USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 2 > Part 17
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At this same meeting it was further voted: "that the con- sent of the bar shall not be taken but at a general meeting of the bar for the County and shall not be given to any young gentleman who has not had an education at College or a liberal education equivalent in the judgment of the bar."
THE FIRST GREAT CONSTITUTIONAL CASE (1761)
The first great legal battle in the Massachusetts Courts and perhaps, the greatest case ever argued in America because of the far-reaching influence of the argument of counsel, was the case of the Writs of Assistance before the Superior Court of Judicature in 1761, sitting in the Council Chamber of the Old State House in Boston. The fullest account appears in a letter of John Adams written in 1817, which is one of the sources of our legal history.
"Whenever you shall find a painter, male or female, I pray you to suggest a scene and a subject for the pencil. The scene is the Council Chamber in the old Town House in Boston. The date is in the month of February, 1761. . .. In this chamber, round a great fire, were seated five Judges, with Lieutenant-Governor Hutchinson at their head, as Chief Justice, all arrayed in their robes of scarlet English broadcloth ; in their large cambric bands, and immense judicial wigs. In this chamber were seated at a long table all the barristers at law of Boston, and of the neighboring county of Middlesex, in gowns, bands, and tie wigs. . . . Two portraits, at more than full length, of King Charles the Second and of King James the Second, in splendid golden frames, were hung up on the most conspicuous sides of the apartment. . . Samuel Quincy and John Adams had been admitted barristers at that term. John was the youngest. He should be painted looking like a short thick archbishop of Canterbury, seated at the table with a pen in his hand, lost in admiration, now and then minuting these poor notes. . . . Merchants of Salem and Boston applied to Mr. Pratt, who refused, and to Mr. Otis and Mr. Thacher, who accepted, to defend them against the
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terrible menacing monster, the writ of assistance. Great fees were offered, but Otis, and, I believe, Thacher, would accept of none. 'In such a cause,' said Otis, 'I despise all fees.' . . .
"Now for the actors and performers. Mr. Gridley argued with his characteristic learning, ingenuity, and dignity, and said everything that could be said in favor of Cockle's peti- tion; all depending, however, on the 'if the Parliament of Great Britain is the sovereign legislature of all the British empire.' Mr. Thacher followed him on the other side, and argued with the softness of manners, the ingenuity and cool reasoning, which were remarkable in his amiable character.
"But Otis was a flame of fire !- with a promptitude of classi- cal allusions, a depth of research, a rapid summary of histori- cal events and dates, a profusion of legal authorities, a pro- phetic glance of his eye into futurity, and a torrent of impetuous eloquence, he hurried away every thing before him. American independence was then and there born; the seeds of patriots and heroes were then and there sown, to defend the vigorous youth, the non sine Diis animosus infans. Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born. In fifteen years, namely in 1776, he grew up to manhood, and declared himself free. . . .
"Mr. Otis's popularity was without bounds. In May, 1761, he was elected into the House of Representatives by an almost unanimous vote. . . . You can have no idea of the conster- nation among the government people. Chief Justice Ruggles, said, 'Out of this election will arise a d-d faction, which will shake this province to its foundation.' Ruggles's foresight reached not beyond his nose. That election has shaken two continents, and will shake all four. For ten years Mr. Otis, at the head of his country's cause, conducted the town of Boston, and the people of the province, with a prud- ence and fortitude, at every sacrifice of personal interest, and amidst unceasing persecution, which would have done honor to the most virtuous patriot or martyr of antiquity. ."
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SIGNIFICANCE OF WRITS
SIGNIFICANCE OF WRITS OF ASSISTANCE CASE (1761-1765)
Over the power and influence of Otis' argument, a contro- versy still smolders, flaring up recently in the destructive criticism by James Truslow Adams in his Revolutionary New England. John Adams gave testimony several times on this subject, growing more and more convinced of its importance and of Otis' power as years advanced. Records of the argu- ments made at the time are wanting ; but Otis' powerful state- ments on the right of Americans is forever crystallized in his pamphlets in 1763 and 1764, Vindication of the Massachu- setts Representatives and The Rights of the British Colonies which. as Tudor tells us, were "quieuvicued" by Samuel Adams. Otis was not a "young" lawyer; he was at the height of his powers. An "eagle-eyed politician" does not de- scribe him; most men were politicians in those days. He was much more. Putnam, with whom John Adams studied, con- sidered Otis "by far the most able, manly, and commanding character of his age at the bar."
Men are not likely to forget great intellectual inspirations and experiences such as those which obviously had so pro- found an influence on John Adams. As his grandson puts it, the eloquence of Otis "was to Mr. Adams like the oath of Hamilcar administered to Hannibal." Perhaps the greatest contribution which James Otis made to the history of America was that stirring of the imagination and intellectual enthusi- asm of the man who was later to drive home his ideas, and who as President appointed John Marshall, Chief Justice of the Supreme Court of the United States. Those who read the pamphlets of Otis already mentioned know that the ideas there expressed were not suddenly developed in 1763 and 1764. They were the result of wide reading and reflection and there can be no question that Otis argued the similar ideas and in similar language in 1761. Otis at once became the popular hero. The idea of the "supremacy of law" over legis- latures was growing and Otis, as a pioneer, fostered its growth to the budding point.
The next outstanding controversy in which the lawyers led was over the Stamp Act in 1765. Andrew Oliver, the stamp distributor, having been forced to resign his office and
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there being no stamps as required for legal papers, the courts were closed and the business of lawyers stopped. Here John Adams, as a result of his protest in Braintree, suddenly started on his public career at the age of thirty by being chosen with Jeremiah Gridley and James Otis to represent Boston in support of a petition before the Governor and Council, asking them to open the courts. In that argument, the famous slogan "No taxation without representation" was supported by argu- ments similar to those used by Otis in 1761. From this time on, the lawyers, supplemented by the printers, had a tremend- ous influence.
JOSEPH HAWLEY, HEAD OF THE BAR (1745-1776)
The Connecticut Valley has long since been recognized as the source of some of the most level-headed men of Massa- chusetts. Boston produced Otis and Braintree produced his later disciple, John Adams, both primarily the men of intel- lectual suggestion. Boston also produced Samuel Adams,- primarily the man of action, political management and organi- zation. Another character,-primarily a man of judgment in legislative and revolutionary matters and the leading lawyer of western Massachusetts,-was Major Joseph Hawley of Northampton. He appears to have been not only a man of ardent temperament and of peculiarly upright character, re- spected throughout the western part of the state which he represented, but also a man of unusual foresight and firmness who foresaw the necessity of the approaching conflict earlier and more clearly than many of his contemporaries. He did what he could to prepare for it in restraining and fortifying, or balancing, the minds of many of his associates and particu- larly of the younger men, of whom John Adams was one, as appears in a cautioning letter to John Adams as he started for the Continental Congress in 1774.
Joseph Hawley was born in 1724, graduated from Yale in 1744, rose to the head of the bar in the western counties, and in 1766 was sent to the Massachusetts General Court where he exercised a dominating influence for the ten years until 1776. Then he retired, refusing an election to the senate in 1780 because of the religious test required by the then recently
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EDMUND TROWBRIDGE
adopted constitution. The confidence and respect which he inspired is, perhaps, best indicated by the following passage from a biographical article :
"The vigor with which he conducted the defense of some Hampshire County rioters indicted for resisting the Stamp Act and the severity of his strictures upon the opinions ad- vanced by the court led to his dismissal from the bar for the remainder of that court session, but they did not lessen the esteem of Chief Justice Hutchinson for his critic. The high opinion of Hawley expressed throughout Hutchinson's His- tory is remarkable in view of the fact that the Hampshire patriot more than once by his superior knowledge of the law was able to turn the judge's own statements against him and to place him, when governor of the colony, in an awkward position."
John Adams tells us that Major Hawley was "always con- scientious, always deliberate, always cautious;" and that in 1774 "such was the state of parties . . . that the patriots could carry nothing in the House without the support of Major Hawley."
EDMUND TROWBRIDGE
Of Edmund Trowbridge, born in 1709, a graduate of Har- vard of 1728, attorney general at one time and a justice of the Superior Court of Judicature from 1767-1775, Chief Justice Parker spoke in 1813 as "perhaps the most profound common lawyer of New England before the Revolution." His opinions and essay on "The Law of Mortgages" were considered of such value as to be annexed (after his death in 1792) to Volume 8 of the Massachusetts Reports. Perhaps his greatest public service, though not generally realized, was his teaching law to Theophilus Parsons in Byfield' after he retired from the bench during the Revolution, for, next to John Adams, Parsons had the most constructive mind in Massachusetts during its formative period after the Revolution. Others who studied in the office of Trowbridge according to Warren were : Francis Dana (subsequently chief justice) ; James Putnam; Royal Tyler (subsequently chief justice of Vermont) ; Rufus King; Christopher Gore; and Harrison Gray Otis.
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JOHN ADAMS
John Adams had, and still has, a vast influence on American history and government. It is futile to compare him with Madison or Hamilton, his great enemy, or with Marshall or others of their generation, for they had different functions, and they all had the advantage of his previous constructive work as lawyer and statesman. In many ways he was their teacher.
Vain, irritable and irritating, particularly during his presi- dency of the United States, ambitious and at times apparently jealous even of Washington, he yet combined with these peculiarities an intellectual capacity, a range of vision, a spirit of tolerance, in other words, a balance of character and in- tellect which made men turn to him for guidance in his early forties. He was not then, nor, indeed, at any time in calm moods, an extremist in any direction. This enabled him to re- flect in his draftmanship most of the permanent sentiments of his fellow citizens in such a way as to satisfy succeeding gener- ations, and in many ways to convince the men who framed and ratified the Constitution of the United States. To him the committee of thirty, appointed to draft a constitution for the Massachusetts Convention, delegated that task in 1779. He succeeded Otis as the constructive thinker of the Revolution.
His idea of governmental institutions was based on a pro- found recognition of the conflicting differences in human nature. This is obviously behind his strong belief in a legisla- ture of two houses, the establishment of which, if I am not mistaken, is to a large extent due to his influence. It was obviously behind the principle of the separation of powers also.
On March 5, 1770, occurred the ( so-called) Boston Massa- cre, a conflict between the British troops and the people, else- where described in this volume. Next morning Captain Pres- ton and his soldiers, who were charged with murder, applied to John Adams and young Josiah Quincy, Jr., to defend them. The two young lawyers risked their professional, social and popular standing by accepting, in order to secure a fair trial in a time of great popular excitement. By so doing they set a professional standard which has never been forgotten. The captain and all the soldiers were acquitted except two who were
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THE BILL OF RIGHTS
convicted of manslaughter. Those two claimed "the benefit of clergy" (an old common law forerunner of our probation practice) which involved burning in the hand and subsequent release.
Charles Francis Adams, the grandson of John Adams re- garded the acceptance of the defense in this case as one of the great moral trials and triumphs of his grandfather's career ; and that was doubtless true. Not only did he feel the profes- sional obligation of assisting in a fair trial, but Adams, as will appear later, dreaded the results of irregular "recurrences to original power," in the form of popular riots. Unquestionably he believed that large issues might be endangered if the soldiers were not properly defended.
THE JUDICIAL ARTICLE OF THE BILL OF RIGHTS (1780)
By the famous provision drafted by John Adams in the twenty-ninth article of the Bill of Rights for judicial tenure during good behavior (based on the history of the English bench and the Act of Settlement of 1700) ; and by the pro- vision elsewhere for an appointive judiciary, the Massachusetts bench has been kept open to all men of capacity whether they were available under an elective system or not. These pro- visions have stood for more than one hundred and forty years in Massachusetts, and stand today, as the background of the principle of judicial independence of the Federal Courts. By these clauses, by his defense of the British soldiers, and by the later appointment of John Marshall as Chief Justice of the United States, John Adams set and expounded a standard for the American bench and bar the present influence of which is incalculable.
TORY LAWYERS
In view of the natural conservatism of the bar, it is not surprising, as Chamberlain tells us, to learn that: "Of the barristers in Boston and its immediate vicinity. .. . five were loyalists, and John Adams alone lived through the Revolution as the advocate of American independence. Twenty-four of the principal barristers and attorneys in the colony, and one hun- dred and twenty-three merchants and traders, including a few
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THE BENCH AND BAR
others, in Boston, signed the address to Governor Hutchinson, 30 May, 1774 ; and similar addresses to Governor Gage, as late as 14 October, 1775, were signed by the same class of people, and in still larger proportion to the population, in Salem and Marblehead. Plymouth County was the stronghold of the loyalists. . ยท
"Many of those who finally adhered to the crown were among the most earnest denunciators of the Stamp Act. . . . Not that the Tories were fonder of paying taxes than were the patriots, but they were content when the obnoxious tax was repealed, and were disinclined to [follow John Adams and] make an issue on the Declaratory Act of the parliamen- tary right to tax."
OFFICIAL LIST OF JUDGES (1692-1775)
This list (reprinted from the Manual of the General Court) includes names of men in the first rank of Massachusetts minds or noted for other services to the Commonwealth.
CHIEF JUSTICES
APPOINTED
1692. WILLIAM STOUGHTON 1701.
Resigned. 1701.
1701. WAIT WINTHROP 1701.
Resigned.
1717.
1702. ISAAC ADDINGTON 1703.
Resigned.
1715.
1708. WAIT WINTHROP 1717.
Died in Office.
1717.
1718. SAMUEL SEWALL 1728.
Resigned.
1730.
1729. BENJAMIN LYNDE 1745.
Died in Office.
1745.
1745. PAUL DUDLEY
1751.
Died in Office.
1751.
1752. STEPHEN SEWALL 1760.
Died in Office.
1760.
1761. THOMAS HUTCHINSON 1769.
Acting Governor.
1780.
1769. BENJAMIN LYNDE 1771.
Resigned.
1781.
1772. PETER OLIVER
Removed at Revolution.
1791.
1692. THOMAS DANFORTH 1699.
Died in Office. 1699.
1692. WAIT WINTHROP
1701.
Resigned.
1717.
1692. JOHN RICHARDS 1694.
Died in Office.
1694.
1692. SAMUEL SEWALL
(Appointed C.J., 1718.)
1730.
1695.
ELISHA COOKE
Removed.
1715.
1701.
JOHN SAFFIN
Removed.
1710.
1702.
JOHN HATHORNE 1712.
Resigned.
1717.
1702.
JOHN LEVERETT
1708.
Resigned.
1724.
1708.
JONATHAN CURWIN
1715.
Resigned.
1718.
1712.
BENJAMIN LYNDE
(Appointed C.J., 1729.)
1745.
1712.
NATHANIEL THOMAS 1718.
Resigned.
1718.
1715.
ADDINGTON DAVENPORT 1736.
Died in Office.
1736.
1718.
PAUL DUDLEY
(Appointed C.J., 1745.)
1751. 1737.
1728. JOHN CUSHING 1733.
Removed.
1737.
1733. JONATHAN REMINGTON 1745.
Died in Office.
1745.
1736. RICHARD SALTONSTALL 1756.
Died in Office.
1756.
1737. THOMAS GREAVES 1738. Resigned.
1747.
1739. STEPHEN SEWALL
(Appointed C.J., 1752.)
1760.
1745. NATHANIEL HUBBARD
1746.
Resigned.
1748.
1745. BENJAMIN LYNDE
(Appointed C.J., 1769.)
1781.
1747. JOHN CUSHING 1771.
Resigned.
1778.
1752.
CHAMBERS RUSSELL 1766. Died in Office.
1766.
JUSTICES 1775.
1700. JOHN WALLEY 1702.
1712.
Died in Office.
1712.
1702.
1718. EDMUND QUINCY 1737.
Died in Office.
LEFT THE BENCH DIED
From the portrait in The Massachusetts Historical Society
THOMAS HUTCHINSON
SUPERIOR COURT OF JUDICATURE
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OFFICIAL LIST OF JUDGES-Continued JUSTICES
APPOINTED
LEFT THE BENCH
DIED
1756. PETER OLIVER
(Appointed C.J., 1772.)
1791.
1767. EDMUND TROWBRIDGE 1775.
Resigned.
1793.
1771. FOSTER HUTCHINSON 1775.
Removed at Revolution. 1799.
1772. NATHANIEL ROPES 1774. Died in Office.
1774.
1772. WILLIAM CUSHING 1775.
Removed at Revolution.
1810.
1774. WILLIAM BROWNE 1775.
Removed at Revolution.
1802.
THE SUPERIOR COURT OF JUDICATURE (1692-1775)
In the above list of judges serving on the Superior Court of Judicature from its creation in 1692 to the Revolution are only four trained lawyers: Benjamin Lynde, Sr., Dudley, Trowbridge, and William Cushing.
Chief Justice Mason has made a fair-minded review of the judges of the Provincial period, as follows :
"It is a mistake to assume that other members of the high- est judicial tribunal of the province were not familiar with the legal learning of the times because not educated for or trained by practice in the legal profession. Nearly all of them were graduates of Harvard, and of ability in general scholar- ship. Participating actively in public affairs, they had become familiar with the organization of the government and its ad- ministration, also with the legislation of the province and of parliament affecting provincial affairs, and when appointed to judicial duties did not fail to apply themselves to studies calculated to give them efficiency in the work. Law libraries were not then so extensive as now, and the mastery of such books of the law as were then accessible was not a formidable task for trained scholars. It is not probable that so far as familiarity with books of the law could give equipment for judicial work, the trained lawyers of the court were so much better furnished than their associates as might be hastily assumed. While it is not practicable to make accurate com- parison of the legal attainments of the provincial judges, it is quite certain that the average standard was not a low one.
"The second Benjamin Lynde, associate justice from 1745 to 1769, and chief justice from 1769 to 1771, is not known to have been educated for the bar, but he was a graduate of Harvard in 1718, entered public life almost immediately, and had eleven years' preparatory training in the Suffolk Court of Common Pleas before his promotion to the Superior Court.
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When in 1770 he presided at the trial of Captain Preston and the soldiers connected with the historical event known as the 'Boston Massacre,' he betrayed no lack of legal equipment nor of judicial firmness.
"Thomas Hutchinson, one of the ablest judges of the pro- vincial period, for eight years chief justice, was a graduate of Harvard in 1727, and first entered commercial business, but failed of success. He thereupon began the study of law, but with reference to public life rather than to practice in the pro- fession, and never became a member of the bar. Had history occasion to deal only with his judicial career, his place would be that of unquestioned ability, learning, and integrity. His political errors brought upon him such obloquy that scant justice has been done to his distinguished service in other lines.
"Peter Oliver, the last chief justice under the provincial government, was a graduate of Harvard in 1730, and, although he entered no profession, was a man of much culture. He had served upon the Court of Common Pleas for Plymouth County eight years prior to his appointment to the Superior Court in 1756. For sixteen years, he served as associate justice of the latter court to the acceptance of every one, winning a high reputation for accurate learning, fearless independence of action, and uncompromising integrity. In 1772, he was ap- pointed chief justice and in little more than two years was among the most intensely hated of the adherents of the Crown. As conscientious in his political errors as any patriot who assisted in burning his effigy or his beautiful home at Middle- boro, his fidelity to convictions cost him temporary obloquy of the gravest character, and those who cherished his good name saw the record of history made up ignoring his life-long faithful service and preserving only that which has been con- demned. The record which is unjust may last for time, may have no correction in earthly annals, but, nevertheless, it can not abide to injure.
"If we had better means of measuring the useful service of : William Stoughton, Samuel Sewall, Stephen Sewall, Ed- mund Quincy, Richard Saltonstall, John Cushing, and the other judges, it would doubtless give us higher estimates of their individual merit, and fuller appreciation of the large
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INTERIOR COURTS
contribution of the provincial period to the judicial history of Massachusetts."
INFERIOR PROBATE AND ADMIRALTY COURTS
Of the courts other than the Superior Court, Abraham Holmes spoke in his address to the Bristol County bar in 1834. He points out that "At this time the courts, especi- ally the Courts of Common Pleas, were not composed of such legal characters as since have dignified those benches. The emoluments of the offices would not induce greater men to accept. The celebrity of the bar had very much increased ; the Judges of the Courts of Common Pleas were in statu quo. The bar possessed a greater share of the people's confidence than the judges did, and that was very often the case with the juries. According to the foibles of human nature, the gentle- men of the bar rather looked down on the bench, though they commonly, but not always, treated them with a distant, cool civility. They sometimes said that, with impunity, which would now deprive them of their right to practice."
Probate courts were created in each county under a clause in the Charter of 1791 giving the Governor with the Council or Assistants power to "do, execute or perform all that is necessary for the probate of wills" etc. An appeal was re- served to the Governor and Council as the Supreme Court of Probate. The provision in the Constitution of 1780 con- ferring probate jurisdiction on the Governor and Council "until the Legislature shall by law make other provision" was therefore a continuance of the earlier practice.
Admiralty courts have been mentioned already in connec- tion with the jury question. The general grant in the Province Charter to the General Court of power to establish "judica- tories" was limited by the reservation-
"Provided always-that nothing herein shall extend or be taken to erect or grant or allow the exercise of admiralty court jurisdiction power, or authority, but that the same shall be and is hereby reserved to us and our successors, and shall from time to time be erected, granted, and exercised by virtue of Commissions to the issued under the great seal of England
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THE BENCH AND BAR
or under the seal of the high admiral or the commissioners for executing the office of high Admiral of England."
The colonies were divided into districts, over which admi- ralty judges were appointed with power to appoint deputies to act under them. From 1703 on, New England constituted the Northern District in which these courts had jurisdiction of breaches of the Acts of Trade without juries. As already pointed out, this little clause in the Charter contained the seeds of much pre-revolutionary friction.
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