USA > Massachusetts > Suffolk County > Boston > Metropolitan Boston; a modern history; Volume I > Part 28
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Historical Background-The Colonial Period-As Mr. Morse ex- plained, in the colonial period from 1630 to the time of the Province Charter in 1692 there were a number of courts presided over by laymen who administered justice with the assistance of the clergy according to the "Law of God" as found in the Old Testament. There was no bar because there were no trained lawyers and the people distrusted lawyers and did not want them.
Some of the laymen and clergymen, however, had studied law in England, notably Rev. Nathaniel Ward, who drew up the "Body of Liberties" of 1641, which was a combination of a bill of rights and a compilation of statutes, and constituted the earliest approach to a con- stitution in the modern sense of the word. The Trading Company Char- ter of 1629 also contained a clause conferring upon all in the colony "all the liberties and immunities" of Englishmen. This clause was retained in the Province Charter of 1692, which later served as a constitution until the Revolution.
The original purpose of the "Body of Liberties," however, was, as Winthrop described it, to "raise up laws by practice and custom," or in other words to develop a local "Common law" of Massachusetts, and many of our present constitutional provisions date back to this "Body of Liberties" as well as to the two charters. The "liberties and immunities" of Englishmen were vigorously asserted and developed later by James Otis and others as we shall see.
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The Provincial Period-After the Province Charter, several attempts were made by the Legislature to create a judicial system, which were vetoed by the Privy Council in England, and it was not until 1699 that the "Superior Court of Judicature, Court of Assize and General Gaol De- livery" was finally created, which has had a continuous existence to the present time, its name being changed after the constitution was adopted to "Supreme Judicial Court." With the creation of this court the devel- opment of a "government of laws and not of men" may be said to have begun, and while there were at first very few trained lawyers, either on or off the bench, gradually a bar began to appear in the 18th century, and by 1760 there were a number of lawyers of marked ability.
One important provision did not appear in the province charter be- cause it did not appear even in the law of England until the Act of Set- tlement of 1701, which provided that English judges should hold office during good behavior instead of during the pleasure of the King. The absence of the provision for judicial tenure during good behavior, which has stabilized the government of England ever since 1701, raised a dra- matic and important controversy in Massachusetts in 1773. The assem- blies of the royal provinces by various means tried to secure this reform ; but the Lords of Trade resisted because permanent colonial judicial ten- ure would tend "to lessen that just Dependence which the Colonies ought to have upon the Government of the Mother Country.";
This was specified by Jefferson as one of the acts of tyranny of George III in the Declaration of Independence in the following sentence :
He has made judges dependent on his will alone for the terms of their offices, and the amount and payment of their salaries.
The Foundations of American Constitutional Law-The year 1761 may be said to mark the beginning of the intellectual history of our modern American doctrine of constitutional law which emerged from the Revolution. James Otis stood out as the first leading American thinker in this movement and his views of government were circulated through- out the Colonies in the next decade by the political shrewdness of Samuel Adams, who collaborated with him. The event which started this train of constitutional thinking was the argument against the Writs of Assist- ance in 1761.
The commercial interests of the colonies were opposed to the Eng- lish regulations of commerce. The import duties, particularly on molas- ses, needed in large quantities for New England rum, which was also needed then, were habitually evaded. The sporting chances of smug- gling have always attracted traders, as well as many ladies and gentle-
¡Channing, "History of United States," Vol. II, p. 223, note 4.
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men of our own time, and the feelings of independence and resentment at English trade restrictions added a patriotic zest to the sport. This eva- sion led to an application to the Massachusetts Court for the issuance of Writs of Assistance, or general warrants of search and seizure, to help the customs officers. A case arose in which the application for the issu- ance of such a writ was opposed by the merchants interested in rum and molasses, and Oxenbridge Thacher and James Otis appeared as counsel in opposition. Otis resigned his position as solicitor general in order to appear, and refused all fees. The argument of Otis was made to the full bench of the Superior Court of Judicature on the question of law as to the power to issue the writs. It was also elaborated soon after in pam- phlets which circulated throughout the colonies. In speaking of Magna Charta, Pollock and Maitland, in their "History of English Law," say "in brief it means this : that the king is and shall be below the law." Think- ing close to human nature and its tendencies and with prophetic instincts, Otis carried this principle of Magna Charta further for the protection of the people. He said, in substance, legislators are men, and legislators, like kings, must be below the law. But how shall they be below the law? He answered, there are certain fundamental principles which must be recognized even by Parliament, and these principles are applied by inde- pendent and impartial courts of justice.
The case of the Writs of Assistance was heard in the council room of the Old State House in Boston with Chief Justice Hutchinson presiding and the court in their scarlet robes. The scene was described by John Adams and is now painted on the wall of the Massachusetts State House, as suggested by him in a letter to William Tudor in 1817. Following the restrained legal argument of his senior. Thacher, Otis, in the words of Lord Acton, "lifted the question to a different level in one of the memor- able speeches in political history," and as Judge Holmes has said, "laid the foundations of American constitutional law." He argued that the acts of trade violated the Province Charter and if the writs were author- ized by Parliament, then the statute was void as violating the constitu- tional rights of an Englishman to protection in his house. His argument caught the imagination of those who heard him, and, among them the young John Adams, who described himself as "lost in admiration" and "looking like a short, thick archbishop of Canterbury." The presence of John Adams, and the way in which Otis fired his imagination, is one of the fortunate coincidences in American history. Otis, who was then about thirty-six, became at once a hero and a target for abuse. He was elected to the Legislature and, with Samuel Adams, was the leader of the "pa- triot party" for the next eight or ten years.
Judicial Tenure of Office-In referring to the Province Charter, I called attention to the fact that it did not provide for the tenure of judges
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"during good behavior," as that provision for the protection of the people of England against the Crown had not then been secured even in Eng- land. The removal of a judge by the royal Governor in New York, for personal reasons, in 1735, also attracted attention throughout the colonies to the importance of an independent judiciary. This matter came to a head in Massachusetts in 1772. The English Act of 1701 securing judges in their tenure did not extend to America. The fact that King George III undertook to pay the salaries of the Massachusetts judges threatened to put the administration of the law completely under royal control.
After this, and with the New York experience, and doubtless other incidents in mind in addition to the accounts of the brutality of the Eng- lish political judges under the Stuarts which appear in the "State Trials," of which John Adams had a copy, it is natural that when he was selected, in 1779, as the draftsman of the Massachusetts Constitution, he should write the twenty-ninth article of the Bill of Rights, one of the most famous and influential articles in any American Constitution.
It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the laws, and adminis- tration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. It is, therefore, not only the best policy, but for the security of the rights of the people and of every citizen, that the judges of the Supreme Judicial Court should hold their offices as long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws.
This article reflects the views expressed by Otis with dramatic force at an earlier stage. The article has become famous, not because of the provision for tenure ; that had appeared also in the Virginia Constitution in 1776 and came from the English Act of Settlement. The fame of the article rests on Adams' concise explanation of the reason for the tenure and his picture of the American ideal of a judge and of the standards for the administration of justice. By Chapter III of the Constitution, the tenure "during good behavior" was applied to all Massachusetts judges except justices of the peace. Most American states in the wave of the- oretical "democracy" which swept over the country in the middle of the nineteenth century, abandoned the practical principle of an appointive bench with tenure during good behavior. Their experience with an elec- tive bench with short terms has been such that there are strong evi- dences today in different parts of the country of a gradually growing sentiment in favor of returning to the substance of the principle of the twenty-ninth article which stands behind the whole judicial system of the federal courts. By drafting these provisions, by his courageous undertaking of the unpopular defense of the British soldiers in 1771 in order that they might have a fair trial, and by the later appointment of
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John Marshall as chief justice of the Supreme Court of the United States, John Adams set and explained a standard for the American bench and bar, the present and future influence of which is incalculable.
The Constitutional Conventions of 1780 and 1788-In order to give a proper historical background to any account of Massachusetts lawyers and to balance the picture by excluding the idea that the lawyers have monopolized the stage, a brief reference to some of the commonly for- gotten history of our State and Federal constitutions is' needed.
We must turn back to Thomas Allen, "the fighting parson of Berk- shire County," who fired the first shot at the battle of Bennington. It is probable that the existence of the Massachusetts Constitution owes as much to Thomas Allen as an initiative force as it owes to John Adams and Theophilus Parsons, as draftsmen and constructive thinkers.
"In 1777 James Warren wrote to Elbridge Gerry about the move- ment for a constitution. He said that 'no new form of government is yet adopted. Everybody seems to wish for it, and a number are incessantly moving and pressing for it. What hinders, I don't know, except down- right laziness.' This apathy or lack of energy seems to have developed into a strong opposition by the time of the meeting of the Convention of 1779, for a spirit of obstruction appears to run through all the proceed- ings of that body . "*
The group of hard-headed New Englanders in the Berkshire Hills known as the "Berkshire Constitutionalists" had thought enough about human nature to realize that while they had removed King George III from the American throne, they had put King Voting Majority in his place. They also realized that, as a practical matter, the power behind the throne of King Voting Majority in any general legislative body did then, and would in future, reside to a great extent in the more thickly settled and commercially prosperous seaboard counties of Massachusetts. They feared this new king, and this power, as they feared George III, so far as the results on the western counties of Massachusetts were concerned. They did not deceive themselves with mere glittering generalities of a theoretical democracy. They knew they were facing a condition and not a theory, and they turned for leadership to a man who had a rare power of statement. This man was Thomas Allen, and he had evidently read and pondered on the pamphlets of James Otis.
He led them, not in a violently aggressive movement to disrupt the de facto government then existing, but in a respectful and firm demand for constructive action as a condition precedent to their acceptance of the government. The course which they followed was to demand a consti- tution or "compact" of government upon which they could rely for pro-
*Haynes' unpublished manuscript in Harvard College Library.
Increase Summer Jumnem
ASSOCIATE JUSTICE SUPREME JUDICIAL COURT, 1782-97 GOVERNOR OF MASSACHUSETTS, 1797-99
(From a portrait by Major John Johnson, painted in the robes worn by the justices of the Supreme Judicial Court until about 1792. In 1797, after he was chosen governor the portrait was retouched and the hair redressed and powdered as he then wore it. See Memoir of Increase Sumner by his son W. H. Sumner).
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tection before they would allow the courts to sit in Berkshire County. In a statement written by Allen, they gave their reasons for demanding it. Their energy and determination, and, undoubtedly, Allen's power of statement, finally resulted in the calling of the convention in 1779 which framed the Massachusetts Constitution.
In order to understand the exact significance of these forgotten pro- ceedings it is necessary to read a few of the paragraphs written by Thomas Allen in the Pittsfield resolutions during the years between 1776-1779. In May, 1776, a petition, drawn by Allen, from the town of Pittsfield was sent to the General Court sitting in Watertown, reciting that :
When they considered that the revolution in England afforded the nation but a very imperfect redress of grievances-the nation, being transported with extravagant joy in getting rid of one tyrant forgot to provide against another-and how every man by nature has the seeds of tyranny deeply implanted within him, so that nothing short of Omni- potence can eradicate them.
That when they considered that now is the only time we have reason ever to expect for securing our liberties and the liberties of future posterity upon a permanent founda- tion that no length of time can undermine,-though they were filled with pain and anxiety at so much as seeming to oppose public councils, yet, with all these considerations in our view, love of virtue, freedom and posterity prevailed upon us a second time to suspend the courts of justice in this country.
That the first step to be taken by a people in such a State for the enjoyment or res- toration of civil government among them is the formation of a fundamental constitution as the basis and groundwork of legislation.
That, knowing the strong bias of human nature to tyranny and despotism, we have nothing else in view but to provide for posterity against the wanton exercise of power, which cannot otherwise be done than by the formation of a fundamental constitution.
Let it not be said by future posterity that in this great, this noble, this glorious con- test, we made no provision against tyranny among ourselves. (Smith's "History of Pitts- field," Chaps. XVIII to XX.)
Such were the reasons for refusing to allow the highest court of Massachusetts to sit in Berkshire County.
In all the controversy that has raged about the so-called judicial "usurpation" in what is called the "power" of the courts to disregard unconstitutional legislation, this story is seldom mentioned. Here we have, not lawyers, but a group of back-country laymen who refused to allow the courts to sit in their county until a constitution of fundamental law was framed which the courts should apply directly as a test of legis- lation and legal government. They reduced to practice the philosoph- ical arguments of Otis, demanding the American common-law doctrine of supremacy of law, not as a matter of abstract reasoning, but as a prac- tical condition precedent to the administration of the government, twenty-seven years before John Marshall wrote his opinion in Marbury v. Madison in 1803. Furthermore, this action was based on clearly ex-
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pressed reasons which contain the basic ideas of Marshall's famous opinion. The sentences of Thomas Allen, quoted above, show conclu- sively that he and his associates were not considering the matter in the light of judicial right or judicial power but in the light of judicial duty. We must remember the sentence of Otis, "The end of government being the good of mankind points out its great duties." It is only in the light of judicial duty that this subject can be clearly discussed and understood.
John Adams was selected by the convention to prepare a draft con- stitution, the subject of which, somewhat revised, was recommended by the convention, submitted to the people of the towns throughout Massa- chusetts, which then included Maine, and was discussed and adopted by this popular vote. The last article of this constitution, Chapter VI, Article XI, provided, and still provides :
This form of government shall be enrolled on parchment and deposited in the secre- tary's office, and be a part of the laws of the land; and printed copies thereof shall be prefixed to the book containing the laws of this Commonwealth, in all future editions of said law.
Thus making it the duty of every court to read the constitution before it reads a single statutory word, following out the provision in the eighteenth article of the bill of rights already quoted that :
"The people have a right to require of their lawgivers and magistrates an exact and constant observance of them ['the fundamental principles of the constitution']."
Slavery existed in Massachusetts at this time and slave sales were advertised in newspapers while the convention was sitting. In 1782-83 a case involving a claim to a slave came before the Supreme Judicial Court. Chief Justice Cushing, with the concurrence of his associates, charged the jury that:
As to the doctrine of slavery .... that (it is true) has been heretofore coun- tenanced by the Province Laws formerly, but nowhere is it expressly enacted or estab- lished. The idea of slavery is inconsistent with our own conduct and Constitution; and there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract. (Mass. Law. Quart., May, 1917, pp. 437-38.)
This case has excited interest because of its relation to the history of slavery, but its importance in the history of constitutional law has not attracted particular attention. The entry of the charge in the notebook of the chief justice never appears to have been printed until 1874, when it was produced by Chief Justice Gray. The case is mentioned here, not because of its relation to slavery, but because it shows that William Cushing and his associates, who had been members of the constitutional convention, began at once as judges, after the convention, to apply con-
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stitutional principles directly as law at a time when the Legislature did not have the political courage to deal with slavery by statute.
It is an interesting fact that, at about the same time, in 1782, in Vir- ginia, George Wythe, as chancellor, pronounced a legislative act uncon- stitutional in Com. v. Catron (4 Call. 5).
Thus Massachusetts became an American Commonwealth under a government checked and balanced by a division into the three coordinate departments-legislative, executive and judicial. This avoided what Jefferson referred to in his "Notes on the State of Virginia" in 1781, when he said, as to concentration of all power in a legislative body :
One hundred and seventy-three (legislative) despots would surely be as oppressive as one. . ... An elective despotism was not the government we fought for. (Madison, in "Federalist," No. 48; Jefferson, Ford's Ed., Vol. III, pp. 68-70.)
The next step was the ratification of the Federal Constitution in Massachusetts in 1788, and here Parsons comes to the front again as a constructive thinker.
John Adams was in England. The opposition was finally overcome by the suggestion of amendments to the first congress. These amend- ments, of which the first contained the substance of the present Tenth Amendment, were proposed by Hancock but, although it was not gen- erally known at the time, were drawn by Parsons. Here again also we meet the common sense of Berkshire County in the person of Colonel Jonathan Smith, a farmer, who, toward the end of the debate, rose to the occasion as follows :
Mr. President, I am a plain man and get my living by the plough. I am not used to speak in public, but I beg your leave to say a few words to my brother plough-joggers in this house. I have lived in a part of the country where I have known the worth of good government by the want of it. There was a black cloud that rose in the east last winter, and spread over the west. (Here Mr. Wedgery interrupted: Mr. President, I wish to know what the gentleman means by the east?) I mean, sir, the county of Bristol. The cloud rose there, and burst upon us, and produced a dreadful effect. It brought on a state of anarchy, and that leads to tyranny. . ... It is better to have one tyrant than so many at once.
Now, Mr. President, when I saw this Constitution, I found that it was a cure for these disorders. It was such a thing as we wanted. I got a copy of it and read it over and over. I had been a member of the Convention to form our own State Constitution, and had learnt something of the checks and balances of power, and I found them all here. I did not go to any lawyer and ask his opinion; we have no lawyer in our town, and we do well enough without. I formed my own opinion, and was pleased with this Constitu- tion. My honorable old daddy there (pointing to Mr. Singletary) won't think that I expect to be a Congressman, and swallow up the liberties of the people. I never had any post, nor do I want one, and before I am done you will think that I don't deserve one. But I don't think the worse of the Constitution because lawyers, and men of learn- ing, and moneyed men, are fond of it. I don't suspect that they want to get into Congress and abuse their power. I am not of such a jealous make. They that are honest men
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themselves are not apt to suspect other people. I don't know why our constituents have not as good a right to be jealous of us as we seem to be of the Congress, and I think those gentlemen who are so very suspicious that as soon as a man gets into power he turns rogue, had better look at home.
Some gentlemen think that our liberty and property are not safe in the hands of moneyed men, and men of learning. I am not of that mind .... these lawyers, these moneyed men, these men of learning, are all embarked in the same cause with us, and we must all swim or sink together; and shall we throw the Constitution overboard because it does not please us alike? (Journal Massachusetts Convention, 1788, pp. 203-205.)
The Federal Constitution was ratified, and the battle shifted to the conventions in Virginia and New York to the shoulders of Madison and Marshall, Hamilton and Jay, with the great character and influence of Washington in the background.
In a century and a half or two centuries there has grown up here all this vast and complicated industrial organization which we now see with its hundreds of occupations, its enormous plant and apparatus of all kinds, connected throughout by mutual relations of dependence, kept in order by punctuality and trustworthiness in the fulfillment of engagements, dependent upon assumptions that men will act in a certain way and want certain things, and, in spite of its intricacy and complication, working to supply our wants with such smoothness and harmony that most people are unaware of its existence. They live in it as they do in the atmosphere. (W. G. Sumner, "The Challenge of Facts.")
The basis of American Government is the "common-law doctrine of the supremacy of law"-the central idea of the revolution-which was "put in a nutshell" by James Otis in his "Vindication of the Massachu- setts Representatives" in 1763, when he said: "Although most govern- ments are de facto arbitrary . . none are de jure arbitrary."
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