USA > Massachusetts > Berkshire County > Pittsfield > The history of Pittsfield (Berkshire County), Massachusetts, from the year 1734 to the year 1800 > Part 33
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The theory of the day was, that an accommodation with Great Britain would be obtained at so early a date, that it was worth no man's while to concern himself greatly about the abstract princi- ples of the government which should prevail in the interim. Even those who knew this theory false were often forced to accept it as the base from which, by the aid of favoring circumstances, to raise themselves to a higher plane.
But something very different from what appeared upon the surface was lurking beneath ; and, as events crowded upon each other, opinions and sentiments engendered in the apt soil of New England ripened fast under the fervid sun of Revolution.
Their influence was not unfelt in Congress; so that when, early in November, advice was to be given to New Hampshire and South Carolina with regard to assuming the powers of civil government, it was couched in the following terms, - the language used to the two Colonies being of the same import : -
" Resolved, That it be recommended to the Provincial Congress of New Hampshire to call a full and free representation of the people, and that the representatives establish such a. form of government as, in their judgment, will best produce the happiness of the people, and most effectually secure peace and good order in the Province during the continuance of the present dispute between Great Britain and the Colonies."
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This was a great advance since June. John Adams, who looked upon it as the progress of the index upon the broad dial of national affairs, congratulated himself upon a triumph; although of the three phrases, " Colonies," " Province," and " Mother Country," which " by this time he had come mortally to hate," he had suc- ceeded in eliminating only the last from the report.
In Massachusetts, the plan recommended to her sister Colonies, so nearly identical with that which she had asked for herself, but so widely variant from that which she had received, did not fail to conspire, with defects brought to light in the practical working of the government set up there, to provoke feeling against the new order of things; while, imbittering and giving direction to the opposition, memories of the old charter history, which the turmoil of recent events had obscured, were revived.
Among the reasons which suggested the peculiar Congressional device recommended to Massachusetts was the fact that she was one of the only three Colonies which possessed royal charters, con- ferring and limiting their powers of self-government, and prescrib- ing the mode of their exercise; while the privileges of the other Provinces, obtained by prescription, or at best based upon what they claimed to be the indefeasible rights of Englishmen, were, in theory at least, more obscure and of less authority.
The constitutions of these latter had, however, taken form under successive legislatures, and been confirmed in the habits of thought of their peoples, until practically Massachusetts differed less from Virginia than she did from Connecticut.
The charters which Massachusetts, Connecticut, and Rhode Island received from Charles the First, under the broad seal of England, invested all alike, as to their internal affairs, with almost all the rights of independent States. These rights had been retained intact by Rhode Island and Connecticut; so that, when the Revolution came, it found their governments harmonious in all their departments, and prepared to throw off what little re- mained of foreign authority, without producing that confusion which ensued in Massachusetts.
The charter of the latter Colony, annulled in the reign of the second Charles by the decree of a servile tribunal, had, after an interval of seven years, been replaced in 1692 by a substitute obtained from William and Mary, not under the great but the privy seal. Earnest entreaty made to a Whig prince for the res-
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titution of ancient privileges violently wrested from the Colony for her adherence to Whig principles availed little; and the new instrument fell so far short of the old, that the style of Mas- sachusetts was, with just significance, changed from that of a colony to that of a province. Most essential of the losses sus- tained by the people in these transactions was the transfer from them to the king of the appointment of governor, lieutenant- governor, and secretary ; of whom the first was invested with great powers, including the right to prorogue or dissolve the General Court, and to interpose a negative, not only to their ordinary legis- lative acts, but to the choice by the representatives of councillors, and even of their own speaker. All officers of the militia and the judiciary were also to be appointed by him with the advice and consent of the Council.
Thus the king, through his deputy, became the chief fountain of official honors and emoluments; and the places in his gift were sedulously used to attach the more substantial citizens to the party of the government.
When the decisive test came, the success of these seductive in- fluences, although not inconsiderable, proved to be far short of what the royalist leaders had persuaded themselves to expect. An incidental result had, however, grown out of their system of politics which contributed largely to incite "the Berkshire troubles." In place of the old colonial " magistracy," the foun- dations had been very broadly laid for a new provincial aristocracy which was already burdensome to the people. Whether it was intrinsically more so than its Puritan predecessor, may be safely doubted; but, as a new evil, -and one incident to the subver- sion of their cherished charter, - it was hated as the grim old " magistracy " never had been. To most of the gentry of this class, from his honor the lieutenant-governor down to the village justice not of the quorum, the Revolutionary disturbances were extremely unwelcome and vexatious: the choice between king and country was hard to make, especially so long as the patriots professed to contend only for the preservation of the defective charter of William; a contest in which, however victory might nominally declare itself, the fruits of victory were sure to remain in the hands of the king's governor, and be the spoil of the king's supporters.
To ambitious country gentlemen of wealth and standing,
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the dignities in the royal governor's keeping were tempting morsels in comparison with the poor seat in the trammelled legis- lature, or at the town council-board, which was the best the people had to offer.
Still, when the hour came in which all men were compelled to take sides, the greater portion of the tempted class, resisting the allurements which had been spread for them, adhered more or less promptly, and with differing degrees of zeal, to the cause of their country ; and their familiarity with public business, as well as other reasons, led to the election of many of their number to the Provincial Congresses and to the General Court of 1775.
The selection of men of this elass was undoubtedly wise : but it was not strange, that, upon the first occasion, suspicion should arise, among their less favored compatriots, of a design on their part to revive and perpetuate, under the new form of govern- ment, a system to which they owed so much under the old; nor was it unnatural, that whatever, short of popular election, was made the fountain of office should be the object of bitter jealousy.
The rule established under the advice of Congress owed its first opposition to the belief, that, in making selections for office, the General Court grossly favored its members and their friends, to the neglect of men at least equally meritorious. A Berkshire Convention, reciting the history of the county troubles, declared that it was the practice for the members to be called upon by counties " to make nominations in the civil and military line, who were then chosen by the House, and commissioned by the Council, in which effectual care was taken that those present should be in the nomination ;" 1 "which procedure," continues the address, "roused our attention, that such persons should nominate and vote for themselves, or be elected in a form that the charter knew nothing of."
To the Berkshire fathers this greediness of office seemed the result of a deliberate design to foist one of the worst features of the old government upon the new; or, at the best, to be the inevitable fruit of a political system fatally defective, and which, it now began to be feared, there was no intention to limit in duration.
1 Of the two representatives from Pittsfield, Capt. Goodrich secured the place of a justice of the sessions; Capt. Israel Dickinson was made high sheriff of the county. Every member of the House from Berkshire obtained civil office.
X
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But, although opposition to the new rule was first aroused by a single grievance, it soon assumed a broader and more radical char- acter; rising first to insist that a constitution and bill of rights were indispensable prerequisites to any government, and then to advise, as with authority, what principles should be incorporated in the fundamental law. As the anticipations of independence strengthened, what ideas should lie at the foundations of the new States - when the Colonies should assume that rank - became the subject of earnest and often of profound consideration, not only in legislative halls, but in country villages; and not less so were the constitutional provisions by which vitality could best be given to those ideas. We may be sure that rarely anywhere were these subjects earlier or more intelligently discussed than in the little meeting-house under the Pittsfield elm.
Certain great maxims, of undisputed authority, had been trans- mitted by the fathers of English freedom; a few safeguards of personal liberty had acquired traditional sanctity; the idea of a republic was dear to all hearts, even in colonies planted by cavaliers; but the statesmen of America could look nowhere for an example of republican government exactly adapted to their need.
Studies for the work before them were abundant: in the history of the ancient republics, and those of the middle ages; in the example of England under king and Commonwealth ; and, best of all, in their own colonial experience. But model there was none. Years of experiment and devoted study, by the ablest and purest statesmen the world ever saw, elapsed before, from the lessons of history and the teachings of experience, an approach to perfection was obtained in the Federal Constitution, - years even before that scarcely less noble work, the Constitution of Massachusetts, was wrought ont, chiefly from the broad learning of John Adams.
In the mean time, the country was flooded with tracts upon the structure of government.1 The works of political essayists be-
1 Of these the most popular was the essay of Thomas Paine, issued in 1775, in which that able although afterwards infamous author presented in a concise form, and clear, terse, and vigorous language, the arguments in favor of independ- ence which had been used in the secret sessions of Congress and the private con- sultations of the Continental leaders. The work was admirably fitted to reach and influence the public mind, and its effect was widely felt. In the same tract had been included, with the advocacy of independence, certain loose but plausible theories of government, inculcated in the same winning style.
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came popular reading; and some of them, -the disquisitions of James Burgh and Mrs. McCanley in particular, - of a higher tone than that of Paine, had many readers; while a host of native writers, sometimes of great ability, communicated their views through the periodical press.
Thus, while one class of minds was patiently and laboriously seeking material for the new structure in the treasured experience of the past, another was seizing eagerly upon whatever in the more recent and popular essayists seemed sustained by facts and adapted to the desired end. It was the age of free thinking in political creeds, and of a chaos out of which something very nearly perfect at last crystallized. The agitation and new thought developed by the writers of the day were not less indispensable to the grand result than were the researches of more scholarly statesmen. Between the two classes indicated, Rev. Mr. Allen occupied an intermediate position ; although his natural impulsiveness, as well as other influences, led him generally to adopt the most advanced theory of human rights. A republican by birth and education, he was an ardent one by temperament. Inheriting a love for the political as well as the religious doctrines of the Puritans, he had been confirmed in them by the study of the best writers of that school, and, in the history of his theological denomination, had found the principles of his party so intimately interwoven with the articles of his creed, that they seemed almost equally a part of his religion. A disposition of mind naturally earnest had thus been trained in the direction of indignant protest against political wrong and oppression ; and the desire for the purest possible form of government, which characterized the general mind of that era, became with him a passion.
The abrogation of the ancient charter by "that popish tyrant, Charles II.," had long been a subject of bitter and almost morbid contemplation with him; and while he admitted the instrument obtained from " King William of glorious memory " to be " of great valne for the preservation of tolerable order," it was only " till we had grown to our present strength to seek that by force of arms which was then unjustly denied us."
When the few chartered privileges which the Colony retained were attacked by Parliament, we found him among the first to counsel resistance ; and now, when it was proposed to restore the civil government - suspended in 1774-upon the basis of "the
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defective and discordant charter " of King William, he became, to use the phrase employed both by himself and his enemies, "restless in his endeavors " to prevent it.
His mind thus busy with the political events of the day, Mr. Allen read diligently the current writers who treated upon them, and adopted the opinions of that school which enunciated the doctrines afterwards, in a more perfect form, championed by Thomas Jefferson. In these he conceived that he found the legiti- mate democratie development of republican principles.
Such were the characteristics and views which made the Pitts- field minister the founder and leader of that party in Berkshire which, to the end, successfully resisted the restoration in that county of civil government under the strange device which the Continental Congress had evolved from the Provincial charter.
The fundamental dogma of this party was, that political power can only rightfully be derived from the express consent of the peo- ple ; that the charter government - itself but a mitigated usurpa- tion - having been abrogated, the Province relapsed into a state of nature, from which it could rightly emerge only through the establishment of a constitution and bill of rights by the free vote of a majority of the people ; that, antecedent to this, the only authority which ought to be submitted to should be, from its purely advisory character, incapable of making itself permanent.
Against those who favored the postponement of a new constitu- tion until the return of peace, they urged that such a government as was proposed, ad interim, " if once allowed to take place, would be found very difficult to shake off ever after." Against the argu- ment that the Continental Congress had proposed the obnoxious system, they maintained that Congress could not have intended to deprive Massachusetts of the right of framing a constitution for her- self; and that, if it had such a design, it was entitled to no respect. Indeed, admitting that Congress in May intended to restrain the Colony from taking a step which too plainly betrayed the purpose of ultimate independence, that restraint was withdrawn in Novem- ber; and the advice from which it was implied became every day more inapplicable to the altered circumstances of the Province.
In no view of the case could the Berkshire constitutionalists regard the new order of things as rightful. But a total renunci- ation of all connection with the powers instituted at Boston would have only been fraught with evil to both parties, and to the good
22
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cause which both had at heart. The device hit upon in this dilemma was to refuse obedience to a portion of the acts of the General Court, thus conceding to it only that advisory authority which had been accorded to the Provincial Congress.
It might reasonably have been argued, indeed, that neither the General nor Provincial Congress, having other than advisory authority, could invest another assembly with higher legislative powers than those with which they were themselves clothed; and that the people, in choosing representatives on their advice, did not ipso facto adopt that advice as the Constitution of the Province, much less as the fundamental law of the Commonwealth when it became an independent State. It was as competent, surely, for the Berkshire committees to assume that the Congresses could not have intended to exercise powers which had not been delegated to them, as for those assemblies to assume from the recusant position of Gage a vacancy in the gubernatorial office.
In selecting that department of government whose obstruction would sufficiently arrest attention at Boston, while it would least embarrass the State in its operations against the enemy, and the peo- ple in their efforts to obtain a constitution, the judiciary and civil magistracy suggested itself. Policy and feeling alike prompted a zealous response to every demand made by the Military Board ; and the towns could not well refuse to send representatives to the General Court, which, however defective in its constitution, they were compelled to acknowledge as the only power which could carry on the war, or take the initiative in establishing government upon a rightful basis. The judiciary and the magistracy seemed thus the only department of the State which could at all be dis- pensed with ; as it was also that whose place, for its most urgent purposes, could most readily be supplied by the municipal organi- zations. In fact, on the 26th of December, 1775, a Pittsfield town- meeting represented to the General Court, that, for the preceding eighteen months, - counting from the May term at Great Barring- ton in 1774, which was the last court actually held, -" The people of the county, under the lenient and efficient rule of their several committees, and in the most vigorous and unintermitted exertions in the country's cause, had lived together in the greatest love, peace, safety, liberty, happiness, and good order, except the disorders and dissensions occasioned by the Tories."
The suppression of the courts had thus attained its object in one
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instance, not only with no intolerable evils, but, as was claimed, with positive advantage to the happiness of the people. The town took care to disclaim any expectation that such a paradoxical para- dise could long continue, and we may well question the perfect fairness of the picture ; but there is no reason to doubt that a ma- jority of the people felt themselves rather better off without such a judicial system as had existed under the Provincial rule than they would be with it.
Precedent sustained a resort to measures which had been so well tested and approved; and they were the more readily adopted as the chief grievance of which the people complained, under the old administration of the charter, had been the excessive cost of exe- cuting the laws ; heavy fee-tables being established, as was alleged, in order to enrich swarms of magistrates and lawyers.
In truth, a more cumbrous judicial system could hardly have been devised than was inflicted upon this poor and scantily-peopled county, in common with the other shires of the Province; and resistance to its re-imposition, as a burden too grievous to be borne, had been resolved before the abstract principles which justified that resistance had been much considered by the masses.
There were held annually four terms each of the General Ses- sions of the Peace and of the Inferior Court of Common Pleas. The Sessions had jurisdiction in all matters pertaining to the conservation of the peace, and in all criminal cases where the punishment did not extend to deprivation of life or limb or to banishment; and also exercised the powers now held by the board of county commissioners.
The Court of Common Pleas had cognizance of all civil causes triable at the common law, when the matters in dispute exceeded the value of forty shillings.
From both the Common Pleas and the Sessions an appeal lay to the Superior Court of Judicature. This latter court had original jurisdiction in all cases which extended to deprivation of life or limb or to banishment; which removed from the county courts a large class of cases now tried by them. Each county had its own Common Pleas bench, which consisted in Berkshire of a chief Justice and three associates. And these, with the other justices of the peace in the county, numbering when the Revolution commenced about a dozen, formed the Court of General Ses- sions. Each court had its clerk and other officials. This clumsy
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organization performed the duties, which, in the present vastly more populous and wealthy county, devolve upon the commissioners and a single judge of the Superior Court.
Cases where a less sum than forty shillings was involved, and which did not affect the title of real estate, were cognizable by a single justice, as also were trivial misdemeanors. In civil cases, an appeal lay to the Common Pleas; in criminal, to the General Sessions : and the power of the magistrate in inflicting punishment was limited to confinement in the cage or the stocks for three hours, imprisonment for twenty-four, whipping not to exceed ten stripes, or a fine of twenty shillings, for which sum either of the other punishments might be commuted, at the option of the offender. The salaries of the judges individually were not large, but in the aggregate they were considerable; and the pay of the justices of the peace and of the Sessions, depending upon fees, was a more odious burden still. Another peculiarity, not impertinent to this discussion, may be enumerated : the judges were rarely men educated to the law. Before the Revolution, only four lawyers sat even upon the supreme bench of Massachusetts. The judgeships were held as rewards for political favorites in all walks of life.
A judicial system constituted like this was of necessity costly, and the fees proportionately large. It was believed to be intention- ally thus framed, in order that as many as possible of the favored class might fatten upon the spoils of the poor and the unfortunate. The privilege of confessing judgment to avoid suit before a single magistrate, which had been earnestly sought, was thought to be denied for the same reason ; and the presence of two magistrates and the clerk of a court of record was required for this very simple act. Whatever injustice there may have been in these jealousies, we may be sure that the judicial system of the Province was looked upon much more complacently by the lawyers and the mob of gentlemen who filled the bench than by the heavily-taxed par- ties to suits.
All this, together with the injudicious harshness almost univer- sally exercised towards poor debtors, and in the punishment of the trivial misdemeanors of the lower classes, contributed to diminish, in no small degrec, that filial reverence which should surround the tribunals of justice. It will serve also to explain what Mr. Allen meant in saying that " our fellow-citizens in this county have been ruled with a rod of iron."
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Evils like these in a system of law could not fail to deprave even the vicious and impoverish the poor. To thoughtful observ- ers, and especially to those ministers of the gospel who felt them- selves commissioned to watch over the lowly and the miserable, these results were painfully apparent ; and it was the hope of men with no desire, by shielding the wrong-doer, to impair the security of person or property, that the not intolerable consequences of a total suspension of the courts might be endured until, under a more equitable constitution, a system better adapted to attain the ends of justice should be organized.
But, while divers reasons thus directed the minds of the people of Berkshire to a single branch of government as that which ought to be suppressed, it must be remembered that the right to suppress any was based upon the absence of what was held essential to all legitimate rule, - establishment by an unmistakable expression of the popular consent. Nor must it be forgotten, that individual abuses were not attacked, primarily, to secure their own removal, but for the purpose of overthrowing a faulty whole, of which they were the most vulnerable parts. The town-meetings and county- conventions, while their action was at first directed to the redress of special grievances by specific means, at the very outset indicated the great principle from which their proceedings took rise, and con- tinued to enunciate it with ever fuller emphasis and clearer utter- ance. In their minds, the ideas of national independence and of constitutional liberty advanced with equal step.
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