the Colonies of Kings George III and Edward VII (London, H. Stevens, Son & Stiles, 1908).
SHIRLEY, WILLIAM .- Correspondence 1731-1760 (2 vols., N. Y., Macmillan, 1912) .- Edited by C. H. Lincoln.
WOOD, GEORGE ARTHUR .- William Shirley, Governor of Massachusetts, 1741-1756, a history: Volume I (Columbia Studies in History, Eco- nomics and Public Law, Vol. XCII, Whole No. 200, N. Y., 1920).
CHAPTER VI
THE BENCH AND BAR IN COLONY AND PROVINCE (1630-1776)
BY F. W. GRINNELL Secretary of the Massachusetts Bar Association
INTELLECTUAL EQUIPMENT OF THE COLONIAL LEADERS (1630-1691)
Recent investigators in the legal history of Massachusetts be- lieve that the fall of the Puritan government in Massachusetts by the loss of the original charter, and the beginning of the fall of the Puritan church at the time of the witchcraft craze, were both due in large measure to the lack of an educated bar. Nevertheless, while the Puritans distrusted and deliber- ately excluded lawyers in the seventeenth century, they de- veloped much of the "common law" of Massachusetts. They even drew up and adopted the first complete code of laws prepared for itself by any modern community-the Code of 1648-of which a photostat copy can be seen in the Massa- chusetts State Library; the only known original copy now in existence being in California. It is still law in Massachusetts, except so far as its provisions have been repealed, superseded, or become obsolete. This little-known document not only reflects the local law, but contains provisions notably in ad- vance of any other jurisdiction of that period. From the first existed a method of law making and a formal tribunal, which have not been developed in the first volume of this work.
Professor William G. Sumner long ago pointed out that, "the fact which gives chief value to the study of the early history of the United States is that in it we can see a society begin from its earliest germ and can follow its growth. It is a case of an embryo society-not, however, of savages but of civilized men. They came armed with the best knowledge
156
157
THE ORIGINAL CHARTER
and ability which men up to the time of their immigration had won. ... That history presents elements to the student of society which he can find nowhere else."
Bradford, Brewster, Winslow, Winthrop, Endecott, Salton- stall, John Cotton, Vane, Nathaniel Ward, Richard Belling- ham, and others, who did the practical constructive thinking, were educated men. In spite of their faults and prejudices, the Puritan pioneer government developed in practice stand- ards of government which were not only new then, but which still guide our courts, our legislatures, and our people. In earlier days in Europe, the Catholic priesthood represented most of the learning; so in New England the Puritan clergy were on the whole the best educated men in the community. They had a broader and closer understanding of human nature than some modern clergymen who presume to instruct us in political affairs. They were as shrewd in politics as the Eng- lish and other European ecclesiastics had been before them, and accordingly they valued and co-operated with strong laymen, like Winthrop and others, in administering the govern- ment and formulating the laws. For instance, the practical sense which developed the American principle of a bicameral legislature in 1644, instead of a single chamber, as a result of a violent dispute over Goody Sherman's stray sow, is a strik- ing example of the "art of effective government."
Some of the leaders, notably Ward, Bellingham and Win- throp, had studied law to such an extent that they were well equipped for the practical business of government of an Eng- lish community. Ward, although a clergyman, stated in the "Simple Cobbler of Agawam," that he had "read almost all the common law of England."
CONSTITUTIONAL INFLUENCE OF THE ORIGINAL CHARTER (1630)
In Chapter V of Volume I, Dickinson has told the story of the charter of the Bay Colony; but it must here be treated as part of the background of the constitutions of the revolution- ary period of the eighteenth century. From the proceedings of the "General Court" of the company in England on July 28, 1629, and the subsequent agreement of August 26, 1629
158
THE BENCH AND BAR
between Winthrop, Dudley and others who agreed to emigrate, it is clear that one of the conditions of their coming over was that they should carry with them the charter of the company as the irrevocable basis of the local government which they intended to found. In the language of a later period it was, in their opinion, and in a very literal and practical sense, the "social compact" or "constitution" protecting them against the government in England and also against Gorges (who had ap- parently been caught napping) and others who might want to get it away from them.
This charter contained among its clauses a foundation of personal liberty, which appeared earlier in the Virginia Charter and was repeated later in the Province Charter of 1691, and under which Massachusetts was governed until the Revolution; it also formed the basis of the Massachusetts Constitution of 1780. That clause reads : "That all and every of the subjects of us, our heirs and successors which shall go to and inhabit within the said land and premises and every one of their chil- dren which shall happen to be born there or on the seas in going thither, or returning from thence shall have and enjoy, all liberties and immunities of free and natural subjects within any of the dominions of us, our heirs and successors to all in- tents constructions and purposes whatsoever as if they and every of them were born within the realm of England."
In the absence of trained practising lawyers, advocates en- gaged in fighting out in court the meaning of the common law rights of Englishmen, it fell to the members of the civil government and clergymen already mentioned who had studied law, to define and enforce these rights thus recognized. They lay dormant at first ; but there they were, ready for application and for further development when trained legal advocates arrived on the scene and began to assert them, as Otis did in 1761.
When they arrived in America and began to interpret their charter or "constitution", they did it with a free hand. Find- ing, or rather really believing, that their strong religious sympathy was the most effective "associative principle" to hold them together and build up a civil society, they used only so much of what they knew of the common law of England as suited their purposes and local conditions.
159
THE BODY OF LIBERTIES
SOURCES OF MASSACHUSETTS LAW (1629-1689)
As Hilkey has recently pointed out, much English "common law" was probably administered under the guise of the "Law of God." Law books as "sources of law" were extremely scarce but, in developing "the Law of God" as a working basis, they kept themselves informed from time to time. In 1647, the General Court adopted the following order :
"It is agreed by the Court, to the end that we may have better light for making and proceeding about laws, that there shall be these books following procured for the use of the Court from time to time: Two of Sir Edward Coke upon Littleton; two of the Book of Entries; two of Sir Edward Coke upon Magna Carta ; two of the New Terms of the Law; two of Dalton's Justice of the Peace; two of Sir Edward Coke's Reports.
These books, at that time recent, were the main sources of information about the common law, Dalton's Justice of the Peace, in particular, was a very practical guide in the adminis- tration of criminal law. "Moses his Judicials" (to use John Cotton's language) were a source of law which the people in general could understand; and a mixture of Moses and Lord Coke characterized the colonial statutes. But the Puri- tans had their own peculiar experience with what Dean Pound calls "the limits of effective legal action."
Dr. Morison says: "Marblehead, with its ample harbor, attracted fisherfolk from Cornwall and the Channel Islands, who cared neither for Lord Bishop nor Lord Brethren. Their descendants retained a distinct dialect, and a jealous exclusive- ness for over two centuries. Marblehead obeyed or not the law of the Great and General Court, as suited her good pleasure; but as long as she 'made fish,' the Puritan magis- trates did not interfere. Literally true was the Marblehead fisherman's reproof to an exhorting preacher : 'Our ancestors came not here for religion. Their main end was to catch fish'."
THE BODY OF LIBERTIES (1641-1643)
The need of a practical up-to-date guide for magistrates showed itself early; hence about 1636 steps were taken to-
1
160
THE BENCH AND BAR
ward a collection of legal rules of conduct. After various de- lays, two drafts of a "Body (or Breviate) of Liberties" were prepared; one by Reverend John Cotton, who may be classed as the representative of Moses, and the other by the legal student, Rev. Nathaniel Ward, who was more of a repre- sentative of Lord Coke. Ward's draft won support; and in 1641 was revised by the General Court, sent to the towns for consideration, and then again revised. It is a curious docu- ment. It was not exactly enacted as law at first, inasmuch as the charter provided that the colonists should make no laws repugnant to the laws of England. Winthrop said that they wanted to "raise up laws by practice and custom"; i.e., a local common law : they did it. At the end of the document-in 98 sections-the General Court "with one consent fully authorize and earnestly entreat all that are and shall be in authority to consider them as laws." For three years the General Court at each session was enjoined to consider whether any altera- tion was necessary. What might be considered the enacting clause was as follows: "Wee doe . .. this day religiously and unanimously decree and confirme these following Rites, liberties and privileges concerning our churches, and civill state to be respectively impartiallie and inviolably enjoyed, and observed throughout our Jurisdiction forever."
The civil war in England having diverted attention from the colonies, and the danger of interference by the Crown having been removed by the success of the Puritan party, the Massachusetts people felt safer in passing more positive legis- lation, and settled down to the careful preparation of the Code of 1648-1649.
Space does not permit a study of the differences between the common law of England and that of Massachusetts. A comparison of some of the "fundamentals" of Massachusetts with those of England appears in the answer of the General Court to a petition by Dr. Childs, Maverick, and others in 1646. While "they did ever honor parliament and were ready to perform all due obedience, etc., to them according to our charter," etc. yet as Winthrop shows, they rebuked the petitioners who "did impudently and falsely affirm that we are obliged to those laws (of England) by our general charter and oath of allegiance". They declared; "Our allegiance
161
LACK OF LEGAL TRAINING
binds us not to the laws of England any longer than while we live in England for the laws of the parliament of England reach no further."
In this positive theory of the right to independent local self-government, we find the basis of the position taken by John Adams in his first public utterance against the Stamp Act more than a century later and persistently maintained by him throughout the revolutionary controversies. Adams did not invent the idea. He was merely the most powerful and statesmanlike student of colonial history, and exponent of the view which took shape in the minds of Winthrop and his colleagues before they emigrated, and which led them to bring their charter with them.
LACK OF LEGAL TRAINING (1630-1660)
In the earliest years parties spoke for themselves in court. Then, as shown by "Libertie" 26, they were allowed to employ others acceptable to the court (at first without fees). We of Massachusetts have always been a litigious people; and even without lawyers "to foment a controversy" there were plenty of squabbles. The conception of the "Law of God" did not prevent the custom of going to the magistrates for ex parte statements, and advice, before the cause came up for trial. Hence Nathaniel Ward in the Election Sermon of 1641 warned the magistrates that they should not give private ad- vice nor hear any man's cause before it came up in public. A proposal to prohibit such practices, at first was opposed, among other reasons, because lawyers would be needed to ad- vise litigants.
Forms of procedure were simple because life was simple. The Colonists had actions of "debt" and "trespass" and "actions of case" which was the usual method of trying almost any issue including land disputes. In fact litigation in general probably resembled the procedure of our "small claims" courts to-day in which lawyers seldom appear.
Thomas Lechford an "attorney" or "Scrivener" from Clements Inn in London, commonly referred to as the only "lawyer" in the colony, seems to have made various useful suggestions, in spite of his unpopularity as a critic. Among
162
THE BENCH AND BAR
other things he seems to have suggested written pleadings and court records in 1639.
After a while, "usual and common" attorneys, even though not trained lawyers, became recognized as a necessary evil to save the time of the court; but even they were so verbose that in 1656 they were limited to one hour of talk on each side.
Under these primitive conditions with laymen as judges and with prejudice against English law, even though needed and used, there developed what Brooks Adams has called "the per- nicious tradition" that special training was not needed to ad- minister justice; and that anybody could be either a lawyer or a judge.
The colonials had no clear idea of the separation of the judicial, legislative, and executive functions which had not been clearly recognized in England. Hence they often called on the legislature to overrule the courts,-a practice which continued to Governor Hutchinson's day. This led to the constitutional separation of the judicial from the other func- tions of government in the Constitution of 1780.
EARLY STAGES OF THE BAR
Not until the critical controversy over the Charter after 1664, and the later uncertainty of land titles created by Gover- nor Andros, did the weakness of a lawyerless community begin to show itself. In the Charter controversy Increase Mather and others are said to have consulted Sir John Somers (later Lord Chancellor), who advised an appeal; but they did not follow his advice. To oppose a "prerogative writ" or defend a land title by consulting clergymen and the Old Testament, instead of trained lawyers and the decisions of the Privy Council, does not accord with modern notions. In other colonies, competent lawyers were available and might have been employed in support of the titles.
Indeed, the community might have been spared the suffering and disgrace of the witchcraft trials of 1692 (elsewhere de- scribed in this volume), had there been a trained lawyer of character and force to challenge the legality of the special court created by Governor Phips, before it began its fanatical proceedings; or to challenge and fight the absurdities of the
163
RIGHT TO JURY TRIAL
"spectral" evidence. The court was created on the advice of Rev. Cotton Mather by a special commission of "oyer and terminer" to try witchcraft cases. The occasional practice of the English Crown in appointing such special commissions as the "Bloody Assizes" of 1685 held by Lord Chief Justice Jeffries and his associates was relied on as a precedent but the assumption that the Province Charter extended this power of the Crown to the Royal Governor of the Province for such a purpose without authority from the General Court which had the sole authority to "establish judicatories" probably would have been upset, had there been competent lawyers at hand to attack it.
THE BEGINNINGS OF A "BAR"
During the brief administration of "President" Dudley in 1686, the Superior Court, which consisted of a majority of the "President's" Council, with William Stoughton as Chief Justice, began the practice, by rule of Court, of requiring "attorneys" to take an oath. The title of "barrister" appears to have been first assumed in Massachusetts about this time by Thomas Newton. This classification of the bar was developed about 1760 into a clearly defined difference requiring a long period of preparatory study in the office of some practising lawyer to qualify a man for admission as a "barrister." The distinction continued throughout the eighteenth century.
QUESTION OF RIGHT TO JURY TRIAL (1643-1775)
One of the first things done by the General Court under the Province Charter in 1692 was to adopt a "Bill of Rights," which was disallowed by the Privy Council. By the "common law" of Massachusetts, expressly recognized in "Libertie" 29 of 1643, jury trial was optional even in criminal cases, the defendant being allowed to elect between a trial by the bench or by a jury. This was a distinct departure from the English common law. The option of "Libertie" 29 was expressly provided in the later statutes of the colony and exercised in practice while they had the colony judges, until the revocation of the charter in 1684. This option in criminal cases, though known and practiced in some other colonies and present states, in Massachusetts appears to have been entirely forgotten for
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.