USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 2 > Part 18
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CONTROVERSY OVER TENURE (1772)
In 1772, the fact that the British government undertook to pay the salaries of the Massachusetts judges alarmed the public, lest the administration of justice should become more completely under Royal control. The commissions of the judges at this time contained neither the clause granting the common law tenure during the King's pleasure (durante bene placito) nor the tenure of English judges since the Act of Settlement of 1701 "during good behavior" (quamdiu se bene- gesserint ).
A public controversy arose as to the meaning of these com- missions as to tenure, between General William Brattle and John Adams in which Adams demonstrated that the common law rule of the Royal pleasure would govern if the question arose. If there was to be any political control of judges, our local ancestors wanted to have it through the control of judi- cial salaries to which they had been accustomed. The principle of judicial independence was not fully established in Massa- chusetts until John Adams wrote it into the twenty-ninth article of the Bill of Rights and the third chapter of the Massa- chusetts Constitution, which was adopted in 1780.
The serious situation which threatened "irregular recur- rences to original power" and the way the difficulty was met is best described in the vivid account which Adams wrote. "Inti- mations were frequently given that this arrangement should not be submitted to. I understood very well what was meant, and I fully expected that if no expedient could be suggested, the judges would be obliged to go where Secretary Oliver had gone, to Liberty Tree, and compelled to take an oath to re-
CONFLICT OVER CHIEF JUSTICE OLIVER 187
nounce the Royal salaries. Some of these judges were men of resolution, and the chief justice, in particular, piqued himself so much upon it and had so often gloried in it that the mob might put on him a coat of tar and feathers, if not put him to death. I had a real respect for the judges; three of them, Trowbridge, Cushing, and Brown, I could call my friends. Oliver and Ropes, abstracted from their politics, were amiable men, and all of them were very respectable and virtuous characters. I dreaded the effect upon the morals and tempers of the people, which must be produced by any violence offered to the persons of those who wore robes and bore the sacred characters of judges; and, moreover, I felt a strong aversion to such partial, and irregular recurrences to original power.
"It happened that I was invited to dine that day with Samuel Winthrop. Arrived at his house in New Boston, I found it full of counsellors and representatives and clergy. Such a group of melancholy countenances I had rarely, if ever, seen. No conversation, except some insipid observations on the weather till the great topic of the day was introduced, and at the same time a summons to the feast. All harps upon the willow, we sat down to a triste dinner, which all the delicacies before us could not enliven. A few glasses of good wine, however, in time brought up some spirit, and the conversation assumed a little vigor, but it was the energy of grief, com- plaint, and despair."
CONFLICT OVER CHIEF JUSTICE OLIVER (1776)
Adams then suggested impeachment of the judges by the House before the Governor and Council. "The company dis- persed, and I went home. Dr. Cooper and others were excel- lent hands to spread a rumor, and before nine o'clock half the town and most of the members of the General Court had in their heads the idea of impeachment. The next morning early, Major Hawley, of Northampton, came to my house under great concern, and said he heard that I had yesterday, in a public company, suggested a thought of impeaching the judges ; that report had got about and had excited some uneasiness, and he desired to know my meaning. I invited him into my office, opened the charter, and requested him to read the para-
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THE BENCH AND BAR
graphs that I had marked. I then produced to him that volume of Selden's works which contains his treatise on Judicature and Parliament; other authorities in law were produced to him, and the State Trials, and a profusion of impeachments with which that work abounds." Hawley drove away to Cam- bridge to consult Judge Trowbridge and appealed to his con- science. The charter was called for; Selden and the State Trials were quoted. Trowbridge said to him what I had said before, that 'the power of impeachment was essential to a free government; that the charter had given it to our House of Representatives as clearly as the Constitution, in the com- mon law or immemorial usage, had given it to the House of Commons in England.' This was all he could say though he lamented the occasion of it.
"Major Hawley returned full in the faith. The articles were reported to the House, discussed, accepted; the impeach- ment voted, and sent up in form to the Governor and Council; rejected, of course, as everybody knew beforehand that it would be; but remained on the journals of the House, was printed in the newspapers and went abroad into the world. And what were the consequences? Chief Justice Oliver and his Superior Court commenced their regular cir- cuit. The chief justice opened his court as usual. Grand jurors and petit jurors refused to take their oaths. They never, as I believe, could prevail on one juror to take the oath. I attended at the bar in two counties, and I heard grand jurors and petit jurors say to Chief Justice Oliver to his face, 'The chief justice of this court stands impeached, by the representatives of the people, of high crimes and mis- demeanors, and of a conspiracy against the charter privileges of the people. I, therefore, can not serve as a juror, or take the oath'." This action of jurors was encouraged by commonly expressed public sentiment frequently reflected in passages of the "Suffolk Resolves" adopted by a Committee which met in Milton.
THE INTERVAL WITHOUT COURTS (1775)
The last term of the "Superior Court of Judicature" before the Revolution was held in September, 1774. There was not,
From a mezzotint in The Massachusetts Historical Society
PETER OLIVER
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THE INTERVAL WITHOUT COURTS
however, any formal act of legislation vacating the offices of the judges of the courts until 1775. The court consisted, at the time of its dissolution, of : Chief Justice Oliver, Trow- bridge, Foster Hutchinson, William Cushing, and William Brown. Washburn says: "The interval between the dissolu- tion of the old courts and the organization of the new exceeded a year, but the defect of courts was in some places supplied by the establishment of local tribunals for the trial of causes, but more by the spontaneous action of the people in restraining crime and enforcing justice." . , That the interval when there were no courts was not entirely free from the need of them, however, is shown by the following passage from the Procedings of the Second Provincial Congress: Hon. Joseph Hawley, from the committee to bring in a resolve for the regular administration of justice, reported the following :
"Whereas, it appears to this Congress, that a want of a due and regular execution of justice in this colony has encouraged divers wicked and disorderly persons, not only to commit out- rages and trespass upon private property and private persons, but also to make the most daring attacks upon the constitution, and unite in their endeavors to disturb the peace."
If one applies a little imagination to the rather formal re- cital of facts in this report, which appears to have been written a little more than a month after Paul Revere's ride, the neces- sity for courts of some kind during that critical period readily appears.
Adams was appointed and accepted the appointment because he realized the importance of reorganizing the courts, and he was willing to put his neck in a "halter" by accepting the position as head of the court in order to get things started. It took over six months to fill up the court.
The Court appears to have been reorganized in the fall of 1775 as a court of five judges. John Adams, the first ap- pointed chief justice, never took his seat and soon resigned, as he was too much occupied in aiding the country in other ways. William Cushing of Scituate was appointed chief justice and served until his appointment as one of the first judges of the Supreme Court of the United States in 1789.
SELECT BIBLIOGRAPHY
ADAMS, JAMES TRUSLOW .- The Founding of New England (Boston, Atlan- tic Monthly Press, 1922).
ADAMS, JAMES TRUSLOW .- Revolutionary New England, 1671-1776 (Boston, Atlantic Monthly Press, 1923)-Both are intensely interesting, but somewhat excessively economic interpretations of our history.
ALDRICH, PELEG EMORY .- Equity Pleadings and Practice in the Courts of Massachusetts (Boston, 1885)-A law book with an historical intro- duction containing the history of the statutes.
ANDREWS, CHARLES MCLEAN .- "The Royal Disallowance" (Am. Anti- quarian Assoc., Proceedings, New Series, Vol. XXIV, pp. 342-364, Worcester, 1914).
BAILEY, HOLLIS RUSSELL .- Attorneys and Their Admission to the Bar in Massachusetts (Boston, Nagel, 1907)-The fullest collection of ma- terial on this subject.
CARSON, HAMPTON .- "History of the Independence of the Judiciary" (Mass. Law Quarterly, Vol. II, pp. 363-373)-A vivid, brief story of "the struggle of a thousand years," in an address before the Pennsyl- vania Bar Association.
CHAMBERLAIN, MELLEN .- John Adams (Boston, Webster Historical Society, 1884)-Probably the best estimate in print of the work of John Adams.
CLUNE, MARY CATHERINE .- "Joseph Hawley's Criticism of the Constitution of Massachusetts" (Smith College Studies in History, Vol. III, pp. 1-54, Northampton, 1917)-Gives a brief but illuminating picture of this more-or-less forgotten but important man.
CUSHING, HARRY ALONZO .- History of the Transition from Provincial to Colonial Government in Massachusetts (Columbia Studies in History, Economics and Public Law, Vol. 88, No. 1, N. Y., 1896).
DAVIS, WILLIAM THOMAS .- History of the Judiciary of Massachusetts (Boston, 1860)-This book reminds one of the polite curate's answer to his hostess, who asked him how he liked his egg at breakfast. He answered, "Parts of it are very good."
FARNSWORTH, ALBERT .- "An Account of Shay's Rebellion" (Mass. Law Quarterly, Vol. XI, No. 5, pp. 29-42)-Perhaps the best account in print.
GRAY, HORACE .- "Notes on the Writs of Assistance," (JOSIAH QUINCY, Re- ports of Cases Argued and Adjudged in the Superior Court of the Province of Massachusetts Bay between 1761 and 1772, Boston, 1865) See Appendix I,-A mine of information, including a note on equity jurisdiction at pp. 537-539.
GRINNELL, FRANK WENTWORTH .- "History of the Right to Jury Trial in Massachusetts" (Mass. Law Quarterly, Vol. VIII, No. 5, pp. 7-50)-A study of the nature of the constitutional rights to jury trial. See also MASS. SUPREME JUDICIAL COURT: Opinion, Commonwealth vs. Rowe.
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SELECT BIBLIOGRAPHY
HILKEY, CHARLES JOSEPH .- Legal Development in Colonial Massachusetts 1630-1686 (Columbia Studies in History, Economics, and Public Law, Vol. XXXVII, No. 2, N. Y., 1910)-A valuable discriminating account.
HOLMES, ABRAHAM .- Address before the Bar of the County of Bristol, Mass., at New Bedford, June term, 1834 (New Bedford, Congdon, 1834)-An illuminating account of eighteenth-century conditions by an eighty-years-old practitioner.
KENT, JAMES .- "An American Law Student of a Hundred Years Ago" (Assoc. of Am. Law Schools, Select Essays in Anglo-American Legal History, 3 vols., Boston, Little Brown, 1907-1909)-See Vol. II, pp. 837 ff., for this vivid letter written in 1828, describing his self-training 1781-1798.
KNAPP, SAMUEL LORENZO .- Biograprical Sketches of Eminent Lawyers, Statesmen, and Men of Letters (Boston, 1821)-Contains side lights on men and practice in the midst of eulogy.
LECHFORD, THOMAS .- Note-Book Kept by him in Boston from June 27, 1638 to July 29, 1641 (Cambridge, Wilson, 1885)-Edited by E. E. Hale, Jr.
LECHFORD, THOMAS .- Plain Dealing (London, Nath. Butter, 1642)-Writ- ten by the "only Lawyer" in the colony, who was really a "scrivener." Contains contemporary evidence mixed with criticism of church govern- ment. His Note-Book contains many forms of contracts, deeds, etc., as well as notes of his personal history as a lawyer.
MASON, ALBERT .- "A Short History of the Supreme Judicial Court of Massachusetts : Part I, Judicial History Prior to 1780" (Mass. Lawe Quarterly, Vol. II, No. 2, pp. 82-100)-The same account appears in WILLIAM T. DAVIS: The New England States, Vol. III, chap. CXXXIV. A careful and readable, brief account of seventeenth and eighteenth century courts.
MASSACHUSETTS (Colony) : COURT OF ASSISTANTS .- Records of the Court 1630-1692 (2 vols., Boston, County of Suffolk, 1901, 1904).
MASSACHUSETTS (Commonwealth) : SUPREME JUDICIAL COURT .- "Opinion on Waiver of the Right to Jury Trial in Criminal Cases" (Mass. Law Journal, Vol. XII, No. 2, Appendix)-Case of Commonwealth vs. Arthur W. Rowe and another; opinion filed October 14, 1926.
MORSE, JOHN TORREY .- John Adams (Boston, Houghton Mifflin, 1900)- A good book by a readable writer.
QUINCY, JOSIAH .- Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay between 1761 and 1772; with an appendix upon the writs of assistance by Horace Gray, Jr. (Boston, Little, Brown, 1865.)
CHAPTER VII
FINANCE AND PAPER MONEY (1692-1775)
BY DAVIS RICH DEWEY Professor of Economics, Massachusetts Institute of Technology
TAXATION WITHOUT REPRESENTATION UNDER ANDROS (1687-1689)
The forfeiture of the charter of the Massachusetts Bay Colony in 1684 and the instructions given to Sir Edmund Andros, who was commissioned Governor-General of New England two years later, profoundly affected the attitude of the colonists as to the fiscal support of the government. Andros was instructed, with the consent of the Council, whom he himself appointed and could remove at pleasure, to impose and raise taxes as he should find necessary for the support of the government. Although Andros did not upset the existing system of taxation, the right to exercise this power, irrespec- tive of the methods used, was interpreted by the colonists as an arbitrary act of the English Crown. Self-taxation by elected town representatives was thus denied the colony. This led to bitter resentment and aroused suspicions which were not wholly allayed when the more liberal government of William and Mary was established in 1689.
Andros, indeed, made no change in the kind of tax assess- ment upon property and polls, and the rates imposed were not oppressive as compared with previous years; but the General Court was disregarded in the levy. Some of the towns promptly showed their resentment as to change in authority by refusing to levy the tax. The voters of Ipswich in town- meeting (as is set forth in the last chapter of Volume I of this series) resolved that the tax act "doth infringe their liberty as English subjects of his Majesty, by interfering with the
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BILLS OF CREDIT
statute laws of the land, by which it was enacted that no taxes should be levied upon the subjects without the consent of an Assembly, chosen by the freeholders for assessing the same." Thus early was enunciated the principle of "No taxation with- out representation." Arrests were made, leading citizens im- prisoned, and heavy fines imposed. Andros further intensified popular bitterness by instituting a system of exorbitant fees for the probating of wills and confirming of titles to lands, including grants which had been previously made under the charter, now declared void. For the former, 50 shillings was charged, and for the latter the expense, in addition to travel- ling costs, amounted in some cases to £50.
Andros did not long remain in power. That the colonists did not object to taxation, if raised by their own representa- tives, was promptly shown in 1690 when the General Court, resuming the exercise of its former privileges, authorized a levy of twenty rates. This, the largest tax which had ever been granted, was due to King William's War, the beginning of a series of conflicts between England and France. As each of these nations had settlements in America, the colonists were inevitably drawn into the struggle, for which they were poorly equipped with capital to be expended for supplies. Moreover, the withdrawal of settlers for prolonged military service meant a serious loss in productive power.
FIRST ISSUE OF BILLS OF CREDIT (1690)
The Massachusetts colony in particular overestimated its strength in a project to attack Quebec, for it was anticipated that the plunder of war would meet the expense of the under- taking. When the expedition failed, within a few weeks the surviving soldiers were back, clamoring for their pay, and even on the point of mutiny. The tax, ordered earlier in the year, had not yet been collected and there was little loanable capital which could be borrowed. The legislative assembly turned to promissory notes as a solution; and, December 10, 1690, the General Court, "being anxious to approve them- selves just and honest" and to pay the indebtedness "with what speed they can," ordered the issue of £7,000 of indented bills of credit. These were to be in denominations ranging
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FINANCE AND PAPER MONEY
from £5 to 5sh., to "be of equal value with money," and receivable for all public payments. The indenting of the notes refers to a device of engraved scroll-work at the edge where the note was separated from the stub. It was thought that by matching the note with the stub, it would be possible to determine whether a bill was good or counterfeit.
Undoubtedly the General Court was influenced in some degree in its decision to issue paper money by the scarcity of metallic money. For years there had been complaints due to the lack of a serviceable currency to carry on the trade of an expanding community. The rating of foreign coins at values greater than their intrinsic worth in order to keep them within the colony had proved ineffective; the establishment of Hull's mint and the coinage of shillings and smaller denominations gave but partial relief; and the colony outgrew the use of country produce as a medium of exchange. Proposals for some sort of credit money based upon real estate as well as metals were beginning to be put forth not only in the colony but also in England which was feeling the need of a more ample medium. In the colony, wealth lay in land; might it not be possible to issue credit notes based upon the security of pledged land?
PAPER MONEY SCHEMES (1690)
In these days of abundant credit instruments, checks, drafts, bills of exchange, with thousands of banking institutions to facilitate their use, it is difficult to picture the embarrassments of a vigorous undeveloped industrial community which lacked these tools and agencies. The economic revolution of the seventeenth century was the development of trade. Interior transportation in America was difficult, and long intervals of time elapsed before the goods of the producer reached the hands of the consumer. Central markets for the distribution of goods had not yet been established. Without money, sell- ing of goods depended upon barter or "trusting." Bartering did not afford a free market; and trusting was a hazard. Naturally the colonists sought for relief in a more ample sup- ply of a medium of exchange.
In 1681 a minister of Newbury, Rev. John Woodbridge, gave voice to these complaints. "When coin is scarce, debts
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TAXATION UNDER NEW CHARTER
are contracted; dilatory and shuffling payments made; young beginners are checked ; good men laid open to temptations, and opportunities given to bad ones, that exact from those who must crave credit, or cannot make suitable pay." Trade was stinted; there was wrangling; perplexing suits consumed the time of the magistrates, and merchants beat down craftsmen who were helpless. Where money is "in plenty no buyer will be bound to one person, or market." Money "increaseth manu- facture and provisions; abateth interest; inciteth to the pur- chasing of land; forwards the improvement both of real and personal estates; encourageth heartless idlers to work." To lessen existing evils he therefore proposed the establishment of "a fund of land," either by public authority or private persons. Credit bills based upon the security of land would have "real, durable and secure value."
The issue of the credit notes authorized by the General Court in 1690 were based upon 'public faith rather than upon the specific pledging of land; to the early colonists, who had managed their affairs as communities with common interests, this distinction might not appear important. Public faith was kept for a time and only gradually did the provincial govern- ment slip away from the standards originally set. It is not without interest to note that the colony entered upon this experiment of using credit money four years before the Bank of England, the first English corporation to issue circulating notes, was established in the mother country.
TAXATION UNDER THE NEW CHARTER (1692)
The new charter of 1692 did not fully restore the freedom which the colonists had earlier enjoyed, but it was sufficiently liberal to check open opposition. Once more the General Court could originate revenue measures; and apparently the former privileges of the colony were restored. Yet in the background were sources of possible friction. A finance bill, like all other bills, required the assent of the Governor, who was appointed by the Crown; and the Crown might in its discretion, exercised through the Privy Council in England, disallow a bill signed by the Governor at any time within a period of three years after passage.
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FINANCE AND PAPER MONEY
Moreover the method of forming the General Court was changed. It now consisted of two bodies-the House of Representatives and a Council of twenty-eight members. As the latter were chosen by the lower house, it might be inferred that popular rights were amply protected; but the governor had the right to reject any elected councillor, and could thus create a group who would be subservient to him. This tended to develop factions among the colonists themselves, and on no question were disputes more quickly aroused than on that of taxation.
The collection of taxes was greatly in arrears in 1692, owing to the previous unsettlement in colonial administration. The first General Court under the provincial charter acted promptly ; it met in June, 1692, and forthwith passed an act for enforcing the collection of back colony taxes including those of 1689. Constables were ordered under severe penal- ties to collect and make payment to the county treasurer by November 1. If negligent, the county sheriff should levy upon the constable, and if "no goods could be found," the sheriff was ordered "to take the body of such constable or collector and commit him to prison." Moreover, the constables were ordered to collect the local town taxes in arrears, under penalty of a fine for each month's default.
For new revenue, the provincial legislators naturally favored the taxes with which they had been familiar. Assessment was not left to the selectmen of the towns; the citizens were in- structed to assemble in town meeting and choose a commis- sioner to act with the selectmen, and these were to make "a true estimation of the just yearly value and income." A poll tax of 10 shillings was levied upon every male, sixteen years of age and over, except members of the Council, settled ministers and those devoted to the ministry, grammar schoolmasters, students of the college, and the old and infirm. Lands, houses, merchandise were assessed 30 shillings on every £100 of esti- mated income; and handicraftsmen and laborers also paid 30 shillings on each £100 of income. Cattle were valued at fixed amounts. Again provision was made for prompt payment, and administrative machinery was devised for equalizing assess- ments between towns and counties. The legislature showed
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OTHER DUTIES
its independence in declaring that the act was "to continue in force only for this present levy and no longer."
IMPORT, EXCISE, AND TONNAGE DUTIES
The General Court also passed an act for levying import, excise, and tonnage duties. The import duties continued to be little more than inspection fees. On a few articles the duties were specific, but the bulk of imports was taxed on a small ad valorem basis. On wines the rate varied from £1 to £2 per pipe (two hhds.) ; on rum, it was 6 pence per gallon; sugar, 1 shilling per hogshead ; molasses, 6 pence per hogshead ; tobacco, 6 pence per hogshead; logwood, 1 shilling per ton. On Eng- lish merchandise, with few exceptions, the rate was half of one per cent, that is, 10 shillings per £100. On "other com- modities" (that is, not English in their origin or specifically named above) the rate was 1 penny per 20 shillings of value as appraised in Massachusetts; while the rate on English goods was applied to British home valuation. The excise duties were of more importance ; inn-keepers and retailers paid on wine from 6 to 12 pence per gallon, according to its vintage ; on rum 1 shilling per gallon; and on ale, beer and cider, 1 shil- ling, 6 pence per barrel. Tonnage duties were levied on ships not owned by those "belonging to the province" at the rate of 12 pence, or one pound of good and new powder per ton. This act was also limited to one year.
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