The Emancipation of Massachusetts
by
Brooks Adams
Part 6 out of 7
The declaration of the Brattle Street "undertakers" cut this system at the
root, for they announced their intention to dispense with the relation of
experiences, thus practically throwing their communion open to all
respectable persons who would confess the Westminster Creed; and more
fatal still, they absolutely destroyed the homogeneousness of the
ecclesiastical constituency: "We cannot confine the right of chusing a
minister to the male communicants alone, but we think that every baptized
adult person who contributes to the maintenance, should have a vote in
electing." [Footnote: _History of Brattle St. Church_, p. 25, Prop.
16.]
They also proposed several innovations of minor importance, such as
relaxing the baptismal regulations, and somewhat changing the established
service by having the Bible read without comment.
Their temporal power was gone, toleration was the law of the land they had
once possessed, and now an onslaught was to be made upon the intellectual
ascendency which the clergy felt certain of maintaining over their people,
if only they could enforce obedience in their own ranks. The danger, too,
was the more alarming because so insidious; for, though their propositions
seemed reasonable, it was perfectly obvious that should the liberals
succeed in forcing their church within the pale of the orthodox communion,
discipline must end, and the pulpits might at any time be filled with men
capable of teaching the most subversive doctrines. Although such might be
the inexorable destiny of the Massachusetts hierarchy, it was not in
ecclesiastical human nature to accept the dispensation with meekness, and
the utterances of the conservative divines seem hardly to breathe the
spirit of that gospel they preached at such interminable length.
Yet it was very difficult to devise a scheme of resistance. They were
powerless to coerce; for, although Increase Mather had taken care, when at
the summit of his power, to have a statute passed which had the effect of
reënacting the Cambridge Platform, it had been disapproved by the king;
therefore, moral intimidation was the only weapon which could be employed.
Now, aside from the fact that men like Thomas Brattle and Leverett were
not timorous, their position was at this moment very strong from the stand
they had taken in the witchcraft troubles, and worst of all, they were
openly supported by William Brattle, who was already a minister, and by
Pemberton, who was a fellow of Harvard, and soon to be ordained.
The attack was, however, begun by Mr. Higginson, and Mr. Noyes, of
witchcraft memory, in a long rebuke, whose temper may be imagined from
such a sentence as this: "We cannot but think you might have entered upon
your declaration with more reverence and humility than so solemnly to
appeal to God, your judge, that you do it with all the sincerity and
seriousness the nature of your engagement commands from you; seeing you
were most of you much unstudied in the controversial points of church
order and discipline, and yet did not advise with the neighboring churches
... but with a great deal of confidence and freedom, set up by
yourselves." The letter then goes on to adjure them to revoke the
manifesto, and adjust matters with the "neighbouring elders," "that so the
right hand of fellowship may be given to your pastor by other pastors, ...
and that you may not be the beginning of a schism that will dishonour God,
... and be a matter of triumph to the bad." [Footnote: _History of Brattle
St. Church_, pp. 29-37.]
Cotton Mather's Diary, however, gives the most pleasing view of the high
churchmen:--
"1699. 7th, 10th m. (Dec.) I see another day of temptation begun upon the
town and land. A company of headstrong men in the town, the chief of whom
are full of malignity to the holy ways of our churches, have built in the
town another meetinghouse. To delude many better meaning men in their own
company, and the churches in the neighbourhood, they passed a vote in the
foundation of the proceedings that they would not vary from the practice
of these churches, except in one little particular.
"But a young man born and bred here, and hence gone for England, is now
returned hither at their invitation, equipped with an ordination to
qualify him for all that is intended on his returning and arriving here;
these fallacious people desert their vote, and without the advice or
knowledge of the ministers in the vicinity, they have published, under the
title of a manifesto, certain articles that utterly subvert our churches,
and invite an ill party, through all the country, to throw all into
confusion on the first opportunities. This drives the ministers that would
be faithful unto the Lord Jesus Christ, and his interests in the churches,
unto a necessity of appearing for their defence. No little part of these
actions must unavoidably fall to my share. I have already written a large
monitory letter to these innovators, which, though most lovingly penned,
yet enrages their violent and imperious lusts to carry on the apostacy."
"1699. 5th d. 11th m. (Saturday.) I see Satan beginning a terrible shake
in the churches of New England, and the innovators that had set up a new
church in Boston (a new one indeed!) have made a day of temptation among
us. The men are ignorant, arrogant, obstinate, and full of malice and
slander, and they fill the land with lies, in the misrepresentations
whereof I am a very singular sufferer. Wherefore I set apart this day
again for prayer in my study, to cry mightily unto God." [Footnote:
_History of Harvard_, Quincy, i. 486, 487, App. x.]
"21st d. 11th m. The people of the new church in Boston, who, by their
late manifesto, went on in an ill way, and in a worse frame, and the town
was filled with sin, and especially with slanders, wherein especially my
father and myself were sufferers. We two, with many prayers and studies,
and with humble resignation of our names unto the Lord, prepared a
faithful antidote for our churches against the infection of the example,
which we feared this company had given them, and we put it into the press.
But when the first sheet was near composed at the press, I stopped it,
with a desire to make one attempt more for the bringing of this people to
reason. I drew up a proposal, and, with another minister, carried it unto
them, who at first rejected it, but afterward so far embraced it, as to
promise that they will the next week publicly recognize their covenant
with God and one another, and therewithall declare their adherence to the
Heads of Agreement of the United Brethren in England, and request the
communion of our churches in that foundation." [Footnote: _History of
Harvard_, i. 487, App. x.]
This last statement is marked by the exuberance of imagination for which
the Mathers are so famed. In truth, Dr. Mather had nothing to do with the
settlement. The facts were these: after Brattle Street Church was
organized, the congregation voted that Mr. Colman should ask the ministers
of the town to keep a day of prayer with them. On the 28th of December,
1699, they received the following suggestive answer:--
* * * * *
MR. COLMAN:
Whereas you have signified to us that your society have desired us to join
with them in a public fast, in order to your intended communion, our
answer is, that as we have formerly once and again insinuated unto you,
that if you would in due manner lay aside what you call your manifesto,
and resolve and declare that you will keep to the heads of agreement on
which the United Brethren in London have made their union, and then
publicly proceed with the presence, countenance, and concurrence of the
New England churches, we should be free to give you our fellowship and our
best assistance, which things you have altogether declined and neglected
to do; thus we must now answer, that, if you will give us the satisfaction
which the law of Christ requires for your disorderly proceedings, we shall
be happy to gratify your desires; otherwise, we may not do it, lest ... we
become partakers of the guilt of those irregularities by which you have
given just cause of offence....
INCREASE MATHER.
JAMES ALLEN. [Footnote: _History of Brattle St. Church_, p. 55.]
* * * * *
Under the theocracy a subservient legislature would have voted the
association "a seditious conspiracy," and the country would have been
cleared of Leverett, Colman, the Brattles, and their abettors; but in 1700
the priests no longer manipulated the constituencies, and there was actual
danger to the conservative cause from their violence; therefore Stoughton
exerted himself to muzzle the Mathers, and he did succeed in quieting them
for the moment, though Sewall seems to intimate that they submitted with
no very good grace: [1699/1700.] "January 24th. The Lt Govr [Stoughton]
calls me with him to Mr. Willards, where out of two papers Mr. Wm Brattle
drew up a third for an accommodation to bring on an agreement between the
new-church and our ministers; Mr. Colman got his brethren to subscribe
it.... January 25th. Mr. I. Mather, Mr. C. Mather, Mr. Willard, Mr.
Wadsworth, and S. S. wait on the Lt Govr at Mr. Coopers: to confer about
the writing drawn up the evening before. Was some heat; but grew calmer,
and after lecture agreed to be present at the fast which is to be observed
January 31." [Footnote: _Mass. Hist. Coll._ fifth series, vi. 2.]
Humility has sometimes been extolled as the crowning grace of Christian
clergymen, but Cotton Mather's Diary shows the intolerable arrogance of
the early Congregational divines.
"A wonderful joy filled the hearts of our good people far and near, that
we had obtained thus much from them. Our strife seemed now at an end;
there was much relenting in some of their spirits, when they saw our
condescension, our charity, our compassion. We overlooked all past
offences. We kept the public fast with them ... and my father preached
with them on following peace with holiness, and I concluded with prayer."
[Footnote: _History of Harvard_, i. 487, App. x.]
Yet, although there had been this ostensible reconciliation, those who
have appreciated the sensitiveness to sin, of him whom Dr. Eliot calls the
patriarch and his son, must already feel certain they were incapable of
letting Colman's impiety pass unrebuked; indeed, the Diary says the
"faithful antidote" was at that moment in the press, and it was not long
before it was published, sanctified by their prayers. The patriarch began
by telling how he was defending the "cause of Christ and of his churches
in New England," and "if we espouse such principles... we then give away
the whole Congregational cause at once." [Footnote: _Order of the
Gospel_, pp. 8, 9.] He assured his hearers that a "wandering Levite"
like Colman was no more a pastor than he who "has no children is a
father," [Footnote: _Idem_, p. 102.] he was shocked at the
abandonment of the relation of experiences, and was so scandalized at
reading the Bible without comment he could only describe it as "dumb." In
a word, there was nothing the new congregation had done which was not
displeasing to the Lord; but if they had offended in one particular more
than another it was in establishing a man in "the pastoral office without
the approbation of neighbouring churches or elders." [Footnote:
_Idem_, p. 8.] To this solemn admonition Colman and William Brattle
had the irreverence to prepare a reply smacking of levity; nevertheless,
they began with a grave and noble definition of their principles. "The
liberties and privileges which our Lord Jesus Christ has given to his
church ... consist ... in ... that our consciences be not imposed on by
men or their traditions." "We are reflected on as casting dishonour on our
parents, & their pious design in the first settlement of this land....
Some have made this the great design, to be freed from the impositions of
men in the worship of God.... In this we are risen up to make good their
grounds." [Footnote: _Gospel Order Revived_, Epistle Dedicatory.]
They then went on to expose the abuse of public relations of experiences:
"But this is the misery, the more meek and fearful are hereby kept out of
God's house, while the more conceited and presumptuous never boggle at
this, or anything else. But it seems there is a gross corruption of this
laudable practice which the author does well to censure; and that is, when
some, who have no good intention of their own, get others to devise a
relation for them." [Footnote: _Idem_, p. 9.] They even dared to
intimate that it did not savor of modesty for the patriarch "to think any
one of his sermons, or short comments, can edifie more than the reading of
twenty chapters." [Footnote: _Idem_, p. 15.] And then they added some
sentences, which were afterward declared by the venerable victim to be as
scurrilous as other portions of the pamphlet were profane.
"We are assured, the author is esteemed more a Presbyterian than a
Congregational man, by scores of his friends in London. He is lov'd and
reverenced for a moderate spirit, a peaceable disposition, and a temper so
widely different from his late brothers in London.... Did our reverend
author appear the same here, we should be his easie proselites too. But we
are loath to say how he forfeits that venerable character, which might
have consecrated his name to posterity, more than his learning, or other
honorary titles can." [Footnote: _Gospel Order Revived_, pp. 34, 35.]
No printer in Boston dared to be responsible for this ribaldry, and when
it came home from New York and was actually cast before the people, words
fail to convey the condition into which the patriarch was thrown. At last
his emotions found a vent in a tract which he prepared jointly with his
son.
"A moral heathen would not have done as he has done. [Footnote:
_Collection of Some of the More Offensive Matters_, Preface.]... There is
no one thing, which does more threaten or disgrace New-England, than want
of due respect unto superiors. [Footnote: _Idem_, p. 10.]... It is a
disgrace to the name of Presbyterian, that such as he is should pretend
unto it. [Footnote: _Idem_, p. 12.]... and if our children should learn
from them, ... we may tremble to think, what a flood of profaneness and
atheism would break in upon us, and ripen us for the dreadfullest
judgments of God. [Footnote: _Idem_, p. 7.]... They assault him [the aged
president] with a volley of rude jeers and taunts, as if they were so many
children of Bethel." [Footnote: _Idem_, p. 8.] Among these taunts some
struck deep, for they are quoted at length. "'Abundance of people have
long obstinately believed, that the contest on his part, is more for
lordship and dominion, than for truth.' But there are many more such
passages, which laid altogether, would make a considerable dung-hil."
[Footnote: _Idem_, p. 9.] They dwelt with pathos upon those sacred rites
desecrated by these "unsanctified" "young men" in their "miserable
pamphlet." "The Lord is exceedingly glorified, and his people are edified,
by the accounts, which the candidates, of the communion in our churches
give of that self-examination which is by plain institution ... a
qualification, of the communicants. Now these think it not enough to
charge the churches, which require & expect such accounts, with
exceedingly provoking the Lord. But of the tears dropt by holy souls
on those occasions, they say with a scoff, 'whether they be for joy or
grief, we are left in the dark.'" [Footnote: _Collection of Some of the
More Offensive Matters_, p. 6.] But the suffering divines found peace
in knowing that Christ himself would inflict the punishment upon these
abandoned men which the priests would have meted out with holy joy had
they still possessed the power.
"Considering that the things contained in their pamphlet, are a deep
apostasy, in conjunction with such open impiety, and profane scurrility
against the holy wayes in which our fathers walked, in case it become the
sin of the land, (as it will do if not duely testified against) we may
fear that some heavy judgment will come upon the whole land. And will not
the holy Lord Jesus Christ, who walks in the midst of his golden
candlesticks, make all the churches to know ... that these men have
provoked the Lord!" [Footnote: _Idem_, pp. 18, 19.]
Yet, notwithstanding the Mathers' piteous prayers, God heeded them not,
and the rising tide that was sweeping over them soon drowned their cries.
Brattle Street congregation became an honored member of the orthodox
communion, the principles which animated its founders spread apace, and
the name of Benjamin Colman waxed great in the land. The liberals had
penetrated the stronghold of the church.
CHAPTER IX.
HARVARD COLLEGE.
For more than two centuries one ceaseless anthem of adulation has been
chanted in Massachusetts in honor of the ecclesiastics who founded Harvard
University, and this act has not infrequently been cited as
incontrovertible proof that they were both liberal and progressive at
heart. The laudation of ancestors is a task as easy as it is popular; but
history deals with the sequence of cause and effect, and an examination of
facts, apart from sentiment, tends to show that in building a college the
clergy were actuated by no loftier motive than intelligent self-interest,
if, indeed, they were not constrained thereto by the inexorable exigencies
of their position.
The truth of this proposition becomes apparent if the soundness of the
following analysis be conceded.
There would seem to be a point in the pathway of civilization where every
race passes more or less completely under the dominion of a sacred caste;
when and how the more robust have emerged into freedom is uncertain, but
enough is known to make it possible to trace the process by which this
insidious power is acquired, and the means by which it is perpetuated. A
flood of light has, moreover, been shed on this class of subjects by the
recent remarkable investigations among the Zuņis. [Footnote: Made by Mr.
F. H. Cushing, of the Bureau of Ethnology, Smithsonian Institution.]
Most American Indians are in the matriarchal period of development, which
precedes the patriarchal; and it is then, should they become sedentary,
that caste appears to be born. Some valuable secret, such as a cure for
the bite of the rattlesnake, is discovered, and this gives the finder, and
chosen members of his clan with whom he shares it, a peculiar sanctity in
the eyes of the rest of the tribe. Like facts, however, become known to
other clans, and then coalitions are made which take the form of esoteric
societies, and from these the stronger savages gradually exclude the
weaker and their descendants. Meanwhile an elaborate ritual is developed,
and so an hereditary priesthood comes into life, which always claims to
have received its knowledge by revelation, and which teaches that
resistance to its will is sacrilege. Nevertheless the sacerdotal power is
seldom firmly established without a struggle, the memory whereof is
carefully preserved as a warning of the danger of incurring the divine
wrath. A good example of such a myth is the fable of the rebellious Zuņi
fire-priest, who at the prayer of his orthodox brethren was destroyed with
all his clan by a boiling torrent poured from the burning mountain, sacred
to their order, by the avenging gods. Compare this with the story of
Korah; and it is interesting to observe how the priestly chronicler, in
order to throw the profounder awe about his class, has made the great
national prophet the author of the exclusion of the body of the Levites
from the caste, in favor of his own brother. "And they gathered themselves
together against Moses and against Aaron, and said unto them, Ye take too
much upon you, seeing all the congregation are holy, ... wherefore then
lift ye up yourselves above the congregation of the Lord?
"And when Moses heard it, he fell upon his face." Then he told Korah and
his followers, who were descendants of Levi and legally entitled to act as
priests by existing customs, to take censers and burn incense, and it
would appear whether the Lord would respect their offering. So every man
took his censer, and Korah and two hundred and fifty more stood in the
door of the tabernacle.
Then Moses said, if "the earth open her mouth, and swallow them up, with
all that appertain unto them, and they go down quick into the pit; then ye
shall understand that these men have provoked the Lord....
"And the earth opened her mouth, and swallowed them up, and their houses,
and all the men that appertained unto Korah, and all their goods.
"They, and all that appertained to them, went down alive into the pit, and
the earth closed upon them:... And all Israel that were round about them
fled at the cry of them: for they said, Lest the earth swallow us up
also." [Footnote: _Numbers_ xvi.] Traces of a similar conflict are
found in Hindoo sacred literature, and probably the process has been well-
nigh universal. The caste, therefore, originates in knowledge, real and
pretended, kept by secret tradition in certain families, and its power is
maintained by systematized terrorism. But to learn the mysteries and
ritual requires a special education, hence those destined for the
priesthood have careful provision made for their instruction. The youthful
Zuņi is taught at the sacred college at the shrine of his order; the pious
Hindoo lives for years with some famous Brahmin; as soon as the down came
on the cheek, the descendants of Aaron were taken into the Temple at
Jerusalem, and all have read how Hannah carried the infant Samuel to the
house of the Lord at Shiloh, and how the child did minister unto the Lord
before Eli the priest.
These facts seem to lead to well-defined conclusions when applied to New
England history. In their passionate zeal the colonists conceived the idea
of reproducing, as far as they could, the society of the Pentateuch, or,
in other words, of reverting to the archaic stage of caste; and in point
of fact they did succeed in creating a theocratic despotism which lasted
in full force for more than forty years. Of course, in the seventeenth
century such a phase of feeling was ephemeral; but the phenomena which
attended it are exceptionally interesting, and possibly they are somewhat
similar to those which accompany the liberation of a primitive people.
The knowledge which divided the Massachusetts clergy from other men was
their supposed proficiency in the interpretation of the ancient writings
containing the revelations of God. For the perpetuation of this lore a
seminary was as essential to them as an association of priests for the
instruction of neophytes is to the Zuni now, or as the training at the
Temple was to the Jews. In no other way could the popular faith in their
special sanctity be sustained. It is also true that few priesthoods have
made more systematic use of terror. The slaughter of Anne Hutchinson and
her family was exultingly declared to be the judgment of God for defaming
the elders. Increase Mather denounced the disobedient Colman in the words
of Moses to Korah; Cotton Mather revelled in picturing the torments of the
bewitched; and, even in the last century Jonathan Edwards frightened
people into convulsions by his preaching. On the other hand, it is obvious
that the reproduction of the Mosaic law could not in the nature of things
have been complete; and the two weak points in the otherwise strong
position of the clergy were that the spirit of their age did not permit
them to make their order hereditary, nor, although their college was a
true theological school, did they perceive the danger of allowing any lay
admixture. The tendency to weaken the force of the discipline is obvious,
yet they were led to abandon the safe Biblical precedent, not only by
their own early associations, but by their hatred of anything savoring of
Catholicism.
Men to be great leaders must exalt their cause above themselves; and if so
godly a man as the Rev. Increase Mather can be said to have had a human
failing it was an inordinate love of money and of flattery. The first of
these peculiarities showed itself early in life when, as his son says, he
was reluctant to settle at the North Church, because of "views he had of
greater service elsewhere." [Footnote: _Parentator_, p. 25.] In other
words, the parish was not liberal; for it seems "the deacons ... were not
spirited like some that have succeeded them; and the leaders of the more
honest people also, were men of a low, mean, sordid spirit.... For one of
his education, and erudition, and gentlemanly spirit, and conversation, to
be so creepled and kept in such a depressing poverty!--In these
distresses, it was to little purpose for him to make his complaint unto
man! If he had, it would have been basely improved unto his disadvantage."
[Footnote: _Idem_, p. 30.] His diary teemed with repinings. "Oh! that
the Lord Jesus, who hears my complaints before him, would either give an
heart to my people to look after my comfortable subsistance among them, or
... remove me to another people, who will take care of me, that so I may
be in a capacity to attend his work, and glorify his name in my
generation." [Footnote: _Idem_, p. 33.] However, matters mended with
him, for we are assured that "the Glorious One who knew the works, and the
service and the patience of this tempted man, ordered it, that several
gentlemen of good estate, and of better spirit, were become the members of
his church;" and from them he had "such filial usages... as took away from
him all room of repenting, that he had not under his temptations
prosecuted a removal from them." [Footnote: _Parentator_, pp. 34, 35.]
The presidency of Harvard, though nominally the highest place a clergyman
could hold in Massachusetts, had always been one of poverty and self-
denial; for the salary was paid by the legislature, which, as the
unfortunate Dunster had found, was not disposed to be generous. Therefore,
although Mr. Mather was chosen president in 1685, and was afterward
confirmed as rector by Andros, he was far too pious to be led again into
those temptations from which he had been delivered by the interposition of
the Glorious One; and the last thing he proposed was to go into residence
and give up his congregation. Besides, he was engrossed in politics and
went to England in 1688, where he stayed four years. Meanwhile the real
control of education was left in the hands of Leverett, who was appointed
tutor in 1686, and of William Brattle, who was in full sympathy with his
policy. Among the many powers usurped by the old trading company was that
of erecting corporations; hence the effect of the judgment vacating the
patent had been to annul the college charter which had been granted by the
General Court; [Footnote: 23 May, 1650. _Mass. Rec._ iii. 195.] and
although the institution had gone on much as usual after the Revolution,
its position was felt to be precarious. Such being the situation when the
patriarch came home in 1692 in the plenitude of power, he conceived the
idea of making himself the untrammelled master of the university, and he
forthwith caused a bill to be introduced into the legislature which would
certainly have produced that result. [Footnote: _Province Laws_, 1692-93,
c. 10.] Nor did he meet with any serious opposition in Massachusetts,
where his power was, for the moment, well-nigh supreme. His difficulty lay
with the king, since the fixed policy of Great Britain was to foster
Episcopalianism, and of course to obtain some recognition for that sect at
Cambridge. And so it came to pass that all the advantage he reaped by the
enactment of this singular law was a degree of Doctor of Divinity
[Footnote: Sept. 5, 1692. Quincy's _History of Harvard_, i. 71.] which he
gave himself between the approval of the bill by Phips and its rejection
at London. The compliment was the more flattering, however, as it was the
first ever granted in New England. But the clouds were fast gathering over
the head of this good man. Like many another benefactor of his race, he
was doomed to experience the pangs inflicted by ingratitude, and indeed
his pain was so acute he seldom lost an opportunity of giving it public
expression; to use his own words of some years later, "these are the last
lecture sermons... to be preached by me.... The ill treatment which I have
had from those from whom I had reason to have expected better, have
discouraged me from being any more concerned on such occasions."
[Footnote: Address to Sermon, _The Righteous Man a Blessing_, 1702.]
Certainly he was in a false position; he was necessarily unappreciated by
the liberals, and he had not only alienated many staunch conservatives by
his acceptance of the charter, but he had embittered them, by rigorously
excluding all except his particular faction from Phips's council. To his
deep chagrin, the elections of 1693 went in favor of many of these
thankless men, and his discontent soon took the form of an intense longing
to go abroad in some official position which would give him importance.
The only possible opening seemed to be to get himself made agent to
negotiate a charter for Harvard; and therefore he soon had "angelical"
suggestions that God needed him in England to glorify his name.
"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 [Ģ.?]." ... "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.]
A hearing was had upon this petition before the Privy Council, and in
June, 1724, an order was made directing the remission of the special taxes
and the release of the prisoners, who were accordingly liberated in
obedience thereto, after they had been incarcerated for thirteen months.
The blow was felt to be so severe that the convention of ministers the
next May decided to convene a synod, and Dr. Cotton Mather was appointed
to draw up a petition to the legislature.
"Considering the great and visible decay of piety in the country, and the
growth of many miscarriages, which we fear may have provoked the glorious
Lord in a series of various judgments wonderfully to distress us.... It is
humbly desired that ... the ... churches ... meet by their pastors ... in
a synod, and from thence offer their advice upon.... What are the
miscarriages whereof we have reason to think the judgments of heaven, upon
us, call us to be more generally sensible, and what may be the most
evangelical and effectual expedients to put a stop unto those or the like
miscarriages." [Footnote: Hutch. _Hist._ 3d ed. ii. 292, note.]
The "evangelical expedient" was of course to revive the Cambridge
Platform; nor was such a scheme manifestly impossible, for the council
voted "that the synod ... will be agreeable to this board, and the
reverend ministers are desired to take their own time, for the said
assembly; and it is earnestly wished the issue thereof may be a happy
reformation." [Footnote: Chalmers's _Opinions_, i. 8.] In the house
of representatives this resolution was read and referred to the next
session.
Meanwhile the Episcopalian clergymen of Boston, in much alarm, presented a
memorial to the General Court, remonstrating against the proposed measure;
but the council resolved "it contained an indecent reflection on the
proceedings of that board," [Footnote: _Idem_, p. 9.] and dismissed
it. Nothing discouraged, the remonstrants applied for protection to the
Bishop of London, who brought the matter to the attention of the law
officers of the crown. In their opinion to call a synod would be "a
contempt of his majesty's prerogative," and if "notwithstanding, ... they
shall continue to hold their assembly, ... the principal actors therein
[should] be prosecuted ... for a misdemeanour." [Footnote: Chalmers's
_Opinions_, p. 13.]
Steadily and surely the coil was tightening which was destined to strangle
the established church of Massachusetts; but the resistance of the
ministers was desperate, and lent a tinge of theological hate to the
outbreak of the Revolution. They believed it would be impossible for them
to remain a dominant priesthood if Episcopalianism, supported by the
patronage of the crown, should be allowed to take root in the land; yet
the Episcopalians represented conservatism, therefore they were forced to
become radicals, and the liberalism they taught was fated to destroy their
power.
Meanwhile their sacred vineyard lay open to attack upon every side. At
Boston the royal governors went to King's Chapel and encouraged the use of
the liturgy, while an inroad was made into Connecticut from New York.
Early in the century a certain Colonel Heathcote organized a regular
system of invasion. He was a man eminently fitted for the task, being
filled with zeal for the conversion of dissenters. "I have the charity to
believe that, after having heard one of our ministers preach, they will
not look upon our church to be such a monster as she is represented; and
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