"1693. September 3d. As I was riding to preach at Cambridge, I prayed to God,—begged that my labors might be blessed to the souls of the students; at the which I was much melted. Also saying to the Lord, that some workings of his Providence seemed to intimate, that I must be returned to England again; ... I was inexpressibly melted, and that for a considerable time, and a stirring suggestion, that to England I must go. In this there was something extraordinary, either divine or angelical."

"December 30th. Meltings before the Lord this day when praying, desiring being returned to England again, there to do service to his name, and persuasions that the Lord will appear therein."

"1694. January 27th. Prayers and supplications that tidings may come from England, that may be some direction to me, as to my returning thither or otherwise, as shall be most for his glory."

"March 13th. This morning with prayers and tears I begged of God that I might hear from my friends and acquaintance in England something that should encourage and comfort me. Such tidings are coming, but I know not what it is. God has heard me." [Footnote: History of Harvard, i. 475, 476, App. ix.]

His craving to escape from the country was increased by the nagging of the legislature; for so early as December, 1693, the representatives passed the first of a long series of resolves, "that the president of Harvard College for the time being shall reside there, as hath been accustomed in time past." [Footnote: Court Rec. vi. 316.] Now this was precisely what the Reverend Doctor was determined he would not do; nor could he resign without losing all hope of his agency; so it is not surprising that as time went on he wrestled with the Deity.

1698. "September 25th. This day as I was wrestling with the Lord, he gave me glorious and heart-melting persuasions, that he has work for me to do in England, for the glory of his name. My soul rejoiceth in the Lord." [Footnote: History of Harvard, i. 480, App. ix.]

Doubtless his trials were severe, but the effect upon his temper was unfortunate. He brought forward scheme after scheme, and the corporation was made to address the legislature, and then the legislature was pestered to accede to the prayer of the corporation, until everybody was wrought to a pitch of nervous irritation; he himself was always jotting in his Diary what he had on foot, mixed with his hopes and prayers.

"1696. December 11th. I was with the representatives in the General Court, and did acquaint them with my purpose of undertaking a voyage for England in the spring (if the Lord will), in order to the attainment of a good settlement for the college."

"December 28th. The General Court have done nothing for the poor college.... The corporation are desirous that I should go to England on the college's account."

1696. "April 19th (Sabbath.) In the morning, as I was praying in my closet, my heart was marvellously melted with the persuasion, that I should glorify Christ in England."

"1697. June 7th. Discourse with ministers about the college, and the corporation unanimously desired me to take a voyage for England on the college's account." [Footnote: History of Harvard, i. 476, App. ix.]

But of what the senior tutor was doing with the rising generation he took no note at all. His attention was probably first attracted by rumors of the Brattle Church revolt, for not till 1697 was he able to divert his thoughts from himself long enough to observe that all was not as it should be at Cambridge. Then, at length, he made an effort to get rid of Leverett by striking his name from the list of fellows when a bill for incorporation was brought into the legislature; but this crafty politician had already become too strong in the house of representatives, of which he was soon after made speaker.

Two years later, however, the conservative clergy made a determined effort and prepared a bill containing a religious test, which they supported with a petition praying "that, in the charter for the college, our holy religion may be secured to us and unto our posterity, by a provision, that no person shall be chosen president, or fellow, of the college, but such as declare their adherence unto the principles of reformation, which were espoused and intended by those who first settled the country ... and have hitherto been the general profession of New England." [Footnote: Idem, i. 99.] This time they narrowly missed success, for the bill passed the houses, but was vetoed by Lord Bellomont.

Hitherto Cotton Mather had shown an unfilial lack of interest in his father's ambition to serve the public; but this summer he also began to have assurances from God. One cause for his fervor may have been the death of the Rev. Mr. Morton, who was conceded to stand next in succession to the presidency, and he therefore supposed himself to be sure of the office should a vacancy occur. [Footnote: Idem, i. 102.]

"1699. 7th d. 4th m. (June.) The General Court has, divers times of late years, had under consideration the matter of the settlement of the college, which was like still to issue in a voyage of my father to England, and the matter is now again considered. I have made much prayer about it many and many a time. Nevertheless, I never could have my mind raised unto any particular faith about it, one way or another. But this day, as I was (may I not say) in the spirit, it was in a powerful manner assured me from heaven, that my father should one day be carried into England, and that he shall there glorify the Lord Jesus Christ;... And thou, O Mather the younger, shalt live to see this accomplished!" [Footnote: History of Harvard, i. 482, 483, App. x.]

"16th d. 5th m. (July.) Being full of distress in my spirit, as I was at prayer in my study at noon, it was told me from heaven, that my father shall be carried from me unto England, and that my opportunities to glorify the Lord Jesus Christ will, on that occasion, be gloriously accommodated."

"18th d. 5th m.... And now behold a most unintelligible dispensation! At this very time, even about noon, instead of having the bill for the college enacted, as was expected, the governor plainly rejected it, because of a provision therein, made for the religion of the country."

After the veto the patriarch seems to have got the upper hand for a season, and to have made some arrangement by which he evicted his adversary, as appears by a very dissatisfied letter written by Leverett in August, 1699: "As soon as I got home I was informed, that Rev. President (I. M.), held a corporation at the college the 7th inst., and the said corporation, after the publication of the new settlement, made choice of Mr. Flynt to be one of the tutors at college.... I have not the late act for incorporating the college at hand, nor have I seen the new temporary settlement; but I perceive, that all the members of the late corporation were not notified to be at the meeting. I can't say how legal these late proceedings are; but it is wonderful, that an establishment for so short a time as till October next, should be made use of so soon to introduce an unnecessary addition to that society." [Footnote: History of Harvard, i. 500, App. xvi.]

A long weary year passed, during which Dr. Mather must have suffered keenly from the public ingratitude; still, at its end he was happy, since he felt certain of being rewarded by the Lord; for, just as the earl's administration was closing, he had succeeded by unremitting toil in so adjusting the legislature as to think the spoil his own; when, alas, suddenly, without warning, in the most distressing manner, the prize slipped into Bellomont's pocket. How severely his faith was tried appears from his son's Diary.

"1700. 16th d. 4th mo. (Lord's Day.) I am going to relate one of the most astonishing things that ever befell in all the time of my pilgrimage.

"A particular faith had been unaccountably produced in my father's heart, and in my own, that God will carry him unto England, and there give him a short but great opportunity to glorify the Lord Jesus Christ, before his entrance into the heavenly kingdom. There appears no probability of my father's going thither but in an agency to obtain a charter for the college. This matter having been for several years upon the very point of being carried in the General Assembly, hath strangely miscarried when it hath come to the birth. It is now again before the Assembly, in circumstances wherein if it succeed not, it is never like to be revived and resumed any more....

"But the matter in the Assembly being likely now to come unto nothing, I was in this day in extreme distress of spirit concerning it.... After I had finished all the other duties of this day, I did in my distress cast myself prostrate on my study floor before the Lord.... I spread before him the consequences of things, and the present posture and aspect of them, and, having told the Lord, that I had always taken a particular faith to be a work of heaven on the minds of the faithful, but if it should prove a deceit in that remarkable instance which was now the cause of my agony, I should be cast into a most wonderful confusion; I then begged of the Lord, that, if my particular faith about my father's voyage to England were not a delusion, he would be pleased to renew it upon me. All this while my heart had the coldness of a stone upon it, and the straitness that is to be expected from the lone exercise of reason. But now all on the sudden I felt an inexpressible force to fall on my mind, an afflatus, which cannot be described in words; none knows it but he that has it.... It was told me, that the Lord Jesus Christ loved my father, and loved me, and that he took delight in us, as in two of his faithful servants, and that he had not permitted us to be deceived in our particular faith, but that my father should be carried into England, and there glorify the Lord Jesus Christ before his passing into glory....

"Having left a flood of tears from me, by these rages from the invisible world, on my study floor, I rose and went into my chair. There I took up my Bible, and the first place that I opened was at Acts xxvii. 23-25, 'There stood by me an angel of God, whose I am, and whom I serve, saying, Fear not, thou must be brought before Caesar.' ... A new flood of tears gushed from my flowing eyes, and I broke out into these expressions. 'What! shall my father yet appear before Caesar! Has an angel from heaven told me so! And must I believe what has been told me! Well then, it shall be so! It shall be so!'"

"And now what shall I say! When the affair of my father's agency after this came to a turning point in the court, it strangely miscarried! All came to nothing! Some of the Tories had so wrought upon the governor, that, though he had first moved this matter, and had given us both directions and promises about it, yet he now (not without base unhandsomeness) deferred it. The lieutenant-governor, who had formerly been for it, now (not without great ebullition of unaccountable prejudice and ingratitude) appeared, with all the little tricks imaginable, to confound it. It had for all this been carried, had not some of the council been inconveniently called off and absent. But now the whole affair of the college was left unto the management of the Earl of Bellamont, so that all expectation of a voyage for my father unto England, on any such occasion, is utterly at an end." [Footnote: History of Harvard, i. 484-486, App. x.]

During all these years the legislature had been steadily passing resolutions requiring the president to go into residence; and in 1698 they went so far as to vote him the liberal salary, for that age, of two hundred pounds, and appointed a committee to wait upon him. Judge Sewall describes the interview:—

"Mr. President expostulated with Mr. Speaker ... about the votes being alter'd from 250 [L.?]." ... "We urg'd his going all we could; I told him of his birth and education here; that he look'd at work rather than wages, all met in desiring him.... Objected want of a house, bill for corporation not pass'd ... must needs preach once every week, which he preferred before the gold and silver of the West-Indies. I told him would preach twice aday to the students. He said that [exposition] was nothing like preaching." [Footnote: Sewall's Diary. Mass. Hist. Coll. fifth series, v. 487.] And in this the patriarch spoke the truth; for if there was anything he loved more than money it was the incense of adulation which steamed up to his nostrils from a great congregation. Of course he declined; and yet this importunity pained the good man, not because there was any conflict in his mind between his duty to a cause he held sacred and his own interest, but because it was "a thing contrary to the faith marvellously wrought into my soul, that God will give me an opportunity to serve and glorify Christ in England, I set the day apart to cry to heaven about it." [Footnote: History of Harvard, vi. 481, App. ix.]

There were limits, however, even to the patience of the Massachusetts Assembly with an orthodox divine; and no sooner was the question of the agency decided by the appointment of Bellomont, than it addressed itself resolutely to the seemingly hopeless task of forcing Dr. Mather to settle in Cambridge or resign his office. On the 10th of July, 1700, they voted him two hundred and twenty pounds a year, and they appointed a committee to obtain from him a categorical answer. This time he thought it prudent to feign compliance; and after a "suitable place... for the reception and entertainment of the president" had been prepared at the public expense, he moved out of town and stayed till the 17th of October, when he went back to Boston, and wrote to tell Stoughton his health was suffering. His disingenuousness seems to have given Leverett the opportunity for which he had been waiting; and his acting as chairman of a committee appointed by the representatives suggests his having forced the issue; it was resolved that, should Mr. Mather be absent from the college, his duties should devolve upon Samuel Willard, the vice-president; [Footnote: History of Harvard, i. 111; Court Rec. vii. 172, 175.] and in March the committee apparently reported the president's house to be in good condition. Stimulated by this hint, the doctor went back to Cambridge and stayed a little more than three months, when he wrote a characteristic note to Stoughton, who was acting governor. "I promised the last General Court to take care of the college until the Commencement. Accordingly I have been residing in Cambridge these three months. I am determined (if the Lord will) to return to Boston the next week, and no more return to reside in Cambridge; for it is not reasonable to desire me to be (as, out of respect to the public interest, I have been six months within this twelve) any longer absent from my family.... I do therefore earnestly desire, that the General Court would... think of another president.... It would be fatal to the interest of religion, if a person disaffected to the order of the Gospel, professed and practised in these churches, should preside over this society. I know the General Assembly, out of their regard to the interest of Christ, will take care to prevent it." [Footnote: History of Harvard, i. 501, App. xvii.] Yet though he himself begged the legislature to select his successor, in his inordinate vanity he did not dream of being taken at his word; so when he was invited to meet both houses in the council chamber he explained with perfect cheerfulness how "he was now removed from Cambridge to Boston, and ... did not think fitt to continue his residence there, ... but, if the court thought fit to desire he should continue his care of the colledge as formerly, he would do so." [Footnote: Court Records, vii. 229.]

Increase Mather delighted to blazon himself as Christ's foremost champion in the land. He predicted, and with reason, that should those who had been already designated succeed him at Harvard, it would be fatal to that cause to which his life was vowed. The alternative was presented of serving himself or God, and to him it seemed unreasonable of his friends to expect of him a choice. And yet when, as was his wont, he would describe himself from the pulpit, as a refulgent beacon blazing before New England, he would use such words as these: "Every ... one of a publick spirit ... will deny himself as to his worldly interests, provided he may thereby promove the welfare of his people.... He will not only deny himself, but if called thereto, will encounter the greatest difficulties and dangers for the publicks sake." [Footnote: Sermon, The Publick Spirited Man, pp. 7, 9.]

The man had presumed too far; the world was wearying of him. On September 6, 1701, the government was transferred to Samuel Willard, the vice- president, and Harvard was lost forever. [Footnote: History of Harvard, i. 116.]

No education is so baleful as the ecclesiastical, because it breeds the belief in men that resistance to their will is not only a wrong to their country and themselves, but a sacrilege toward God. The Mathers were now to give an illustration of the degree to which the theocratic training debauched the mind; and it is only necessary to observe that Samuel Sewall, who tells the story, was educated for the ministry, and was perhaps as staunch a conservative as there was in the province.

1701, "October 20. Mr. Cotton Mather came to Mr. Wilkins's shop, and there talked very sharply against me as if I had used his father worse than a neger; spake so loud that people in the street might hear him.... I had read in the morn Mr. Dod's saying; Sanctified afflictions are good promotions. I found it now a cordial."

"October 9. I sent Mr. Increase Mather a hanch of very good venison; I hope in that I did not treat him as a negro."

"October 2, 1701. I, with Major Walley and Capt. Samuel Checkly, speak with Mr. Cotton Mather at Mr. Wilkins's.... I told him of his book of the Law of Kindness for the Tongue, whether this were correspondent with that. Whether correspondent with Christ's rule:

"He said, having spoken to me before there was no need to speak to me again; and so justified his reviling me behind my back. Charg'd the council with lying, hypocrisy, tricks, and I know not what all. I ask'd him if it were done with that meekness as it should; Answer'd, Yes. Charg'd the council in general, and then shew'd my share, which was my speech in council; viz. If Mr. Mather should goe to Cambridge again to reside there with a resolution not to read the Scriptures, and expound in the Hall: I fear the example of it will do more hurt than his going thither will doe good. This speech I owned.... I ask'd him if I should supose he had done somthing amiss in his church as an officer; whether it would be well for me to exclaim against him in the street for it."

"Thorsday October 23. Mr. Increase Mather said at Mr. Wilkins's, If I am a servant of Jesus Christ, some great judgment will fall on Capt. Sewall, or his family." [Footnote: Sewall's Diary. Mass. Hist. Coll. fifth series, vi. 43-45.]

Had the patriarch been capable of a disinterested action, for the sake of those principles he professed to love, he would have stopped Willard's presidency, no matter at what personal cost, for he knew him to be no better than a liberal in disguise, and he had already quarrelled bitterly with him in 1697 when he was trying to eject Leverett. Sewall noted on "Nov. 20.... Mr. Willard told me of the falling out between the president and him about chusing fellows last Monday. Mr. Mather has sent him word, he will never come to his house more till he give him satisfaction." [Footnote: Mass. Hist. Coll. fifth series, v. 464.] But they had in reality separated years before; for when, in the witchcraft terror, Willard was cried out upon, and had to look a shameful death in the face, he learned to feel that the men who were willing to risk their lives to save him were by no means public enemies. And so, as the vice-president lived in Boston, the administration of the college was left very much to Leverett and the Brattles, who were presently reinstated.

Joseph Dudley was the son of that old governor who wrote the verses about the cockatrice to be hatched by toleration, yet he inherited very little of his father's disposition. He was bred for the ministry, and as the career did not attract him, he turned to politics, in which he made a brilliant opening. At first he was the hope of the high churchmen, but they afterward learned to hate him with a rancor exceptional even toward their enemies. And he gave them only too good a handle against him, for he was guilty of the error of selling himself without reserve to the Andros government. At the Revolution he suffered a long imprisonment, and afterward went to England, where he passed most of William's reign. There his ability soon brought him forward, he was made lieutenant-governor of the Isle of Wight, was returned to Parliament, and at last appointed governor by Queen Anne. Though Massachusetts owes a deeper debt to few of her chief magistrates, there are few who have found scantier praise at the hands of her historians. He was, it is true, an unscrupulous politician and courtier, but his mind was broad and vigorous, his policy wise and liberal, and at the moment of his power his influence was of inestimable value.

Among his other gifts, he was endowed with infinite tact, and when working for his office he managed not only to conciliate the Mathers, but even to induce the son to write a letter in his favor; and so when he arrived in 1702 they were both sedulous in their attentions in the expectation of controlling him. A month had not passed, however, before this ominous entry was made in the younger's diary:—

"June 16, 1702. I received a visit from Governour Dudley.... I said to him ... I should be content, I would approve it, ... if any one should say to your excellency, 'By no means let any people have cause to say, that you take all your measures from the two Mr. Mathers.' By the same rule I may say without offence,' By no means let any people say, that you go by no measures in your conduct, but Mr. Byfield's and Mr. Leverett's.'... The WRETCH went unto those men and told them, that I had advised him to be no ways advised by them; and inflamed them into an implacable rage against me." [Footnote: Mass. Hist. Coll. first series, iii. 137.]

Leverett, on the contrary, now reached his zenith; from the house he passed into the council and became one of Dudley's most trusted advisers. The Mathers were no match for these two men, and few routs have been more disastrous than theirs. Lord Bellomont's sudden death had put an end to all hope of obtaining a charter by compromise with England, and no further action had been taken, when, on September 12, 1707, Willard died. On the 28th of October the fellows met and chose John Leverett president of Harvard College; and then came a demonstration which proved not only Increase Mather's prescience, when he foretold how a liberal university would kill a disciplined church, but which shows the mighty influence a devoted teacher can have upon his age. Thirty-nine ministers addressed Governor Dudley thus:—

"We have lately, with great joy, understood the great and early care that our brethren, who have the present care and oversight of the college at Cambridge, have taken, ... by their unanimous choice of Mr. John Leverett, ... to be the president ... Your Excellency personally knows Mr. Leverett so well, that we shall say the less of him. However, we cannot but give this testimony of our great affection to and esteem for him; that we are abundantly satisfied ... of his religion, learning, and other excellent accomplishments for that eminent service, a long experience of which we had while he was senior fellow of that house; for that, under the wise and faithful government of him, and the Rev. Mr. Brattle, of Cambridge, the greatest part of the now rising ministry in New England were happily educated; and we hope and promise ourselves, through the blessing of the God of our fathers, to see religion and learning thrive and flourish in that society, under Mr. Leverett's wise conduct and influence, as much as ever yet it hath done." [Footnote: History of Harvard, i. 504, App. xx.]

His salary was only one hundred and fifty pounds a year; but the man worked for love of a great cause, and did not stop to haggle. Nor were he and Dudley of the temper to leave a task half done. Undoubtedly at the governor's instigation, a resolve was introduced into the Assembly reviving the Act of 1650 by which the university had been incorporated, and it is by the sanction of this lawless and masterly feat of statesmanship that Harvard has been administered for almost two hundred years.

Sewall tells how Dudley went out in state to inaugurate his friend. "The governour prepared a Latin speech for instalment of the president. Then took the president by the hand and led him down into the hall;... The governour sat with his back against a noble fire.... Then the governour read his speech ... and mov'd the books in token of their delivery. Then president made a short Latin speech, importing the difficulties discouraging, and yet that he did accept: ... Clos'd with the hymn to the Trinity. Had a very good dinner upon 3 or 4 tables.... Got home very well. Laus Deo." [Footnote: Mass. Hist. Coll. fifth series, vi. 209.]

Nor did Dudley fail to provide the new executive with fit support. By the old law he had revived the corporation was reduced to seven; of this board Leverett himself was one, and on the day he took his office both the Brattles and Pemberton were also appointed. And more than this, when, a few years later, Pemberton died, the arch-rebel, Benjamin Colman, was chosen in his place. The liberal triumph was complete, and in looking back through the vista of the past, there are few pages of our history more strongly stamped with the native energy of the New England mind than this brilliant capture of Harvard, by which the ancient cradle of bigotry and superstition was made the home of American liberal thought. As for the Mathers, when they found themselves beaten in fair fight, they conceived a revenge so dastardly that Pemberton declared with much emotion he would humble them, were he governor, though it cost him his head. Being unable longer to withstand Dudley by honorable means, they tried to blast him by charging him with felony. Their letters are too long to be reproduced in full; but their purport may be guessed by the extracts given, and to this day they remain choice gems of theocratic morality.

* * * * *

SIR, That I have had a singular respect for you, the Lord knows; but that since your arrival to the government, my charitable expectations have been greatly disappointed, I may not deny....

1st. I am afraid you cannot clear yourself from the guilt of bribery and unrighteousness....

2d. I am afraid that you have not been true to the interest of your country, as God (considering his marvellous dispensations towards you) and his people have expected from you....

3d. I am afraid that you cannot clear yourself from the guilt of much hypocrisy and falseness in the affair of the college....

4th. I am afraid that the guilt of innocent blood is still crying in the ears of the Lord against you. I mean the blood of Leister and Milburn. My Lord Bellamont said to me, that he was one of the committee of Parliament who examined the matter; and that those men were not only murdered, but barbarously murdered....

5th. I am afraid that the Lord is offended with you, in that you ordinarily forsake the worship of God in the holy church to which you are related, in the afternoon on the Lord's day, and after the publick exercise, spend the whole time with some persons reputed very ungodly men. I am sure your father did not so.... Would you choose to be with them or such as they are in another world, unto which you are hastening?... I am under pressures of conscience to bear a publick testimony without respect of persons.... I trust in Christ that when I am gone, I shall obtain a good report of my having been faithful before him. To his mercy I commend you, and remain in him,

Yours to serve, I. MATHER. [Footnote: Mass. Hist. Coll. first series, iii. 126.] BOSTON, January 20, 1707-8. To the Governour.

* * * * *

BOSTON, Jan. 20, 1707-8.

Sir, There have appeared such things in your conduct, that a just concern for the welfare of your excellency seems to render it necessary, that you should be faithfully advised of them.... You will give me leave to write nothing, but in a style, whereof an ignorant mob, to whom (as well as the General Assembly) you think fit to communicate what fragments you please of my letters, must be competent judges. I must proceed accordingly.... I weakly believed that the wicked and horrid things done before the righteous Revolution, had been heartily repented of; and that the rueful business at New York, which many illustrious persons ... called a barbarous murder, ... had been considered with such a repentance, as might save you and your family from any further storms of heaven for the revenging of it.... Sir, your snare has been that thing, the hatred whereof is most expressly required of the ruler, namely COVETOUSNESS. When a governour shall make his government more an engine to enrich himself, than to befriend his country, and shall by the unhallowed hunger of riches be prevailed withal to do many wrong, base, dishonourable things; it is a covetousness which will shut out from the kingdom of heaven; and sometimes the loss of a government on earth also is the punishment of it.... The main channel of that covetousness has been the reign of bribery, which you, sir, have set up in the land, where it was hardly known, till you brought it in fashion.... And there lie affidavits before the queen and council, which affirm that you have been guilty of it in very many instances. I do also know that you have....

Sir, you are sensible that there is a judgment to come, wherein the glorious Lord will demand, how far you aimed at serving him in your government; ... how far you did in your government encourage those that had most of his image upon them, or place your eyes on the wicked of the land. Your age and health, as well as other circumstances, greatly invite you, sir, to entertain awful thoughts of this matter, and solicit the divine mercy through the only sacrifice.... Yet if the troubles you brought on yourself should procure your abdication and recess unto a more private condition, and your present parasites forsake you, as you may be sure they will, I should think it my duty to do you all the good offices imaginable.

Finally, I can forgive and forget injuries; and I hope I am somewhat ready for sunset; the more for having discharged the duty of this letter....

Your humble and faithful servant,

COTTON MATHER. [Footnote: Mass. Hist. Coll. first series, iii. 128.]

* * * * *

But these venomous priests had tried their fangs upon a resolute and an able man. Dudley shook them off like vermin.

* * * * *

GENTLEMEN, Yours of the 20th instant I received; and the contents, both as to the matter and manner, astonish me to the last degree. I must think you have extremely forgot your own station, as well as my character; otherwise it had been impossible to have made such an open breach upon all the laws of decency, honour, justice, and Christianity, as you have done in treating me with an air of superiority and contempt, which would have been greatly culpable towards a Christian of the lowest order, and is insufferably rude toward one whom divine Providence has honoured with the character of your governour....

Why, gentlemen, have you been so long silent? and suffered sin to lie upon me years after years? You cannot pretend any new information as to the main of your charge; for you have privately given your tongues a loose upon these heads, I am well assured, when you thought you could serve yourselves by exposing me. Surely murder, robberies, and other such flaming immoralities were as reprovable then as now....

Really, gentlemen, conscience and religion are things too solemn, venerable, or sacred, to be played with, or made a covering for actions so disagreeable to the gospel, as these your endeavours to expose me and my most faithful services to contempt; nay, to unhinge the government....

I desire you will keep your station, and let fifty or sixty good ministers, your equals in the province, have a share in the government of the college, and advise thereabouts as well as yourselves, and I hope all will be well....

I am your humble servant,

J. DUDLEY.

To the Reverend Doctors Mathers. [Footnote: Mass. Hist. Coll. first series, iii. 135.]



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.

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 Assembly 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.

CONSTITUTION.

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 constitution, 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 assemble and call together the councillors or assistants of our said province for the time being and that the said governour with the said assistants 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.

CONSTITUTION.

The governour shall have authority, from time to time at his discretion, to assemble 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 constitution 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 constitution, 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 institutions. The antique document 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 constitutional jurisprudence.

Though this assertion 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 constitution." [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 constitutions afterward drawn, with the exception of Pennsylvania's, which was a failure; but none of them passed beyond the tentative or embryonic stage. It therefore remained for Massachusetts 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 Constitution, 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 Massachusetts 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 constitutional 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 class 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 Massachusetts 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 passion 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 massacre, 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.

MY DEAR SON, I am under great affliction at hearing the bitterest reproaches uttered against you, for having become an advocate for those criminals who are charged with the murder of their fellow-citizens. Good God! Is it possible? I will not believe it.

Just before I returned home from Boston, I knew, indeed, that on the day those criminals were committed to prison, a sergeant had inquired for you at your brother's house; but I had no apprehension that it was possible an application would be made to you to undertake their defence. Since then I have been told that you have actually engaged for Captain Preston; and I have heard the severest reflections made upon the occasion, by men who had just before manifested the highest esteem for you, as one destined to be a saviour of your country. I must own to you, it has filled the bosom of your aged and infirm parent with anxiety and distress, lest it should not only prove true, but destructive of your reputation and interest; and I repeat, I will not believe it, unless it be confirmed by your own mouth, or under your own hand.

Your anxious and distressed parent,

JOSIAH QUINCY.

* * * * *

BOSTON, March 26, 1770.

HONOURED SIR, I have little leisure, and less inclination, either to know or to take notice of those ignorant slanderers who have dared to utter their "bitter reproaches" in your hearing against me, for having become an advocate for criminals charged with murder.... Before pouring their reproaches into the ear of the aged and infirm, if they had been friends, they would have surely spared a little reflection on the nature of an attorney's oath and duty....

Let such be told, sir, that these criminals, charged with murder, are not yet legally proved guilty, and therefore, however criminal, are entitled, by the laws of God and man, to all legal counsel and aid; that my duty as a man obliged me to undertake; that my duty as a lawyer strengthened the obligation.... This and much more might be told with great truth; and I dare affirm that you and this whole people will one day rejoice that I became an advocate for the aforesaid "criminals," charged with the murder of our fellow-citizens.

I never harboured the expectation, nor any great desire, that all men should speak well of me. To enquire my duty, and to do it, is my aim.... When a plan of conduct is formed with an honest deliberation, neither murmuring, slander, nor reproaches move.... There are honest men in all sects,—I wish their approbation;—there are wicked bigots in all parties,—I abhor them.

I am, truly and affectionately, your son,

JOSIAH QUINCY, Jr. [Footnote: Memoir of Josiah Quincy, Jr. pp. 26, 27.]

* * * * *

Many of the most respected citizens asserted and believed that the soldiers had fired with premeditated malice, for the purpose of revenge; and popular indignation was so deep and strong that even the judges were inclined to shrink. As Hutchinson was acting governor at the time, the chief responsibility fell on Benjamin Lynde, the senior associate, who was by good fortune tolerably competent. He was the son of the elder Lynde, who, with the exception of Paul Dudley, was the only provincial chief justice worthy to be called a lawyer.

The juries were of course drawn from among those men who afterward fought at Lexington and Bunker Hill, and, like the presiding judge and the counsel, they sympathized with the Revolutionary cause. Yet the prisoners were patiently tried according to the law and the evidence; all that skill, learning, and courage could do for them was done, the court charged impartially, and the verdicts were, Not guilty.



CHAPTER XI.

THE REVOLUTION.

Status appears to be that stage of civilisation whence advancing communities emerge into the era of individual liberty. In its most perfect development it takes the form of caste, and the presumption is the movement toward caste begins upon the abandonment of a wandering life, and varies in intensity with the environment and temperament of each race, the feebler sinking into a state of equilibrium, when change by spontaneous growth ceases to be perceptible. So long as the brain remains too feeble for sustained original thought, and man therefore lacks the energy to rebel against routine, this condition of existence must continue, and its inevitable tendency is toward rigid distinctions of rank, and as a necessary consequence toward the limitation of the range of ambition, by the conventional lines dividing the occupations of the classes. Such at least in a general way was the progression of the Jews, and in a less marked degree of the barbarians who overran the Roman Empire. Yet even these, when they acquired permanent abodes, gravitated strongly enough toward caste to produce a social system based on monopoly and privilege which lasted through many centuries. On the other hand, the democratic formula of "equality before the law" best defines the modern conception of human relations, and this maxim indicates a tone of thought directly the converse of that which begot status; for whereas the one strove to raise impassable barriers against free competition in the struggle for existence, the ideal of the other is to offer the fullest scope for the expansion of the faculties.

As in Western Europe church and state alike rested upon the customs of the Middle Ages, a change so fundamental must have wrought the overthrow, not only of the vastest vested interests, but of the profoundest religious prejudices, consequently, it could not have been accomplished peaceably; and in point of fact the conservatives were routed in two terrific outbreaks, whereof the second was the sequence of the first, though following it after a considerable interval of time. By the wars of the Reformation freedom of thought was gained; by the revolutions of the eighteenth century, which swept away the incubus of feudalism, liberty of action was won; and as Massachusetts had been colonized by the radicals of the first insurrection, it was not unnatural that their children should have led the second. So much may be readily conceded, and yet the inherited tendency toward liberalism alone would have been insufficient to have inspired the peculiar unanimity of sentiment which animated her people in their resistance to Great Britain, and which perhaps was stronger among her clergy, whose instincts regarding domestic affairs were intensely conservative, than among any other portion of her population. The reasons for this phenomenon are worthy of investigation, for they are not only interesting in themselves, but they furnish an admirable illustration of the irresistible action of antecedent and external causes on the human mind.

Under the Puritan Commonwealth the church gave distinction and power, and therefore monopolized the ability which sought professional life; but under the provincial government new careers were opened, and intellectual activity began to flow in broader channels. John Adams illustrates the effect produced by the changed environment; when only twenty he made this suggestive entry in his Diary: "The following questions may be answered some time or other, namely,—Where do we find a precept in the Gospel requiring Ecclesiastical Synods? Convocations? Councils? Decrees? Creeds? Confessions? Oaths? Subscriptions? and whole cart-loads of other trumpery that we find religion encumbered with in these days?" [Footnote: Works of J. Adams, ii. 5.]

Such men became lawyers, doctors, or merchants; theology ceased to occupy their minds; and gradually the secular thought of New England grew to be coincident with that of the other colonies.

Throughout America the institutions favored individuality. No privileged class existed among the whites. Under the careless rule of Great Britain habits of personal liberty had taken root, which showed themselves in the tenacity wherewith the people clung to their customs of self-government; and so long as these usages were respected, under which they had always lived, and which they believed to be as well established as Magna Charta, there were not in all the king's broad dominions more loyal subjects than men like Washington, Jefferson, and Jay.

The generation now living can read the history of the Revolution dispassionately, and to them it is growing clear that our ancestors were technically in the wrong. For centuries Parliament has been theoretically absolute; therefore it might constitutionally tax the colonies, or do whatsoever else with them it pleased. Practically, however, it is self- evident that the most perfect despotism must be limited by the extent to which subjects will obey, and this is a matter of habit; rebellions, therefore, are usually caused by the conservative instinct, represented by the will of the sovereign, attempting to enforce obedience to customs which a people have outgrown.

In 1776, though the Middle Ages had passed, their traditions still prevailed in Europe, and probably the antagonism between this survival of a dead civilization and the modern democracy of America was too deep for any arbitrament save trial by battle. Identically the same dispute had arisen in England the century before, when the commons rebelled against the prerogatives of the crown, and Cromwell fought like Washington, in the cause of individual emancipation; but the movement in Great Britain was too radical for the age, and was followed by a reaction whose force was not spent when George III. came to the throne.

Precedent is only inflexible among stationary races, and advancing nations glory in their capacity for change; hence it is precisely those who have led revolt successfully who have won the brightest fame. If, therefore, it be admitted that they should rank among mankind's noblest benefactors, who have risked their lives to win the freedom we enjoy, and which seems destined to endure, there are few to whom posterity owes a deeper debt than to our early statesmen; nor, judging their handiwork by the test of time, have many lived who in genius have surpassed them. In the fourth article of their Declaration of Rights, the Continental Congress resolved that the colonists "are entitled to a free and exclusive power of legislation in their several provincial legislatures, ... in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed. But, ... we cheerfully consent to the operation of such acts of Parliament as are, bona fide, restrained to the regulation of our external commerce."

In 1778 a statute was passed, of which an English jurist wrote in 1885: "One act, indeed, of the British Parliament might, looked at in the light of history, claim a peculiar sanctity. It is certainly an enactment of which the terms, we may safely predict, will never be repealed and the spirit never be violated.... It provides that Parliament' will not impose any duty, tax or assessment whatever, payable in any of his majesty's colonies ... except only such duties as it may be expedient to impose for the regulation of commerce.'" [Footnote: The Law of the Constitution, Dicey, p. 62.]

Thus is the memory of their grievance held sacred by the descendants of their adversaries after the lapse of a century, and the local self- government for which they pleaded has become the immutable policy of the empire. The principles they laid down have been equally enduring, for they proclaimed the equality of men before the law, the corner-stone of modern civilization, and the Constitution they wrote still remains the fundamental charter of the liberties of the republic of the United States.

Nevertheless it remains true that secular liberalism alone could never have produced the peculiarly acrimonious hostility to Great Britain wherein Massachusetts stood preeminent, whose causes, if traced, will be found imbedded at the very foundation of her social organization, and to have been steadily in action ever since the settlement. Too little study is given to ecclesiastical history, for probably nothing throws so much light on certain phases of development; and particularly in the case of this Commonwealth the impulses which moulded her destiny cannot be understood unless the events that stimulated the passions of her clergy are steadily kept in view.

The early aggrandizement of her priests has been described; the inevitable conflict with the law into which their ambition plunged them, and the overthrow of the theocracy which resulted therefrom, have been related; but the causes that kept alive the old exasperation with England throughout the eighteenth century have not yet been told.

The influence of men like Leverett and Colman tended to broaden the church, but necessarily the process was slow; and there is no lack of evidence that the majority of the ministers had little relish for the toleration forced upon them by the second charter. It is not surprising, therefore, to find the sectaries soon again driven to invoke the protection of the king.

Though doubtless some monastic orders have been vowed to poverty, it will probably be generally conceded that a life of privation has not found favor with divines as a class; and one of the earliest acts of the provincial legislature bid each town choose an able and orthodox minister to dispense the Word of God, who should be "suitably encouraged" by an assessment on all inhabitants without distinction. This was for many years a bitter grievance to the dissenting minority; but there was worse to come; for sometimes the majority were heterodox, when pastors were elected who gave great scandal to their evangelical brethren. Therefore, for the prevention of "atheism, irreligion and prophaness," [Footnote: Province Laws, 1715, c. 17.] it was enacted in 1775 that the justices of the county should report any town without an orthodox minister, and thereupon the General Court should settle a candidate recommended to them by the ordained elders, and levy a special tax for his support. Nor could men animated by the fervent piety which raised the Mathers to eminence in their profession be expected to sit by tamely while blasphemers not only worshipped openly, but refused to contribute to their incomes.

"We expect no other but Satan will show his rage against us for our endeavors to lessen his kingdom of darkness. He hath grievously afflicted me (by God's permission) by infatuating or bewitching three or four who live in a corner of my parish with Quaker notions, [who] now hold a separate meeting by themselves." [Footnote: Rev. S. Danforth, 1720. Mass. Hist. Coll. fourth series, i.]

The heretics, on their side, were filled with the same stubborn spirit which had caused them "obstinately and proudly" to "persecute" Norton and Endicott in earlier days. In 1722 godly preachers were settled at Dartmouth and Tiverton, under the act, the majority of whose people were Quakers and Baptists; and the Friends tell their own story in a petition they presented to the crown in 1724: "That the said Joseph Anthony and John Siffon were appointed assessors of the taxes for the said town of Tiverton, and the said John Akin and said Philip Tabor for the town of Dartmouth, but some of the said assessors being of the people called Quakers, and others of them also dissenting from the Presbyterians and Independents, and greatest part of the inhabitants of the said towns being also Quakers or Anabaptists ... the said assessors duly assessed the other taxes ... relating to the support of government ... yet they could not in conscience assess any of the inhabitants of the said towns anything for or towards the maintenance of any ministers.

"That the said Joseph Anthony, John Siffon, John Akin and Philip Tabor, (on pretence of their non-compliance with the said law) were on the 25th of the month called May, 1723, committed to the jail aforesaid, where they still continue prisoners under great sufferings and hardships both to themselves and families, and where they must remain and die, if not relieved by the king's royal clemancy and favour." [Footnote: Gough's Quakers, iv. 222, 223.]