Autobiography of Seventy Years, Vol. 1-2

by George Frisbie Hoar

These two parties had little in common. They could not well act together in State matters without some principle or purpose on which they were agreed other than mere desire for office and opposition to the Whig Party. They found a common ground in the support of a law providing for secrecy in the ballot. There had been great complaint that the manufacturers, especially in Lowell, who were in general zealous Whig partisans, used an undue influence over their workmen. It was said that a man known to be a Democrat, or a Free Soiler, was pretty likely to get his discharge from the employ of any great manufacturing corporation that had occasion to reduce its force, and that he would have no chance to get an increase of wages. I do not now believe there was much foundation for this accusation. But it was believed by many people at the time. So a law requiring secrecy in the ballot was framed and enacted in spite of great resistance from the Whigs. This has undoubtedly proved a good policy, and has prevailed in Massachusetts ever since, and now prevails largely throughout the country.

But this one measure was not enough to hold together elements otherwise so discordant. So the Democratic and Free Soil leaders agreed to call a convention to revise the Constitution of the Commonwealth, which had remained unchanged save in a few particulars since 1780. There had been a Convention for that purpose in 1820, made necessary by the separation of Maine. But the old Constitution had been little altered. The concentration of the population in large towns and cities had caused a demand for a new distribution of political power. Many people desired an elective judiciary. Others desired that the judges should hold office for brief terms instead of the old tenure for life. There was a great demand for the popular election of Sheriffs and District Attorneys, who under the existing system were appointed by the Governor. Others desired the choice of Senators, who had before been chosen by the several counties on a joint ticket, by single districts. A proposition for a Convention was submitted to the people by the Legislature of 1851. But the people were attached to the old Constitution. There was a special dread of any change in the independent tenure of the judiciary. So although the coalition had a majority in the State the proposition for a Constitutional Convention was defeated.

The scheme was renewed the next year in the Legislature of 1852, of which I was a member. Several of the Free Soilers, among which I was included, were unwilling to have the matter tried again without a distinct assurance that there should be no meddling with the judiciary. This assurance was given in the report of a joint committee of the Legislature to whom the matter was committed, consisting of the leaders of the Democratic and Republican parties, who reported that there was no purpose to change the judicial tenure with which the people were well satisfied. Accordingly I voted for it. The measure got a bare majority in the House which it would never would have had without that stipulation. The plan was submitted to the people again with a proposition that the choice of delegates to the Constitutional Convention should be by secret ballot. The people approved the plan by a substantial majority.

I have no doubt that the pledge above mentioned was made in good faith and that the men who made it meant to keep it. But before the Convention met two things happened which changed the conditions. The coalition was wrecked. There were two causes for its overthrow. One of them was the appointment by Governor Boutwell of Caleb Cushing to a seat on the Supreme Bench of Massachusetts. General Cushing was a man of great accomplishment, though never a great lawyer. He could collect with wonderful industry all the facts bearing on any historic question and everything that had been said on either side of any question of law. But he never had a gift of cogent argument that would convince any judge or jury. He owed his success in life largely to the personal favor of men who knew him and were charmed by his agreeable quality. He was regarded by the people of Massachusetts as a man without moral convictions and as utterly subservient to the slave power. So his appointment was a great shock to the Anti-Slavery men and made them believe that it was not safe to put political power in Democratic hands. General Cushing vindicated this opinion afterward by the letter written when he was Attorney- General in the Cabinet of President Pierce declaring that the Anti-Slavery movement in the North "must be crushed out," and also by a letter written to Jefferson Davis after the beginning of the Rebellion recommending some person to him for some service to the Confederacy. The discovery of this letter compelled President Grant who had been induced to nominate him for Chief Justice to withdraw the nomination. The other cause was the passage of the bill for the prohibition of the manufacture and sale of intoxicating liquors, known as the Maine law. This measure had passed the Legislature, containing a provision for its submission to the people. It was vetoed by Governor Boutwell. The reason assigned by him was his objection to the provision for its submission to the people, without the secret ballot. The referendum, a scheme by which men charged with political duties avoid responsibility by submitting to the people measures which they fear may be unpopular, —has never found much favor in Massachusetts. After many changes of sentiment, and after passing, modifying, and repealing many laws, the people of the Commonwealth seem to have settled down on a policy which permits each town or city to decide by vote whether the sale of liquor shall be permitted within their limits. The bill was then passed, without the reference to the people. But the measure sealed the fate of the coalition. Some of its provisions, especially that for seizing and destroying stocks of liquor kept for sale in violation of law, were very severe, and were held unconstitutional by the Court. The liquor sellers, almost all of them, were Democrats. They would not readily submit to a law which made their calling criminal.

So the Whigs were restored to power by the fall election in 1852. Their heads were turned by their success. They did not quite dare to repeal the law providing for a Constitutional Convention, but they undertook to repeal so much of it as required that the choice of delegates should be by secret ballot. The minority resisted this repeal with all their might. They alleged with great reason that it was not decent for the Legislature to repeal a provision which the people has expressly approved. But their resistance was in vain, and after a long and angry struggle which stirred the people of the Commonwealth profoundly the provision for the secret ballot was abrogated. But the result of the contest was that the Whigs were routed at the special election for delegates to the Convention. That body was controlled by the Coalition by a very large majority. Their triumph made them also lose their heads.

So when the Convention assembled in 1853, they disregarded the pledges which had enabled them to get the assent of the people to calling the convention, and provided that the tenure of office of the Judges of the Supreme Court should be for ten years only, and that the Judges of Probate should be elected by the people of the several counties once in three years. It is said, and, as I have good reason to know, very truly, that this action of the Convention was taken in consequence of a quarrel in Court between the late Judge Merrick and General Butler and Mr. Josiah G. Abbott, two eminent leaders of the Democrats, members of the Convention. They had neither of them agreed to the proposition to change the judicial tenure. They were absent from the convention for several days in the trial of an important cause before Merrick, and returned angry with the Judge and determined to do something to curb the independent power of the Judges. The proposition was adopted.

These schemes were a distinct violation of the pledge which had been given when the Legislature submitted to the people the proposition for calling the Convention. Of course it was a fair answer to this complaint to say that the members of the committee who made that report could in such a matter bind nobody but themselves. That was true. But I think if the men who signed that report, and the men who joined them in giving the assurance to the people, had been earnest and zealous in the matter it is quite likely they could have prevented the action of the Convention.

The scheme for a new constitution passed the Convention by a large majority and was submitted to the people. The Whig leaders, who seemed to have had all their wisdom and energy taken out of them when the Free Soilers left them, were much alarmed by the strength of the discontent with the existing order of things manifested by the coalition victory in the election of the Constitutional Convention. Many of them concluded that it would be unwise to resist the popular feeling. One Saturday afternoon during that summer I was in the office of Francis Wayland, a great friend of mine, long Dean of the New Haven Law School, when Henry S. Washburn, a member of the Whig State Central Committee, came into Wayland's office and told me he had just attended a meeting of the Committee that day and that it determined to make no contest against the new Constitution. The Springfield Republican, then a Whig journal, had an article that day, or the following Monday, to the same effect. I was very much disturbed. I hurried to Concord by the first train Monday morning, and saw my brother, who was then a Judge of the Court of Common Pleas. He agreed with me in thinking that the proposed scheme of government a very bad one. He went at once to Cambridge and saw John G. Palfrey, a very able and influential leader of the Free Soilers. Mr. Palfrey agreed that the Constitution ought to be defeated, if possible. Judge Hoar and he sat down together and prepared a pamphlet, the Judge furnishing all the legal argument and Mr. Palfrey the rest, clothing it all in his inimitable style. It was published under Dr. Palfrey's name. Judge Hoar, being then upon the bench, did not think it becoming to take any more public action in the matter, although he made his opinion known to all persons who cared to know it. Charles Francis Adams and Marcus Morton also made powerful arguments on the same side. My father, Samuel Hoar, also made several speeches against the Constitution. At this defection of so many Free Soilers the Whig leaders took heart and made a vigorous and successful resistance.

The result was that the people voted down the whole constitution. Several of the most eminent leaders of the Free Soilers and Democrats separated themselves from their party and joined the Whigs in defeating it. Among them were Marcus Morton, formerly Governor and Judge of the Supreme Court; John G. Palfrey, who had been the Free Soil candidate for Governor; Charles Francis Adams, afterward member of Congress and Minister to England, and Samuel Hoar.

I was myself, at this time, an enthusiastic Free Soiler, and was, as I have said, Chairman of the Republican County Committee, but I joined the rebels against the dominant feeling of my party.