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CHAPTER II

THE EXECUTIVE AND JUDICIAL SYSTEMS IN MASSACHUSETTS

In Massachusetts, as in the other corporate colonies, the executive power was lodged in the governor and board of assistants. Not only was this a multiple executive or board, but all its members were chosen by the freemen in court of election for the term of one year. For a long period subsequent to the removal of the board into the colony its membership was not kept full. Instead of eighteen members required by the charter, only nine, or even less, were elected. At the outset this was due in part to the lack of suitable candidates for the office, but the continuance of the policy is to be explained by the necessity of reducing the size of the executive board in the interest of its efficiency. Its functions in the colony were quite different from what they were while the company was resident in England, and it was necessary that unity and promptness of action should be secured. These qualities were greatly enhanced by the close alliance of the members among themselves and with the clergy. By means of this also the independence of the executive was in a large measure secured, which otherwise, owing to its tenure by election and its brief term of office, it might have lacked. The same spirit of solidarity kept the leaders among the assistants in office year after year, and thus secured great permanence of tenure.

Massachusetts, notwithstanding its seemingly democratic form, was really governed by a very few men. This fact will clearly appear when we consider how continuously the leading members of the board of assistants held office. Bradstreet held office as an assistant without interruption from 1632 until 1679, and then he was elected governor. That office he retained until government under the first charter

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was dissolved. Between 1630 and 1648—the date of his death—Winthrop was governor for twelve years, and was either deputy governor or assistant the rest of the time. In one or another of these capacities Dudley served continuously during the entire period of his life in Massachusetts. During every year but one between 1649 and 1664 John Endicott was governor. Previous to 1649 he had served three years as deputy governor and several years as an assistant. Bellingham served continuously as governor from 1665 to 1672. Leverett was reëlected to the office every year from 1673 to 1678. During the last-mentioned period Symonds served continuously as deputy governor, while Danforth was the colleague of Bradstreet from 1679 to 1686. Besides the men already mentioned one might at any time be almost certain to find among the assistants during the first generation Nowell, Humphrey, John Winthrop, Jr., and Pynchon. Gookin, Dennison, Willard, Atherton, and Stoughton occupy equally prominent places subsequent to 1650. Doubtless this record could be paralleled from the history of all the other corporate colonies. Rhode Island was no exception to the rule. An appointed executive could not have been more permanent, or its traditions more abiding, than was the case with the elected assistants of the corporate colonies.

Like the council of the province, the board of assistants also constituted one of the houses of the legislature, and was the highest judicial court in the colony. Thus, by means of it, the executive, legislature, and judiciary were closely bound up together, as in the English system of government, though in a way very different. The idea that a separation of powers was possible or desirable had not occurred to the founders of government in the American colonies.

Owing to these facts and to the dearth of records, it is not easy to disentangle the work of the executive from the web of Massachusetts history. The assistants kept no journal. In the journal of the general court, after the first few years, only occasional references to their action appear. If we were left wholly to the records, the task would have to

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be abandoned as hopeless. But for dates prior to the close of 1648 many and most valuable references to the work of the executive are made in Winthrop’s History of New England, which is familiarly known as his Journal. It was written by one who bore a leading part in all of its deliberations during that period, and is a storehouse of material for the early history of the board of assistants and its relations with the clergy. For the period which it covers, it supplies in part the lack of a journal of the assistants. After Winthrop’s death we are left in the dark, and can only infer the acts of the executive from hints and from its known relation to the general court.

The president of the board was the governor, and yet, though elected, he was not an assistant. Still, with the rest, when attention was directed chiefly to their judicial functions, he might be called a magistrate. The governor presumably called special meetings of the board, though often on the advice of one or more of the assistants, and bore a leading part in the conduct of business in regular, as well as special, meetings. His functions, however, were more continuous than those of the other members, so that they might be termed his associates, though they in no sense derived their official status from him. When it was physically possible, the governor was constantly ready at his post as an executive officer. Abundant evidence appears in the pages of Winthrop of the manifoldness of his duties, especially in the earlier years of the colony, and of their continuity. As the chief executive the burden of responsibility rested mainly upon him. It was therefore necessary that he should reside at the seat of government. In the early days he superintended the work of settlement. Then and at all times, during intervals between meetings of the board of assistants, the governor had conducted the correspondence of the colony, held or ordered inquiries, received messengers from various parts of the colony, from the Indians, from neighboring English or foreign colonies; or perhaps had arrested and detained offenders, or put them under bonds. This he may have done alone, with the coöperation of the deputy governor and one or more of the assistants,

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or with them after advising with some of the elders. In a variety of ways business came into his hands, and when the assistants met, the governor may be supposed to have brought forward more business than any associate, more perhaps than all the associates together. But the governor had no status apart from the board and the legislature, of which he was president, and therefore was bound by the action of the board. It acted as a unit, and did not simply give advice which the governor could accept, ignore, or reject. The governmental centre of the colony became its capital, not so much because the governor lived there, but because it was the place where the general court usually met and where the judicial and executive sessions of the assistants were held. Boston was fixed upon as the most convenient place for “meetings.”

Unlike the province, the system of government in the corporate colony was one in which the weight of the governor among the assistants, as elsewhere, depended much on his personality, on the extent to which he was in harmony with the views of the entire body of magistrates and elders, or could control them. A political, de facto, leadership was the only one possible. For nearly twenty years, at the beginning of the colony’s history, John Winthrop fulfilled these requirements to a high degree and both as governor and assistant enjoyed a corresponding influence. The only man who ever seriously posed as his rival was Thomas Dudley. For a time the rivalry was sharp between them, but Dudley showed himself to be the inferior man, and before the first decade had passed fell back into an inferior place.

The assistants who first ordered affairs in Massachusetts were elected in England and derived their office from the general court. After its removal to the colony the board was chosen in the peculiarly organized court of election. During the first three or four years the assistants, as an executive, bore a relatively more important part in the affairs of the colony than at any subsequent time. This was due to the fact that, because of the small number of freemen, and the simplicity of all relations, there was little about which to legislate. The functions of the general court were

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for a time partially suspended. The assistants thus were largely without a rival. The initial work of colonization, requiring as it did single specific acts in a continuous series, was preëminently administrative in character. In this respect, notwithstanding the difference in their organization, the similarity between the New England colonies and the provinces is clear. In the course of the four months which followed Winthrop’s landing, the assistants met four times, and a variety of administrative business was done. Provision¹ was made for the support of the ministers and military captains, a house was ordered to be built for Mr. Gager, the surgeon, and other provision was made for his support; a beadle was appointed to attend upon the governor and be ready to execute his commands; the time of holding courts was determined; the first of a long list of orders fixing wages of carpenters and other workmen was issued; the process of naming towns, of electing and swearing in their constables, was begun; the admission of settlers into the colony without a permit from the governor and assistants was forbidden; trade with the Indians without permission was also forbidden; a tax was levied, the arrest of Thomas Morton was ordered, and judicial business was done.

The general court of October 19, 1630, sat but a single day, and the most it did was to give legislative power, and the right to elect officers, to the assistants, thus centring, all power within the colony in the hands of the executive. During the months which followed, before the spring court of election, the magistrates were free to strike out new courses, untrammelled by precedents drawn from England or from earlier doings at Salem. But they pursued the ordinary routine,¹ [i.e. ²] offering a reward for the killing of wolves, providing for a ferry to Charlestown, sending several would-be colonists back to England as unfit for Massachusetts, warning Salem against Roger Williams, forbidding the use of money in Indian trade, considering whether or not Newtown should be fortified.

Though the general court of May, 1631, took from the assistants the power of choosing the governor and deputy

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governor, it did not forbid them to legislate.¹ During the year which passed before the next session of the general court, we have record of eleven meetings. Then, as in later years, meetings were held less frequently in winter than during the other seasons. Measures which were now adopted by the assistants, but which at a later time might well have passed the general court, provided that the bounds of Newtown and Charlestown should be run by commissioners, that all islands in the colony should be appropriated for public use, should be under the control of the governor and assistants, and be leased by them to relieve public charges; that an island in the harbor should be granted to Winthrop as the “governor’s garden”; that corn should pass for all debts at the usual price, unless money or beaver were especially mentioned; that none should leave the colony without permission or carry money or beaver to England without leave of the governor. A few police regulations were issued, servants were frequently whipped for leaving their masters and for other offences. Sir Christopher Gardener,² who had appeared in the colony as an agent of Gorges, was arrested, but finally was allowed to retire to the eastern settlements, whence he later returned to England. Every assistant was empowered to issue warrants, summonses, and attachments, and the acts of the board were declared authentic, if they passed under the secretary’s hand.

Upon three meetings of the board held this year the statements of Winthrop throw much light.³ On the first occasion the pastor and elder of the church at Watertown, and others of the inhabitants of that town, came in response to summons to answer for their conduct touching the levy by the assistants of a rate for fortifying Newtown. An assembly of the people at Watertown had been called, before which the pastor, elder, and others had declared that it was not safe to pay money in that way, for there was danger that they would bring themselves and posterity into bondage. As the result of a long discussion with the assistants, the offenders from Watertown were convinced that they had erroneously

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taken the government of the colony, as then organized, to rank no higher than an English municipality. When it was explained to them that the assistants were annually elected, and that once a year, before the general court, all grievances could be presented, they declared themselves satisfied, and when their submission had been publicly made it was accepted. In this discussion, as we have seen, the claim was boldly advanced that the colony, though a corporation, ranked higher than a municipality, and that its legislature and executive combined partook of the nature of a parliament.

At a private meeting of the board on May-day,¹ 1632, two months and more after the debate with the Watertown people, the relations between Winthrop and Dudley came under consideration. Dudley, contrary to usage in such cases, had suddenly resigned his office as deputy governor. Two questions were raised touching this act: why he did it, and whether it was a valid act. Concerning the second question the opinion was unanimous, that only the power which placed the deputy in his office could remove him from it. In reply to the first question, Dudley stated that he had resigned in order to get an opportunity to speak his mind freely. Then in sharp words he told how the governor had criticised him because he had sold to some poor members of the congregation seven and one-half bushels of corn on condition that they should deliver ten to him after harvest. This the governor had declared “oppressing usury, and within compass of the statute.” But Dudley insisted that it was lawful, and hot words arose about it, which Winthrop says he “took notice of,” but “bore them with more patience than he had done on a like occasion at another time.” Dudley also stated that the governor had reproved him for expending so much on wainscoting and other adornments for his house; it was not only a bad example, but the expense had better be saved for meeting the public charge. To this Dudley had replied that he had simply nailed clapboard to the wall of his house in the form of wainscot to make it warmer, and that the cost had been little. “These and other speeches passed before dinner.”

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After dinner “Mr. Ludlow grew into a passion.” The occasion of this was a statement by Winthrop, that he had heard that the freemen had intended at the next general court to resume to themselves the election of the governor, and that the assistants should be chosen once every year. Ludlow then exclaimed that for a time every year there would be no government but an interim wherein every man might do what he pleased. The other assistants showed that he was wrong, but he refused to admit it, and protested that he would return to England. Some other affairs having been attended to, the meeting broke up without a reconciliation between the governor and deputy. But the day before the general court met, all differences were smoothed over. The court adjudged Dudley’s resignation a nullity, and he accepted the office for another term.

But relations between Winthrop and Dudley did not long continue harmonious.¹ The latter, on the expectation that Newtown was to be the chief town of the colony, had settled there, and the governor and others had also promised to erect their houses at that place. But, in violation of contract, as Dudley alleged, Winthrop, after having partly completed a house at Newtown, had suddenly torn it down and removed to Boston. Winthrop’s explanation of this was, that the rest of the assistants would not build at Newtown, and that some of his neighbors at Boston, having been dissuaded by the deputy himself from removing to Newtown, had petitioned him (the governor) not to recede from a promise he had made them when they sat down with him at Boston to the effect that he would not remove thence unless they went with him.

In order, if possible, to end the dispute, a meeting was arranged between the governor, deputy, and four of the ministers, the earliest conspicuous instance of its kind. After prayer, and the statement of the case by the two parties, the ministers retired for an hour, and returning delivered the opinion that the governor was at fault in removing back to Boston so suddenly, but if the deputy had dissuaded Boston men from removing to Newtown, it would

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excuse the governor a tanto but not a toto. The governor, therefore, in deference to the judgment of so many wise and godly friends, “acknowledged himself faulty.”

Dudley then launched into the second and more important article of his indictment, involving the position of the governor within the board of assistants, and the discretionary power which he possessed. On the admission of Winthrop that he was bound by the patent, Dudley affirmed that, except his precedency and power to call courts, the governor had no more authority than any assistant. Winthrop claimed that he had more, “for the patent,” he declared, “making him a governor, gave him whatsoever power belonged to a governor by common law or the statutes.” Upon his asking Dudley to state wherein he had exceeded his authority, the latter flew into a passion, and high words passed between the two. But the mediators soon calmed them, and then Dudley cited seven instances in which he thought Winthrop had acted with too great independence. The governor was able to produce law or precedent which clearly justified his conduct in three of the cases; in one other he was able to show that he acted in cooperation with several of the assistants, in another he stated that he was disposing of his own property. The secretary, if any one, was responsible for another alleged delinquency. In only one case, that of encouragement given to the inhabitants of Watertown to erect a weir on Charles river, did Winthrop admit that he had acted with large discretion, but in this instance he had only expressed his desire that the people would act, promising to use all his influence with the next court to procure an order in their favor.¹ In his journal Winthrop states that he answered these charges, not because he was under obligation to do so, but to convince his colleagues that he was not trying “to gain absolute power and bring all the assistants under his subjection.” The improbability of this assumption should have been evident, he says, from the fact that he himself had drawn articles limiting the authority of his office, and they had been approved and

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established by the court. These he had not transgressed. Winthrop’s defence apparently seemed so clear that the elders found no call for mediation, and so the meeting broke up. Thereafter, we are told, the governor and deputy “kept peace and good correspondency together in love and friendship.”

Until May, 1634, the board continued to be the chief organ of government in Massachusetts. Only one meeting of the general court, the court of election, was held annually, and it did little business except electing officers. It laid no commands of importance on the assistants. They continued to grant lands, establish the boundaries of towns, specify what lands should be common, vote rates, fix the rate of wages, and do every variety of colony business. The committee of two which the general court¹ of May, 1632, ordered to be chosen from every plantation to confer about a public stock, apparently conferred, if at all, with the assistants. One of the most important acts of the board was the preparation by it, in 1634, of the resident’s oath,² and the issue of the order that it should be taken by every resident within the jurisdiction above the age of twenty years. But with the organization of a representative system by the admission of deputies to the general court in 1634, that body assumed again its former place as the chief organ of the system. It then declared, as has been already stated, that it alone had the authority to admit freemen, to make laws, to elect officers, raise money, grant and confirm lands. Two annual sessions of the general court, and sometimes more, are thenceforward regularly held. Orders of an administrative nature, as well as laws, emanated from it. The board of assistants from that time became a purely administrative and judicial body. The work of legislation done by them, they now did as members of the general court. The records of their doings outside the legislature soon fail us, but the few that remain³ show us that they continued to swear in

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constables and magistrates, to regulate the conduct of servants and their contracts, and to bind over to keep the peace. But from Winthrop we learn that the volume of administrative work, to say nothing of the judicial business, which they continued to do was large. That, except in the winter, the meetings continued to be held monthly or oftener is certain. Many orders issued by the general court were executed by the assistants. In the pages of Winthrop we see the assistants providing for the defence at Castle island, taking action about the defacement of the flag at Salem, deliberating about a treaty with the Pequot Indians, concerning themselves repeatedly and intimately with the case of Roger Williams, consulting the ministers as to the course which should be pursued if a general governor should be sent from England, sending an expedition to Block island to avenge the death of John Oldham, treating with the Narragansett Indians, corresponding with the neighboring colonies about cooperation against the Pequots, causing the preparation of a defence of the policy of the colony toward the Antinomians, and so on through the entire period. The continuous executive work of the colony was done as fully by the governor and assistants in corporate colonies, though they held by an elective tenure, as it was by the king and council in England.

Early in 1635, when the colony was facing serious peril, the question of the degree of mildness or severity which it was proper for the assistants to manifest in the treatment of offenders arose. The policy of Winthrop, in accord with his habitual temper, had been comparatively mild; that followed by Dudley, who had recently closed a term as governor, had been characteristically severe. Still the two men continued to act as friends. But the Rev. Hugh Peters and Henry Vane, newcomers in the colony, thought they saw factions developing about the two magistrates, and hence had a conference summoned,¹ much like that of 1632. It was attended by Haynes and Bellingham, who were then the governor and deputy governor, by Winthrop and Dudley, Vane and Peters, and by three of the older ministers of the colony.

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As Dudley and Winthrop professed mutual friendship and ignorance of any occasion for the conference, it devolved on Haynes to specify certain cases in which he thought Winthrop had “dealt too remissly in point of justice.” Winthrop admitted some fault, but declared it to be his judgment that, because of the ignorance of the people respecting new laws, and the labors and hardships they had to endure, “in the infancy of plantations justice should be administered with more lenity than in a settled state.” But if it was made clear to him that he was in error, he would adopt a stricter course. The question was then referred to the ministers for an opinion, and the next morning, in contradiction of Winthrop’s opinion, they unanimously reported that in plantations strict discipline in military affairs and in the punishment of criminals was more needful than in a settled state, because it tended “to the honor and safety of the gospel.” That military discipline in any of the colonies was likely to be excessive is not probable; but their criminal law and procedure might conceivably have been more humane. However, the experience and worldly wisdom of the best of all their governors was ignored by the elders, and the colony was committed to a policy of rigor. Such was the power of the clergy, that Winthrop acknowledged himself convinced and promised to follow a stricter course hereafter. A set of articles was prepared by the conference with the purpose of strengthening harmony and cooperation among the magistrates. The last of these provided that acts of contempt toward the court or any of the magistrates should be specially noted and punished, and that the magistrates “should appear more solemnly in public, with attendance, apparel, and open notice of their entrance into court.”

In 1635 and 1636 the aristocratic tendencies in Massachusetts were strengthened by reports that certain Puritan noblemen from England—Lord Say and Sele, Lord Brook, and others—were intending to remove thither. The correspondence¹ which resulted from this revealed the fact that the order of magistracy and the rank of gentleman² were

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considered very nearly synonymous by the Massachusetts leaders, though they were not quite ready to admit that office and rank should be hereditary. That democracy was not ordained of God and that their system was not democratic, they expressly affirmed. But they were not ready to give up annual elections, though they insisted that the bestowment of office through them be limited by a strict regard for fitness. That, as we have seen, resulted in a permanency of official tenure which carried with it a suggestion of the hereditary quality. John Cotton, in a sermon preached before the general court in 1634, expressed the view that an office was analogous to a freehold.¹ Both he and others found sanction in the Bible for the belief that the higher magistrates should hold for life.² This opinion seems to have prevailed especially among the clergy.

On the advice of the elders who held this view, and as a concession to Lord Say and Sele and his friends, the general court, in the session of March, 1636, ordered³ that at the next election, and from time to time thereafter, a certain number of magistrates should be chosen for life, and be removed only for crime, inefficiency, or other weighty cause. These were to constitute a standing council, of which the governor should always be president. It should have such power as the general court saw fit to bestow upon it. The following May Winthrop and Dudley were chosen members.⁴ A year later Endicott was added. Vane, like his successors, was president during the year of his office as governor. No other members were ever chosen. No duties seem to have been imposed on this body, except that of issuing commissions to military officers during the Pequot War, and of preparing for defence against a possible interference of the home government in 1636. It soon became apparent that there was no place for the standing council in the Massachusetts system; it was always unpopular and therefore never developed.

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In 1637¹ a statement by one of the elders that, according to the practice of Israel and the best governments of Europe, a governor ought to hold for life, elicited from the deputies a proposal that no councillor, chosen for life, should have authority as a magistrate unless he was also chosen at the annual elections to one of the places of magistracy established by the patent. Governor Winthrop, rightly interpreting this as an attack on the standing council, refused to put it to vote until the magistrates had considered it. This they did, and proposed instead a declaration,² that the intent of the order creating the standing council was that its members should be chosen from those who had been magistrates, and that no new order of magistracy should be created. An order was therefore now passed that no one of these councillors perform any act of magistracy, unless he were annually chosen according to the patent. Thus the prejudice which the council was occasioning was appeased. But at the same time the order was an acknowledgment of the utter uselessness of the council, and with the death of Winthrop it vanishes from sight. No further attempt was made in the corporate colonies to coquet with hereditary orders or terms of office for life.

In a previous connection it was stated that, when the negative voice of the magistrates was under discussion, their administrative discretion was also an object of criticism. It played a part, too, in the controversy between Winthrop and Dudley. The discretion of the assistants, especially as an executive body, was without express limitations. Provisions of such a nature found no place in royal charters, and legislation developed too slowly during the early years of the colony to put any effective checks on their discretion. It was exercised freely in the interest of the church-state, and upon it hinged much of the discussion of the executive power in the early history of Massachusetts. In 1635 the deputies complained³ of the possible danger to the state arising from the fact that, owing to positive laws, the magistrates might proceed according to their discretion. This led to the appointment of the first commission to frame a

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body of laws “in resemblance to a Magna Charta.” That act, after many delays and the appointment of many other committees, resulted in the draft and issue of the Body of Liberties of 1641. But its provisions limited the judicial, more than the administrative, discretion of the board, and therefore failed to quiet the complaint.

In 1644 objection was made to the assistants—who are now sometimes referred to as the council—acting as a council for the administration¹ of the affairs of the colony during the recesses of the general court. This involved a denial of the permanent executive power of the assistants. The opposition was in part sectional, as was that directed against the negative voice, and the members from Essex county carried through the deputies a bill empowering seven of the magistrates and three of the deputies, together with Rev. Nathaniel Ward, of Ipswich, to order all the affairs of the colony during the approaching vacancy of the general court. This was a proposition to transfer to a committee of the general court powers which had been exercised by the assistants since the founding of the colony, and which were an outgrowth of the powers they possessed while the company was resident in England. The magistrates returned the bill with the answer that they thought it tended to subvert the government and the liberty of the freemen by taking from them the right of election; also that by it four of the magistrates would be put out of office. They finally asserted that the assistants already had by charter the power of a permanent council, and should not accept it by commission.

The discussion suggests an important difference between the view of the assistants and that of the opposition concerning the relations in which the charter stood to the government of the colony. The argument of the assistants implied that in such a case an appeal to the charter was final; that the general court was limited by it; that the assistants had powers of government before the colony had written laws or general courts had been held; that the office of governor presupposed the power to govern, though positive laws were lacking; that the general court could direct the exercise of

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power by the magistrates, but not deprive them of it. The deputies held that the general court was supreme within the colony, and that it was useless to appeal from its acts to the charter; the assistants had no power out of court save that which was given them by the general court. The deputies stood upon the platform of legislative absolutism.

The scheme for the time was defeated by the refusal of the magistrates who were designated in the bill to serve on the commission. At the next session, however, not only the question of administrative discretion, but that of the place of the assistants as an executive board in the colony government, came up again, and the elders were called on for their opinion. In well-reasoned and moderate statements they sustained the position of the board of assistants as a part of the system of government in the corporate colony.¹ Governor Winthrop also wrote a vindication of Massachusetts against the charge that it had an arbitrary government. He based his argument, so far as it was political in character, on the fact of the election of officials by the freemen, and on representation of the freemen in the general court. These utterances were decisive, and the position of the assistants as an executive board was never again questioned.

But it was in their judicial even more than in their executive capacity that the discretionary power of the magistrates was assailed. This leads us to a consideration of the judicial system of colonial Massachusetts,² a subject which will not

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only complete our view of the activity of the assistants, but exhibit another and important function of the colony government as a whole.

The development of Massachusetts after it became a corporate colony furnishes a striking example of the rapid and spontaneous unfolding of institutions from an original germ. It suggests familiar flowering processes in the physical world. The company, as it was in England, was a simple organism, with power to direct or oversee the growth of a colony, but without authority or instrumentalities for making or executing laws, administering justice, collecting or expending a revenue, carrying on war, or developing the institutions of education and religion. Those functions must be performed in the colony itself and by the forces and authorities there. Had the company continued to reside in England, it would have superintended the growth and exercise of these functions, but would have directly performed none of them. As the immediate consequence of its removal into the colony, however, the company began to assume all these powers and to exercise them directly. By losing itself in the colony it became a fully developed political organism. Starting with the general court, or at the beginning with the assistants as a substitute for it, the company developed all the organs which were necessary for the government of the jurisdiction. In the full and direct assumption of governmental powers by the company itself appears the essence of the corporate system.¹

From the outset the general court transacted some judicial business, and by law, judicial functions were attributed to it. But after 1634, when it became specifically the legislature of the colony, the trial of ordinary suits before it was discouraged. Two special features of its work, as time went

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on, were the hearing of suits in chancery and the trial of such admiralty cases as arose. Original cases of a judicial nature were brought before it by petition. Though many such were presented and the cases were heard, yet it was those of chief importance, especially such as had a political bearing, with which the general court was mainly concerned. In 1642 the first attempt was made by law¹ to distinguish between the sphere of the general court and that of the assistants, and this was occasioned by the large amount of time consumed in hearing civil cases which properly belonged to the inferior courts. Hence it was ordered that such cases should first be heard in the lower courts, and only when justice could not be there obtained should the general court² be applied to for relief. The records, however, show that much judicial business continued to be done in the general court. When, in 1644, the question was put to the elders, as referees, whether the general court had judicial authority, they could not³ find that it was granted by charter, though they did find that that body could remove a delinquent official. When also a law of the colony provided for appeals, or the reserve of special cases for the general court, then it might hear them. Of these they specially mentioned cases of banishment, loss of life or limb, cases which were weighty or difficult or without express law.⁴ In such cases only could the freemen exercise judicial power. Winthrop, in his paper on the negative voice, argued that the deputies, as such, had no judicial powers, but by association with the magistrates in the general court they obtained the right to share the exercise of all the powers which the magistrates could employ in that court. When they were in judicial session the two houses sat together, and the deputies were put under a special oath. Cases were decided then by majority vote of the whole court.

From the beginning the assistants heard and decided most of the suits which arose in the colony. As the institutions

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of the colony grew and became differentiated, they clearly appear as its highest regular judicial court. The close union of executive and judicial functions in their hands is illustrated by the fact that, for a decade and probably longer after the founding of Massachusetts, the records of the assistants as a council and as a court were kept indiscriminately in the same book. A similar union of administrative and judicial powers in the same hands appears at the beginning in all the other colonies, and gives evidence of the rudimentary and undeveloped character of their institutions. It suggests the union of justice and administration in primitive communities, where the activity of government was directed largely toward the keeping of the peace. The earliest cases which were tried by the assistants had distinctly this object, to decisively establish the supremacy of the founders of Massachusetts over recalcitrants who appeared or were found within its borders. Thomas Morton, Philip Ratcliff, Henry Lyn, Thomas Dexter, were offenders of this order, and they were dealt with by a process as summary as the Star Chamber would have used in similar cases. The freedom of action, or, in other words, the discretionary power of the magistrates, was increased by the fact that they fell back on the Mosaic law for principles and precedents, when those which they were able to draw from English sources failed them. The same tendency to the administration of a summary type of frontier justice was also strengthened by the fact that few, even of the magistrates, were trained lawyers, while it was necessary that controversies should be settled with the least possible cost. Winthrop, Bellingham, and Humphrey were the only magistrates under the first charter who are known to have been lawyers, though possibly Pelham and Bradstreet may be added to the list.¹

In the early days, before their powers were at all defined, a variety of cases came before them, as “felony,” manslaughter, theft, assault, suits for civil damages, debts, various offences of servants and apprentices, drunkenness, and other public disorders; while coroner’s inquests were

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instituted and wills proven. For several years practically all the judicial business in the colony was done by the assistants, and they acted as a police court for Boston. Though this was an exercise of power which in England would have been impossible, its continuance resulted in their becoming the chief judicial court of the colony.

In 1636 it was enacted that the assistants should hold four judicial sessions annually at Boston, which were known as the great quarter courts.¹ Three years later, in 1639, the number² of regular sessions was reduced to two, the one in the spring and the other in the fall. They were occupied with actions on appeal from inferior courts, divorce, and criminal cases extending to life, member, and banishment. These sessions were attended by the governor, deputy governor, and “the rest of the magistrates.” In the case of a tie, the governor had the casting vote. The magistrate ³ who sat in the court from which an appeal was taken could not vote on the appealed case when it was before the court of assistants. Special sessions might be called by the governor for the trial of capital cases. Because of the increase of business it was also enacted that those members of the court who lived near Boston should hold four⁴ special sessions yearly to hear civil suits, provided they did not involve more than £20, and criminal cases which did not involve life, member, or banishment. In spite of the enactment of 1639, the custom of holding four sessions annually must have been continued, for, in 1649, we find an order⁵ to the effect that the number of quarter courts, which had regularly been four, should be reduced to two each year.

As the right of appeal to the court of assistants was unlimited, its jurisdiction was very broad,⁶ the intention apparently being to remove the necessity of the general court acting in any but public business. The court of assistants was currently held to possess a jurisdiction as broad as that of the three great English common law courts, while it also granted letters of administration. When the lower

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courts were instituted, the assistants ceased to hear so many petty cases, or to act so much in the capacity of a local police court as they did in the earlier years of the colony.

Much the same use was made of the jury, both in civil and criminal cases, as in the courts of England. Regularly the jurors found the fact, and the court declared the law, “or they may direct the jury to find according to the law.”¹ In the form of writs and in all matters of procedure, brevity and promptness were sought. In appeal cases the rule was that no additional evidence should be taken, but that the evidence which was presented from the lower court should be exclusively relied on. Proceedings before the court seem to have been mostly in writing. Because of the obstructions to travel and the need which people were under to attend constantly to their domestic concerns, it was difficult to bring them to court to testify. For this reason depositions were in many cases taken and sworn to in the homes of witnesses, and were read in court. When parties could appear, they testified orally, questions probably being asked by the court, and the substance of the testimony was taken down in writing. Attorneys or counsel, in the modern sense of those terms, there were few or none. A lawyer here or there, or a friend who was experienced in business, might assist in drawing papers, but it is not certain, even then, that they would appear or speak in court, as on behalf of a client. The general prejudice among the colonists against lawyers as a class, and the desire to keep down the cost of litigation, prevented the employment of attorneys. Suitors therefore had to manage their cases as best they could. In many instances they consulted magistrates privately, in advance, and tried thus to secure the favorable opinion of one or more of those who were to be their judges. So general did this custom become,² that a law was passed providing that magistrates should not vote in the decision of civil cases in which their relatives or tenants were concerned, or in which they had given advice. The evidence taken in written form was given to the jury, and upon that

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their verdicts were rendered. The verdicts were brief, and were often delivered sealed to tho magistrates.

The records which have survived indicate that the administration of justice was regular and systematic, that great respect for the order and dignity of the magistrates in and out of court was enforced, while on the other hand civil rights, on ordinary occasions, were duly guarantied. The magistrates maintained a somewhat patriarchal attitude, and in the justice which they administered there was a large element of equity. Their religious opinions naturally led them to seek, when possible, the reform of the criminal, as well as the satisfaction of the ends of justice. The impression gained from the records is that, on the whole, the declarations contained in the first clauses of the Body of Liberties,¹ guarantying the resident against arbitrary judicial action, were made good in practice. The spirit of justice was there, although by no means all its modern safeguards, such as elaborate judicial formalities and rules of evidence, the activity of attorneys, and the presumption that the accused is innocent until he is proven guilty.

This means that offenders against whom popular prejudice ran high, who placed themselves in antagonism to the cherished plans or views of the magistrates and freemen, could not expect mild treatment, or even justice, from the tribunals which then existed. The same was true in England, and, indeed, among all civilized people at that time. Under such conditions the jury trial, even if it was permitted, afforded little protection. The control of the bench and of government attorneys, where there were such, over the admission and interpretation of evidence was almost unlimited, and before them the accused stood helpless. In Massachusetts the magistrates were both judges and attorneys, and if they chose to exercise their power to crush an offender, he had no protection against them. These statements apply to such trials as those of the Antinomians and Quakers; with qualification also to the trials of the unfortunates who were accused of witchcraft. The accounts which have come from Quaker sources concerning the trials of their co-religionists

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in Massachusetts slow that, on some occasions, the magistrates there could act and talk as brutally as did the most notorious among the judges of the same period in England.

The trial of Mrs. Hutchinson, which was at the same time a legislative hearing in a case of the highest political importance, was characterized by great informality and great partiality. The jury was not employed. The magistrates and clergy, who were the prosecutors, furnished, with a few exceptions, all the witnesses, and were at the same time the most influential of the judges. Nearly all the testimony was given by and for them. Except in the case of two of the clergy, it was not given under oath, and no attempt was made to sift it or test its worth. Mrs. Hutchinson had no counsel and she questioned witnesses very little. The governor presided and, with an occasional interruption, conducted the examination of Mrs. Hutchinson. It was essentially a colloquy between her and the court, interrupted at times by statements from others and by her speech respecting her revelations. Throughout the trial the court made no effort to conceal its prejudice against the accused, and the spirit which it exhibited would have well become an attorney for the government. The same is true of the trial of Wheelwright and of all accused persons who were considered to be foes of the Puritan system of religion and morals. Trials in the proper sense of the word they were not, but relentless inquisitions used by the government for the purpose of crushing opposition. By means of them, offences which differed in form from any that could well have been committed in England were punished by heavy penalties, while scant regard was paid to the rules of English procedure. In these proceedings, as in all others before the Massachusetts courts prior to 1660, no mention was made of the king or of his authority. But, as has already been suggested, the spirit shown in these famous cases was the exception rather than the rule. If sweeping conclusions were drawn from these cases, numerous though they were, the facts of history would be seriously misrepresented. The administration of justice in the Puritan colonies proceeded in an even and steady

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course, according to precedents which were a free adaptation from English practice, and in general with a due regard to the rights of all concerned. Only for brief periods and in a special class of cases was it diverted from this channel by the influence of passion.

But the activities of the assistants as judges were not confined to their functions in the central court of the colony. They were felt far and wide in the lower courts and in the system of local justice. In 1636 it was ordered that a court should be held quarterly at Ipswich, Salem, Newtown, and Boston. In 1639¹ the decisive step toward the formation of counties was taken by the establishment of county courts. Four counties were thus formed,—Suffolk, Middlesex, Essex, and Norfolk. It was provided that courts in these jurisdictions should be held by the magistrates who lived in the respective counties, or by any other magistrate who could attend them, or by such as the general court should appoint for the purpose, together with such persons of worth as the general court should designate from time to time on nomination by the freemen of the towns to be joined as associates in commission with the assistants. In each county there should be in all five magistrates and associates, and the presence of three of them—one being a magistrate—should be required as the necessary quorum for holding a court. In 1650 an act was passed which provided that at the time when votes were cast for town magistrates, associates should be elected by ballot in the towns of their respective counties. They were then to be presented before the court of election for its confirmation.² The county courts were given power to hear and determine both civil and criminal cases. Their jurisdiction extended to cases of divorce, to civil suits which did not involve more than £10, and to criminal cases which did not extend to life, member, or banishment. Like the court of assistants, they might employ jury trial. The courts should appoint clerks and other necessary officers. Their criminal jurisdiction was

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analogous to that of quarter sessions in England, and in that capacity they performed a great variety of functions. They appointed commissioners to hear small causes, trustees of public legacies, persons to lay out highways, a master of the house of correction, searchers of money, and viewers of fish. They confirmed the nomination of military officers, apportioned charges for the repair of bridges; they licensed innkeepers, and packers of sturgeon, and punished violation of licenses; they ordered the removal of obstructions on highways, punished idle persons, punished excess of apparel, compelled restitution of overcharge by merchants, determined rates of wages in case of dispute, provided for the poor; they admitted freemen who were church members, fixed ministers’ allowances, saw that they were paid, inquired into the publication of heretical doctrines, punished heretics and profaners of the Sabbath, saw that Indians were civilized and received religious instruction, did all varieties of probate business, punished those who carried on unlicensed trade with the Indians. Full provision was made for appeal to the court of assistants.

In 1638, to avoid the cost necessitated by bringing small causes before the assistants, it was enacted that any magistrate, in the town where he dwelt, might hear and determine at his discretion all causes wherein the debt or damage involved did not exceed twenty shillings, and that in towns where no magistrate lived the general court should from time to time commission three men for the purpose. Later, the county courts appointed these on request or approval, and their jurisdiction was extended to cases involving forty shillings. When one of the commissioners was a party to a case, the selectmen might act as judges; they might also try offences against by-laws of towns, when the penalty did not exceed twenty shillings. The jurisdiction of commissioners of small causes was confined to their own towns, but, when the parties lived in two different towns, the plaintiff had the right to choose the town in which the trial should be held. The commissioners could not enforce any judgment by imprisonment, and when a party refused to give satisfaction and had no property in the town, they could only remit the case

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to the county court for execution. The criminal jurisdiction of the commissioners was confined to the issue of search warrants and warrants for the arrest of offenders, when no court or magistrates were at hand to issue such orders. By an act of 1663 these commissioners were authorized to take testimony of witnesses in civil and criminal cases, and to exercise the authority formerly given to associates of the county courts in administering oaths and taking the acknowledgment of deeds and of surrender of right of dowry made out of court.

In every town there was also “a clerk of the writs,” who was chosen by the town and approved by the county courts. He was authorized “to grant summons and attachments in civil actions” and “summons for witnesses,” “to grant replevins and to take bonds with sufficient security to the party to prosecute the suit.” Appeals lay from all lesser magistrates and commissioners to the county courts.

Until 1685 the general court had exercised original chancery jurisdiction, but its business had become so great that it was necessary to create another court to relieve it of a part of its business. An act was then passed¹ which provided that the magistrates of each county court should be authorized to act as a court of chancery. On the exhibition to them of an information “concerning matters of apparent equity,” they were to grant summons and examine the parties to the suit and their witnesses under oath, and issue decrees according to the rule of equity, secundum aequum et bonum. Appeals might be granted to the court of assistants, and the magistrates who had heard the case might then state the reasons of their judgment, but were not permitted to vote on the case in the assistants’ court. The judgment of the assistants was final, unless on appeal the general court saw fit to order a rehearing before the magistrates of the county court, with liberty of appeal as before. In arduous and difficult cases the general court itself might admit a hearing at its own bar. It therefore appears that the establishment of a court of chancery merely involved an extension of the powers of the county court.

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An order¹ of 1636, passed when the subject of preparing written laws was broached, described the system under which the magistrates had acted and were still to act in many affairs as long as the colony charter remained in force. They were to hear and to determine cases according to law, but, where there was no law, “then as near the law of God as they can.” In administering criminal justice, as well as in all other relations, that was the rule by which they professed to be guided. This gave rise to an attack on their discretion as judges which was even more persistent than that which was directed against them in their administrative capacity. The objection was raised that, in imposing sentences, as well as in arresting, detaining, or otherwise proceeding with accused persons, the magistrates acted arbitrarily, under a discretion which was practically unlimited. Partiality, cruelty, all forms of injustice might result from such absolute power. Therefore the deputies, with Saltonstall and Bellingham among the magistrates, demanded that specific penalties for crime should be prescribed in the laws. This was a part of the special effort they made, culminating in 1644, to reduce the discretion of the executive to a minimum. It was the same effort which their contemporaries were making in England, which was also made in American provinces, and which recurs under every system of government. But, though justified, from the nature of the case it could be only partially successful, and its success came far more through the gradual development of the written law of the colony than as the result of special agitation. Some progress had been made when in the first section of the Body of Liberties, echoing the spirit of section 39 of Magna Carta, it was declared, “No man’s honor or good name shall be stained, no man’s person shall be arrested, restrained, banished, dismembered, nor any ways punished, no man shall be deprived of his wife or children, no man’s goods or estate shall be taken away from him, nor anyway indammaged under color of law or countenance of authority, unless it be by virtue or equity of some express law of the country warranting the same, established by a general court and sufficiently published.”

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But even this enactment carried with it the exception that in defect of a law covering a particular case, the law of God should be followed. Specific guaranties, and especially a rational procedure in trials, were needed, if this declaration was to avail much as a protection against injustice.

The elders, when the whole subject was referred to them,¹ fell back for their authority upon the Old Testament, holding that specific penalties ought to be prescribed for capital crimes, but enlarging on the necessity of leaving an opportunity for the judge to exercise his discretion in determining the punishment of lighter crimes and offences. They very reasonably advocated in general the specification of maximum and minimum penalties in the statutes. Winthrop argued the question out in characteristic fashion in his tract on Arbitrary Government.² In this he referred briefly to the fact that in English law judges and juries were allowed great freedom in awarding damages in cases of slander, trespass, battery, breach of covenant, and the like. But nearly his whole prolonged argument hinged upon the Mosaic legislation, and the discretion employed by the Deity and his agents in inflicting penalties upon offenders among the ancient Hebrews. “By these it appears that the officers of this body politic have a rule to walk by in all their administrations, which rule is the word of God, and such conclusions and deductions as are, or shall be, regularly drawn from thence.” From the fact that God in his law specified few penalties, except for capital crimes, Winthrop inferred that he intended human lawgivers to do the same. According to Winthrop it was not the divine method to lay down many and definite precedents, but to leave it to the judges to adjust penalties to offences, that being the only way in which substantial justice could be done. In this way the judge could mingle admonition with the sentence, and thus fulfil another divine ordinance, warranted by Scripture, as appeared in Solomon’s admonition to Adonijah, and that of Nehemiah to those who broke the Sabbath.³ Judges were

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gods upon earth, and it was their duty to hold forth the wisdom and mercy of God, as well as his justice. If they would keep an open mind in the hour of pronouncing judgment, they would be taught what sentence to declare, and would thus imitate most closely the divine method in dispensing justice. If fixed rules and penalties were prescribed, said Winthrop, it would be by men naturally as fallible as the judges, and those who at the same time look at the subject in the abstract, without the experience and the divine calling which comes to men on the bench. Still he admitted that for the security of men’s estates against heavy fines, it would be well to have a general law like Magna Carta, and certain restrictions as to the inflicting of capital punishment. It would also be well if each court were kept by not more than three or five magistrates, and the others were left free for greater attention to the review of cases on appeal or petition. These were the only changes he could suggest, while he strongly contended that, since they had the rule of God’s word to go by, the administration of justice in Massachusetts could not be arbitrary.

Winthrop, as the exponent of Puritan orthodoxy, was to have one more encounter with the opponents of judicial and administrative discretion. This had its origin in the somewhat famous case of the Government vs. Peter Hobart and others of the town of Hingham. The controversy arose in 1645, near the close of Winthrop’s career, and was occasioned by the course which he as deputy governor pursued in committing and binding over parties for trial.¹ As had long been the custom among the towns, Anthony Emes, who for some years had been lieutenant of the militia company of Hingham, was chosen captain by his fellow-townsmen, in the spring of 1645, and his name was presented to the standing council for confirmation. But because of some slight offence taken against him by certain inhabitants of the town, before he was confirmed, one Bozoun Allen was elected in his place and presented to the magistrates. The

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magistrates refused to confirm Allen, and charged all to keep the peace and every militia officer his place till the general court met, to which the case should be referred. But when the next training-day came, Allen’s friends refused to train under Emes. Emes referred them to the order of the magistrates, but it was scorned. One declared that it was signed by only three or four of the assistants, others that they had the right to choose their own officers, and demanded what the magistrates had to do with the case. Then, amid tumult, the majority of the company chose Allen. He accepted and took command. About two-thirds of the company followed him.

The scene was then transferred to the church. Of this Peter Hobart was pastor, and three of his brothers were active supporters of Allen. Emes was called to answer before the church to the charge that, on training-day, he had denied that any one in authority had commanded him to lay down his office. He denied the charge, and testimony about it was conflicting. Hobart, the pastor, took up actively against Emes, and urged that he be excommunicated.

When the magistrates heard of these disturbances, three of them, with Winthrop, met at Boston and summoned before them the three Hobarts and two others. This so offended the clergyman, who was of robust temper, that he appeared with his brothers. Such high words followed between him and the magistrates that he was threatened with arrest. The accused were then bound over to appear at the next court of assistants Later, five others were sent for because of untruths they had uttered about the magistrates at the church meeting. The five met the deputy alone, and demanded the cause of their summons, as well as the names of their accusers. For the former he referred them to Secretary Rawson, while as to the latter, he said that a judge at his discretion might refuse to disclose the names of accusers until the day of trial. They then refused to give bail, and two of them were committed.

The court of election met before the date of the next court of assistants, and about ninety of the inhabitants of

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Hingham, with the minister’s name at the head,¹ petitioned it that the case might be heard by the general court. The statement was made in the document that the principles of English liberty had been violated by the imprisonment of persons for criticising the government. The deputies at once expressed their readiness to hear the case, and asked the concurrence of the magistrates. At this the magistrates were offended, because the lower house had not first conferred privately with them and formally ascertained the names of the accused and the nature of the charge against them. On the demand of the deputies the petitioners then singled out the deputy governor, and undertook to act as his prosecutors. It being Winthrop’s desire that the case should have a public hearing, for the effect it might have on the issue so long mooted between the magistrates and deputies, the assistants agreed. In the presence of the elders and “a great assembly of people,” the venerable deputy governor took his place within the bar and sat uncovered, as might any criminal, while his trial proceeded.²

Now began, under the scanty semblance of judicial forms, one of the most prolonged and ardent party struggles in the history of colonial Massachusetts. The trial was but the prelude to it. In that Winthrop was easily able to show that his conduct had been in harmony not only with law and practice in England, but with usage in Massachusetts. He had acted upon credible information of “mutinous practice,” and “slighting of authority” at Hingham. He declared that he knew no law of God or man which required him to make known to a party his accusers—who were the witnesses for the prosecution—before the case came to a hearing. Though it might be thought that at some point he had erred in judgment,—which he was scarcely ready to admit,—nothing criminal could be laid to his charge. Still, however, two of the magistrates,—presumably Saltonstall and Bellingham,—together with the majority of the deputies, thought the magistrates had too much power, and

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that the liberties of the freemen were in danger. The remainder of the magistrates and nearly one-half of the deputies were of the opposite opinion, and thought, if the excessive “slighting” of authority, which was in vogue, was not checked, the government would degenerate into a democracy. So ardent were feelings on this point that sometimes, during the trial, proceedings were tumultuous.

When the time came for a verdict, the deputies wrangled for a whole day without reaching a decision. They then sent to the magistrates for their views. The magistrates, after deliberation, agreed upon four points: that the petition was false and scandalous, that all concerned in it were offenders, though in different degrees; that those who had been bound over, with those who were committed and with all the petitioners, should be censured; that the deputy governor should be fully acquitted. Over these points the deputies spent “divers days,” consulting the magistrates two or three times during the interval. They agreed with the assistants concerning the petition, but would not agree to a censure or to the full acquittal of Winthrop. The magistrates refused to yield. Thus a deadlock ensued between the houses which was prolonged for nearly three months, the trial beginning in the middle of May and an agreement not being reached till the fifth of August. During the interval, the legislature took a recess of one week. The deputies were finally brought to terms by the conviction that, if the case was not otherwise disposed of, it would have to be referred to the elders as arbitrators. This they did not desire, for they knew that the clergy “were more careful to uphold the honor and power of the magistrates than themselves well liked of.” To avoid this a committee of conference was arranged between the houses. By this the fines which should be imposed upon the Hingham offenders were agreed upon, and it was also resolved that Winthrop should be fully acquitted. The decision was accepted, and thus the long conflict over the discretion of the magistrates was ended. Winthrop took his seat again on the bench, with the full consciousness that he had been vindicated, and that the

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cause¹ for which he had stood so long had won its final triumph.

As a fitting conclusion of the whole matter, Winthrop, as soon as he had returned to the magistrate’s bench, craved the indulgence of the assembly while he made a “little speech.” With modesty and true eloquence, after admitting that magistrates might err in judgment and insisting that for that reason they should be held responsible chiefly for their fidelity, he gave a brief exposition of the relations between authority and liberty. It is one of the rare gems of Puritan literature, and contains the root idea of modern republicanism. After distinguishing between natural and civil liberty, and showing how the former was synonymous with anarchy, he explained that the latter revealed itself in the covenant between God and man, in the moral law, and in politic covenants and constitutions among men. This liberty, said he, “is the proper end and object of authority”; and, he added with almost Miltonic phrase, “is a liberty to that only which is good, just, and honest.” “This liberty is maintained and exercised in a way of subjection to authority; it is the same kind of liberty wherewith Christ hath made us free.” After gracefully illustrating it under the simile of marriage and of the subjection of the church to Christ, the deputy concluded with a practical lesson, that, if the people wished to enjoy the lawful liberties of which they had become possessed, they must quietly and cheerfully submit to the authority which was set over them. “So shall your liberties be preserved, in upholding the honor and power of authority amongst you.”