The Emancipation of Massachusetts

by Brooks Adams

CHAPTER X. — THE LAWYERS.

In the age of sacred caste the priest is likewise the law-maker and the judge, and as succeeding generations of ecclesiastics slowly spin the intricate web of their ceremonial code, they fail not to teach the people that their holy ordinances were received of yore from divine lips by some great prophet. This process is beautifully exemplified in the Old Testament: though the complicated ritualism of Leviticus was always reverently attributed to Moses, it was evidently the work of a much later period; for the present purpose, however, its date is immaterial, it suffices to follow the account the scribes thought fit to give in Kings.

Long after the time of Solomon, Josiah one day sent to inquire about some repairs then being made at the Temple, when suddenly, “Hilkiah the high priest said unto Shaphan the scribe, I have found the book of the law in the house of the Lord.” And he gave the book to Shaphan.

“And it came to pass, when the king had heard the words of the book... he rent his clothes.” And he was greatly alarmed for fear of the wrath of the Lord, because their fathers had not hearkened unto the words of this book; as indeed it was impossible they should, since they knew nothing about it. So, to find out what was best to be done, he sent Hilkiah and others to Huldah the prophetess, who told them that the wrath of the Lord was indeed kindled, and he would bring evil unto the land; but, because Josiah’s heart had been tender, and he had humbled himself, and rent his clothes, and wept when he had heard what was spoken, he should be gathered into his grave in peace, and his eyes should not see the evil. [Footnote: 2 Kings xxii.]

Such is an example of the process whereby a compilation of canonical statutes is brought into practical operation by adroitly working upon the superstitions fears of the civil magistrate; at an earlier period the priests administer justice in person.

Eli judged Israel forty years, and Samuel went on circuit all the days of his life; “and he went from year to year in circuit to Bethel, and Gilgal, and Mizpeh, and judged Israel in all those places.” [Footnote: 1 Samuel iv., vii.] But, sooner or later, the time must come when a soldier is absolutely necessary, both to fight foreign enemies and to enforce obedience at home; and then some chief is set up whom the clergy think they can control: thus Samuel anointed Saul to be captain over the Lord’s inheritance. [Footnote: 1 Samuel x.] So long as the king is submissive to authority all goes well, but any insubordination is promptly punished; and this was the fate of Saul. On one occasion, when he was in difficulty and Samuel happened to be away, he was so rash as to sacrifice a burnt offering himself; his presumption offended the prophet, who forthwith declared that his kingdom should not continue. [Footnote: 1 Samuel xiii.] After this the relations between them went from bad to worse, and it was not long before the priest began to intrigue with David, whom he presently anointed. [Footnote: Idem, xvi.] The end of it was that Saul was defeated in battle, as Samuel’s ghost foretold, for not obeying “the voice of the Lord;” and after a struggle between the houses of Saul and David, all the elders of Israel went to Hebron, where David made a league with them, and in return they anointed him king. [Footnote: 2 Samuel v.].

Thenceforward, or from the moment when a layman assumed control of the temporal power, the Jewish chronicles teem with the sins and the disasters of those rulers who did not walk in the way of their fathers, or who, in other words, were restive under ecclesiastical dictation.

So long as this period lasts, during which the sovereign is forced to obey the behests of the priesthood, an arbitrary despotism is inevitable; nor can the foundation of equal justice and civil liberty be laid until first the military, and then the legal profession, has become distinct and emancipated from clerical control, and jurisprudence has grown into the recognized calling of a special class.

These phenomena tend to explain the peculiar and original direction taken by legal thought in Massachusetts, for they throw light upon the influences under which her first generation of lawyers grew up, whose destiny it was to impress upon her institutions the form they have ever since retained.

The traditions inherited from the theocracy were vicious in the extreme. For ten years after the settlement the clergy and their aristocratic allies stubbornly refused either to recognize the common law or to enact a code; and when at length further resistance to the demands of the freemen was impossible, the Rev. Nathaniel Ward drew up “The Body of Liberties,” which, though it perhaps sufficiently defined civil obligations, contained this extraordinary provision concerning crimes:—

“No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, ... unlesse it be by virtue or equitie of some expresse law of the country waranting the same, ... or in case of the defect of a law in any parteculer case by the word of God. And in capitall cases, or in cases concerning dismembring or banishment according to that word to be judged by the Generall Court.” [Footnote: Mass. Hist. Coll. third series, viii. 216]

The whole of the subtle policy, whereof this legislation forms a part, well repays attentive study. The relation of the church to the state was not unlike that of Samuel toward Saul, for no public man could withstand its attack, as was demonstrated by the fate of Vane. Much of the story has been told already in describing the process whereby the clergy acquired a substantial ascendency over the executive and legislature, through their command of the constituencies which it was the labor of their lives to fill with loyal retainers. Nothing therefore remains to be done but to trace the means they employed to invest their order with judicial attributes.

From the outset lawyers were excluded from practice, so the magistrates were nothing but common politicians who were nominated by the priests; thus the bench was not only filled with trusty partisans without professional training or instincts, but also, as they were elected annually, they were practically removable at pleasure should they by any chance rebel. Upon these points there is abundant evidence: “The government was first by way of charter, which was chiefly managed by the preachers, who by their power with the people made all the magistrates & kept them so intirely under obedience, that they durst not act without them. Soe that whensoever anything strange or unusuall was brought before them, they would not determine the matter without consulting the preachers, for should any bee soe sturdy as to presume to act of himself without takeing advice & directions, he might bee sure of it, his magistracy ended with the year. He could bee noe magistrate for them, that was not approved and recommended from the pulpit, & he could expect little recommendation who was not the preacher’s most humble servant. Soe they who treated, caressed & presented the preachers most, were the rulers & magistrates among the people.” [Footnote: An Account of the Colonies, etc., Lambeth MSS. Perry’s Historical Collections, iii. 48.]

From the decisions of such a judiciary the only appeal lay to a popular assembly, which could always be manipulated. Obviously, ecclesiastical supervision over the ordinary course of litigation was amply provided for. The adjudication of the more important controversies was reserved; for it was expressly enacted that doubtful questions and the higher crimes should be judged according to the Word of God. This master-stroke resembled Hilkiah’s when he imposed his book on Josiah; for on no point of discipline were the ministers so emphatic as on the sacred and absolute nature of their prerogative to interpret the Scriptures; nor did they fail to impress upon the people that it was a sin akin to sacrilege for the laity to dispute their exposition of the Bible.

The deduction to be drawn from these premises is plain. The assembled elders, acting in their advisory capacity, constituted a supreme tribunal of last resort, wholly superior to carnal precedent, and capable of evolving whatsoever decrees they deemed expedient from the depths of their consciousness. [Footnote: See Gorton’s case, Winthrop, ii. 146.] The result exemplifies the precision with which a cause operating upon the human mind is followed by its consequence; and the action of this resistless force is painfully apparent in every state prosecution under the Puritan Commonwealth, from Wheelwright’s to Margaret Brewster’s. The absorption of sacerdotal, political, and juridical functions by a single class produces an arbitrary despotism; and before judges greedy of earthly dominion, flushed by the sense of power, unrestrained by rules of law or evidence, and unopposed by a resolute and courageous bar, trials must become little more than conventional forms, precursors of predetermined punishments.

After a period of about half a century these social conditions underwent radical change, but traditions remained that deeply affected the subsequent development of the people, and produced a marked bent of thought in the lawyers who afterward wrote the Constitution.

At the accession of William III. great progress had been made in the science of colonial government; charters had been granted to Connecticut and Rhode Island in 1662 and 1663, which, except in the survival of the ancient and meaningless jargon of incorporation, had a decidedly modern form. By these regular local representative governments were established with full power of legislation, save in so far as limited by clauses requiring conformity with the law of England; and they served their purpose well, for both were kept in force many years after the Revolution, Rhode Island’s not having been superseded until 1843.

The stubborn selfishness of the theocracy led to the adoption of a less liberal policy toward Massachusetts. The nomination of the executive officers was retained by the crown, and the governor was given very substantial means of maintaining his authority; he could reject the councillors elected by the Assembly; he appointed the judges and sheriffs with the advice of this body, whose composition he could thus in a measure control; he had a veto, and was commander-in-chief. Appeals to the king in council were also provided for in personal actions where the matter in difference exceeded three hundred pounds.

On the other hand, the legislature made all appropriations, including those for the salaries of the governor and judges, and was only limited in its capacity to enact statutes by the clause invariably inserted in these patents.

This, therefore, is the precise moment when the modern theory of constitutional limitations first appears defined; distinct from the ancient corporate precedents. By a combination of circumstances also, a sufficient sanction for the written law happened to be provided, thus making the conception complete, for the tribunal of last resort was an English court sustained by ample physical force; nevertheless the great principle of coordinate departments of government was not yet understood, and substantial relief against legislative usurpation had to be sought in a foreign jurisdiction. To lawyers of our own time it is self-evident that the restrictions of an organic code must be futile unless they are upheld by a judiciary not only secure in tenure and pay, but removed as far as may be from partisan passions. This truth, however, remained to be discovered amid the abuses of the eighteenth century, for the position of the provincial bench was unsatisfactory in the last degree. The justices held their commissions at the king’s pleasure, but their salaries were at the mercy of the deputies; they were therefore subject to the caprice of antagonistic masters. Nor was this the worst, for the charter did not isolate the judicial office. Under the theocracy the policy of the clergy had been to suppress the study of law in order to concentrate their own power; hence no training was thought necessary for the magistrate, no politician was considered incompetent to fill the judgment-seat because of ignorance of his duty, and the office-hunter, having got his place by influence, was deemed at liberty to use it as a point of vantage, from whence to prosecute his chosen career. For example, the first chief justice was Stoughton, who was appointed by Phips, probably at the instigation of Increase Mather. As he was bred for the church, he could have had no knowledge to recommend him, and his peculiar qualifications were doubtless family connections and a narrow and bigoted mind; he was also lieutenant-governor, a member of the council, and part of the time commander-in-chief.

Thomas Danforth was the senior associate, who is described by Sewall as “a very good husbandman, and a very good Christian, and a good councillor;” but his reputation as a jurist rested upon a spotless record, he having been the most uncompromising of the high church managers.

Wait Winthrop was a soldier, and was not only in the council, but so active in public life that years afterward, while on the bench, he was set up as a candidate for governor in opposition to Dudley.

John Richards was a merchant, who had been sent to England as agent in 1681, just when the troubles came to a crisis; but the labors by which he won the ermine seem plain enough, for he was bail for Increase Mather when sued by Randolph, and was appointed by Phips. Samuel Sewall was brought up to preach, took to politics on the conservative side, and was regularly chosen to the council.

This motley crew, who formed the first superior court, had but one trait in common: they belonged to the clique who controlled the patronage; and as it began so it continued to the end, for Hutchinson, the last chief justice but one, was a merchant; yet he was also probate judge, lieutenant-governor, councillor, and leader of the Tories. In so intelligent a community such prostitution of the judicial office would have been impossible but for the pernicious tradition that the civil magistrate needed no special training to perform his duty, and was to take his law from those who expounded the Word of God.

And there was another inheritance, if possible, more baleful still. The legislature, under the Puritan Commonwealth, had been the court of last resort, and it was by no means forward to abandon its prerogative. It was consequently always ready to listen to the complaints of suitors who thought themselves aggrieved by the decisions of the regular tribunals, and it was fond of altering the course of justice to make it conform to what the members were pleased to call equity. This abuse finally took such proportions that Hutchinson remonstrated vigorously in a speech to the houses in 1772.

“Much time is usually spent ... in considering petitions for new trials at law, for leave to sell the real estates of persons deceased, by their executors, or administrators, and the real estates of minors, by their guardians. All such private business is properly cognizable by the established judicatories.... A legislative body ... is extremely improper for such decisions. The polity of the English government seldom admits of the exercise of this executive and judiciary power by the legislature, and I know of nothing special in the government of this province, to give countenance to it.” [Footnote: Mass. State Papers, 1765-1775, p. 314.]

The disposition to interfere in what did not concern them was probably aggravated by the presence of judicial politicians in the popular assemblies, who seem to have been unable to resist the temptation of intriguing to procure legislation to affect the litigation before them. But the simplest way to illustrate the working of the system in all its bearings will be to give a history of a celebrated case finally taken on appeal to the Privy Council. The cause arose in Connecticut, it is true, but the social condition of the two colonies was so similar as to make this circumstance immaterial.

Wait Winthrop, [Footnote: This report of Winthrop v. Lechmere is taken from a MS. brief in the possession of Hon. R. C. Winthrop.] grandson of the first John Winthrop, died intestate in 1717, leaving two children, John, of New London, and Anne, wife of Thomas Lechmere, of Boston. The father intended his son should take the land according to the family tradition, and in pursuance of this purpose he put him in actual possession of the Connecticut property in 1711; but he neglected to make a will.

By the common law of England real estate descended to the eldest son of him who was last seised; but in 1699 the Assembly had passed a statute of distribution, copied from a Massachusetts act, which directed the probate court, after payment of debts, to make a “distribution of ... all the residue ... of the real and personal estate by equal portions to and among the children ... except the eldest son ... who shall have two shares.”

Here, then, at the threshold, the constitutional question had to be met, as to whether the colonial enactment was not in conflict with the restriction in the charter, and therefore void. Winthrop took out letters of administration, and Lechmere became one of the sureties on his bond. There was no disagreement about the personalty, but the son’s claim to the land was disputed, though suit was not brought against him till 1723.

The litigation began in Boston, but was soon transferred to New London, where, in July, 1724, Lechmere petitioned for an account. Winthrop forthwith exhibited an inventory of the chattels, and moved that it should be accepted as final; but the judge of probate declined so to rule. Then Lechmere prayed for leave to sue on the bond in the name of the judge. His prayer was granted, and he presently began no less than six actions in different forms.

Much time was consumed in disposing of technicalities, but at length two test cases were brought before the superior court. One, being in substance an action on the bond, was tried on the general issue, and the verdict was for the defendant. The other was a writ of partition, wherein Anne was described as co-heir with her brother. It was argued on demurrer to the declaration, and the defendant again prevailed.

Thus, so far as judicial decision could determine private rights to property, Winthrop had established his title; but he represented the unpopular side in the controversy, and his troubles were just beginning. Christopher Christophers was the judge of probate, he was also a justice of the superior court, and a member of the Assembly, of which body the plaintiff’s counsel was speaker. In April, 1725, when Lechmere had finally exhausted his legal remedies, he addressed a petition to the legislature, where he had this strong support, and which was not to meet till May, stating the impossibility of obtaining relief by ordinary means, and asking to have one of the judgments set aside and a new trial ordered, in such form as to enable him to maintain his writ of partition, notwithstanding the solemn decision against him by the court of last resort. The defendant in vain protested that no error was alleged, no new evidence produced, nor any matter of equity advanced which might justify interference: the Assembly had determined to sustain the statute of distributions, and it accordingly resolved that in cases of this description relief ought to be given in probate by means of a new grant of administration, to be executed according to the terms of the act.

Winthrop was much alarmed, and with reason, for he saw at once the intention of the legislature was to induce the judges to assume an unprecedented jurisdiction; he therefore again offered his account, which Christophers rejected, and he appealed from the decision. Lechmere also applied for administration on behalf of his wife; and upon his prayer being denied, pending a final disposition of Winthrop’s cause, he too went up. In March, 1725-6, final judgment was rendered, the judges holding that both real and personal property should be inventoried. Winthrop thereupon entered his appeal to the Privy Council, whose jurisdiction was peremptorily denied.

From what afterward took place, the inference is that Christophers shrank from assuming alone so great a responsibility as now devolved upon him, and persuaded his brethren to share it with him; for the superior court proceeded to issue letters of administration to Lechmere, and took his bond, drawn to themselves personally, for the faithful performance of his trust. This was a most high-handed usurpation, for the function of the higher tribunal in these matters was altogether appellate, it having nothing to do with such executive business as taking bonds, which was the province of the judge of probate.

However this may have been, progress was thenceforward rapid. In April Lechmere produced a schedule of debts, which have at this day a somewhat suspicious look, and when they were allowed, he petitioned the legislature for leave to sell land to pay them. Winthrop appeared and presented a remonstrance, which “the Assembly, observing the common course of justice, and the law of the colony being by application to the said Assembly, when the judgments of the superior courts are grievous to any person... dismissed,” and immediately passed an act authorizing the sale, and making the administrators’ deed good to convey a title.

Then Winthrop was so incautious as to make a final effort: he filed a protest and caution against any illegal interference with his property pending his appeal, declaring the action already taken to be contrary to the common and statute law of England, and to the tenor of the charter.

The Assembly being of the opinion that this protest “had in it a great show of contempt,” caused Winthrop to be arrested and brought to the bar; there he not only defended his representations as reasonable, but avowed his determination to lay all these proceedings before the king in council. “This was treated as an insolent contemptuous and disorderly behaviour” in the prisoner, “as declaring himself coram non judice, and putting himself on a par with them, and impeaching their authoritys and the charter; and his said protest was declared to be full of reflections, and to terrifie so far as in him lay all the authorities established by the charter.” So they imprisoned him three days and fined him twenty pounds for his contemptuous words.

This leading case was afterward elaborately argued in London, and judgment was entered for Winthrop, upon the ground that the statute of distribution was in conflict with the charter and therefore void; but as Connecticut resolutely refused to abandon its own policy, the utmost confusion prevailed for seventeen years regarding the settlement of estates. During all this time the local government made unremitting efforts to obtain relief, and seems to have used pecuniary as well as legal arguments to effect its purpose; at all events, it finally secured a majority in the Privy Council, who reversed Winthrop v. Lechmere, in Clark v. Tousey. The same question was raised in Massachusetts in 1737, in Phillips v. Savage, but enough influence was brought to bear to prevent an adverse decision. [Footnote: Conn. Coll. Rec. vii. 191, note; Proc. Mass. Hist. Soc. 1860-62, pp. 64-80, 165-171.] A possible distinction between the two cases also lay in the fact that the Massachusetts act had received the royal assent.

The history of this litigation is interesting, not only as illustrating the defects in provincial justice, but as showing the process by which the conception of constitutional limitations became rooted in the minds of the first generation of lawyers; and in point of fact, they were so thoroughly impregnated with the theory as to incline to carry it to unwarrantable lengths. For example, so justly eminent a counsel as James Otis, in his great argument on the Writs of Assistance in 1761, solemnly maintained the utterly untenable proposition that an act of Parliament “against the Constitution is void: an act against natural equity is void: and if an act of Parliament should be made, in the very words of this petition, it would be void.” [Footnote: Quincy’s Reports, p. 474.] While so sound a man, otherwise, as John Adams wrote, in 1776, to Mr. Justice Cushing: “You have my hearty concurrence in telling the jury the nullity of acts of Parliament.... I am determined to die of that opinion, let the jus gladii say what it will.” [Footnote: Works of J. Adams, ix. 390.]

On looking back at Massachusetts as she was in the year 1700, permeated with the evil theocratic traditions, without judges, teachers, or books, the mind can hardly fail to be impressed with the unconquerable energy which produced great jurists from such a soil; and yet in 1725 Jeremiah Gridley graduated from Harvard, who may fairly be said to have been the progenitor of a famous race; for long before the Revolution, men like Prat, Otis, and John Adams could well have held their own before any court of Common Law that ever sat. Such powerful counsel naturally felt a contempt for the ignorant politicians who for the most part presided over them, which they took little pains to hide. Ruggles one day had an aged female witness who could find no chair and complained to him of exhaustion. He told her to go and sit on the bench. His honor, in some irritation, calling him to account, he replied: “I really thought that place was made for old women.” Hutchinson says of himself: “It was an eyesore to some of the bar to have a person at the head of the law who had not been bred to it.” But he explains with perfect simplicity how his occupation as chief justice “engaged his attention, and he applied his intervals to reading the law.” [Footnote: Diary and Letters of Thomas Hutchinson, p. 66.]

The British supremacy closed with the evacuation of Boston, and the colony then became an independent state; yet in that singularly homogeneous community, which had always been taught to regard their royal patents as the bulwark of their liberties, no one seems to have seriously thought it possible to dispense with a written instrument to serve as the basis of the social organization. Accordingly, in 1779, the legislature called a convention to draft a Constitution; and it was the good fortune of the lawyers, who were chosen as delegates, to have an opportunity, not only to correct those abuses from which the administration of justice had so long suffered, but to carry into practical operation their favorite theory, of the limitation of legislative power by the intervention of the courts. The course pursued was precisely what might have been predicted of the representatives of a progressive yet sagacious people. Taking the old charter as the foundation whereon to build, they made only such alterations as their past experience had shown them to be necessary; they adopted no fanciful schemes, nor did they lightly depart from a system with which they were acquainted; and their almost servile fidelity to their precedent, wherever it could be folio wed, is shown by the following extracts relating to the legislative and executive departments.