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 prost.i.tution 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 G.o.d.

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 pet.i.tions 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: Ma.s.s. 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 a.s.semblies, 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 ill.u.s.trate 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 circ.u.mstance 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 a.s.sembly had pa.s.sed a statute of distribution, copied from a Ma.s.sachusetts 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 const.i.tutional 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 pet.i.tioned 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 part.i.tion, 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 t.i.tle; 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 a.s.sembly, of which body the plaintiff's counsel was speaker. In April, 1725, when Lechmere had finally exhausted his legal remedies, he addressed a pet.i.tion 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 part.i.tion, 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 a.s.sembly 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 a.s.sume 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 a.s.suming 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 pet.i.tioned the legislature for leave to sell land to pay them. Winthrop appeared and presented a remonstrance, which "the a.s.sembly, observing the common course of justice, and the law of the colony being by application to the said a.s.sembly, when the judgments of the superior courts are grievous to any person... dismissed," and immediately pa.s.sed an act authorizing the sale, and making the administrators' deed good to convey a t.i.tle.

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 a.s.sembly 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 Ma.s.sachusetts 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. Ma.s.s. Hist. Soc._ 1860-62, pp. 64-80, 165-171.] A possible distinction between the two cases also lay in the fact that the Ma.s.sachusetts act had received the royal a.s.sent.

The history of this litigation is interesting, not only as ill.u.s.trating the defects in provincial justice, but as showing the process by which the conception of const.i.tutional 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 a.s.sistance in 1761, solemnly maintained the utterly untenable proposition that an act of Parliament "against the Const.i.tution is void: an act against natural equity is void: and if an act of Parliament should be made, in the very words of this pet.i.tion, 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 Ma.s.sachusetts 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 h.o.m.ogeneous 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 Const.i.tution; 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.

CHARTER.

And we doe further for vs our heires and successors give and grant to the said governor and the Great and Generall Court or a.s.sembly of our said province or territory for the time being full power and authority from time to time to make ordaine and establish all manner of wholsome and reasonable orders laws statutes and ordinances directions and instructions either with penalties or without (soe as the same be not repugnant or contrary to the lawes of this our realme of England) as they shall judge to be for the good and welfare of our said province or territory and for the gouernment and ordering thereof and of the people inhabiting or who shall inhabit the same and for the necessary support and defence of the government thereof.

CONSt.i.tUTION.

And further, full power and authority are hereby given and granted to the said General Court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this const.i.tution, as they shall judge to be for the good and welfare of this commonwealth, and for the government and ordering thereof, and of the subjects of the same, and for the necessary support and defence of the government thereof.

CHARTER.

The governour of our said province for the time being shall have authority from time to time at his discretion to a.s.semble and call together the councillors or a.s.sistants of our said province for the time being and that the said governour with the said a.s.sistants or councillors or seaven of them at the least shall and may from time to time hold and keep a councill for the ordering and directing the affaires of our said province.

CONSt.i.tUTION.

The governour shall have authority, from time to time at his discretion, to a.s.semble and call together the councillors of this commonwealth for the time being; and the governour, with the said councillors, or five of them at least, shall, and may, from time to time, hold and keep a council, for the ordering and directing the affairs of the commonwealth, agreeably to the const.i.tution and the laws of the land.

The clause concerning the council is curious as an instance of the survival of an antiquated form. In the province the body had a use, for it was a regular upper chamber; but when, in 1779, a senate was added, it became an anomalous and meaningless third house; yet it is still regularly elected, though its inutility is obvious. So long ago as 1814 John Adams had become very tired of it; he then wrote: "This const.i.tution, which existed in my handwriting, made the governor annually elective, gave him the executive power, shackled with a council, that I now wish was annihilated." [Footnote: _Works of J.

Adams_, vi. 465.]

On the other hand, the changes made are even more interesting, as an example of the evolution of inst.i.tutions. The antique doc.u.ment was simplified by an orderly arrangement and division into sections; the obsolete jargon of incorporation was eliminated, which had come down from the mediaeval guilds; in the dispute with England the want of a bill of rights had been severely felt, so one was prefixed; and then the convention, probably out of regard to symmetry, blotted their otherwise admirable work by creating an unnecessary senate. But viewed as a whole, the grand original conception contained in this instrument, making it loom up a landmark in history, is the theory of the three coordinate departments in the administration of a democratic commonwealth, which has ever since been received as the corner-stone of American const.i.tutional jurisprudence.

Though this a.s.sertion may at first sight seem too sweeping, it is borne out by the facts. During the first sessions of the Continental Congress no question was more pressing than the reorganization of the colonies should they renounce their allegiance to the crown, nor was there one in regard to which the majority of the delegates were more at sea.

From, their peculiar education the New Englanders were exceptions to the general rule, and John Adams in particular had thought out the problem in all its details. His conversation so impressed some of his colleagues that he was asked to put his views in a popular form. His first attempt was a short letter to Richard Henry Lee, in November, 1775, in which he starts with this proposition as fundamental: "A legislative, an executive, and a judicial power comprehend the whole of what is meant and understood by government. It is by balancing each of these powers against the other two, that the efforts in human nature towards tyranny can alone be checked and restrained, and any degree of freedom preserved in the const.i.tution." [Footnote: _Works of J. Adams_, iv. 186.]

His next tract, written in 1776 at the request of Wythe of Virginia, was printed and widely circulated, and similar communications were sent in reply to applications from New Jersey, North Carolina, and possibly other States. The effect of this discussion is apparent in all of the ten const.i.tutions afterward drawn, with the exception of Pennsylvania's, which was a failure; but none of them pa.s.sed beyond the tentative or embryonic stage. It therefore remained for Ma.s.sachusetts to present the model, which in its main features has not yet been superseded.

A first attempt was deservedly rejected by the people, and the work was not done until 1779; but the men who then met in convention at Cambridge knew precisely what they meant to do. Though the executive and the legislature were a direct inheritance, needing but little change, a deep line was drawn between the three departments, and the theory of the coordinate judiciary was first brought to its maturity within the jurisdiction where it had been born. To attain this cherished object was the chief labor of the delegates, for to the supreme court was to be intrusted the dangerous task of grappling with the representative chambers and enforcing the popular charter. Therefore they made the tenure of the judges permanent; they secured their pay; to obtain impartiality they excluded them from political office; while on the other hand they confined the legislature within its proper sphere, to the end that the government they created might be one of laws and not of men.

The experiment has proved one of those memorable triumphs which mark an era. Not only has the great conception of New England been accepted as the fundamental principle of the Federal Union, but it has been adopted by every separate State; and more than this, during the one hundred and six years since the people of our Commonwealth wrote their Const.i.tution, they have had as large a measure of liberty and safety under the law as men have ever known on earth. There is no jurisdiction in the world where justice has been purer or more impartial; nor, probably, has there ever been a community, of equal numbers, which has produced more numerous or more splendid specimens of juridical and forensic talent.

When freed from the incubus of the ecclesiastical oligarchy the range of intellectual activity expanded, and in 1780 Ma.s.sachusetts may be said, without exaggeration, to have led the liberal movement of the world; for not only had she won almost in perfection the three chief prizes of modern civilization, liberty of speech, toleration, and equality before the law; but she had succeeded in formulating those const.i.tutional doctrines by which, during the nineteenth century, popular self-government has reached the highest efficiency it has ever yet attained.

A single example, however, must suffice to show what the rise of the cla.s.s of lawyers had done for individual security and liberty in that comparatively short interval of ninety years.

Theocratic justice has been described; the trials of Wheelwright, and of Anne Hutchinson, of Childe, of Holmes, and of Christison have been related; and also the horrors perpetrated before that ghastly tribunal of untrained bigots, which condemned the miserable witches undefended and unheard. [Footnote: In England, throughout the eighteenth century, counsel were allowed to speak in criminal trials, in cases of treason and misdemeanor only. Nor is the conduct of Ma.s.sachusetts in regard to witches peculiar. Parallel atrocities might probably be adduced from the history of every European nation, even though the procedure of the courts were more regular than was that of the Commission of Phips. The relation of the priest to the sorcerer is a most interesting phenomenon of social development; but it would require a treatise by itself.]

For the honor of our Common wealth let the tale be told of a state prosecution after her bar was formed.

In 1768 the British Ministry saw fit to occupy Boston with a couple of regiments, a force large enough to irritate, but too small to overawe, the town. From the outset bad feeling prevailed between the citizens and the soldiers, but as the time went on the exasperation increased, and early in 1770 that intense pa.s.sion began to glow which precedes the outbreak of civil war. Yet though there were daily brawls, no blood was shed until the night of the 5th of March, when a rabble gathered about the sentry at the custom-house in State Street. He became frightened and called for help, Captain Preston turned out the guard, the mob pelted them, and they fired on the people without warning. A terrific outbreak was averted by a species of miracle, but the troops had to be withdrawn, and Preston and his men were surrendered and indicted for murder.

John Adams, who was a liberal, heart and soul, had just come into leading practice. His young friend Josiah Quincy was even more deeply pledged to the popular cause. On the morning after the ma.s.sacre, Preston, doubtless at Hutchinson's suggestion, sent Adams a guinea as a retaining fee, which, though it seemed his utter ruin to accept, he did not dream of refusing. What Quincy went through may be guessed from his correspondence with his father.

BRAINTREE, March 22, 1770.