Yale University Library 39002002555432 I' t ' - ; i' ', I, ¦¦".w. fiSS^-^ BBSife-aaar.-'- ft*" .': !.-^"'".i |ft ,ji,jji__ ,.-T^j _.,- YALE UNIVERSITY LIBRARY HISTORY OF THE, TRANSITION FROM PROVINCIAL TO COMMONWEALTB GOVERNMENT IN MASSACHUSETTS BY HAERY A. GUSHING-, A. M. SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY IN THE Faculty of Political Science Columbia Universii-y NEW YORK 1896 CONTENTS PAGE CHAPTER I. The Period of Transition. § I . The Transition, in General 7 § 2. The Transition in Massachusetts 12 CHAPTER II. Elements of Antagonism in the Provincial System. ' " CHAPTER III. The End of Provincial Government. § I. The Mandamus Council 54 § 2. Withdrawal of the Royal Executive 61 § 3. Local Action inthe Summer of 1774 68 § 4. End of the Provincial Legislature 76 § 5. Closing of the Provincial Courts 84 CHAPTER IV. Extra- Constitutional Bodies. CHAPTER V. The Provincial Congress. § I. General Review 112 § 2. Military Affairs 132 § 3. Committee of Safety 139 § 4. Economic Affairs 147 § 5. Public Finance 151 § 6. Relations with the Continental Congress 159 § 7. The Change of Government 164 S vi CONTENTS PAGB CHAPTER VI. The Charter Resumed. § I. Provincial Forms in the Commonwealth 174 § 2. The Issues of the Period 184 CHAPTER VII. The Constitution of 1778. § I. Prelirainary Action ¦ 194 § 2. Work of the Convention 207 § 3. Submission of the Constitution 214 CHAPTER VIII. The Constitution of 1780. § I. Preliminary Action 227 § 2. Work of the Convention 231 § 3. Submission of the Constitution 264 CHAPTER IX. The Transition Completed. NOTE. LIST OF TITLES. CHAPTER I THE PERIOD OF TRANSITION § I. The Transition, itt General The American Revolution presents two significant and clearly defined series of events. The earlier and not less important includes successive attempts to terminate certain administrative relations and constituent connections, at tempts which resulted not simply in the temporary cessation of governmental relations, but also in the severance of a part of the American dependencies from the English empire. Almost contemporaneously with these events appeared great activity in that work of establishing governments which made the earlier effort of the revolutionists effective and its results permanent. In what was logically the earlier of these two movements, successful revolt annihilated all imperial rela tions. Those who were one day colonists of England, and -who the next were by their own sweeping and comforting philosophy relegated to a " state of nature,"' began to act, ' This theory appears prominently in 1 780. Cf. Oration by Jonathan Mason, Jr., at Boston, March 6, 1780: "As a reward for our exertions in the great cause of freedom, we are now in the possession of those rights and privileges attendant upon the original state of nature, with the opportunity of establishing a govern ment for ourselves, independent upon any nation or people upon earth," Niles, Principles and Acts, 46. cy; Oration by Thomas Dawes, Jr., at Boston, March 5, 1781 : "And yet the people of Massachusetts have reduced to practice the wonderful theory. A numerous people have convened in a state of nature, and, like our ideas of the patriarchs, have deputed a few fathers of the land to draw up for them a glorious covenant." Ibid., 52. "Johannes in Eremo " published a letter to General Gage, June 17, 1775, in which he said: "-Vou also know that those acts of the 7] 7 8 FROM PROVINCIAL TO COMMONWEALTH [8 with a growing self-consciousness, as component parts of what was by territorial and geographical arrangement, by race and language, by religion and by political traditions, the germ of a new national state.' That such was the position of the Americans at the time of the Revolution the history of the nation has made evident. The striking feature of the con stitutional rearrangement within the nation at its beginning was the appearance of the Continental Congress, a body among whose acquired functions was recognized the respon sibility and right to represent that greater body of individuals in whom had become vested all those elements and inci dents of national sovereignty which had formerly appertained to the king in parliament. That the best and plainest out come of the Revolution was the rise of a new nation is the lesson which by the progress of events has been impressed upon a people who, by reasoning and by warfare, have been made believers in the nationalism of the federalists. Yet while to the maturer life of the nation the sentiment of nationality born of the Revolution has been of incalculable import, it played a relatively less important part in the later stages of that movement amid which it first arose. The British parliament, which you have avowedly undertaken to carry into execution against us by fire and sword, are, in the [sic] own nature and operation, offensive acts of hostility against law, English liberty and constitutional government cf the nation in general, and against the charter, laws, liberty, property and lives of this colony in particular.'' In the opinion of the writer the enforcement of such acts put the inhabitants in a "state of nature," without any connection with the Eng lish king. The taking of arms would no longer be rebellion. Gage was no longer governor, and, furthermore, " not only a robber, a murderer and usurper, but a wicked Rebel: , . . ." Essex Gazette, vol. VII., no. 363, July "6-13," 1775- ^f Benj. Akin, Dartmouth, July 29, 1774, to Samuel Adams, Boston: " it Appears to me, if there is any force in the Late acts, of Parlament. they have Sett us, a float, that is, have thrown us into a State of Nature: we Now have a fair Oppertunity of Choosing what form of Goverment we think proper. and. Contract, with any Nation, we pleas; for a King to Rule over us." Revolu tionary Corresp., HI., 277, Bancroft Collection, Lenox Library. ' Cf. Burgess, Political Science and Comparative Constitutional Law, I., 100. 9] GOVERNMENT IN MASSACHUSETTS g enthusiasm of being "an American" could win battles, and it could meet well its test at the time which "Novanglus" foresaw, when recourse must be had "to the ratio ultima of Louis XIV. and the suprema lex of the king of Sardinia, — to the law of brickbats and cannon balls, which can be an- s\\ ered only by brickbats and balls." ' The military and diplomatic successes of the Revolution must be recognized and their value fitly estimated. But what seems a successful revolt is not always a successful revolution. To take full advantage of the good work on the field and in the cabinet a firmly established and well organized government was essen tial. , Such to the central body, the Continental Congress, was unknown; such, in large measure, was present in each of those territories which from colonies had become common wealths. The prominence and incapacity of the central government in the years immediately subsequent to the military crisis were in strong contrast with the efficiency and the quiet conservatism shown by those bodies of the people who had come forth from the constructive work of the first years of the Revolution organized as political units. In territorial arrangement these portions of the population, with one exception,' coincided with the earlier colonies. Among their inhabitants as colonists had occurred those ' Works of John Adams, iv, 38. ^-Vermont is the exception here referred to. The earlier relations between the New Hampshire Grants and the royal colonies of New Hampshire, New -Vork, and Massachusetts, make the history of the origin of -Vermont somewhat compli cated. It is not necessary in the present work to enter into any explanation of the subject, although the subsequent grouping of the -Vermont Consritation of 1777 with the other constitutions of the period may seem to require justification, since at the time Vermont was not recognized as a state, as a part of the American systtm. However, the theories on which the acts of the inhabitants of that re gion were based were in many respects identical with the theories dominant else where on the continent, and the result of work under such conditions may prop erly be grouped with similar results elsewhere, it being understood that no identity of constitutional procedure is necessarily implied. lO FROM PROVINCIAL TO COMMONWEALTH [ro events, some violent in character, which have already been broadly classified as the destructive phase of the Revo lution; and among each group, acting still on the accus tomed lines of political sub-division, had arisen, contempo raneously with the immediate beginnings of nationality already noticed, the more valuable and constructive work, the creation of commonwealth governments. To these is due no small meed of credit for affording the nation some degree of stability and order during the period when the ostensibly national government was in the slough of administrative inefficiency and disintegrating sectionalism ; to them are to be tK,aced many features of the later na-. tional constitution. In them was brought together the content of the charters, the legislation, and the custom of the past, and with them began the modern period wherein the written constitution appears as a basis of gov ernment. In no country has a period so brief been marked by the promulgation of so many constitutions as the decade of the American Revolution. No period of activity in constitu tional matters can compare with this in the manner in which recognized propriety of procedure was forced to yield to expediency. In none, on the other hand, has appeared such a degree of self-control and conservatism as has stamped this as the one among all similar periods in which the people have gained complete control of constituent power. In spite of the circumstances amid which they were formed, the constitutions of the Revolution give abundant evidence of wise conservatism. Monarchy and anarchy were safely avoided, and in that was the chief success. With the exclusion of such elements assured, full play was given to the political instincts of both conservatives and radicals, and the result was the ultimate combination and definite expression of the political theories of their lead- II ] GO I -ERNMENT IN MASSACHUSETTS i i ers,' of the traditions and religious tendencies of the people, of the teachings of a century and a half of colonial administra tion, of the contemporaneous political philosophy of Europe, and of the lessons derived from the growth of the Eng lish constitution. The new written constitutions embodied and reflected the nature of the communities for which they were made." In these documents the shifting of the source of political power was asserted, and the assertion was main tained. The maintenance of this made permanent the con stituent work of the various commonwealths in the period under review; it has given significance and historical posi tion to the decade which begins with the 'resumption' of the provincial charter of Massachusetts in 1775 and ends with the promulgation of New Hampshire's second constitu tion in 1784.3 The year of independence saw the completion of eight constitutions "• and the adoption of two royal charters ' E.g. John Adams to Mrs. Mercy -Warren, July 11, 1807, Collections of Massa chusetts Historical Society, 5 ser. IV, 324. Cf. Oration of Jonathan -W. Austin, at Boston, f larch 5, 1778. Niles, Prin ciples and Acts, 31. E. g. Diary of Nathaniel Ames, December 30, 1777: " Club began to read Locks essay on Go-vmt." Dedham Hist. Reg., III. 186. The pamphlet. Observations upon the Present Government of Pennsylvania, by its citation of political writers, reflects the amount of familiarity with standard writers presumed in the citizen. Cf. Works of John Adams, III., 22, 23. 2 " The Scite and Circumstances in which your Affairs were brought in the year 1776 : and your self-consciousness prompted you to find that you were not in fact what political establishments had made you by law, . . ." Pownall, Memorial to Sovereigns of America, II. "The next peculiarity to be found in these states is that we have established governments amongst us, approaching nearer to perfect democracies than any we have accounts of, either antient or modern; all power whatever is vested in, and immediately derived from, the people only; . . ." Observations on Govern. ment, by a Farmer of New Jersey, p. 50. ^ A scant outline of the period is given in Bancroft, History of the United States, v., 111-125, 404-422. * In Delaware, Maryland, New Hampshire, New Jersey, North Carolina, Penn sylvania, South Carolina, and Virginia. 12 FROM PROVINCIAL TO COMMONWEALTH [l2 as the basis of government; ' the following year was marked by the adoption of three more constitutions;" in 1778 one of the constitutions of "]6 3 was superseded by a more ade quate form, and the period was rounded out by the adop tion in 1784 and 1780, respectively, of the second con stitution of New Hampshire and of the constitution of Massachusetts. The variety of procedure was great; the divergence of theories was marked; the results were by no means uniform. In the whole series no reorganization showed such distinct types and characteristic developments of procedure, such political ability and general conservatism.^ such high ideals, such generally effective intelligence, such successful results, as the revolutionary transition from the old Province of the Massachusetts Bay to the new Common wealth of Massachusetts.5 § 2. The Transition in Massachusetts The nature of the population of Massachusetts, its atti tude toward the home government,* and the existence of the ' In Connecticut and Rhode Island. ''¦ In Georgia, New York, and Vermont. John Adams was not wholly correct when he wrote to James ^Warren, February 3, 1777: "Thus I think there are but three States remaining which have not erected their governments, Massachusetts, New -Vork, and New Hampshire." Works of John Adams, IX., 451. ' That of South Carolina. ' cy; Action of Mcdfield, December 29, 1773: "while we profess ourselves advocates for Rational Constitutenal Liberty we dont mean to patrionise Liber- tinesm and Licenteousness we are sensible of the necessety of Goverment for the Security of Life Liberty and property and mean to vindecate and Submit to all Lawfull Constitutianal authority." Revolutionary Corresp., Bancroft Collection, I., 607. "And as to the conclusion of the movement, and the adoption of the constitu tion of 1780 : "For the purposes of science, Massachusetts must, in this case, be regarded as the type of all independeut, civilized communities, to which it is designed to present a model of government adapted to secure the great ends of human society." Works of John Adams, IV,, 217. ' QC Abington committee to Boston committee, April 27, 1773: "Our ever 1 3 J GO V ERNMENT IN MA SSA CHUSE TTS 13 township system early made that province appear both as an obstinate dependency and as a national leader. In each capacity she reaped her reward. The development of friction in administrative affairs made it possible for her to appear as of all the colonies the most oppressed, and gave occasion and strength to the growth among her people of a political school of the "movement" type, the wide pre valence of whose ideas transformed the alleged victim of the empire into the acknowledged leader of the nation. From her assembly hall went forth the call for the first Continental Congress ; on her soil political opposition first became armed antagonism. The chief forces at work in the inceptive period of the Revolution were at the time well described in the say ing that Massachusetts led the nation, that Boston directed Massachusetts, and that Sam Adams controlled the Boston town-meeting. So placed with reference to continental affairs, in local matters Massachusetts was equally adapted and committed to the program of the "movement" party. Her government passed out of royal hands before the Con tinental Congress had been in session a month ; after a par tially successful appeal for the advice of the Continental Congress hers was the first government to be placed on a new, although confessedly temporary, foundation; and from one of her leaders went forth to the other colonies one of the strongest single lines of influence toward the speedy erection of commonwealth governments. Massachusetts endorsed heartily, even if for the time incompletely, the loyal Province of the Massachussetts-Bay has long stood the Butt of Ministerial Vengence, and a Number of our Sister Colonies, have not only had now and then a random Shot, but Some of them begin to feal the infernal Smart of the plaguy Sting, but to the praise of GOD be it Spoken American Vertue is not totally ex tinct, but far otherwise no Gentlemen it has lately buded, and is pleasantly blos soming and We ardently pray it's fruit may be brought to consumate maturity." Revolutionary Corresp., Bancroft Collection, I, III. 14 FROM PROVINCIAL TO COMMONWEALTH [14 principal features of John Adams' plan ' of political cam paign ; and it was toward the full realization of his policy in the complete establishment of commonwealth government that the leaders aimed consistently during the few years of the distinctly transitional period.^ The time of reorganization in Massachusetts is marked by a variety of clear characteristics ; it is, as well, divided into distinct periods. The underlying causes of the change ap pear in the strong difference in religious types 3 between the home country and its colony, in the wholly different social surroundings and influences,'* in the increasing, if not even hostile, divergence of economic interests and activity, and in the almost antipodal political traditions' nourished and acted ' cy: J. Adams to P. Henry : Philadelphia, June 3, 1776; IFor/^^ of John Adams, IX„ 387, Cf. Collections of Mass. Historical Society, 5 ser., IV. 349, 350. ^.fi-.^, -William Gordon's sermon before the Mass. Assembly, July 4, 1777: "... let us mould the governments of the respective states, . . . . , so as not only to exclude kings, but tyranny, and, as ever, to retain the supreme authority in the people, together with the power, no less than the right of calling their delegated agents to account, whether they sit in the assembly, the council, the chair, or the Congress," Patriot Preachers of the American Revolution, 1S3, 184, " In short, the only Difference between an Old and a New-English Man is in his Religion; . . . ." Daniel Neal, The History of New-England, London, 1720, p. 614. Cf. Doyle, The Puritan Colonies, I,, 14, * The Pennsylvania Evening Post, vol, II. , no, 179, March 14, 1776, has some significant material, and especially so as referring simply to the colonial city class : " Is not one half of the property in the city of Philadelphia owned by men who wear leathern aprons? Does not the other half belong to men whose fathers or grandfathers wore leathern aprons? " ^In 1853, Mr. Griswold of Erving, speaking of Massachusetts, said: "Her town-meetings alone could not have existed as they existed before the Revolution without leading to that important event." Debates atid Proceedings of the Con vention of 1853, 828, "The proceedings ofthe Provincial Assemblies oi Plymouth, in 16^6, of Mary land, in 1650, of Rhode-Island, in 1663, of New- York, in 1691, and of Massa chusetts, in 1692, may be referred to, as showing how deeply rooted and how widely diffused, even at these remote periods, were the true and essential prin ciples which, subsequently expanding into maturity, produced the fruits of the American Revolution," 4 American Archives, I,, preface, p, 2, 15] GOVERNMENT IN MASSACHUSETTS 15 upon by the more advanced colonists on the one hand, and, on the other, by the more conservative Englishmen. In the discussion, furthermore, on the independence of the judiciary, in the contest for the control of the finances and the inciden tal control of the executive, in the various and protracted disputes between the legislative and executive branches of the government, in the parliamentary legislation on colonial trade and manufactures, and in the final interference with the guarantees of the provincial charter, are indicated some of the salient points in the long history of growing oppo sition, silent or avowed, between the home government and the colonists. The climax of expression is found, on the one hand, in certain acts of parliament of 1774, and, on the other hand, not only in the coup d' itat of June 17, 1774, at the Salem court house, but also in such resolves as those of Suffolk county in the following September, and of the Continental Congress in June, 1775. The closing phases of this preliminary period are illustrated by the stat utory alteration by parliament of the constitution of the Mas sachusetts council. The attempt to bring the colony into line on the basis of a largely centralized imperial system precedes but shortly the overthrow of the royal government. With that event, in October, 1774, the provincial times end, and the period of revolution begins. The constructive "abdication" of the royal executive is followed by the end of the royal assembly, and followed also by the organization of the so-called Provincial Congress. The rule of the Provincial Congresses ' extended from Oc tober, 1774, to July, 1775, and tided over with success the months when "civil government, legislation, judicial pro ceedings and commercial regulations were in Massachusetts, to all appearance, annihilated," and when the prevailing dis- 'The Proceedings are given in yournals of Each Provincial Congress of Mass., Boston, 1838. 1 6 FROM PROVINCIAL TO COMMONWEALTH [i6 position of the people gave to the resolutions of the Pro vincial Congress all "the weight and efficacy of laws."' "And in every colony the votes of a congress . . . had equal effect with the laws of great and general courts."^ The dangers of approaching anarchy threw into sharper prom inence the conservatism and the self restraint of the people during these months ; the general revulsion against the royal government was closely followed by an equally widespread and profound acquiescence in the administrative leadership of the Provincial Congress. No more striking instance of political vitality can be adduced than the unity, the pro priety, and the vigor of the action of Massachusetts, of her politicians and of her people, during these few hazardous months. Then was strong justification given to the theory which George Cabot later 3 expressed in a letter to Theo philus Parsons: "All governments rest on opinion. Free governments, especially, depend on popular opinion for their existence, and on popular approbation for their force ; if, therefore, just opinions and right sentiments do not prevail in the community, such systems must necessarily perish." ¦* Such "right" sentiments, however, did prevail in Massachu setts and made possible the gradual and firm assumption by the Provincial Congress of powers of wide extent and im portant meaning. To be sure, the Congress did not sup pose itself vested with sovereign powers, as did similar bod ies elsewhere ; but its voluntary recognition of the people as the ultimate source of political power was the only im portant limitation upon the competency of its action. On ' Ramsay, History ofthe American Revolution, Phila., 1789, I., 131. 'Langdon's Sermon before Mass. Assembly, May 31, 1775, Patriot Preachers ofthe American Revolution, 69. Cf. Ramsay, History of the American Revolu tion, L, 132. 'August 12, 1794. ^Memoir of Theophilus Parsons, by his son, Boston, 1 86 1, p. 471. 17] GOVERNMENT IN MA SSA CHUSE TTS j 7 this basis a large amount of legislative and administrative business was accomplished ; attention was given to a wide range of affairs, from finances and the judiciary to manu factures and military supplies ; with committees and single administrative officials a tolerably systematic organization was effected. The imperfections in organization were, furthermore, counterbalanced by the unusual character and indulgent temperament of the people. The activity of the Congress was timely and well-planned ; the carriage of the body was characterized by unassuming dignity and by honest effort at propriety ; and these characteristics were enhanced by its conservatism when, able almost to grasp a dictatorial power, it thrice effected willingly its own dissolution, and prepared thus for the further development of the government of the people. The appeal of the second Provincial Congress drew from the Continental Congress the advice to "conform, as near as may be, to the spirit and substance of the charter" of 1691. The advice was promptly adopted. The third Provincial Congress caused the issue of writs of election for a new house of representatives, and in July, 177S, these rep resentatives met, chose a council of twenty-eight to serve both as a second branch of the legislature and as an ex ecutive, and inaugurated thus a period of rule in accord ance with the terms of the royal charter, modified in prac tice by an extra-constitutional provision for the exercise of the executive functions. "Thus, after living for more than twelve months without any legal government, without laws, and without any regular administration of justice, but what arose from the internal sense of moral obligation, . . . , the Massachusetts returned peaceably to the regular and neces sary subordination of civil society."' There had been a ' legal government within a twelvemonth, and theoretically ^ Warren, History ofthe American Revolution, Boston, 1805, I., 226, 227. l8 FROM PROVINCIAL TO COMMONWEALTH [i8 there still was one ; but as the usurpation had been begun by the Provincial Congress, so now the work was taken up by a provisional government of better organization, resting on a surer basis, and the existence of which could be more easily justified. The use of the provincial charter as a basis of government marks a distinct division in the transitional period, and covers the time from July 19, 1775, to October 25, 1780. The assembly which met in accordance with that charter succeeded a confessedly revolutionary body; this later as sembly was itself succeeded by a body created by a written form of government to which success in war had already given the pledge of future legitimacy; and the constitu tional character of this last organization was established as one of the incidents of a finally successful revolution. During this half decade, as already indicated, the forms of government and of procedure corresponded with those of the provincial period ; but it was for a provincial period that the document was prepared ; it was not formed by royalty to serve a democratic commonwealth, and such service would be both incongruous and inconvenient. This period, thus, became marked by the first constituent proceedings in Mas sachusetts, by the first instance in any of the commonwealths of the submission to popular action of a new constitution, and, further, by the rejection on the part of the people, acting in their town-meetings, of this constitution of 1778. The move ment for a new constitution, with new method of procedure, resulted successfully in the ratification by the people of the constitution of 1780. With the inauguration of John Han cock as governor, on October 25, 1780, the last period of the transition closed and the history of the new commonwealth began. CHAPTER II ELEMENTS OF ANTAGONISM IN THE PROVINCIAL SYSTEM A STUDY of English colonial administration reveals the distinction obtaining between a royal province and a de pendency in which the development of a chartered corpora tion into a " corporate colony" ' tended seriously to limit the royal power. Such a theoretical distinction became a prac tical antagonism when finally in Massachusetts the effort was made to maintain a government containing elements of both systems. The effort occasioned many events and expres sions which made it plain that harmony between the provin cial and commonwealth principles was impossible, and which foreboded in no uncertain way the time when the anomalous conditions should be removed, even if by acts so radical as to constitute a revolution. The forms and powers of government in provincial Massachusetts were plainly lacking in consistency ; = in connection with them, as well, arose contests for which at the first there appeared no possible occasion. Among these latter was the dispute over the rights of town representation, ' See Osgood, The Colonial Corporation. '¦ Cf." Reasons for a. Declaration of the Independence of the American Col onies." The first is : " The Colonies will be delivered from two Governments directly opposed to each other.'' 4 Am.erican Archives, V., 992. Cf. Instruc tions of Lexington to representative, December 31, 1772: "But this is not all — Our Charter knows no such thing as Instructions to Governors; and yet, what have not Instructions done to distress this People !" Revolutionary Corresp., Bancroft Collection, I., 497. 19] 19 20 FROM PROVINCIAL TO COMMONWEALTH [20 a dispute which well illustrates one phajfe of the inconsist ency and defines clearly the antagonism of the parties in volved. The town system had been formed in the early colonial period; by the charter of 1691, its existence was presumed and its continuance assured, and thereafter new towns were frequently incorporated by act of the General Court. Such incorporation by the division of older towns, or by the erection of distinct towns on newly settled terri tory, was naturally made necessary by the increase of popu lation or by its dispersion. It had long been in accordance with the recognized theory, and it had, as well, been the customary practice of the legislature, to consider the right of representation in the General Court as an incident of town incorporation. Such a theory had met with no serious opposition until three bills, for dividing as many townships, were, in 1742, presented to Governor Shirley. His action on this occasion created a new problem in colonial politics. Far from immediately assenting to the bills, the governor transmitted them to the Lords of Trade with suggestive com ment. The fact that these bills would, at a stroke, double the legislative representation of a given area, prompted him to investigate the practice since 1692, and he found that since that time thirty-three new towns had been erected by such means, and that the practice of thus forming two or even three towns out of a single town had increased greatly in the later years, sixteen of the thirty-three bills having been passed in Governor Belcher's administration. Shirley further based his opposition to the bills on the fact that the erection of new precincts and parishes would secure equally well all administrative advantages which the town system might accord. He more pointedly referred to the embarrassment of the past, and to the feasibility of checking the division of towns, in which connection he bluntly proposed " to put an end to this way of increasing the number of Representatives, 2 1 ] GO] ERNMENT IN MASSA CHUSE TTS 3 I which seems to promise no good effect for his Majesty's service . . ." ' The position taken by Shiriey was upheld by the Lords of Trade in a report of June 8, 1743, and was further endorsed by an order in council of August 11, 1743, which approved the draught of an additional instruction to Governor Shirley. By this the new position of the administration was stated. Reference was made to the possible inconvenience of an increase in the number of towns by division, as well as to the possibility that all essential political functions might be per formed fully as well if the population should be organized into precincts, parishes, or villages, without rights of rep resentation. The effective portion is seen in the direction that the governor should assent to no bill erecting a new town or dividing an old one, unless the bill should contain a clause suspending the execution thereof until the king's pleasure should be known. ^ The policy thus defined was not the policy of a year or of a ministry, but was a factor in the political development of Massachusetts from the time of its announcement to the time of the Revolution. Thus, in 1756, the Lords of Trade enjoined upon Governor Shirley more care in the observance of the additional instruction ;3 and the first act of the session of the following year was disallowed by the privy council, as the ' Acts and Resolves ofthe Province of Mass. Bay, III., 70, 71. Gov. Shirley to Lords of Trade, October 18, 1742. In this report he says there were at the time 160 towns, of which most were entitled to two representatives, although none but Boston, .Salem, Ipswich, and Newbury ever sent more than one; "and very few or none of the new Towns ever send any;'' but if friction should arise on any point the number in the house could be almost trebled. ''Acts and Resolves ofthe Province of Mass. Bay, III., 72. ¦'Acts of I755-'S4. chaps. 35, 37, 38, erecting respectively the towns of Lincoln, Greenwich, and Petersham, granted full power of representation, and did not con tain the suspending clause; Shirley's attention was called to this in the letter of the Lords of Trade of April 13, 1756, but the acts were not repealed, owing to the inconvenience that might be occasioned. Ibid., III., 745. 22 FROM PROVINCIAL TO COMMONWEALTH [22 instruction of 1743, had been repeated to Governor Pownall.' It was when this bill had passed both houses that Thomas Hutchinson, in the council, asked to enter his dissent, assign ing as one of his reasons therefor the fact that an increased number of representatives "must likewise give that House an undue proportion to the Board in the Legislature where many affairs are determined by a joint Ballot of the two Houses."'' The report of the Lords of Trade on the same bill affirmed that the act was for the sole purpose of giving the town a representation in the assembly, and that the practice had " formerly by its frequency been found to pro duce many inconveniences and particularly that of continu ally increasing the number of Representatives, . . ."3 A brief lapse in the force of earlier instructions was occa sioned by the death of the sovereign, of which period the Lords of Trade wrote that in their opinion acts for creating townships which had no reference to the right of choosing representatives were most nearly in accordance with the act of 1692.'* The view of the situation, from one side, was now given by Governor Bernard when he wrote : " It is also obvious that the new Settled Counties have a right to be represented. But yet there is such danger to be appre hended from the house of Representatives continually in creasing that it is time to put a stop to it by some means, tho' it were to be wished that it could be done without deny ing new Settlers the natural and constitutional right of being represented. The increase of the number of Representatives 'Acts 1757-58, chap. I, erecting the town of Danvers with full powers, was disallowed by the Privy Council, August 10, 1759. Ibid., IV., 5; Cf Ibid., IV., 93, 94. Yet Danvers after 1758 was recognized in the house; Cf. Acts of l772-'73> chap. 17; Cf Ibid., V., 268. ^/^j-fl',, IV., 93. Ubid.,lY.,s. *To Gov. Bernard, November 25, 1761. Ibid., IV., 452. Silence as to repre sentation would imply the right to such; where rights of representation were withheld an explicit reservation was made. 23] GO VER N MENT IN MA SSA CHUSE TTS 23 seems to endanger the Constitution itself. ... In the year 1718, there were but 91 Writs issued,' in i6y2, when the Charter was opened probably not above 84, Now there is near 170 And yet the Council keeps its old Number of 28, So that the Assembly were to the Council at the time of their first meeting as 3 to i now they are 6 to i and conse quently the Councils share in elections is diminished by half."'' The right of the colonial position was virtually con ceded by the Lords of Trade in the next year, though they also replied to Bernard and warmly agreed with his opinion that the increase of the number of representatives without a cor responding addition to the power of the council would cer tainly " have very pernicious consequences and destroy that Balance which we presume was originally intended to be kept up between the Upper and Lower House of Assembly." 3 In the later years some of the towns incorporated upon newly settled lands beyond the limits of the earlier towns received the right of separate representation ; and in this connection Lieutenant Governor Hutchinson, referring to the acts of the last session, wrote in 1771, that they seemed not to require remark or explanation, except a possible apol ogy for " consenting to so many New Towns without except ing a Privilege of sending Representatives. They are all made out of new Territory which never was before incorpor ated and my consent is warranted by the practice of my Predecessor in consequence of directions he received.-* As ^'iHeaX, History of New England, 1720, speaks of the house as having 103 members, p. 605; and in the appendix gives a list of council and house, naming 98 of the latter with five vacancies. Ibid., 710-712. ^To Lords of Trade, August 3, 1761. Acts and Resolves ofthe Province of Mass. Bay, IV., 451. ^To Gov. Bernard, June II, 1762. Ibid., IV., 452. Cf. Ibid., IV., 451, 453. *Thus we find towns incorporated, especially in the border counties, with full rights of representation. E.g.: Gageborough, Berkshire Co., Acts of i77i-'72, chap. 6; Partridgefield, Berkshire Co., Acts of i77i-'72, chap. 7; Buxton, York 24 FROM PROVINCIAL TO COMMONWEALTH [24 there is a prospect of many such Townships being incorpor ated every year the House of Representatives will soon swell to an enormous size."' That the restrictive policy, however, was retained to the end, even if not in all instances applied, is shown by the course of Hutchinson when, as governor, he assented to an act'' erecting out of the territory of Spring field the town of West Springfield with no limitation as to representation, an assent which in April, 1774, he explained thus: "I must acknowledge I gave my assent suddenly and upon further consideration should have refused it. Seeing the increase of weight will in some degree follow the increase of numbers in the House of Representatives, it requires some provision to prevent such increase of numbers." 3 The policy thus was repeatedly expressed ; its applica tion was as frequently enforced, and with such uniformity that the situation developed what was for the colonist a ques tion of vital importance. The right of town representation was a right sacred in colonial tradition ; its limitation now upon grounds of political pohcy would subject colonial theo ries to a revision, and would lead directly to a more or less complete disappearance of local participation in provincial politics. The complete political subordination of the pro vincial population to a distant administration would result from the success of the ministerial purpose ; and the blunt Co., Acts of l772-'73, chap, lO; Loudon, Berkshire Co,, Acts of l772-'73, chap. 37; Hallowell, Lincoln Co., Acts of iTjo-'-ji, chap. 27; Winthrop, Lincoln Co., Acts of I770-'7I, chap. 30; Vassalborough, Lincoln Co., Acts of lyyo-''}!, chap. 33; Belfast, Lincoln Co., Acts of l773-'74> chap. 3; Waldoborough, Lincoln Co., Acts of i773-'74, chap, 4; Edgcomb, Lincoln Co,, Acts of 1773-74, chap. 21; New Gloucester, Cumberland Co., Acts of 1773-74, chap. 22; Pownal- borough, on the Kennebec, Acts of i759-'6o, chap. 23; on this last case cf. Acts and Resolves ofthe Province of Mass. Bay, IV., 350, 351. 'To Secretary Pownall, May 16, 1771. Ibid., V,, 139. '•'Acts of i773-'74, chap. 26. ^ To Lords of Trade, April 5, 1774. Ibid., V„ 380, 2 5] GOl ERNMENT IN MA. SSA CHUSE TTS 25 expression of the reasons of that purpose did not tend to improve the attitude taken by the colonists. Their contest was now one for essential rights, as well as for the maintenance of theory. That their grievance was not light is apparent from the wide extent to which was experienced this denial of an important political function.' The spirit of the home government was shown, and by it the temper of the people was being prepared for the future. They were now taught that their interests were not the interests of their governors, and that for the maintenance of their political rights they must depend on themselves alone. The theories upheld on the two sides of the water now brought factors in the same government, which were normally interdependent, into a relation of antagonism." For the present, to be sure, the ' Thus we find the erection of districts with full town rights except that of representation; c. g.: Palmer, Acts of i75l-'52, chap. 15; Shirley, Acts of l7S2-'53. chap. 9; Southampton, Acts of l7S2-'53, chap. 10; Greenfield, Acts of l753-'54> chap. 3; Newcastle, Acts of 1753-54, chap. 4; Granville, Acts of 1753-54. chap. 21 ; Cf. Acts of l752-'53, chaps. 23, 24, 25, 26; Acts of 1753-54, chaps. 2, 22, 36; Acts of l754-'55, chap. 14; Acts of 1758-59, chap, 12; Acts of i759-'6o, chaps, 3, 5, 6, 7, 22, 39. Likewise towns were erected with all powers except that of representation ; e.g.: Colrain, Acts of 1761-62, chap, lo; Whately, Acts of 1770-'7I, chap. 22. In the last case it was provided that the town should join with Hatfield, out of which it was erected, in the choice of representatives. So when the north parish' of ShefSeld was made the town of Great Barrington, it was provided that the new town should join with the older in choosing a representative; Acts of 1761-62, chap. 9. So when the district of AJford was incorporated it was pro vided tbat it should join Great Barrington, Sheffield, and Egremont in the choice of a representative ; Acts of i772-'73, chap. 36; QC Acts of i773-'74, chap, 27. When the town of Pittsfield was erected, April 21, 1761, it was provided that it should not elect a representative until the general election of May, 1763; Acts of i76o-'6i, chap, 34. ^It may be held that the antagonism was one of theory; in actual exercise of this right the colonists had not been forward, as is shown repeatedly by a comparison between the number of the house and the number which it might legally have contained. In many quarters self-interest made impossible any strong demand for the complete retention of what by some had been deemed a burden. The act of l75l-'52, chap, 15, erects the district of Palmer, and grants full town 26 FROM PROVINCIAL TO COMMONWEALTH [26 antagonism was not violent; the loss of representation meant for each town a lower tax rate, and that could well repay the waiving of certain intangible rights,' When, how ever, men came to the turn of affairs at which a theory or a principle was maintained for itself alone, the attitude of the colonists was more positive. The significance of the earlier course was plain, and the knowledge of its meaning could not fail to make more pronounced the views of the revolu tionists. Among those few acts passed on the 17 June, 1774, was one for the erection of the town of Hutchinson without any restriction as to its rights of representation, and the act," although passed under a royal governor, was indicative of the tendency of the time and of the course which later action on the subject was to take. One of the first acts passed by the General Court in 177S, after the resumption of the charter, was that which removed all conditions imposed in the earlier incorporation of towns, and which, furthermore, granted to all incorporated districts both the status of towns rights except that of representation, " which, it is represented, said inhabitants are not at present desirous of." Acts and Resolves ofthe Province of Mass. Bay, IIL, 599. Near the close of the session of 1760-61, four bills were sent to the governor erecting the towns of Colrain, Tyringham, Sandisfield, and Becket; the towns had been willing to waive the right of representation but the house refused to allow them to waive the point; the bills accordingly were rejected. Pittsfield was incorporated by a bill passed by the same assembly, but the approval of the bill was based on the fact that Pittsfield was a county town and on new territory. Acts and Resolves ofthe Province of Mass. Bay, IV., 451. ' Cf. Inhabitants of Pearson Town, to Boston Committee of Correspondence, July 8, 1773: "We are not a Town. To be at present in that capacity would expose us to a Taxation which would be a Burden too Grievous for us in our Infant State to bear." Revolutionary Corresp., Bancroft Collection, I., 705. Wenham sent a representative only once in the years from 1747 to 1767. Allen, History of Wenham, 54, Manchester, May 10, 1736, voted not to send a representative, "not being able to support the Charges. . . ." Manchester Records, II., 23. Cf. Ibid., IL, S3, 1 71; Adams, Address at Acton, 14; Gibbs, History of Blandford, 72; Braintree Toiun Records, 333. -¦'Acts of 1774, chap. 3, Acts and Resolves ofthe Province of Mass., V., 389. 271 GOl ERNMENT IN MA SSA CHUSE TTS 2 7 and full rights of representation." Not only such acts during the period of the revolution, but also various facts in the sub sequent history of the commonwealth, emphasized the im portance of the towns in the political system of Massa- <:husetts, and made still more distinct the significance of a contest involving the maintenance or the restriction of their rights. Such significance is undiminished by the fact that this question did not become an issue at any threatening crisis, and that its solution was not attended by any theatrical incidents. The location of the assembled General Court furnished a further subject of controversy which aided in increasing the tension. Little was said either in the charter of 1691, or in the explanatory charter of 1726, regarding the place at which the legislature should meet ; yet established custom, provin cial statute, and general recognition had designated Boston as the legislative seat. The question at issue illustrates how not infrequently a political character is given to an event or policy which in its origin was confessedly not of that nature. The vigorous political contest, in the years preceding the Revolution, over the removal of the assembly to Cambridge, was not an isolated phenomenon. The question, in one form ¦or another, had been present for half a century; and during that period the attitude assumed on it had varied signifi cantly. Recurring to 1721,' the prevalence of small pox in Boston then forced the legislature, for its session of August 23, to meet at the George Tavern on Boston Neck, a place which the representatives voted "not accomodable."3 They resolved to remove to Cambridge, to meet there when the governor should see fit; with this step the council concurred, but the governor considered such procedure an infringement ' Acts of 1 775-1 776, chap. 3. Ibid., V., 419, 420. '' Cf. Hutchinson, History of Massachusetts, II., 227, 241, 245. ^ Acts and Resolves ofthe Province of Mass. Bay, II., 234. 28 FROM PROVINCIAL TO COMMONWEALTH [28. of the charter. Nevertheless, the General Court met subse quently at Harvard College ; but the approach of the epi demic forced them to adjourn, in the following month, to the Swan Tavern, Cambridge. Likewise for hygienic reasons we find the General Court meeting at Harvard Col lege, at the East Meeting House, Roxbury, and at the George Tavern, during the year 1730.' So in 1737, for the sake of convenience, the legislature met at Salisbury;'' and in 1 75 1 and 1752, owing to epidemics, at Harvard College again. 3 Of another type was the adjournment of the General Court to Salem in 1728.-* On September 13 of that year Governor Burnet, at Boston, wrote to the Lords of Trader " I came hither on the 19th July and have ever since the 24th been contending with a stiff assembly." So obstinate was the conduct of the house in refusing to obey the king's instructions with reference to the governor's salary, that that officer adjourned the assembly to meet at Salem, October 31.^ Such sessions as those pf 1728 and 1729, held in any place outside of Boston, the representatives resolved were illegal. They had in 1721, passed similar resolves, and at that time not only had the council concurred but the gov ernor as well had admitted the correctness of their position.* The lower house held the same ground in 1 770, when it op posed the course of the governor in adjourning the assembly to Cambridge. There was then no reason for or against re- ^Acts and Resolves of the Province of Mass. Bay, IL, 573, 574. Cf. Ibid., IL, 545, for meeting at Cambridge, Aug. 21, 1729. '^Ibid., IL, 923. Cf. Palfrey, History of New England, IV., 556, '^ Acts and Resolves ofthe Province of Mass. Bay, IIL, 605, 662. * Cf. Hutchinson, History of Massachusetts, IL, 316, 317, 325, 328. Cf. Ibid., IL, 335. Cf. Palfrey, History of New England, IV,, 513, 524, 526, ° Acts and Resolves of the Province of Mass. Bay, II, , 523, where the reasons. for the step are given, ^ Ibid., I,, 363, Cf. Hutchinson, History of Massachusetts, II., 317, 318. 29] GOVERNMENT IN MASSACHUSETTS 29 moval on which all parties were agreed ; the purpose in volved in the act was poHtical, and so was the problem which resulted from it. Efforts at its solution now for three years intensified and embittered the colonial spirit. The violence suffered by royal officials in Massachusetts in the time of the Stamp Act excitement, the participation of the royal legislature in the movement toward the Stamp Act Congress, and such subsequent acts of the house of representatives, as its refusal to rescind its circular letter to the other colonies, gave Massachusetts an unsavory reputa tion with the home government. The sequence of events was so logical and so speedy that the introduction of an ef fective military force need not have surprised the colonists. Amid their crude effort, in September, 1768, to create such a provincial congress as was later a power, on the verj' day -when the delegates of nearly one hundred towns dispersed after the conference at Faneuil Hall, the fourteenth and twenty-ninth regiments arrived in Boston harbor. Thence forth Boston contained a camp, and in consequence the hostile feeling toward the ministry was greatly increased. "Vindex," voicing the common man, demanded that the proper magistrates should "execute the good and wholesome laws of the land with resolution and an intrepid firmness, aided by the posse comitatus, the body of the county, which is their only natural and legal strength," and insisted that " to be called to account by a common soldier, or any soldier, is a badge of slavery which none but a slave will "wear." ' More formal protest by the General Court was impossible during the period of prorogation. The situation, however, remained practically unchanged until the new house of rep resentatives met, at the end of May, 1769. Immediately it '^Boston Gazette, December 5, 1768, Wells, Life of Samuel Adams, I., 231, 232. 30 FROM PROVINCIAL TO COMMONWEALTH [30 adopted a message to Governor Bernard in which it protested " that an armament by sea and land, investing this metro polis, and a military guard, with cannon pointed at the very door of the state house, where this Assembly is held, is in consistent with that dignity, as well as that freedom, with which we have a right to deliberate, consult and determine."' They passed further resolves declaring such treatment a " breach of privilege," and that it was only out of regard for the provision of the charter requiring the council, speaker,. and clerk to be chosen on this last Wednesday in May, that they would consent to transact any business whatever. They expressly stated that they bore their part in the elec tion of the day " from necessity, and in strict conformity to^ the royal charter;" having before claimed their constitutional freedom, and now protesting that their thus proceeding, while the above mentioned forces are suffered to remain in the metropolis where this Court is convened, is to be con sidered as a precedent in any time hereafter, or construed as a voluntary receding of this House from their constitutional claim. "3 The governor's disavowal of authority over the military force was followed by an interchange of views and an obstruction of business, until, on June 15, Bernard came to the conclusion, as he informed the house, "from your re solutions, and a fortnight's experience, that you do not think that this is, at this time, a proper town for the General Court to sit in,"^* and he accordingly endeavored to apply such remedy as lay within his power. Because he claimed to be unable to withdraw the royal forces from the capital, he removed the General Court to Cambridge. The next address of the house was mainly an insistence upon the ^ Speeches of the Governors of Massachusetts, 166, 167. ' Precedents for argument in such a contest were few. Cf. Parliamentary History, IV., 317; Smith, History of New Jersey, 405-409. ^Speeches ofthe Governors of Massachusetts, 168. '¦Ibid., 172. 3 I ] GOVERNMENT IN MASSACHUSETTS 3 i principles already advanced. In it they claimed the en dorsement of their constituents, "for an entire fortnight, spent in silence, or a much longer time, cannot be displeas ing to them, when business could not be entered upon, but at the expense of their rights and liberties, and the privilege of this House."' Other questions now took precedence, a petition for the removal of Bernard was adopted, and with his departure. Lieutenant Governor Thomas Hutchinson took the laboring oar for the administration. After delays by prorogation the General Court finally met again, March 15, 1770. Instructions received by Lieutenant Governor Hutchinson were by him interpreted as requiring a session at Cambridge. The house at once declared that such a step, if based merely on royal instructions, could be nothing less than " an infraction of our essential rights, as men and citizens, as well as those derived to us by the British constitution, and the charter of this colony."'' They took a step equally characteristic of their views, when they continued ¦ their remonstrance by the appeal to the governor to exert the authority derived by him from his Majesty's royal commission, agreeable to the charter of the colony, and vested in him alone, " in adjourning this great and General Assembly, to its ancient place, the Court House in Boston."3 The council took similar ground, though its statement of the case was more moderate in tone and less inclusive. In his replies to the two houses, the governor dis claimed all private motives, and emphasized his position as " servant of the King, to be governed by what appears to me to be his Majesty's pleasure in those things, which other wise I might have a right to do, or not to do, according to my discretion."-* Besides the constitutionality and force of royal instruc- ' speeches ofthe Governors of Massachusetts, 173. ''Ibid., 195. 3 «?- Mass. Gazette (Draper), September 15, 1774; Essex Journal,no. 39, September 14, 1774; Essex Gazette, no, 320, September 6-13, 1774. I05] GOVERNMENT IN MASSACHUSETTS 105 Prescott presided, and the principal work was incorporated in a report of the committee, adopted by a vote of one hun dred and forty-six to four, asserting their allegiance to their " gracious sovereign," and, with reference to the charter, the courts, and the Provincial Congress, assuming a position similar to that already taken in Worcester. The alteration of the jury system was said to be " not only an evident in fraction upon our charter, but a subversion of our common rights as Englishmen." The right of every people to meet, to petition, and to use every legal method for the removal of their common grievances, was asserted ; and they insisted that any act which should prohibit such meetings " cuts away the scaffolding of English freedom, and reduces us to a most abject state of vassalage and slavery." Resolves of less special significance were adopted ; and all was based upon such premises as this, that by the act of parliament " the fountains of justice are fatally corrupted." In such situation, they say: "Our defence must, therefore, be im mediate in proportion to the suddenness of the attack, and vigorous in proportion to the danger." It was ordered that a copy of the convention's proceedings should be sent to the Continental Congress and to the clerk of each town in the county; and thereupon the convention voted its own dissolution. On the following Tuesday, September 6, two other county conventions met, one at Dedham, the other at Ipswich. At the latter delegates gathered from every town in Essex county, and in the course of a two days' session a series of resolves, " after being read several times, debated on, and amended, were unanimously accepted, the delegates, one by one, declaring their assent."' These dealt with the adminis- ' Sixty-eight delegates were present. The proceedings are printed in Journal of the Provincial Congress, 615-618. The resolves of this convention are in the Boston Evening Post, no. 2034, September 19, 1774. On the origin of this convention, see, for example, the vote of Ipswich, of I06 FROM PROVINCIAL TO COMMONWEALTH [io6 trative and constitutional problems already indicated, and added little to the current expression on those questions. As to the continuance of the county convention, the members took a novel step in empowering the members from two towns, Salem and Marblehead, to call another meeting of the delegates whenever they should think it necessary. The convention which assembled at Dedham, September 6, and which continued its session at MHton, September 9, expressed for Suffolk county vigorous opinions concerning the points of controversy then familiar.' They repeated, in language more blunt than any used before and in terms which made this convention somewhat famous, the prevalent opinion that the three acts of parliament in question should not be obeyed. The condition of affairs at Boston prompted the demand that freedom of communication should be allowed between Boston and the outlying districts. To this address Gage returned an empty answer void of assurance. The committee in charge," desiring not to be placed in a false August 29, 1774, Lincoln Papers. Also, as to the vote of Marblehead, of August 15, 1774, to which the vote of Ipswich refers, see Roads, History of Marblehead, 104. For the proceedings, Cf. Mass. Gazette (Draper), September 22, 1774; Salem Gazette, vol. L, no. 12, September 16, 1774. ' Its proceedings are in Journal of the Provincial Confess, 601-609. The resolutions appear in Boston Evening Post, no. 2034, September 19, 1774. These were printed, with the resolution of the Continental Congress of September 17, 1774, in the Connecticut Courant, no. 509, September 26, 1774. The resolutions of the county convention are also in Teele, History of Milton, 425-429. Cf. Boston Evening Post, nos. 2034, 2037, September 19, October 10, 1774; Connecti cut Journal, no. 362, September 23, 1774; Salem Gazette, October 14, 1774; 4 American Archives, I., 776-779, 901-903. The preliminary county conference of Suffolk was held at Col. Doty's inn, Stoughton, August 16. An invitation to attend, extended by the committees of Dorchester, Roxbury, Milton, and Brookline, is in Revolutionary Corresp., III., 627, Bancroft Collection. In a letter of August 21, 1774, Joseph Warren men tioned " the County Meeting which depend upon it will will [sic] have very im portant Consequences." Autograph Letters of Joseph Warren, Bancroft Collec tion. 2 Including Joseph Warren, Benjamin Church, Joseph Palmer, and WiUiam Heath. 107] GOVERNMENT IN MASSACHUSETTS 107 light by specious questions proposed by Gage in his response, sent him a further address in which they aimed to "justify the proceedings for which your excellency seems to be at a loss to account." They insisted "that no wish of in dependence, no adverse sentiments or designs towards his majesty or his troops now here," actuated the men they rep resented, as they repeated, as their only request, that the commander should desist from the work of fortifying Boston, that the entrance into the town might remain " as nature has formed it." Such an address Gage refused to receive " in form," and the committee imitated the convention by dis solving, prefacing the step by the resolution " that they had executed the commission entrusted to them by the county, to the utmost of their ability." Scarcely a week after Warren's committee gave up its effort to reach an understanding, thirty-six men representing nine constituencies in Cumberland county met at the house of Mrs. Greele, in Falmouth.' Their first day, September 21, was occupied in taking action concerning the request of -" the body of the people, who were assembled at the entrance of the town," and in requiring the attendance of the sheriff in order that they might determine his position with reference to the recent acts of parHament. He agreed to an appro priate declaration ; this, under escort of the convention, he read " to the people, which they voted to be satisfactory, and after refreshing themselves, returned peaceably to their homes." On the following day, a series of resolutions was unanimously adopted describing at large the attitude already defined, and including both a clause in favor of the encourage ment of manufacturers and an appeal that " every one should do his utmost to discourage lawsuits, and likewise 'The proceedings are in Journal of the Provincial Congress, 655-660. The resolutions and list of delegates were printed in the Essex Gazette, no. 323, October 4, 1774. The resolutions are in 4 American Archives, I., 798-802. I08 FROM PROVINCIAL TO COMMONWEALTH [io8 compromise disputes . . .," and that every one, furthermore,, should endeavor " to suppress, at all times, riots, mobs, and aH Hcentiousness, and that our feHow subjects would consider themselves, as they always are, in the presence of the great God, who loveth order, not confusion." On the day when this convention at Falmouth dissolved, committeemen from nearly all the towns and districts of Hampshire county' met at Northampton, and in a two days' session announced their resolve to co-operate on the new Hnes of action. The proposal by the Middlesex convention of a Provincial Congress was expressly endorsed by the as sembly at Northampton. The attitude of this body on another matter was excellently stated when, to all those towns which might elect representatives by virtue of Gage's writ, they suggested that it should be carefully considered " whether any such representatives can do any one act in concert with his exceHency Thomas Gage, Esq., and his mandamus council, without an implied acknowledgment of the authority and force of the above-said acts of parliament." During the foHowing week two further county conventions were held. That of September 26 and 27 was an ample representation of Plymouth county, and by it were passed emphatic resolves bearing on the policies already indicated."' More simple, although of similar purport, were the resolu- 'The proceedings are in Journal of tke Provincial Congress, 618-621. The list of delegates is given. Charlemont and Southwick were not represented.. Hadley and Amherst each chose three delegates; liiiA, History of Hadley, ifid, 420. The proceedings were printed in the Boston Evening Post, no. 2037^ October 10, 1774. ''¦Journal of the Provincial Congress, 621-625. Fifty-two delegates repre sented the fourteen towns of the county. The session of September 26 was at Plympton, of September 27 at Plymouth. The resolutions were printed in the Massachusetts Spy, no. 193, October 13, 1774, and in the Boston Gazette, no. 1017, October 10, 1774. Cf. Mass. Gazette (Draper), October 13, 1774; Salem Gazette, no. 16, October 14, 1774; Boston Evening . Post, no. 2037, October 10, 1774- 109] GOVERNMENT IN MASSACHUSETTS 109 tions adopted by the delegates of several Bristol county towns who on September 28 and 29 met at Taunton.' Throughout practically the entire province, the represen tatives of the people of the towns were thus brought to gether for united action in their respective counties." Each county, with unimportant excaptions, became possessed of a definite poHtical organization, in some cases temporary and in all extra-constitutional, but vigorously used and well adapted for the immediate attainment of certain political ob jects which then were clearly understood. 3 These were re peatedly expressed by town-meetings and endorsed by county conventions, and their feasibility was demonstrated by the gathering of the first Provincial Congress in the week after the Bristol convention had met at Taunton. By that step the provisional organization was so developed as to co incide in its range of influence with the organization earlier maintained under the provincial charter. It was a simple thing for the leaders of neighboring towns, even of an entire county, to meet for conference and for the expression, in large degree authoritative, of their poHtical beliefs and pur poses. Such a step, however, unless carrying some endorse ment of weight or significance, would not appear especially ' Proceedings in Journal of the Provincial Congress, 626, 627. Eleven towns were represented. The resolutions appeared in the Mass. Spy, October 6, 1774, ¦and have been reprinted in Quarter Millennial of Taunton, 395-397. ^ Even as to Barnstable county, cf. letter of Chatham committee to Boston committee, Nov. 1, 1774; postscript: "Liberty Gains Ground Considerable we have Got a County Congress and are to Set y" i6th Currant Notwithstanding all oppersition and it is Said that Even Harwich are about it.'' Revolutionary Corresp., IIL, 243, Bancroft Collection. Cf. Resolutions of York county, November 16, 1774: 4 American Archives, I., 983-985. '" Speculator " admits the legality of committees of correspondence as town officers, but criticises the county conventions, although of the latter he says : " When the powers of government in this State were suspended by the enemies of o^x peace, such political manoeuvres were necessary, and tended greatly to the salvation of America; . . . ." Boston Gazette, no. 1114, September 23, 1776- This article I have found to be reprinted in 5 American Archives, IL, 339. IIO FROM PROVINCIAL TO COMMONWEALTH [no serious to the administration. Nevertheless, the similar gathering of delegates of all towns in a body representative practically of the entire province, while attended with far greater difficulty, was no new thing in the politics of Massa chusetts.' It was a move, furthermore, certain, if successful,. to present a difficult problem to the home government. The experiment was successfully tried, and the English authorities, finding a province, which had hitherto been loyal, now fully organized and being driven beyond recall along the path of revolt, resorted to the arbitrament of arms and to political seduction. The one course was a failure, the other an anomaly; and virtual recognition of the de facto govern ment of the provincial territory was hastened both by the ineffective course of the royal government and by the readi ness and ability of the provisional organization to assume the character and perform the functions commonly belong ing to a recognized government. With it the royal governor treated ; to it he and those he represented surrendered the control of the royal province ; by it were speedily assumed all those duties and privileges which made it the head of the only government that, existing on the territory of the earlier province, was recognized either by the inhabitants therein or by any power in those parts of the continent which even then were establishing new governmental arrangements typical, as well as indicative, of a new nationality. Still more evident did the position occupied by the pro vincial government become when the outbreak of hostilities made the problem one of military science as well as of politics, when there was shown the plain necessity of some such directing force, and when the opportunities for the exertion of its power became numerous and important. Then it was that the true effect and significance of all this preparation by detailed and harmonious organization was ' Cf. The conventions of 1689 and 1768. in] GO VERNMENT IN MASSA CII U SETTS i 1 1 made plain. In the time of actual crisis the people of Massachusetts were able to act calmly and consistently, as well as unitedly. Strong enough to overcome internal dis sension, they were able also to present outwardly a solid front. Their political solidity in the months when such was re quisite was a guarantee of success, and, if appreciated, made it evident that the essential elements of the revolutionary move ment were not simply military; neither was it wholly a national movement, but such that its character was most clearly revealed in local or provincial transitions even if they embraced few events so thrilling as to appeal strongly to the patriotic impulse. The earlier status was wholly provincial ; the occasion and the beginning of the Revolution were purely local ; provincial power was the basis, and subsequent commonwealth individualism was the destruc tion, of the first national government; throughout the period local rights and power found ready assertion except when smothered in the exigencies which made nationalism a piety and a necessity; throughout those years, as well, the province, and later the commonwealth, has always to be considered as a force concurrent, in all affairs of revolution, with the Continental Congress, and rendering to that body such assistance toward making the continent a unit as had been rendered to the central body of the province by the various town committees and county committees and county conventions. These, in the time of crisis, averted the weak ness of anarchy and discord, and gave to Massachusetts such unity, strength, and regularity of organization as as sured either success without remorse or failure without regret. CHAPTER V THE PROVINCIAL CONGRESS § I. General Revieiv The circumstances attending the disappearance of the royal legislature were for the colonists especially fortunate. The dissolution of that body harmonized with the plan of the more progressive faction ' and offered an excellent op portunity for readily completing the program which already had been proposed and even begun. Local disorganization had been in large measure prevented by the maintenance of town governments ; the possibilities of general and consistent action had been increased by the work of the several county conventions ; and now the effectiveness of the many local efforts at organization and opposition was to be greatly increased. This was to be secured by the creation of a governing body representative of all the towns in the prov ince and invested with power sufficient to perform all those necessary functions the suspension of which had been oc casioned by, or had helped to. occasion, the faH of the royal government in the province. The colonists having attained the political ends desired, it was essential to final success that they should avoid the disorganization naturally incident to the overthrow of a provincial government. Such unfor tunate result they did avoid by the formation, as a tempo rary expedient, of this single representative body, which for the time being was recognized as possessing, with certain ' Even so early as June 1774, it had been said : " We will have a Congress at Concord." Cf. Winsor, History of Duxbury, 125. 112 fll2 I I 3] GOVERNMENT IN MASSACHUSETTS i j 3 limitations, the supremacy in executive and judicial, as well as in legislative affairs. The towns, the constituencies of the members of this central body, continued to claim and actively to exercise certain important rights, so that in the Massa chusetts Congress it was quite impossible to develop such a type of dictatorship as is shown in the similar bodies in cer tain other provinces. Nevertheless, the Provincial Congress of Massachusetts assumed functions of sufficiently broad scope to effect successfwlly, and at the same time in a con servative manner, a transition to a more definitely organized form of government. The theory of the situation excluded strict consideration of legality,' for, as Thomas Young wrote, " the Laws of God, of Nature and Nations oblige us to cast about for safety."" While the elastic " law of nature," however, might put wholly out of consideration the legal relations subsisting between the province and the home government, it was not by acts interpreted as destroying the binding force of obligations and relations within the province ;3 so that, while looking at the situation from one point of view, there appears to ' Cf. Joseph Hawley's " Broken Hints :" " The people will have some govern ment or other . . . ; legislation and executive justice must go on in some form or other, and we may depend on it they will; . . . ." Niles, Prin ciples and Acts, 325. Cf. Letter by " Junius Americanus," addressed to Gen. Gage : " You charge the inhabitants of Massachusetts Bay with subverting their charter, by assembling in an illegal and unconstitutional manner. In this step, Sir, they have been obhged from the tyranny of laws to the liberty of nature." Reprinted from the Pennsylvania Journal 'va New York Journal, no. 1664, November, 1774. cy: Vote of West Springfield, April 11, 1775: "That the delegates be in structed to dissent from any proposal that may be made for setting up any form of civil government differing from that obtained in the Charter we hold under William and Mary, excepting where the Laws of Self-preservation (which super sede all others) necessarily require it." Lincoln Papers. ^Thomas Young, Boston, September 4, 1774, to S. Adams, Philadelphia. Adams Papers, Bancroft Collection. ¦' Cf. B. H. Hall, History of Eastern Vermont, 256. 114 FROM PROVINCIAL TO COMMONWEALTH [114 have been a complete disregard of law, from another point of view there appears a scrupulous observance of all such elements of law and propriety as could render the proceed ings of the revolutionists more effective and impart to them a clearer justification. The steps in the creation of a revo lutionary body were as orderly and as near a semblance of legality as was possible;' a provincial representation was suggested by the committee of one county; the time and place of meeting were proposed by the convention of another county ; and the movement was at once endorsed by those more permanent bodies, the town-meetings. These, with remarkable uniformity, empowered their representatives, on the occasion of the anticipated break with the executive, to resolve themselves into a Provincial Congress. Such, as has been seen," was done, and even more. The election of re presentatives with these unusual powers had been often ac companied by the election of additional delegates to act simply in the Provincial Congress at the time and place agreed. The revolutionary body was thus, numerically, much more fully representative than the legal legislature 'Some local writers take an extreme position. Referring to October 4, 1774' ' The vote of the assembly, therefore, — all the members of which had been legally elected in the manner prescribed by the charter, and under the call of the Gov ernor, — must be considered the legitimate act of the province, in the only way in which the province could express its pleasure." A. C. Goodell, Jr., in Essex Institute Historical Collections, XIIL, 31, 32. ^ " As it was not thought prudent to assume all the powers of an organized government, they chose a president, and acted as a provincial congress, as pre viously proposed." Warren, History of American Revolution, I., 163. Letter to Berkshire county, Sept. 24, 1774 [from Boston committee] : "We . . . forward you a Copy of the Proceedings of this & the Neighbouring Countys wherein we are univerally of Opinion that 'tis best to send as many Representatives as the Charter & Province Laws allow & thera to instruct not to dissolve themselves but to form a provinciall Congress there to consult & execute Measures that concern the internall Government of y' Province, . . . ." Revo lutionary Corresp., IIL, 159, Bancroft Collection. 115] GOVERNMENT IN MASSACHUSETTS nj would have been.' The resolving of a body of anomalous representatives into a Provincial Congress at Salem was followed by a prompt adjournment to Concord" and by the merging there on the appointed date, October 1 1, of the two sets of delegates into a body which for almost ten months was to direct the common affairs of the province. The Congress which thus met was in more than numbers thoroughly representative. It was the direct organ of the towns, composed of responsible delegates acting under the direction of their respective towns. It was, as well, a body which had the recognition and support of practically the en tire population. 3 Thus, in a letter already quoted, an active worker had written : " I have not heard a single individual object to a Provincial Congress, nor is it likely any objection will be made to any conclusions which may be formed there. "¦* So, in fact, it was ; then was shown the vigor of public opinion and the force of its endorsement. Otherwise it would have been impossible for this body to take the posi tion in which it " conducted the affairs of the colony as if 'The Massachusetts Spy, of October 13, 1774, states that there were 90 dele gates present, October 5. The same paper, in its issue of October 20, states that on October 14 more than 260 delegates were present. And also cf. Austin, Life of Gerry, I., 58. Bradford, History of Massachusetts, 245, incorrectly states that there were 288 delegates at Salem, October 7. "The whole number of members was 288; . . . ." Sti.'M.MQSii, History of Concord, <)l. ¦i << ye Members convened at Salem, after having passed a Resolve or two for reprehending this Measure of ye ignorant General, adjourned to Concord for ye Convenience of meeting Members added to the ye Provincial Congress as will appear by ye papers; . . . ." E. Gerry, Boston, October 15, 1774, to S.Adams, Philadelphia. Adams Papers, Bancroft Collection. ' Although, «/: Athol committee, July 20, 1774, to Boston committee: "We greatly Lement that their are so great a number amonngst ourselves that Join in the Conspiracy to overthrow our Excelent Constitution and to introduce a tirani- cal and arbitary Goverment." Revolutionary Corresp., III., 140, Bancroft Col lection. * Thomas Young, Boston, September 4, 1774, to S. Adams, Philadelphia. Adams Papers, Bancroft Collection. Il6 FROM PROVINCIAL TO COMMONWEALTH [ii6 they had been regularly invested with all the powers of gov ernment ;" and in such a manner that their recommendations, as has been accurately stated, "were respected as sacred laws."' To be sure, these men had " no justification for convening by any provisions of the provincial charter,"" and they recognized the situation ; they countenanced a revo lution, but presumably they aimed at what they considered the best interests of their sovereign ; they were eager to save the province from impending anarchy, and in the effort they rendered impossible both the ruin of anarchy and the misrule of monarchy. When the first Provincial Congress began its sessions, royal rule in Massachusetts was very limited both as to territory and as to functions ; its contin uance was possible, although problematical. When the last Provincial Congress was dissolved, royal rule in Massachu setts was practically impossible ; the difficulties attending it had for twelve months been increasing, and had by events been given a significant emphasis. The body in whose control now rested the affairs of Mas sachusetts effected at Concord a formal organization3 by the election of those officers who at Salem had been provision ally chosen ; and they at once placed in the hands of fifteen leaders, termed the " committee to take into consideration the state of the province, "¦> the practical direction of future ' John Marshall, History of the Colonies planted by the English on . . . North America, 424. ^ J. T. Austin, Life of Elbridge Gerry, I., 52, 53. ' The distribution of the members among counties was as follows : Middlesex, 75; Worcester, 56; Hampshire, 39; Suffolk, 34; Essex, 27; Plymouth, 18; Bristol, l6; Barnstable, 8; Berkshire, 7; York, 6; Cumberland, 5; Dukes, 2; Lincoln, o; Nantucket, o. *The committee included Hancock, Hawley, Gerry, Ward, and the two Warrens. Journal of the Provincial Congress, 16, 17. On November 23, others were added, including the members of the recent Continental Congress then in the Provincial Congress. Ibid., 49. On December 5, John Adams was added. Ibid., 58. 117] GOVEKN.^IENT IN MASSACHUSETTS ny events. The Congress itself proceeded forthwith to the exercise of such powers as the welfare of the people was supposed to demand, and of such powers as were deemed ample to maintain the authority of the people and the security of political society during this strictly transitional period between the end of the king's government and the organization of a new government on a definite basis. It was natural that such a body should carry fully as much weight with its constituents as had the preceding one of June;' in each case the elections had been conducted on the same basis and with equal regard to statutory forms ;" in the procedure of the bodies the difference was such only as was necessitated by the absence of an executive and the lack of a bicameral arrangement in the legislature. To the colonist, thus, the Congress differed from an assembly only in those points wherein the results of the administration plan were seen ; for such violence to the provincial forms of govern ment the colonist considered himself in no manner respon sible ; he attempted, by his expressions,3 to throw the bur den of responsibility upon his adversary ; he attempted further, by his acts, to show the sincerity of those expressions, to make them tangible, and to save himself.'* ' Lecky says : " It was obeyed as if it had been a regular branch of the Legis lature, and it proceeded to organize the revolution." But he recognizes no at tempt at a legal session of the General Court. History of England in the Eighteenth Century, IIL, 419, 420. ^ Stedman, War in America, I., 108, calls this body a " self-constituted con gress." ' Later, April 19, 1813, John Adams wrote to E. Gerry: "Why was the au thority of Massachusetts, which enacted the law in all the forms of the constitu tion by their charter, called a convention? It was the general court, the regular legal constitutional legislature of the province, the crown governour having abdi cated." J. T. Austin, Life of Elbridge Gerry, I., 515. 'A very unusual vote was that of South Brimfield, January 17, 1775) to t''^ effect that they were not acquainted with the Provincial Congress and could not pledge adherence to all its acts ; but that they would observe the " principles of Il8 FROM PROVINCIAL TO COMMONWEALTH [ii8 The possibility of such salvation for the colonist now rested with the course of the delegates in the Provincial Congress. In their first session, which ended October 14, they adopted an' address to General Gage in which they treated of the attitude of the public, discussed military af fairs, and laid special stress upon the erection, by the royal authorities, of works of defence on Boston " Neck." Gage made reply on October 17, disclaiming any evil purpose in his military operations, and challenging the legality of the body thus distinctly : " It is my duty, therefore, however ir regular your application is, to warn you of the rock you are upon, and to require you to desist from such illegal and un constitutional proceedings."" On the same day he writes of this message as one " which I had some difficulty in con triving, as I cannot consider them a legal Assembly, and a handle would have been made of it had I refused ; and it was, moreover, necessary to warn them of their conduct, and re quire them to desist from such unconstitutional proceed ings. "3 He avoided giving the colonists a " handle," but neither his statements nor those of the Congress could do more than define the problem and intensify the divergence of the parties involved. On the day Gage wrote his disclaimer the Congress as sembled at Cambridge, and there further expressed its rela tion to the interests of royalty. By a resolution of October 21 it was provided that aH persons holding commissions under the forms recently prescribed by parliament, should be English Liberty " and would give regard to the advice of the Provincial Congress, " as far as agrees with our former Provincial Charter." Lincoln Papers. 'October 13, 1774; Journal of the Provincial Congress, 17, 18. This is printed in Niles, Principles and Acts, 297, 298. On October 1 1 there were 260 present and only one dissenting voice in the votes on this matter, Boston Gazette, no, 1018, October 17, 1774. "^ Journal of the Provincial Congi'ess, 21. ^ To Lord Dartmouth, 4 American Archives, I,, 880. 1 1 9] GO VERNMEN'T IN MASSA CHUSE TTS ng given ten days in which to publish an acknowledgment of their former misconduct and a renunciation of their commis sions, or to be " published " and treated as rebels.' The defiance of parliament was unequivocal ; the entire royal civil list was to go the way of the mandamus council. That the plan of action thus indicated was endorsed by a sincere and sober purpose, was soon made evident. The advan tages accruing from checking, if not completely stopping, royal administration, were to be enhanced by the creation of a similar official body recognizing only the authority of the people as expressed by their Provincial Congress. The movement was illustrated by the early action of the Congress in electing Henry Gardner receiver-general," and in author izing him to receive from the several collectors the money held by them on the account of the province. At the same time they advised the towns to direct their financial officers holding public money to pay the same at once to Gardner, engaging that such payments should operate as a complete release of the collectors from all subsequent claims relative to the legality of this action. It was also recommended that the sheriffs as well should make payments to Gardner.3 Xhe general recognition of the new financial officer by the towns* whence, and by the subordinates through whom, the money came, gave to the colonists one element of strength thor- ^ Journal of the Provincial Congress, 25. Cf. Ibid., 51, 52, 56, 60, 61, 94, 96, 111-113, 236, 249, 344. ''Ibid., 36-38. Cf. Ibid., 61, 65, 66, 113, 114, 146, 207, 234. »72i^,38, 39. *E. g.: Marblehead, January 2-10, 1775, Essex Gazette, no. 338, January 17, 1775; Plymouth, December 29, 1774, January 3, 1775, Essex Gazette, no. 339, January 24, 1775; Falmouth, January 3, 1775, ibid. Sutton, January 5, 1775, Benedict and Tracy, History of Sutton, 92; Oxford, April 17, 1775, Daniels, History of Oxford, 128; Concord, November 21, 1774, Shattuck, History of Con cord, 92. I20 FROM PROVINCIAL TO COAIMONWEALTH [120 oughly essential to their success in a strenuous contest' To their opponents the step was a clear sign of the coming de velopments. It foreshadowed the formation of a government based on the authority of the people ; and even if a denial of the king's sovereignty was now avoided, this action, and others like it, were the preliminaries of a reorganization of the state." The stake was great; for the men of the conven tion and for their friends a course of defiance might mean the loss of all ; destruction, at least poHtical destruction, was even then in their path ; but they dared to presume upon eventual success, and to act upon the presumption ; and in that daring, they showed the reasonableness of Warren's en thusiasm, when of the convention he had written, "You would have thought yourself in an Assembly of Spartans or ancient Romans, had you been a witness to the ardour which inspired those who spoke upon the important business they were transacting. "3 The third session of the first Provincial Congress, extend ing from October 17 to October 29, 1774, was marked by 'November 18, 1774, King George wrote to Lord North: "... the New England Governments are in a state of rebellion, blbws must decide . . . ," Donne, Correspondence of George III. with Lord North, I., 215. ' Cf. Gage to Lord Dartmouth, October 3, 1774: "They are shortly to have a Provincial Congress in this Colony, composed chiefly of the Representatives lately chosen to meet at Concord, where it is supposed measures will be taken for the government of the Province." 4 American Archives, I., 815. Gage to Dartmouth, September 20, 1774: "They talk of fixing a plan of Government of their own, . . . ." Ibid., I., 795. 'Jos. Warren, Boston, November 21, 1774, to Josiah Quincy, Jr. 4 American Archives, I., 990. In the same letter Warren expresses the belief that the recent dissolution of Parliament and the receipt of favorable letters from England " will induce us to bear the inconvenience of living without Government until we have some further intelligence of what may be expected from Ens;land. It will re quire, however, a very masterly policy to keep the Province for any considerable time longer in its present state." He further states that Boston is by far the most moderate part of the province. The letter is printed in Frothingham, Life of Joseph Warren, 394-396. I 2 I ] GOVERNMENT IN MASSA CHUSETTS , 2 1 several acts of a general and preparatory nature, bearing especially upon the commercial and administrative relations with Great Britain, and pointing naturally, in each case, to a more or less prompt severance of those connections. A " replication " to Gage's reply is formed at the close of the session ; and in this they endeavor to prove " that while the ' avowed enemies ' of Great Britain and the colonies, are protected by your excellency, the lives, Hberties, and properties of the province, who are real friends to the British constitution, are greatly endangered, whilst under the control of your standing army."' On the other hand, in regard to their maintenance of the charter, they hold that a statement of " the truth, relative to this matter, must be a full vindi cation of our conduct therein." They assert that their con stituents " have been compelled, for the laudable purposes of preserving the constitution, and therein their freedom, to obtain the wisdom of the province in a way which is not only justifiable by reason, but, under the present exigencies of the state, directed by the principles of the constitution itself;"'" and for their justification allude to English precedent at the revolution of 1689. Having taken progressive action with reference to the local militia organizations, the provincial treasurer, and the Committee of Safety, and having already ap pointed a committee " to sit in the recess of this congress, "3 an adjournment was taken on October 29 until November 23. This fourth and last session of the first Congress, like that immediately preceding, was held at Cambridge. The actual session was one only of sixteen days ; in other connections have been indicated the principal acts therein. By a special address it was aimed to secure the helpful influence of the ' October 29, 1774; Journal ofthe Provincial Congress, 43. '¦Ibid., 44. 'October 27, 1774; the committee comprised Messrs. Hawley, Hancock, Dexter, Gerry, Heath, Foster, and James Warren. Ibid., 35, 36. 122 FROM PROVINCIAL TO COMMONWEALTH [122 clergy in behalf of the resolutions of the Continental Con gress ; attention was given to the tory town of Hardwick and the distasteful " association " of Timothy Ruggles ; whHe in acting upon a memorial from the Baptists the Congress an nounced that its members considered themselves as " being by no means vested with powers of civil government, whereby they can redress the grievances of any person whatsoever, . . . ."' Before dissolving, this Congress adopted an address to their constituents, which was ordered to be printed in all the Boston newspapers and to be issued in a hand-bill to every town and district in the province. This began with a strong characterization of the time when they were chosen to consult on matters of common safety and defense as a time " when the good people of this colony were deprived of their laws, and the administration of justice, civil and criminal ; when the cruel oppressions brought on their capital had stagnated almost all their commerce; when a standing army was illegally posted among us for the ex press purpose of enforcing submission to a system of tyranny; and when the general court was, with the same design, prohibited to sit ; . . . ."" They early inserted the saving qualification that they still had " confidence in the wisdom, justice, and goodness of our sovereign, as well as the integrity, humanity and good sense of the nation; although " the general tenor of our inteHigence from Great Britain, with the frequent reinforcements of the army and navy at Boston," excited " the strongest jealousy that the system of colony administration, so unfriendly to the protes tant religion, and destructive of American liberty," was stiH to be pursued and attempted with force to be carried into ' December 9, 1774. Journal ofthe Provincial Congress, 67. = December 10, 1774. Ibid., 69. This is printed in Niles, Principles and Acts, 298-300, under date of December 4, 1774, although no session was held on that day. 123] '^^ VERNMENT IN MA SSA CHUSE T7'S 123 execution." Even so they urged their fellowmen all to be -" solicitous, that no disorderly behavior, nothing unbecom ing our characters as Americans, as citizens, and christians, be justly chargeable to us."' The commercial situation and the military outlook served as themes of encouragement; the political condition of England was indicated ; and a plea put forth for undeviating adherence to the plans of the Conti nental and Provincial Congresses. In connection with the last they gave a view of the internal relations of the revolutionary organizations, when they said : " Your Provincial Congresses .... will hold up the towns, if any should be so lost as not to act their parts, and none can doubt that the Continental Congresses will rectify errors, should any take place in any colony through the subtilty of our enemies."" The equipment and disci pline of the militia were emphasized, and their conclusion offered the " determination to stand or fall with the liberties of America," and the hope that " this injured people" might be " reinstated in the full exercise of their rights without the •evils and devastations of a civil war. "3 This address, it was later directed, was to be sent to each local committee of cor respondence, or, if none such existed, to the selectmen of each town and district ; the same distribution was to be made of a report presented by the committee on the state of the province, and accepted the same day. The preamble alluded to the " fatal experience " of other states incident to a too protracted delegation of powers. The resolutions stated that the adjournment of October 29 was made " from a due consideration of the present exigencies of the public affairs, and the evident necessity of farther deliberation thereon. "-• Such a condition did not then exist to sanction a similar step and theory condemned a longer continuance ' Journal of the Provincial Congress, 70. '^Ibid.,']\. ^ Ibid.,i\,']2. ^ Ibid., "jt,. 124 FROM PROVINCIAL TO COMMONWEALTH [124 of the present Congress. The Congress, therefore, resolved upon its own dissolution, but " being deeply impressed with a sense of the increasing dangers which threatened " the rights and liberties of the people of this province with total ruin," they recognized the necessity of a frequent meeting of a provincial assembly ; and they acted accordingly. It was recommended to each town and district that those in each who were qualified by provincial law to vote for repre sentatives in the General Assembly should elect as many members as might be determined by such constituencies, to meet in a Provincial Congress at Cambridge on February I, 1775, and to serve therein until a specified day in the subsequent May. The function of this second Congress was indicated as be ing "to consult, deliberate and resolve upon such farther measures as, under God, shall be effectual to save this people from impending ruin, and to secure those inestimable liber ties derived to us from our ancestors, and which it is our duty to preserve for posterity."' Difficulty during the intervening period was to be avoided by empowering the delegates who should be chosen by five towns" near Boston, or a majority of them, to call the Congress, in case of need, to meet at any other place and at an earlier date. The towns were urged so to instruct their delegates, and observance of such in structions was recommended. Having thus provided for the creation of the body which was to succeed itself, and thank ing John Hancock for his " constant attendance and faithful services as president," the first Provincial Congress of Massa chusetts was, on December 10, 1774, by its own vote dis solved. The second Provincial Congress convened, as planned, on February i, 1775, and was dissolved May 29, 1775. The ' Journal of the Provincial Congress, 73. ^ Charlestown, Cambridge, Brookline, Roxbury, Dorchester. Ibid., 74. 125] GOVERNMENT IN MASSACHUSETTS 125 period is commonly divided into four sessions,' virtually into three, and is marked by much important activity, the salient points of which have been indicated elsewhere in this work. The constitution of this body, it will be seen, was similar to that of its predecessors in that the conditions of the franchise were the same ; in each case the qualifications of members, and the decision thereon, rested entirely, at least in the later case, upon the decision of the unit of representation." In each case the Congress was a gathering of town and district delegations3 responsible to their constituencies and acting upon the authority of such. The organization of the second Congress was like that of the first. John Hancock was unanimously chosen president and Benjamin Lincoln was again appointed secretary.-* Immediately, as in the preced ing instance, a strong committee was appointed " to take into ' At Cambridge, February i-February 16; at Concord, March 22- April 15; at Concord, April 22; at Watertown, April 22-May 29. Journal of the Provincial Congress, 75. 'The local body was not in all points unrestricted. Thus, on February 6, 1775, there was presented a petition of Abijah Browne and others, " setting forth the irregularity of the choice of Jonas Dix, Esq., to represent the town of Waltham in this Congress," and a counter-petition of Leonard Williams and others. The Congress resolved "that in case the averments in Browne's petition mentioned were true, they are not sufficient to disqualify Jonas Dix, Esq,, member from Wal tham, from having a seat in this Congress." Ibid., 86. An illustration of the relations between the towns and Congress is shown in an unusual manner by the action of the Congress, 1775, when it was: "Resolved, That the inhabitants of the town of Northfield be desired, in consideration of the bodily indisposition of their present member, Mr. Ebenezer Jones, which prevents his attendance, to add one other member to him in order that their town may be represented in Congress, who are very desirous that the wisdom of the province may be collected at this critical juncture of our public affairs." Ibid., 129. ^The roll of the second Congress gives 195 towns and districts as represented by delegates, whether in every instance present or not. The 229 delegates are distributed among the counties, as follows: Middlesex, 42; Worcester, 40; Hampshire, 32; Suffolk, 28'; Essex, 28; Plymouth, 15; Bristol, 12; Berkshire, jo; York, 7; Lincoln, 6; Barnstable, 5; Cumberland, 4; Dukes, o; Nantucket, o. ''Ibid., 84, 126 FROM PR0VINCI.4L TO COMMONWEALTH [126 consideration the state and circumstances of the province."' Early in the session was adopted an address to their "friends and fellow sufferers," the inhabitants of Massachusetts. By this the circumstances are stated to be such that " resistance is so far from being criminal, that it becomes the Christian and social duty of each individual."" Gratitude to the Al mighty is enjoined " for his having placed you under such a form of government, as, when duly administered, gives the meanest peasant the same security in his Hfe and property, as his sovereign has in his crown. "3 The rights of property, the theory of representation, perversion of colonial adminis tration, and imperial tyranny are touched upon. " Fleets^ troops, and every implement of war, are sent into the prov ince, with apparent design to wrest from you that freedom which it is your duty, even at the risk of your lives, to hand inviolate to posterity."-* The plans of the Continental and Provincial Congress were heartily endorsed. Emphasis was put upon the need of greater military efficiency and re sources and upon the importance of an immediate improve ment in the finances of the province. ' The conduct of the ' This comprised Messrs. Hancock, Hawley, Cushing of Boston, Adams, James- Warren, Paine, Pitts, Holten, Heath, Gerrish, Cushing of Scituate, Ward, and Gardner. On February 2, Messrs. Lee, Orne, Palmer, Gerry, Foster, and Bowers were added. Ibid., 84, On March 22, Messrs. Lothrop and Dexter were added. Journal of the Provincial Congress, 109. On April 7, Dr. Warren and Dr. Church were added. Ibid., 132. ^February 17, 1775, Gov. Gage wrote to Lord Dartmouth: "If this Provincial Congress is not to be deemed a rebellious meeting, surely some of their resolves are rebellious, though they affect not to order, but only to recommend measures to the people; . . . ." New York Journal, no. 1697, J"')' '3' '775- 'Ibid.,()i. * Ibid., ^2. * E.g., the Shelburn committee. May I, 1775, wrote to the committee at North ampton : " As to our Province Money The Town's Unanimously Agreed to pay it in to Henry Gardner Esqr of Stow but we are a New township and money being Scarce we have it not Collected and the money is not in the place to Collect but we would Directly Hire it if we knew where to Git it, and we will Do all we Can to Git it." Hawley Papers, IL, Bancroft .Collection. On May 10, 1775, in a 127] GOVERNME.VT IN MASSACHUSETTS 127 people was commended and a continuance of their steadfast ness was shown to be essential to their escape from the " galHng yoke of despotism . . ." And furthermore, since " subjects generally pay obedience to the laws of the land, to avoid the penalty that accrues on breach of them," the Congress expresses to its constituencies its assurance " that, as you hitherto have, you will continue still strictly to adhere to the resolutions of your several congresses ; . . ."' It was in the first session of this Congress that intercolonial relations were put on a more definite basis by the appoint ment of an unusually able committee of nine "to correspond with the neighboring governments."" On the same day the Congress took a step which was deemed " highly and pe culiarly proper" in appointing March 16 as a day of fasting and prayer, an opportunity which should be taken to beg God's "blessing upon the labors of the field, upon our merchandize, fishery and manufactures, and upon the various means used to recover and preserve our just rights and liberties;" and when there should be offered the further prayer " that his blessing may rest upon all the British Em pire, upon George the Third, our rightful king, and upon all the royal family, . . ."3 The session was concluded on the same day by the appointment of Concord as the place, and March 22 as the date, of the next meeting, by the removal from the members of the injunction of secrecy, and by the cautionary authorization of the delegates of five towns to call the Congress at an earlier date, if necessary, although at no other than the appointed place. Conformity to such letter to Mr. Sedgwick, Joseph Hawley spoke of "ye Shocking backwardness of ye Towns to pay their Taxes . . . ." Ibid., II. Cf. Manchester Records, II., 147, as to December, 1774. Cf. Jameson, Amherst Records, 67. Cf. Revolu tionary Corresp., Ill,, 515, Bancroft Collection. Cf. Boston Town Records XVIII., 222. ' Journal ofthe Provincial Congress, 93. ''February 16, 1775; Ibid., 105, 106. ^ Ibid., 107. 128 FROM PROVINCIAL TO COMMONWEALTH [128 possible procedure was merely recommended by the Con gress ; the emergency, however, did not arise. The second session of the second Provincial Congress be gan at the appointed time, and at once a warning was issued against relaxation in the work of defence and military pre paration.' Relatively little, however, was accomplished in the early days, so that on April i the attendance of members was enjoined and two days thereafter two committees were appointed, one to report a resolution to summon the mem bers from the counties of Hampshire, Berkshire, Worcester, and Bristol, the other to report a resolution to be inserted in the Salem papers requiring the attendance of all the absent members, and " a recommendation to the several towns and districts, who have not yet sent members to the Provincial Congress, that they elect them, and direct their immediate attendance."" Within a week more than one hundred mem bers were in attendance, so that it became possible to trans act with a fairly representative body a reasonable amount of effective business, 3 On April 15, however, an adjournment"* was taken to May 10, and, as formerly, the delegates of the five towns near Boston were empowered, in case of need, to summon the members to Concord at an earlier day.s The wisdom of the precaution was at this time made manifest. The apprehensions of an early crisis developed so ^ Journal of the Provincial Congi-ess, no. ''Ibid., 117. ' In Frothingham, Life of Joseph Warren, 445, is reprinted from the Salem Gazette, a resolution of April 3, 1775, not in the journal of the Congress, alluding to the absence of several members on leave and to the recent receipt of import ant intelhgence from England, and directing the prompt attendance of all mem bers, " that so the wisdom of the province may be collected." ^ Journal of the Provincial Congress, 146. * The Boston Gazette, no. 1044, April 17, 1775, contained the following in large type : " The Provincial Congress adjourn'd last Saturday Afternoon, to the loth Day of May next; but if necessary, to meet earlier. And we have it from un doubted Authority, that a perfect Unanimity prevail'd in all the important Meas ures and Dehberations which came before them." 129] GOVERNMENT IN MASSACHUSETTS 129 quickly and so acutely, immediately after the adjournment, that on April 18' a meeting was held of members of the five delegations and by their authority a call, signed by Richard Devens of Charlestown, was sent to the members of the Con gress, insisting upon the necessity of a meeting, and request ing their immediate attendance at Concord, " as the closest deliberation, and the collected wisdom of the people, at this alarming crisis, are indispensably necessary for the salvation of the country."" Accordingly, sessions were suddenly re sumed on April 22, when after a short morning meeting at Concord, under Richard Devens, as chairman, the Congress adjourned to Watertown, where it took up its labors on the afternoon of the same day. On the next day, Sunday, Dr. Joseph Warren was elected president, pro tem.,T> proceedings were pushed with vigor and thoroughness under the impetus of the affair at Lexington, and one week after that event there were adopted a letter to Benjamin Franklin, their 'On April 16, 1775, Gov. Gage wrote to Gov, Martin, of South Carolina: "This Province has some time been and now is in the new tangled legislature termed a Provincial Congress, who seem to have taken the Government into their hands. What they intend to do I cannot pretend to say, but they are much puzzled how to act. Fear in some, and want of inclination in others, will be a great bar to their coming to extremities, . . . ." Journals of the Provincial Congress of New YorK, I., 57. 'Ibid., 147. ^ Ibid., 149; on April 24, Rev. Mr. Murray was "appointed" president pro tem. Ibid., 150. On May 2, Mr. Murray being absent, it was resolved, "That another president be chosen pro tempore, and that he be chosen by nomination." Col, James Warren was chosen, and a committee sent to notify him; he attended and offered reasons for an excuse, which were accepted. The peculiar process then adopted was the passage of a motion to appoint a committee " to wait on Doct, Joseph Warren, informing him of the absence of the Rev, Mr. Murray, who has lately officiated as president of this Congress, and to know of Doct. Warren if he can now attend the Congress in that station." Warren began his duties in this position on the afternoon of the same day. Ibid., 178, " The congress of our colonv could not observe so much virtue and greatness without honoring it with the greatest mark in their favor; . . , ," Oration by Perez Morton, on Joseph Warren, April 8, 1776. Niles, Principles and Acts, 61. 130 FROM PROVINCIAL TO COMMONWEALTH [130 agent at London, and an address to the people of Great Britain. The former enclosed, for publication and distribu tion, several papers, relative to the event of April 19. The letter itself bore an allusion to " both Englands," to which was the sequel "that whatever price our brethren in the one, may be pleased to put on their constitutional liberties, we are authorized to assure you, that the inhabitants of the other, with the greatest unanimity, are inflexibly resolved to sell theirs only at the price of their fives."' The address to the English was largely an account of the conflict on April 19, and of those acts which they termed the "marks of ministerial vengeance againt this colony, for refusing, with her sister colonies, submission to slavery ;" and even these, they affirmed, had not yet detached them from their king. The appeal to sentiment was followed, in conclusion, by the expression of the hope that, " in a constitutional connection with the mother country, we shall be altogether a free and happy people."" The session under review effected an advance in the pro cedure of the Congress by the adoption of a series of ten rules governing the conduct of the meetings. Six were chiefly rules of the floor. Of the others, one rule provided that no person should nominate more than one person for a committee, provided the person so nominated be chosen ; another, that no member should be obliged to serve upon more than two committees at a time, or to be chairman of more than one committee ; and still a further rule was that no vote should be reconsidered when there were fewer in Con gress than when it was passed. A most important rule was that no grant " for money or other thing shall be made, un less there be a time before assigned for that purpose. "3 The Congress thus was slow in perfecting even its temporary or- ^ Journal of the Provincial Congress, 154. ¦'Ibid., 156, ^ IHd., 164. 1 3 I ] GO VERNMENT IN MA SSA CHUSE TTS 131 ganization ; it was equally tardy in placing the province in a position of security or, at least, of defence. The situation, as well as the spirit of the leaders, was shown in a letter of AprH 28, 177s, from the Congress to Governor Hopkins, of Rhode Island. "We beg leave," they say, "to suggest to you the critical situation of this colony at the present time, which disables this Congress from immediately seizing every crown officer in the government. Boston is closed, . . . Several of our seaports are blockaded with ships, and threat ened destruction if they join the army. . . . Should we, therefore, seize the crown officers as proposed, it may hurl on our numerous sea ports sudden destruction, before they have had opportunity of saving themselves."' Amid such distress and uncertainty the Congress prepared for its own dissolution. The date of that had, in the act creating the Congress, been fixed as not later than May 30. As "the exigencies of our public affairs render it absolutely necessary, for the safety of this colony, that a new Congress be elected," it was resolved, on May 5, that the towns and districts should elect delegates to meet in Provincial Congress at Watertown on May 3 1 . The size of delegations was left, as before, indeterminate ; the franchise again was based on the provincial law ; and the duration of the approaching Congress was limited to six months." The second Congress was dissolved May 29.3 Two days thereafter began the sessions of the third Provincial Congress,-* a body in all re- ^ Journal of the Provincial Congress, 166. ''Ibid., 195, 196. ' The records of the last eight days of this session are not extant. Cf. ibid., 248. * The size of this body and distribution by counties was as follows : Worcester, 38 towns, 39 delegates; Hampshire, 33 towns, 40 delegates; Middlesex, 33 towns, 39 delegates; Essex, 20 towns, 30 delegates; Suffolk, 18 towns, 27 delegates; Plymouth, 13 towns, 17 delegates; Bristol, 12 towns, 17 delegates; Berkshire, II towns, 10 delegates; Barnstable, 9 towns, II delegates; York, 5 towns, 5 dele gates; Cumberland, 5 towns, 4 delegates; Lincoln, 5 towns, 4 delegates; Dukes, 2 towns, 2 delegates; Nantucket, no representation. Total of 204 towns repre sented by 245 delegates. Ibid., 273-279. 132 FROM PROVINCIAL TO COMMONWEALTH [132 spects simHar to its predecessors.' The officials of the second Congress also served this, Joseph Warren, untH his death, as president," and Samuel Freeman as secretary .3 By this body the affairs of the province were administered untH July 19, 1775, a brief period in which important constitu tional and military changes were effected, each of which can best be indicated in connection with the series of antecedent events. It will serve the purpose to notice first the position of the Congress with reference to military affairs, and, after a review of some of the more important lines of its activity, to consider the steps by which the Provincial Congress was superseded by a General Court elected in accordance with the charter of 169 1, and with the last provincial election law. § 2. Military Affairs Much of the time of the Provincial Congress was devoted to military organization in anticipation of a coming struggle. Thus, even on October 19, a committee of five, including Captain J-Ieath, was appointed "to make as minute an in quiry into the present state and operation of the army as may be,"-* and their report on the next day was immediately ' We find here another instance of the control of the Congress over elections. Upon the basis of a committee report the Congress, " upon examination, judge that the persons returned as delegates for Eastham, in the county of Barnstable, were not legally chosen, and that the allowing either of them a seat in this house would be attended with many inconveniences," and therefore pass specifically for Eastham the resolve fof the election of delegates originally sent cut by the second Provincial Congress, Journal of tlie Provincial Congress, 289, '' On June ig, 1 775, James Warren was chosen president. Journal of the Pro vincial Congress, 357, James Warren, for his services as president of the Pro vincial Congress, received a vote of thanks from the house of representatives, October 3, 1775, Journal of ihe House of Representatives. "February 9, 1776, the house of representatives voted £2 8 sh. for the ser vices of .Samuel Freeman as secretary of the Provincial Ccmgress, July 7-19, 1775' " in full," and ;^25 for recording the " doings," Journal of the House of Repre sentatives. ^ Journal of the Provincial Congress, 22, 133] ^°^ 'ERNMENT IN MA SSA CHUSE TTS 1 3 3 followed by the appointment of a committee of thirteen, two from Suffolk and one from each of the other counties, to consider the steps necessary for the defence and safety of the province.' After four preliminary reports, the work of the committee was accepted at the second session, on October 26. The resolutions summarized the relations of the people with the royal government, the acts and the attitude of the latter, the results of the various episodes, and the present status. They asserted a desire for peace but admitted that there was reason to be " apprehensive of the most fatal con sequences," against which they desired that they might be in some degree prepared. The report included the estab lishment of a Committee of Safety for the purpose of increas ing the military efficiency of the population, and included as well provision for the election of commanding officers by the Congress and of subordinates by the field officers and by the companies, for the formation of a complete militia system, and for the instruction and equipment of the people. On the same day a committee was appointed whose report, which was ac cepted on October 29, turned against the king one of his own weapons. It was now " recommended to the inhabitants of this province, that in order to their perfecting themselves in the military art, they proceed in the method ordered by his majesty in the year 1764, it being, in the opinion of this Congress, best calculated for appearance and defence." " A definite beginning was thus effected. Little of striking importance could be done, and yet the quiet training of the men to military service and the gradual supply of the whole province with sufficient arms and adequate ammunition was ' Journal of the Provincial Congress, 23. Samuel Dexter and Capt. Heath represented Suffolk Co., Major Hawley Hampshire Co., and Col. Ward Worcester Co. The members were named by the delegates from each county respectively. On October 24 the Congress added Mr. Gerry and three others to this committee. Ibid., 29. ''Ibid.,^\. 134 FROM PROVINCIAL TO COMMONWEALTH [134 work which in its results was to be of vital importance. The renewal, by the second Provincial Congress,' of the powers of the Committee of Safety was accompanied by the reappoint ment of " Prebble," Ward, and Pomeroy, and the appoint ment of John Thomas and William Heath," as general officers ; and their business was stated to be the opposition to the execution by force of two of the recent acts of parlia ment. While the Congress took an active control of military affairs, much of the routine work was relegated to the Com mittee of Safety. The larger body, however, acted through out with fuU knowledge and realization of the situation ; and this was made possible by such acts as that of March 22, 1775, when a committee was appointed "to receive the re turns of the several officers of mHitia, of their numbers and equipments, and the returns from the several towns of their town stock of ammunition."3 The Congress aimed at a col lection and more effective distribution of the available arms and ammunition. It further could use its superior position to appeal successfully to the population of the entire prov ince for early activity against a common enemy. It finally urged that the preliminary plans of defence " be still most vigorously pursued, by the several towns, as well as indi vidual inhabitants, and that any relaxation would be attended with the utmost danger to the liberties of this colony and of all America;"-* and the unpretentious efforts of the first months were in large measure completed when, on April 5, 1775, there were adopted for the control of the "Massa chusetts army" the fifty-three " articles of war."s 'February 9, 1775. ^On February 15, 1775, John -Whitcomb was elected an additional general officer. ^ Journal of the Provincial Congress, 109. * March 24, 1775, Ibid., IIO. ^ Ibid., 120-129. Ou May 5, 1775, it was "Resolved, That the assembly of Connecticut be supplied with the rules and regulations which have been recom mended to be observed by the army now raising in this colony." Ibid., 196. 135] GOVERNMENT IN MASSACHUSETTS 135 The resolves introductory to this code state that " the lust of power, which of old oppressed, persecuted, and exiled our pious and virtuous ancestors from their possessions in Britain, now pursues with tenfold severity us, their guiltless children," who now " have reason to apprehend, that the sudden destruction of this province is in contemplation, if not determined upon;" and now "the great law of Self-pre servation" requires an " army of observation and defence " to prevent the execution by force of the acts of parliament. From the requirements that all " officers and soldiers, not having just impediment, shall diligently frequent divine ser vice and sermon," and that " members of a court martial are to behave with calmness, decency and impartiality;" down to the details of ordinary army life, the articles comprise a varied but useful code of military administration. Apart from its particular provisions, it was significant as indicating an important advance in the organization of the province and as emphasizing the control of the Congress over that branch of service which at the time was by far the most important. Such a basis could give much more meaning to appeals of the kind sent out by the Congress to the committees of correspondence in Boston and eleven neigh boring towns, on April 7, 1775, when they were urged to exert themselves " that the militia and minute men of your counties be found in the best posture of defence, whenever any exigence may require their aid;" yet the Congress did not recommend any measures that their enemies might plausibly interpret as a commencement of hostilities.' On the following day an important step was taken ; a report by the committee on the state of the province was foHowed by the adoption, by a vote of 96 in a house of 103, of a resolution that "the present dangerous and alarming situatibn of our public affairs, renders it necessary for this ' Journal of the Provincial Congress, 1 34. 136 FROM PROVINCIAL TO COMMONWEALTH [136 colony to make preparations for their security and defence, by raising and establishing an army, . . ."' Delegations were at once appointed to visit Connecticut, Rhode Island and New Hampshire to secure their concur rence ; and one week later the Congress adjourned to May 10. Such recess, however, was interrupted by the events of AprH 19. Three days thereafter the Congress re-assembled at Concord ; in the afternoon of the same day they met at Watertown and requested the attendance of the Committee of Safety with whatever plans they might have." On the succeeding day, Sunday, April 23, it was unanimously re solved that an army of 30,000 men should be immediately raised, and that 13,600 men should be the quota of Massa- chusetts.3 The Committee of Safety, in co-operation with Messrs. Cushing, Sullivan, Whitcomb and Durant, were in structed "to bring in a plan for the establishment of the offi cers and soldiers necessary for the army," and to sit imme diately. This step was communicated to the three adjoining provinces, and a letter was sent by express to each colonel in the army. More rapidly than had been anticipated the war footing was approached.-* " Hostilities are at length commenced in this colony," said the Congress in the address of April 26, to the inhabitants of Great Britain. Two days later, in a letter to delegates of New Hampshire, the Congress expresses the opinion " that a powerful army on our side, must, at once, cut out such a work for a tyrannical administration, as, under the great ^ Journal of the Provincial Congress, 135. ''Ibid., 147. ' Ibid., 148, On April 24 it was resolved to distribute 300 hand-bills containing the resolves for the establishment of an army. Ibid., 150. * On April 24 a committee of one from each county was appointed to attend the committee of salety " and let them know the names of the officers in said counties belonging to the minute men, and such as are most suitable fo« officers in the army now raising," Ibid., 150, On April 25 it was voted to reduce each company from 100 to 59 men, ten companies making one regiment. Ibid., 152. 137] GOVERNMENT IN MASSACHUSETTS 137 opposition which they meet with in England, they cannot accomplish ;"' while, on the other hand, they could say that the "sanguinary zeal of the ministerial army, to ruin and destroy the inhabitants of this colony, in the opinion of this Congress hath rendered the establishment of an army indis pensably necessary."" Toward the success of the movement further typical action was that of May 8, when certain men were appointed to collect the province arms in Hampshire and Berkshire counties,3 and when a committee was ap pointed to report a resolve recommending the saving of straw for the use of the army.-* On the same day it was recommended to the local committees of correspondence, or, in lack of such, to the selectmen, to inquire into the princi ples and conduct of all suspected persons, and cause to be disarmed all who would not give trustworthy assurances, "of their readiness to join their countrymen, on all occa sions, in defence of the rights and liberties of America ;"5 the local and internal elements of hostility to the new pro gram of action were thus at once to be partially removed, and the chances of failure considerably decreased. By a long series of acts with a variety of provisions the Congress took its position as the responsible head of the military force of the province. By it officers were commis sioned, enlistments authorized, and regulations established. By it, as well, the building of various fortifications was or dered, the distribution of supplies regulated, and a super vision exercised over even the smallest details of military equipment and procedure. Such a position was for a body of this kind natural and perfectly simple, and a recapitulation of votes and reports would only introduce much detail of slight ^ Journal of the Provincial Congress, 162. ^Letter from the Mass. Provincial Congress to the Continental Congress, May 3, 1775. Ibid., 188. ^ Ibid., 20^. ^Ibid., 206; Cf. Hid., 211. ^ Ibid., 20^. 138 -^-^ O'^ PR O VINCI.4L TO COMMON WEAL TH [138 significance and serve chiefly to emphasize the importance of the military situation at the time. For a consideration of the constitutional transition discussion of the military prob lem is hardly essential, even though at times fully one half of the proceedings of the Congress related to affairs of de fence. The mere statement of such activity and the indica tion of the headship acquired by the body in these matters may suffice to define the nature and extent of one of the several forms of power exercised by the Provincial Congress. While thus controHing completely this branch of the provin cial service, the Congress took a step of significance when, on May 15, 1775, it voted that the committee having in preparation an application to the Continental Congress should "be directed to insert a clause therein, desiring that the said congress would take some measures for directing and regulating the American forces." ' By such beginnings was undertaken the incorporation of provincial "armies" into a military force under the charge of the Continental Congress. Along another and a vitally important line of action, the forces of the new nation were being truly nation alized; the functions of a new state were being acquired gradually by those whom the Philadelphia Congress repre sented, and in the process the powers of the provincial gov ernment were subjected, willingly it might be, to essential limitations. This change was of importance primarily from a military point of view, but its effect upon the national state then in process of formation is not to be under-estimated. With reference, however, to Massachusetts the change in dicated was made clear and its importance plain by the appearance in the province of the newly appointed head of the " continental" army, and by his assumption of full charge of the forces operating against the royal troops. Thereafter ' Journal of the Provincial Congress, 224. 139] GOVERNMENT IN MASSACHUSETTS 139 the work of the Provincial Congress, and of the subsequent General Courts, was directed to the formation, equipment, and subordinate regulation of its quota in the new army; its position as the head of an independent military state disap peared virtually in its willing and expedient surrender of authority to the power above. § 3. The Committee of Safety Provision was made for the transaction of a part of the administrative business devolving on the Congress, by the appointment of a Committee of Safety" whose term of office, significantly, was to continue "until the further order of this or some other congress or house of representatives of the province;" and whose duty, in the official words, it was " most carefully and diligently to inspect and observe aH and every such person and persons, as shall, at any time, attempt or enterprise the destruction, invasion, detriment or annoy ance of this province, . . ." In their hands was placed, then, the protection of the property and the maintenance of the security of the commonwealth, as well as the charge of the supplies for defence and the direction of those members of the commonwealth who chose to enter the military service of the Congress. And from the recognition either of the in completeness of their own authority or of the urgency of the situation, it was deemed proper that the Congress should " most earnestly recommend to all the officers and soldiers of the militia in this province, who shall, from time to time, during the commission of the said committee, receive any call or order from the said committee, to pay the strictest ' It consisted of nine members, three from Boston, and six " gentlemen of the country." The Boston members were Hancock, Dr. Warren, and Dr. Church. Among the others were Norton Quincy and Devens. October 27, 1774. Journal of the Provincial Congress, 35. On October 29, Mr. Pigeon and Capt. Heath were added to this committee. Ibid., 48. I40 FROM PROVINCIAL TO COMMONWEALTH [140 obedience thereto, as they regard the liberties and lives of themselves and the people of this province." ' Such a body was also created by the second Provincial Congress," February 9, 1775, with powers practically the same as those of the earlier committee,3 although increased by the provision that it was their duty " most carefully and diligently to inspect and observe all and every such person and persons as shall at any time attempt to carry into exe cution by force," either the "regulating act" or the act for the impartial administration of justice in Massachusetts. Some weeks later, on May 3, a committee of five, including Col. Warren, was appointed " to overlook the commission of the committee of safety, and ... to see whether it be ne cessary that they be invested with other powers than they now have."-* On May 17,5 this committee was directed to ' Journal of the Provincial Congress, 32. Five was established as a quorum of the committee; ofthe five only one should be an inhabitant of Boston. ^ Of eleven members, Jabez Fisher was in the place of Norton Quincy; other wise the committees of the two congresses were identical. Ibid., 89. Quincy had offered his resignation on February 7, and Fisher had been elected February 8, The committee of safety, as such, was recognized as continuing in existence after the dissolution of one congress and until after, as well, the organization of another congress; it seemed essential, however, that each newly elected congress should sanction the smaller executive body by stating and confirming its powers. As to Quincy, cf. John Adams, Familiar Letters, 179, 184. "April 23, 1775, Messrs. Sullivan, Whitcomb, Durant, and Col. Cushing were added to the committee of safety. Journal of the Provincial Congress, 148. ''Ibid., 185. On May 12, Mr, Sullivan was put on the committee in the place of Dr, Holden, absent. Ibid., 218, On May 17 Mr, Sullivan was excused from serv ing, and Col, Foster and Deacon Fisher were added to the committee. Ibid., 235, ^ It was on this day also that the Committee of Safety appointed Dr. Church and two others to request of the Provincial Congress " that forthwith the duty of the committee of safety be precisely stated, and that said committee be empow ered by Congress to conduct in such manner as shall tend to the advantage of the colony; and to justify the conduct of said committee, so far as their proceedings are correspondent with the trust imposed in them; and to inform the Congress that until the path of their duty is clearly pointed out, they must be at a total loss how to conduct, so as to stand justified in their own minds, and in the minds of the people of this colony." Ibid., 550, 551. 1 4 1 J GOVERNMENT IN MASSA CHUSE TTS j 4 1 report promptly;' and on the succeeding day the Congress balloted for a new Committee of Safety of thirteen members." On May 19 this choice was incorporated in the revised form of commission and the whole thus sanctioned by the formal action of the Congress. The newly stated powers of the committee included the authority to issue commissions to the officers of regiments that might be completed in the approaching interim between two Congresses ; they included also the authority to summon and direct the mHitia and, further, to control " the army of this colony," "provided always, that it shaH be in the power of this, or any future congress, to control any order of the said committee of safety, respecting this or any other matter." 3 Thus they aimed, in view of the "particular ex igencies of the colony," to make the committee's commission " as concise and explicit as possible . . ." The men now appointed'* were to serve "until some further order of this, or some future congress or house of representatives of this colony shall revoke their, or either of their appointments." ' On May 9, 1 775 the Committee of Safety voted that, " as the circumstances of this colony are very different from what they were at their first appointment, the committee would represent to the Congress, that they apprehend it is necessary, that the whole of their duty may be comprised in a new commission." Jour nal of the Provincial Congress, 539, 540. ^ Of these, 9 had been among the 11 elected, Februarj' 9, 1775. The two others then chosen, Messrs. Wm, Heath and Jabez Fisher, and the four added, April 23, 1775, Messrs. Sullivan, Durant, Col. Cushing and Col. -Whitcomb do not appear on the present list. The four new names are those of Benj. Greenleaf, Nathan Cushing, Samuel Holten, and Enoch Freeman. Ibid., 89, 148, 238. " Ibid., 240-242. The preamble of these instructions gives a list of sixteen men who had thitherto, for longer or shorter periods, been members of the committee of safety. The quorum was again fixed at live. *It was on June 6, during the service of these men, that the Congress called Benjamin Edwards to the bar of the house to explain his use of the following language : " By God, if this province is to be governed in this manner, it is time for us to look out, and 'tis all owing to the committee of safety, a pack of sappy- head-fellows. I know three of them myself " /&i. 149] GOVERNMENT IN MASSACHUSETTS i^g With equal promptness, however, on the day after the action just outlined, the members of the first Congress put themselves on record by accepting a suggestive and signifi cant report submitted by the committee on manufactures.' Although merely a series of recommendations to their con stituents, the action illustrates plainly the condition of the province and the policy of its leaders. The preamble of their resolutions suggests that " the happiness of every political body of men upon earth, is to be estimated, in a great measure, upon their greater or less dependence upon any other political bodies;" internal economic weakness may readily entail political subjection to another body. To prevent " so great an evil, more to be dreaded than death itself, it must be the wisdom of this colony at all times, more especially at this time, when the hand of power is lashing us with the scorpions of despotism, to encourage agriculture, manufactures, and economy, so as to render this state as in dependent of every other state as the nature of our country will admit; . . ."" The solution of the problem thus stated is begun by a series of recommendations covering a wide field and showing certainly an ambition for economic independ ence. Thus, first of all, the people are urged to "the im provement of their breed of sheep, and the greatest possible increase of the same ; and also the preferable use of our own woollen manufactures; "3 and this is followed by simHar re mark on the raising of flax and hemp. Even the making of nails and the manufacture of saltpetre, " an article of vast importance." and likewise the manufacture of gun powder, of steel, and of tin plate is strongly recommended. Gun- locks, salt, glass, paper, madder, buttons, and wool- combers' combs, are brought to the public notice as proper objects for an expanding industry. In connection with the paper pro- ' December 8, 1774. Journal ofthe Provincial Congress, 62-65. 2 Ibid., 63. ^ Ibid., 63. I 5 O FROM PRO VINCIAL TO COMMON WEAL TH [150 duct "a careful saving and collection of rags" is suggested, and a bit of bold economic legislation is attempted when they recommend " that the manufacturers give a generous price for such rags " The " encouragement of horse- smiths in all their various branches" is said to be of " public utility," and a further proposition is the " preferable use of the stockings and other hosiery wove among ourselves so as to enlarge the manufactories thereof, . . ." The establish ment of societies in arts and manufactures is indicated as a means of making more effective these resolutions, which are concluded with the advice, already suggested in another connection, that the people " make use of our own manu factures, and those of our sister colonies, in preference to all other manufactures."' Economic self-defense was thus crudely begun. Subsequently, in answer to the petition of Messrs. Boice and Clark," who had " at a very considerable expense," erected paper works at Milton and who were unable to obtain a " sufficiency of rags to answer their purpose," it was resolved especially to urge "every family in this province, to preserve all their Hnen, and cotton and linen rags," and it was " also recommended to our several towns, to take such further measures for the encouragement of the manufacture aforesaid, as they shall think proper."3 Likewise, soon there after,-* an equally significant step was taken when the Con gress adopted such portions of a report^ as provided that ' Journals ofthe Provincial Congress, 65. '^February 8, 1775; Ibid.,?,?,. 'February 9, 1775; Ibid., 94. On May 16, 1775, on a report from Col. Bar rett that a prisoner at Worcester was a paper maker, the committee of safety resolved that the prisoner should be removed to Boice's paper mill at Milton. Ibid., 549. 'February 15, 1775. Ibid., 100. ^The committee was appointed February 13, 1775, and consisted of Stephen Hall, Dr. Warren, and Mr. Browne of Abington. Ibid., 98. 151] GO VERNMEN 'T IN MA SSA CHUSE TTS 151 there should be appointed a committee "to draw up direc tions, in an easy and famihar style, for the manufacturing of saltpetre, and that the same be printed and sent to every town and district in this province, at the public expense." ' The step was made effective by the guarantee of the Congress to purchase at a stated price all the saltpetre manufactured in the province during the subsequent twelve months." To develop this line of manufacture, a delegate was sent to New York to secure full information regarding the manufacture of saltpetre, and to engage the services of an expert in that work. 3 SimHar encouragement was given to the American manufacturers of fire arms and bayonets, when the Congress resolved " to give the preference to, and purchase from them, so many effective arms and bayonets as can be deliv ered in a reasonable time, upon notice given to this Congress at its next session."-* On many such lines the Congress ex panded the normal functions of a legislative body in its effort to develop the resources of the province to such a point that poHtical self protection and economic indepen dence would be equally possible and permanent. § 5. Public Finance The supremacy of the Provincial Congress and its early claim of some permanence were manifested by nothing more plainly than by the attitude and action of the Con- ' Journal of the Provincial Congress, 100. ^This function of the Congress to guarantee, in various ways, private invest ments in enterprises of public benefit, is well illustrated in other colonies. Cf. e.g.: Journals of the Provincial Congress of New York, Albany, 1842, I., 349,365. ^ American Archives, IIL, 209-211; IV., 72; V., 1336-1338; V., 1560; VI. , 1469. Proceedings of the Convention of Virginia [of March 1775], Richmond, 1816, 7, 8. Proceedings ofthe Convention of Virginia [of July 1775], Richmond, 1816, 61, 62. ^ Ibid., 417, 418, 421, 423. * Journal ofthe Provincial Congress, 103. 152 FROM PROVINCIAL TO COMMONWEALTH [152 gross upon matters of public finance. It has been seen already that after three weeks of preliminary work the Con gress had taken into its immediate control the financial sys tem of the province, and had appointed a provincial treas urer and receiver-general who should supersede the royal appointee. Having created at the head of this important de partment an ofificial who recognized no superior except the Congress, the efforts of that new representative body were thoroughly and promptly endorsed by the towns throughout the province. By these recognition was accorded the new treasurer, and to him, if to anyone, the proper local pay ments were made. The constables in the towns, and the sheriffs in the counties, as well as the respective assessors and commissioners, acted under immediate responsibility to their various constituencies, and in direct obedience to them. Above these officials all persons connected with the finan cial administration of the province were appointed and di rected by the Provincial Congress. Thus quickly, and with out disturbance, the new power gained control of what might well be made its greatest strength, and the loss of which was to become in every way a serious matter for the royal government, even though the mere loss of provincial revenue might easily be sustained, and the diverting of it to improper channels overlooked for a time. In this instance, however, there was slight indication that the diversion was temporary. It was quite otherwise ; and the accompanying changes even of personnel were equally suggestive of a completere organiz ation of government, with the recognition of new theories at its base and a new sovereign at its head. Asserting thus early its control of the financial administra tion, the Congress proceeded promptly to exercise functions relative thereto and of equally deep significance. Thus, more than a week before Gardner was given his appoint ment, the Provincial Congress began the consideration of a 153] ^'^ VERNMENT IN MA SSA CHUSE TTS 153 far more radical step, the appropriation of taxes assessed under the royal government. The committee, already noticed, " on the state of the province," reported, on Octo ber 20, a resolve " relative to the payment and collecting of the outstanding rates and taxes," which was read and recom mitted.' The same committee, October 28, again reported such a resolve which at first was promptly accepted. This vote, however, was immediately reconsidered, and the re solve was referred for amendment to Major Hawley, Mr. Gerry, and Major Foster. Their report was promptly made, ¦ and the resolve forthwith adopted. In this was incorporated the earlier action of the same day, the election of Henry Gardner as provincial treasurer. The duties of that officer were indicated in a general way, and recommendations were adopted urging the payment to him of all province moneys, and " that the like order be observed respecting the tax ordered by the great and general court at their last May session."" The recommendations of a body so formed could not be other than an expression of public opinion, and were for the people of the province law in everything but name. By such action at this time the Provincial Congress asserted, in part possibly by implication, that in itself alone rested the control of the provincial funds by whomsoever created,3 and that by itself as well was acquired the functions of the earlier General Court, to levy and collect taxes as the legal representatives of the peo ple. The position thus assumed was reaffirmed in Decem ber,-* and the authority of the Provincial Congress in this ' Journal ofthe Provincial Congress, 23. '' Ibid., 39. 'This is made plain even so late as April 25, 1775, when the Congress ordered the treasurer to make a statement concerning the finances of the province, and he answered " in a general way, that, for the year 1773, it was supposed that about ;^20,ooo was due, and that he had received about ;^5,ooo." Ibid., 151. 'December 9, 1774. Ibid., 65. 154 FROM PRO VIN CIAL TO COMMON WEAL TH [154 matter seems to have been seriously questioned by none. Its officers were recognized as fully authorized to handle all province moneys. Such funds, however, scarcely sufficed to meet even the preliminary expenses of a campaign still in the future. The effect of the policy of the " association " was naturaHy to de crease the supply of ready money ; and whatever small amounts might be held by its self-sacrificing supporters could well be retained by them, during such uncertainty of government, without a conscious stifling of patriotism. Whatever were the causes, it was a striking, if unpleasant, fact that many towns were repeatedly, in cases perhaps even permanently, delinquent in the payment of provincial taxes. Nevertheless, the imperative need of more secure fortifica tions and of ampler military supplies rendered unavoidable, if submission were not to follow, an early and a large ex penditure. The equipment and the support of an army, as well as the payment of volunteers, increased the cost of the new movement and made necessary the acquisition, by some means, of a fund of ready money. The seriousness of the financial situation did not become evident until the time of the second Provincial Congress. The first Congress had appointed a committee " to collect the several expenses which have accrued to the Congress in this and a former session thereof," had accepted their report on the last day of their session, and then had easily disposed of the matter by ordering the receiver-general " to pay and discharge the several demands therein mentioned."' With the second Provincial Congress, however, the problems and the difficulties appeared. Thus, as early as February 7, 1775, when Dr. Warren and four associates were appointed to consider the accounts of the delegates to the recent Con tinental Congress and to report an allowance for their ex- ' Journal ofthe Provincial Congress, 72. 155] '^'^ VERNMENT IN MA SSA CHUSE TTS 155 penses and services, they were directed " also to devise some method how the money shall be procured to discharge the same ; and also how the money shall be procured to enable our present delegates appointed to attend the American Congress to refund their expenses."' A trivial matter thus suggested an important question, but for the time being a resort to any special method of money-raising was avoided." At the end of March the needs of the province were im pressed upon the towns by the Provincial Congress in a hand bill urging the immediate payment of public moneys still re tained by negligent collectors and constables and expressing the desire of the Congress to complete " the preparations so essentially necessary to the public safety, without calling on them for other moneys, than such as are now due to the colony. "3 The possibilities did not really become im mediate until after the events of April 19. The patriotic vote, passed soon thereafter, to raise an army of 13,600 naturally involved many contingencies. Of these, the most formidable was soon before the Congress ; and on April 27, by special order of the day previous, the Congress took up the matter of supplying the treasury, and ordered that a committee of seven be chosen by ballot for reporting there on.* The Rev. Mr. Murray, Col. Dexter, Mr. Gerry, and four others were, on April 29, named for this service.^ On May 3 a report was rendered and accepted. By this action the receiver-general was " empowered and directed" to borrow ;^ioo,ooo, "lawful money," and to issue in return securities of the colony bearing six per cent, interest, and payable June i, 1777.* A form of security was adopted, ' Journal ofthe Provincial Congress, 87. ''The committee report was adopted February 10, and simply authorized the specified payments to be made to the men in question by the receiver-general, without any reference to any special means of raising the funds. Ibid., 95. 'March 31, 1775. Ibid., ll^. * Ibid., ibo. '" Ibid., \b 53> 57) 67, 76. Acts and Resolves ofthe Province of Mass., V., 419, 420. ^ Cf. Vote of Hingham, May 23, 1776. Lincoln, History of Hingham, 106. °In this convention seventeen towns were represented by twenty-two delegates. Danvers and Beverly subsequently agreed to the action taken. The memorial states: "... we fear that if a different Mode of Representation from the pres ent, is not adopted in this Colony, our Constitution will not continue, to that late Period of Time, which the glowing Heart of every true American now antici pates ^""if an Equality of Representation takes place in the Colony, we shall be satisfied, whether it has Respect to Numbers, to Property or to a Com bination of both,'' It further states that a single town in Essex county pays more taxes than thirty other towns and districts, that a majority in the General Court could be secured from towns that do not pay one-fourth of the taxes, and 203] GOVERNMENT IN MASSACHUSETTS 203 presented to the General Court; the committee report thereon was followed by the act of May 4, 1776, allowing three representatives for 220 electors, four representatives for 320 electors,' and so on upwards. By this the inequality in the representation of the towns was said to have been re moved, but the house was made so numerous as to be un wieldy." Furthermore, a number of vigorous protests were elicited by the fact that this law was not promulgated until after the issue of \yrits for the May election, so that on elec tion day towns within twenty miles of the General Court knew nothing of the new statute under which they were sup posed to be acting. The assertion that the act had made the condition of afifairs even worse than before was strength ened by the opinion that the act was nothing less than ille- gal.3 The efifect of all this upon action concerning the resolve of the assembly of September 17 was indicated when that Essex county pays more than one-sixth of the taxes, but sends only one- tenth of the representatives. Mass. Archives, 1^9: 192. V..epdnte.d'\n Acts and Resolves ofthe Province of Mass., V,, 542, 543. ' Cf. Savage, Constitution \of Massachusetts, 6. Cf. Acts and Resolves of the Province of Mass., V,, 502, 503, Charters and General Laws of Mass., 694. The act was introduced, read three times, and passed to be engrossed, iu one day. Journal ofthe House of Representatives, 242, 244, 245. ''Boston Totvn Records, XVIIL, 234, 235. To the house of July, 1775, 205 members were returned; to that of May, 1776,266 members. Of the difference of 61, certain counties had fewer repre sentatives, while there was an increased representation of 23 from Suffolk county, 25 from Essex, 10 from Middlesex, and 7 from Plymouth. Journal of the House of Representatives. The effect upon inland counties of the suddenness with which the act was passed appears in the representation of Worcester county, 177S) 37' 177^) 34' '777' 62; of Hampshire county, 1775, 25, 1776,27, 1777,41; of Berkshire county, 1775, 7, 1776, 11, 1777, 20. Ibid. A motion to repeal the act was defeated, June 4, 1777. Journal of the House of Representatives. '"Centinel" in Mass. Spy, 298; Jan, 16, 1777. The author of this article claimed that the Act made too large an Assembly and entailed too great an ex pense on the remote towns; he even suggested the possibility of county congresses and a provincial conference to repeal the act before the next election. Cf. Worcester Town Records, 291. 204 FROM PROVINCIAL TO COMMONWEALTH [204 the town of Sutton spoke of the house as a "very unequal representation," and also as illegal, many of its members having been " chosen by virtue of a pretended law made after the precepts went out for the election of the House."' From this arose the objection of the town to the forma tion and ratification of a constitution by such a house. The same day the town of Oxford adopted a committee re port opposing the enactment of a constitution by an assem bly which was such a " very unequal representation,"" and the trend of action thus fostered helped in the distinct rejection of the September proposals. However, the refusal of the towns to confer constituent powers upon the General Court involved merely the defeat of a method of securing change without a denial of its need. The general recognition of the necessity of some alteration in political forms was modified by divergence of views as to the time for action and concern ing the extent and thoroughness of the reconstruction. After a brief periods of comparative poHtical quiet the pro ject of reorganization was taken up by the house of repre sentatives, which on April 4 adopted and sent to the council for concurrence a resolve* recommending that the people in the approaching election should empower their representa tives to form a constitution for submission to the towns. The council, in its message in reply, suggested that the people had already too much to attend to, that a new constitution would help matters neither externally nor internally, and that 'October 7, 1776; 5 American Archives, II., g^6. Cy; Benedict and Tracy, History of Sutton, 99. ^5 American Archives, IL, 936, 937. "On January 27, 1777, after the result of the returns on the resolve of Sept. 17, 1776, had been reviewed, the house of representatives received a committee report proposing that for one year of a body, of the same size as the assembly, should be elected to frame a constitution. No action is indicated. Mass. Archives, 137: 138-141. * Original Bill in Mass. Archives, 156: 200-202. 2 O 5 ] GO VERNMEN T IN MA SSA CHUSE T TS 205 with the removal of the governor the people had secured sufficient power. "There is such a variety of sentiments' upon this head, that we believe no particular plan can be proposed but that will meet with very great opposition from some quarter or other. . . . "" The distracted career of Pennsylvania, that " recent instance of the dangerous effects of so great an alteration of government," was held up as a gloomy example, coupled with the fear that similar result might be expected from such an attempt in Massachusetts. The lower house, however, on the 2 1 st,3 maintained its position of the 4th and asked for a reconsideration by the council, as suring them that their views and acts were controlled by the general opinion of the " People, who have at all Times a Right to form or alter a Constitution,"-* and that " ever since the Declaration of Independence, we conceive a great Part of our Constituents have been expecting that a new Constitution would be formed, or some Alterations made in the present. "s The opposition to the lower house was now voiced, for one,^ by " Philadelphus " who claimed that " at this time, ' Cf. "Philadelphus" in Independent Chronicle, no. 452, April 17, 1777; . . . " every man within the State has his own sentiments upon government, and the minds of the people are more desonant upon this, than upon their mode of wor ship, or any other subject : and every one who is disappointed in his notions or plan, or who shall not obtain his private views in the new mode, will affect to be abused, will collect a party, and call all the rest tyrants : And in the present situation of public affairs, if one sixth part of the people should be against the form fabricated by this venerable convention, it never could be rendered coercive." ''Mass. Archives, 158: 78. 'It was on April 29, 1777, that the house resolved, fifteen of the council con curring, " That such unincorporated plantations as are Taxed to this State be and hereby are empowered to join in the choice of Representatives with such Town where they are taxed." Acts and Resolves of the Province c^ Mass.,N., 511, reprinted from Council Records, XXXVII., 251. ^ Mass. Archives, 158: 81-83. '¦April 21, 1777; Mass. Archives, 158: 81-83. *" Hannibal," who in the autumn of 1776 favored a Constitution, writes: "But now it is wrong toto caelo ;" all energy should be put on the war, and, at 2o6 FROM PROVINCIAL TO COMMONWEALTH [206 to begin a new mode of government, to set people by the ears in a contention about the rights of elections, to dissolve all government, to step into a state of nature, where there is no hopes [sic] of emerging from it, and to bring old chaos back again," could " be the work of only madmen or fools."' On the other hand, the people of Massachusetts had already seen nine new constitutions of varying degrees of excellence, they had been able to read not only the general political pamphlets of the time but also, to a less extent, the special works of Carter Braxton" and John Dickinson on forms of government, and the writings of John Wise3 on ecclesiastical polity; they were acting as well as thinking along the lines of John Adams' " Thoughts on Government,"-* and of the tract entitled " The People the Best Governors. "s To all appearances political education^ was now sufficiently exten sive and definite to equip the people for the special task be fore them. The general and apparent readiness for the work all events, the General Assembly should never form a Constitution. Independent Chronicle, no. 457, May 22, 1777. Cf. " Marcus Brutus " in Independent Chron icle, no. 446, July 17, 1777. ' Independent Chronicle, no. 452, April 17, 1777. ^ See Sabin, Bibliotheca Americana, no. 7466. ' Cf. Dexter, Three Hundred Years of Con^egationalism, 498, 501, 502. Tyler, History of American Literature, New York, 1S79, II., 104-116. Clark, History of ihe Congregational Church in Mass, 119. Doyle, lhe Puritan Colonies, London, 1887, II. , 486, 487. * Printed in Essex Journal, no. 148, November I, 1776. Cf. 4 American Archives, IV., 1136-1140; Works of John Adams, IV., 189-200. See Sabin, Bibliotheca Americana, no. 251. ^ Cf. an article by the present writer on "The People the Best Governors," in The American Historical Review, vol. I., no. 2. ^The press was active in poHtical matters; e.g.: the Independent Chronicle, no. 446, Mar. 6, 1777, published a new constitution of 43 articles; the Boston Gazette, no. 1 179, Dec. 22, 1777, published a four column " Constitution of the American Republic," by a confessedly obscure farmer; the 60 articles of this were written " all in the Interval between Ten o'Clock, A. M. and Two o'Clock, P. M." 207] GOVERNMENT IN MASSACHUSETTS 207 increased the weight of authority with which the lower house could speak; and, on May 5, the house bill passed the Gen eral Court. By this it was recommended that the towns at the coming election should empower their representatives to take part as members of a constituent body, in the formation of a new constitution, to be submitted to the towns for their action,' and to be established by the General Court after hav ing been approved by two-thirds of the freemen of the state, who were twenty-one years of age." This proposed step met the immediate opposition of the capital. Not only were self- denying ordinances broached, but Boston as well suggested a special convention at a suitable time, and had "peculiarly in View making the Council intirely independent of the House, &" to prevent the lately too prevalent Custom of accumulating Offices in one Persone ; . . . ."3 In spite of such and other opposition, the recommendation of the General Court was, in the May elections, adopted by a sufificient number of towns, and a majority* of representatives were returned fully authorized to share in the formation of a new constitu- tion.5 § 2. Work of the Convention Pursuant to the act of May 5, 1777, the Massachusetts ' Cf. " Hints for a form of government," Penn. Evening Post, IL, 232, July 16, 1776. 'Two original prints of this are in Mass. Archives, 213: 472, 473. The original drafts of the Resolution, with the disagreements, amendments, etc., are 'ro. Mass. Archives, 2\\-. 3-9. 'This action of May 26, based on the vote of May 22, is in Report of Boston Record Commissioners, Boston Town Records, 1770—1777, 284—286. The In structions of Boston to her Representatives are in Boston Gazette, no. 1 150, June i!, 1777; Connecticut Gazette, yc8, Jnne 6, 1777; Independeut Chronicle, 458, May 29, 1777; Almon's Remembrancer, lyyi, 243—245. *A. H. Bullock, Centennial of the Mass. Constitution, 12. * Journal of the House of Representatives, Begun May z8, ITJ7, 15, 24, 25. 2o8 FROM PROVINCIAL TO COMMONWEALTH [208 assembly of 1777' resolved itself, on June 17," into a con stituent convention, and, having effected an organization,3 proceeded at once to the appointment of a special committee* on the constitution. After the transfer thus to seventeen members of the main portion of the work in hand, the con vention quietly awaited the committee's report. The sessions of the fuH convention occupied three more days in June, on the last of which, June 30, Samuel Adams, in PhHadelphia, was writing to his friend Warren : "I find by the Newspapers that the Genl Assembly under the Denomination of a Con vention are forming a new Constitution. This is a momen tous Business. I pray God to direct you." 5 But the pro gress of the constituent work was not rapid. The convention sat at intervals,* and noted the lack of progress on the part 'An incomplete list of this Assembly is in the jSm;;o« Gazette, 11 50, June 2, 1777. '' Cf. Journal of the House of Representatives, Begun May 28, 1777, 27, 28. Few references to the convention appear in the house journal, Cf. Ibid., 29, 129. 'Jeremiah Powell was chosen Chairman, and Samuel Freeman, Clerk. * According to James Savage, Constitution of Massachusetts, p. 8, five were chosen at large, and one of the remaining twelve was taken from each of the counties, except Dukes and Nantucket. On June 17, the Convention appointed to this Committee, Thos. Cushing, John Pickering, James Prescott, John Bliss, George Partridge, Daniel Davis, R. T. Paine, Jos, Simpson, Seth Washburn, Jeremiah Powell, J, Taylor, and John Bacon. On June 18 the Convention appointed James Warren, Azor Orne, Noah Goodman, Capt. Isaac Stone, and Eleazar Brooks, at large. Mass. Archives, 156: 268-274. The list of the above seventeen is given in the .Soj/ok Gazette, June 23, 1777. Bradford, History of Mass., Boston, 1825, IL, 140, gives a list of only twelve, four of the Council and eight of the House. Bullock, Centennial of the Massachusetts Constitution, 12, says : " It is one of the omissions in our annals that the proceedings of this committee were never given to public inspection." But James Savage had a copy of the journal of this committee; see James Savage, Constitution of Mass., 8. Bullock, op. cit., 12, calls this " a joint committee of the Council and assembly . . . ." * S.Adams to [Jas. Warren], Philadelphia, June 30, 1777. Adams Papers, IX., Bancroft Collection. ^ After July, the Convention met on August 14; and also on September 18, when it ordered the Committee to meet as often as possible. The Convention met on October 2 and October 16, and on neither day was the 209] GOVERNMENT IN MASSACHUSETTS 209 of its committee. A contributor to the fVfassachiisetts Spy^ wrote, as early as September, that "we must soon expect some form or moddle of a Constitution." Still the committee needed much prodding, and its report was more than a fort night distant when, on November 22, Samuel Otis wrote to Elbridge Gerry : " There is great expectation of a new form of government in our state. I hope it will be a good one, and an executive power will be lodged somewhere ; at present, if there is any, you would be puzzled to find it: hence the chariot wheels drag so slowly." " At last, on December 11, the committee made its report,3 and asked leave to sit again. The convention, however, seized this opportunity and ordered 300 copies of the report printed'* solely for the use of mem bers of the convention, and in January began the active consideration s of the contents. In the earlier haff of that month nine days were given to the work,* in the course of Committee ready; on December 3 the Committee asked for more time. Mass. Archives, 156: 268-274. '"A. B." in the Mass. Spy, 332; Sept. Ii., 1777. ^Samuel A. Otis, Boston, Nov. 22, 1777, to E. Gerry. J. T. Austin, Life of Elbridge Gerry, I., 266. ^ " John Adams has been generally believed to have drawn up the first report to the general committee of both instruments; . . . ." T. C. Amory in Ne-M Eng land Historic Genealogical Society, commemorative proceedings, 26. According to W. V. Wells, Life of Samuel Adams, III., i, 2, in the formation of this con stitution John and Samuel Adams probably took no part. * A copy of this edition of the report and of the Resolve of Dec. 11, 1777, an 8 pp. pamphlet, is in the Sparks Papers, XLIX., IL, 329, Harvard College Library. A copy of the same, printed on large paper, with the clerk's minutes in the mar gin, is in Mass. Archives, 156: 202-210. A manuscript of the same, possibly as used in sending the matter to the press, is in Afajj. ^?- '3S- Their report was made March i, recommending that another con vention be held after the lapse of twenty years. It was at once considered; a motion to fix the year i8oo as the year when there should be an opportunity for revision was defeated; and a motion was carried to designate for that purpose the year 1795. Ibid., 156, 157. On March 2 a motion to substitute 1790 for 1795 was defeated. Ibid., 162. On the afternoon of the same day the report was again considered and accepted. Ibid., 162. '' The document was to be submitted to the inhabitants of each town and planta tion; in case two-thirds of the voters should approve, it was recommended that the people of the towns and plantations " empower their Delegates, at the next Session of this Convention, to agree upon a time when this Form of Government shall take place, without returning the same agaii to the people: . . . ." Journal ofthe Convention, 169, 'In the Library of Harvard College is a copy of the Constitution of 1780, as agreed on by the Convention, published by Benj, Edes and Sons, pp, 43. but with the additional line on the title page: "[Revised and Corrected,]" — In the Library of Harvard College is also a copy of the Constitution of 1780, with the convention resolutions of March 2, 1780, published by Benj. Edes and Sons, pp. 53. The text of the constitution is reprinted in Journal of the Convention, 222-249. • A report including this was accepted, February 29, Journal of the Conven tion, 155. A similar vote was passed, March i, Jbid., 158. ^ Messrs. Barrett, Wendell, and Gray were on March i appointed " to employ three expresses," and " to distribute the books to the several towns and planta tions, in such numbers to each as they may think proper." Messrs. Bowdoin and Adams were immediately added to this committee. Journal of the Conven tion, 158. In Alass. Archives, 231 : 456^ is a bill of Thos. Edes against the convention, paid May 3, 1780, for a horse, 170 miles, ,^255; expenses, ;^25 2; fourteen days service distributing constitution in Worcester, Hampshire, and Berkshire counties, jf 168; total, £(>y'i. In Alass. Archives, 231 : 456° are two bills, one of which, of L. G. Wallis, is for nine days service at " 40 Dollars p 242 FROM PROVINCIAL TO COMMONWEALTH [242 considerable friction,' it was determined that the adjourn ment should be until the first Wednesday in June ; and an address" was agreed upon for submission to the people with the constitution. In the address emphasis was put upon the need of con- cession,3 and upon the difficulty of the task, whHe the authors frankly continued, "We may not expect to agree in a perfect System of Government: This is not the Lot of Mankind."-* The address appeared thus as an apology, and furthermore as an argument and as an appeal. So it was asked whether it would not " be prudent for Individuals to cast out of the Scale smaller considerations, and fall in with an evident Ma jority, unless in Matters in which their Consciences shall con strain them to determine otherwise." Government, and a strong government, was essential, for it was "probable, that for the want of Energy, it would speedily lose even the Day." On April 7 the house and council voted ^{^900 in response to the memorial of Secretary Barrett, to distribute the " doings of the Convention " to the several towns. Mass. Archives, 227 : 74. ' Motions to adjourn to the first Wednesday in September, the second Wednes day in August, the second Wednesday in July, and the fourth Wednesday in June, were successively defeated. Journal of the Convention, 152, 163. ^ On March I the motion was carried " that the same number of copies of the Address be printed, as of the Form of Government, and accompany the same, and be signed by the President." Journal of the Convention, 159. The Address and Constitution were printed in Almon's Remembrancer, 1780, IL, 198-222. The Address was published by White and Adams, Boston, 1780, pp. 18; a copy is in the Mass. Archives, and also in the Library of Harvard College. The text is reprinted in Journal ofthe Convention, 216-221. The committee on the address was appointed, February 22, and consisted of Messrs. Sullivan, Adams, Lowell, West, and Gray. Journal of the Convention, 130. As to the authorship of the address, cf. T, C. Amory, Nexv England His toric Genealogical Society. Proceedings commemorative ofthe organization ofthe government of Alassachusetts, 25. Wells, Life of Samuel Adams, III., 80-97.- Journal of the Convention of 1820, 435. 'Also, cf. A Sermon preached . . . October 2j, 1780. By Samuel Cooper, 28. ' Journal ofthe Convention, p. 2 1 7 ; this was quoted in an apologetic manner in the Address of the Convention of 1853. lhe Constitutional Propositions, p. 44. 243] GOVERNMENT IN AIASSACHUSETTS 243 Appearance of Government, and sink into Anarchy." But to avoid tyranny a duly proportioned weight should be given to each power of government, and to " do this accurately requires the highest Skill in political Architecture." To convince the people of the wisdom of their work suggestive explanations were offered upon the more salient points. In the endeavor "to assist your Judgments" they flattered themselves that they had " sufficiently guarded the rights of Conscience from every possible infringement." The third article of the declaration of /rights, they con tinued, " underwent long debates, and took Time in propor tion to its importance ; and we feel ourselves peculiarly happy in being able to inform you, that, though the debates were managed by persons of various denominations, it was finally agreed upon with much more Unanimity than usually takes place in disquisitions of this Nature."' They con siderately maintained that it would be an affront to the people of the commonwealth to labor to convince them " that the Public Worship of God " had " a tendency to preserve a People from forsaking Civilization, and falling into a state of Savage barbarity." They subsequently stated that they " did not conceive themselves to be vested with Power to set up one Denomination of Christians above another; for Religion must at all Times be a matter between God and in dividuals:"" but they found themselves obliged to form stringent oaths of office. Various matters were merely mentioned, as if mention by the convention was amply ade quate to secure the contented acquiescence of the voter. Thus they alluded, by way of more formal sanction, to the judicial tenures, to the check of the council on the executive, to the limited continuance of existing laws and officers, to the powers of revision, and to the legislative process. Their '^Journal ofthe Convention, 218; Cf. Journal of the Convention of 1820, ^¦yi. 'Ibid., 220. 244 FROM PROVINCIAL TO COMMONWEALTH [244 constituents were told that the governor was " emphatically the representative of the whole people,"' and that the house of representatives was " intended as the Representative of the Persons, and the Senate of the property of the Common wealth."" Allegiance to the principle of representation according to population prompted a recognition of the inconsist ency of granting representation to the small incorporated towns, and a prophecy that their new " method of calcu lation" would "give a more exact Representation, when applied to all the Towns in the State, than any that we could fix upon. "3 " Ad exact Representation would be im practicable even in a System of Government arising from the State of Nature, and much more so in a state already di vided into nearly three hundred Corporations."-* Thus, " with plainness and sincerity," they aimed at harmonizing the views of the public with their own propositions on the more important features of constitutional government, and with this matter of fact sponsorship they sent forth the pro posed instrument of government to those in whom was vested the " undoubted Right, either to propose such Altera tions and Amendments as you shall judge proper, or, to give it your own Sanction in its present Form, or, totally to re ject it."s The frame of government thus completed and sub- ' Journal ofthe Convention, 219. 'Ibid., 2 1 8. Cf. Journal of the Convention of 1820, 257. Cf. Action of Northampton, May 22, 1780: "And it is impossible for us to admit so black a thought, as to imagine that the convention had an intention, by their address, to beguile their constituents into a supposition, that provision was made in the frame of Govern ment, for a representative of the persons, as well as for the property, of the Commonwealth, when really at the same time they were conscious that it was not so in fact; , . . ." Hawley Papers, II. , Bancroft Collection. ^ Journal of ihe Convention, 219. ? Ibid., 2ig. Cf. The Constitutional Propositions, . . . Boston, 1853, p. 46. ^ Journal of ihe Convention, 216. 245] GOVERNMENT IN AIASSACHUSETTS 24$ mitted to the action of the sanctioning power, was such, both in contents and in historical position, as to demand attention. In the constitution itself is found the justification of the opinions passed upon it, as well as the explanation of the pre-eminence granted it in the constitutional history of the period. Both in essence and in form it stands as a type of the best workmanship and the highest scholarship. In theory it embodied the growth of English freedom, the his' tory of the English constitution, and the development in the outlying parts of the empire of organizations of local govern ment fully adapted to subsist in relations other than those of an expanding monarchical state. The formation of this constitution followed, furthermore, the adoption of thirteen constitutions in other states,' and its framers thus were enabled to profit by the large amount of practical experi ence thus made available. The opportunity for excellent work was favorable ; the leaders of the body to which this opportunity was presented were men of unusual training; and the result was a document whose character is attested by its use, with certain modifications, to the present day." Embracing in its history such a period, it serves both as a summary of the past and as an introduction to the state constitutional history of the century succeeding its adoption. It is the first of the distinctly modern constitutions, as well as the last, with one exception,3 of the revolutionary era. ' Each of the thirteen colonies, except Connecticut and Rhode Island, had framed a constitution; South Carolina and New Hampshire had each formed two before 1780; and Vermont also had formed one. Including the Massa chusetts Constitution of 1778, thus far fourteen in all had been drafted and either put in force or submitted to popular vote. ^ The separation of Maine from Massachusetts made necessary some alteration in the constitution ; on this question fewer than one-fourth of the qualified voters gave any expression, and of 18,349 votes, 6,593 were against revision. "The exception of New Hampshire is more one of chronology than anything else. The constituent work in that state was at the time recognized as a con scious imitation of that of Massachusetts. 246 FROM PROVINCIAL TO COAIMONWEALTH [246 That it approximated more nearly than its predecessors to the modern type appears in nothing more distinctly than in its form. For the first time the usual long series of miscel laneous and loosely connected articles gives way to a sys tematic arrangement of subjects and to a clear, if not rigid, differentiation of material on those general lines along which the functions of government are differentiated. Such is found in the several chapters comprised in the " frame of government," or body of the constitution. Preceding that, however, are two important parts of the document, the pre amble and the declaration of rights. The inclusion of a preamble made this constitution to differ from several others of the period ;' and from those hav ing a preamble this one is distinguished by the fact that use is made of these preliminary paragraphs not to justify the political theories of the Revolution, but to state the underlying principles of the government which was about to be insti tuted." Thus, first, it is stated that the end of the institution and maintenance of government is "to secure the existence 'The constitutions of Delaware, Maryland, New Hampshire (1784), and Vir ginia, contained no preamble. Practically all of the constitutions to which refer ence is made in the following pages are to be found in Poore, Charters and Con stitutions. The bill of rights of the Delaware constitution of 1776 is in 5 Americait Archives, IL, 286, 287. The constitution proposed in New Hampshire in 1779 is in Collections of the New Hampshire Historical Society, IV., 154-161. 'The New Jersey preamble referred to the compact of government; alluded to the withdrawal of protection, the dissolution of government, the need of some government, and to the advice of the Continental Congress, The South Carolina preamble of 1776 uses in a political way such topics as the British claims, the ex tension of admiralty jurisdiction, the affairs in Massachusetts, the acts of Parlia ment, the use of force by the English, the dissolution of the Assembly, and the unjustifiable activity of Governor Campbell. The Pennsylvania, Vermont, and New Hampshire (1776) preambles suggest the basis of their authorization. The New York preamble quoted in full the Declaration of Independence, cited the resolution of July 9, 1776, of the N. Y, Provincial Congress, and quoted the resolution of May 31, 1776, of the same body, the latter including the resolution of the Continental Congress of May 15, 1776. 247] GOVERNAIENT IN MASSACHUSETTS 247 of the body-politic;" and to assure the individuals therein the safe enjoyment of " their natural rights, and the bless ings of life;" the failure to attain which objects invests the people with a " right to alter the government, and to take measures necessary for their safety, prosperity and happi ness." This body politic, which is " formed by a voluntary association of individuals," is further described as " a social compact,' by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good."" Such a body, "the people of Massachusetts," acknowledging "the goodness of the Great Legislator of the Universe," enter into " an original, explicit, and solemn compact with each other;" and " agree upon, ordain and establish, the follow ing Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts." Having thus declared their conception of the nature of the state, a more extended statement is made of those princi ples of civil and religious relationship and of political privi leges which are held to attach to the position of every man in civil society, and which cannot be considered subject to modification at the option of the government. The condi tions on which man surrenders to the "body-politic" his " alienable " rights must be distinctly stated, and the in violate character of his " inalienable " rights must be recog- ' Cf. Borgeaud, Etablissement et Revision des Constitutions, Paris, 1893, ' ^7- 'Cf. New Hampshire Declaration of Rights (1784), Art. I. Cf. Virginia Declaration of Rights, Art. 3. Cf. Maryland Declaration of Rights, Art. I : "That all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole." Mr. Simonds, quoting this paragraph in the Convention of 1853, said: " Here I recognize the principle of a government dividing itself up into two classes, the citizen covenanting with the whole people, and the whole people covenanting ¦H'ith the citizen." Debates and Proceedings of the Convention of i8jj, I., 210. Cf. Boston Town Records, XXVI., 282. 248 FROM PROVINCIAL TO COMMONWEALTH [248 nized.' The form of such recognition was already familiar to Englishmen, and the necessity of such had been repeat edly emphasized. That necessity, to be sure, was less when the people possessed all the powers of government than it was in the time of Charles or WiHiam ; yet the incorporation of a declaration of rights into so many of the constitutions of the time throws into prominence the carefulness and the con sistency of the men who framed them. Others than those of Massachusetts realized keenly the vital importance of a clear and abiding statement of the immunities and privileges of man in civil society." Especially on these points did Massachusetts voice the general sentiment throughout the new nation, and in this connection most clearly did the framers of her constitution draw upon the work of other men. One-half of the thirty sections of the Massachusetts de claration of rights aim in various ways at the establishment of civil liberty. The opening statement that "all men are born free and equal,3 and have certain natural, essential, and ' Cf. Virginia Declaration of Rights which asserts that all men " have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity;" Art. 1. Cf. Vermont De claration of Rights, Arts, i, 3. New Hampshire Declaration of Rights, (1784) Art. 3 : " When men enter into a state of society, they surrender up some of their natural rights to that society, in order to insure the protection of others; and, without such an equivalent, the surrender is void." Ibid., kxt. d^: "Among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received for them," ' A Declaration of Rights was adopted by Delaware, Maryland, New Hamp shire (1784), North Carolina, Pennsylvania, Vermont, and Virginia, 'As to this, Northampton, May 22, 1780, voted that "this is true only with respect to the right of dominion, and jurisdiction, over one another.'' Hawley Papers, II., Bancroft Collection. Although the courts soon declared that the constitution prohibited slavery in Massachusetts, Hawley, in his " Criticism," wrote : " I fear it will take a Century, wholly to abolish and take away the inhuman, unjust and cruel practice, of en slaving our fellow men. Why therefore shall we affect to conceal and cover when we are too unwilling to annihilate and put an end to ? Such disguises will 249] GOVERNMENT IN MASSACHUSETTS 249 unalienable rights;" is followed by the inclusion among such of the right to possess and enjoy life, liberty, and happi ness.' The enjoyment of these rights is to be guaranteed by law ; whence arises the duty of the individual to " con tribute his share to the expense of this protection;"" but the alienation of one's property is subjected to strict legal limi tations. General warrants,3 unreasonable searches,'* and ex post facto laws, 5 are forbidden. Prompt, free, and complete not remove the shame and just reproach while the iniquitous practice is notorious." Hawley Paters, IL, Bancroft Collection. See Moore, Notes on the History of Slavery in Massachusetts. New York, 1866, 200-223. 'Art. I. In the report of October 28, 1779, this read: "All men are bom equally free and independent, . . . ." Journal, 193. The Virginia Declaration, Art. i, states: "That all men are by nature equally firee and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their pos terity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." The Vermont declaration is, " That all men are born equally free and independ ent, . . . ." Cf. the constitutions of Pennsylvania, New Hampshire, and for an omission of such cf. those of Maryland and North Carolina. ' Art. 10. Cf. Pennsylvania Declaration of Rights, Art. 8 : " every member of so ciety is bound to contribute his proportion towards the expence of that protection, . . . ." Cf. Vermont Declaration of Rights, Art. 9 : " every member of society ... is bound to contribute his proportion towards the expense of that protection " Delaware Declaration of Rights, Art. 10: "That every member of society hath a right to be protected in the enjoyment of life, liberty, and property, and therefore is bound to contribute his proportion towards the expense of that protection, and yield his personal service when necessary, or an equivalent thereto; . . . ." 5 American Archives, II. , 286. 'Art, 14. Cf. Virginia Declaration of Rights, Art. 10; Vermont Declaration of Rights, Art. 11; North Carolina Declaration of Rights, Art. 11; New Hampshire Declaration of Rights (1784), Art. 19; Maryland Declaration of Rights, Art. 23; Pennsylvania Declaration of Rights, Art. 10; Delaware Declaration of Rights, Art. 17. *Art. 14. "Art. 24. Cf. Maryland Declaration of Rights, Art. 15; New Hampshire Declaration of Rights (1784'), Art. 23; North Carolina Declaration of Rights, Art. 24; Delaware Declaration of Rights, Art. 11. 2 50 FROM PROVINCIAL TO COAIMONWEALTH [250 justice should be assured ;' jury trial is not to be Hmited," and attention is given to the process of the courts.3 The right to bear arms'* and the freedom of the presss are assured, and the usual position is taken against standing armies in time of peace"^ and against the unrestricted quartering of soldiers.^ 'Art. II. Cf. New Hampshire Declaration of Rights (1784), Art. 14: "Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property or character, to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay, conformably to the laws." Cf. North Carolina Declaration of Rights, Arts. 12, 13; Delaware Declaration of Rights, Art. 12. The privileges of habeas corpus are assured in the body of the Constitution, Chap. VL, Art. 7. Cf. Georgia Constitution, Art. 60; New Hampshire Constitution (1784). Poore, p. 1292. ^Art. 12, 15. Cf. Georgia Constitution, Art. 61; Maryland Declaration of Rights, Art. 19; New Hampshire Declaration of Rights, (1784) Arts. 15, 20,21; Niw Jersey Constitution, Art, 22; New York Constitution, Art, 41 ; North Caro lina Declaration of Rights, Art, 9; Pennsylvania Declaration of Rights, Arts, 9, II; South Carolina Constitution, (1776) Art, 18; South Carolina Constitution, (1778) Art. 41; Vermont Declaration of Rights, Arts. 10, 13; Vermont Con stitution, Sec. 22; Virginia Declaration of Rights, Arts. 8, II; New Hampshire Declaration of Rights, (1779) Art, 7; Delaware Declaration of Rights, Arts, 13, [4. 'Arts. 12, 13, 26, 29. Thus, for instance, excessive charges for fines or bail are forbidden; Cf. Georgia Constitution, Art. 59; Maryland Declaration of Rights, Art. 22; New Hampshire Declaration of Rights, (1784) Art, 33; North Carolina Declaration of Rights, Art. 10; Pennsylvania Constitution, Sec. 29; Vermont Constitution, Sec. 26; Virginia Declaration of Rights, Sec. 9; Delaware Declara tion of Rights, Art, 16, •Art. 17. North Carolina Declaration of Rights, Art. 17; Pennsylvania Declaration of Rights, Art. 13; Vermont Declaration of Rights, Art. 15. "Art. 16. Cf. Georgia Constitution, Art. 61; Maryland Declaration of Rights, Art. 38; New Hampshire Declaration of Rights, (1784J Art, 22; North Caro lina Declaration of Rights, Art. 15; Pennsylvania Declaration of Rights, Art. 12; South Carolina Constitution, (1778) Art. 43; Vermont Declaration of Rights, Art, 14; Virginia Declaration of Rights, Art, 12; Delaware Declaration of Rights, Art. 23. * Art. 17. cy: Maryland Declaration of Rights, Art. 26; New Hampshire Declara tion of Rights (17841, Art, 25; North CaroUna Declaration of Rights, Art, 17; Pennsylvania Declaration of Rights, Art, 13; Vermont Declaration of Rights, Art. 15; Virginia Declaration of Rights, Art, 13; Delaware Declaration of Rights, Art, 19. 'Art. 27. Cf. Maryland Declaration of Rights, Art. 28; New Hampshire Declaration of Rights (1784), Art. 27; Delaware Declaration of Rights, Art. 21. 251] GOVERNMENT IN MASSACHUSETTS 251 The defence of civil liberty being practically complete, a further series of statements was made relative to the location of sovereignty and to the exercise of political rights. Thus it is declared that "Jihe people alone have an incontestible, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it."' Similarly: "The people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent state;"" and as such power is thus vested all officers of government, " whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them."3 Naturally, the ' Art. 7. Cf. Maryland : " all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole." Poore, 817. Cf. North Carolina: "That all political power is vested in and de rived from the people only." Ibid., 1409. Cf. Art. 4 of the Declaration of Rights of the New Hampshire proposed consti tution, (1779) : " The whole and entire power of government of this State is vested in, and must be derived from the people thereof, and from no other source what soever." Collections of New Hampshire Historical Society, iv., 155. Delaware Declaration of Rights, Art, I : " That all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole." Cf. Article on Connecticut in New York Packet, no. 12, Mar. 21, 1776. ^Art. 4. Cf. New Hampshire (1784): "The people of this state have the sole and exclusive right of governing themselves as a free, sovereign, and inde pendent state, . . . ." Poore, 1281. Cf. Pennsylvania : " the community hath an indubitable, unalienable and in defeasible right to reform, alter, or abolish government in such manner as shall be by that community judged most conducive to the public weal." Ibid., 1541. Rufus Clioate said in 1853 : " ... by 1776 or certainly 1780 we grasped com pletely the American idea that the people were the source of sovereignty; that they are equal; that they alone are to be represented in the popular branch of government, and that they are to be represented equally there." Debates and Proceedings ofthe Convention of 18^3, I. 886. 'Art. 5. Cf. Maryland: "That all persons invested with the legislative or executive powers of government are the trustees of the public, and, as such, ac countable for their conduct; . . . ." Poore, 817. Cf. New Hampshire, (1784) : "All power residing originally in, and being derived from the people, all the 252 FROM PROVINCIAL TO COMMONWEALTH [252 " people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good ;"' to instruct their representatives ; and to address the legislature." The people are urged to practice a "frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality," and " to have a particular attention to all those principles, in the choice of their officers and representatives: "3 since "they have a right to require of their law-givers and magistrates, an exact and constant ob servance of them, in the formation and execution of the laws necessary for the good administration of the Common wealth."-* magistrates and officers of government, are their substitutes and agents, and at all times accountable to them." Poore, 1581. Delaware Declaration of Rights, Art. 5. " Proper Democracy is where the people have all the power in themselves, who choose whom they please for their head for a time, and dismiss him when they please; make their own laws, choose all their own officers, and replace them at pleasure." " The Interest of America " by " Spartanus," in Freeman's Journal, no. 4, June 15, 1776. Cf. Pennsylvania : " That all power being originally inherent in, and conse quently derived from, the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times account able to them.'' Poore, 1541. Action of New Salem, February i, 15, 1773: "we take it for Granted: that Governors are the trustees of Society: ... We think Likewise that all trustees are in reason answerable to those who have Lodged a trust in their hands." Re volutionary Corresp., I., 676, 680. Bancroft Collection. 'Art. 19, Cf. New Hampshire Declaration of Rights (1784), Art. 32; North Carolina Declaration of Rights, Art. 18; Pennsylvania Declaration of Rights, Art. 16; Vermont Declaration of Rights, Art. 18. ^ cy: M ary land Declaration of Rights, Art. 1 1 . ^Art. 18, Cf. Pennsylvania Declaration of Rights, Art. 14; Cf. Virginia Dec- aration of Rights, Art. 15; Vermont Declaration of Rights, Art. 16. •Art. 18. 253] GO VERNMENT IN MASSA CHUSETTS 253 "All elections ought to be free;"' those eligible have an equal right both to elect and to be elected. But that those elected may not become oppressors, " the people have a right, at such periods and in such manner as they shall es tablish by their frame of government, to cause their public officers to return to private life;"" while further consideration of the public service has the significant conclusion that " the idea of a man born a magistrate, law-giver, or judge, is absurd and unnatural. "3 The legislature is the subject of certain articles, in which that branch is forbidden to pass any ex post facto laws-* or to declare any subject guilty of treason or felony.^ To sus pend and to execute the laws is wholly within the compe tence of the legislature ;* in each house freedom of speech is assured ;7 and frequent sessions are recommended.^ An equally important declaration is the twenty- third article: 'Art. 9. Cf. Maryland Declaration of Rights, Art. 5; New Hampshire Declara tion of Rights (1784), Art. ii; Pennsylvania Declaration of Rights, Art. 7; Ver mont Declaration of Rights, Art. 8; Virginia Declaration of Rights, Art. 6; Delaware Declaration of Rights, Art. 6. '¦' Art. 8. Cf. Maryland Declaration of Rights, Art. 4, 31 ; North Carolina Decla ration of Rights, Art. 20; Pennsylvania Declaration of Rights, Art. 6; Vermont Declaration of Rights, Art. 7. The theory of this was well expressed by Samuel Johnston in his letter from Halifax, N. C, April 20, 1776, to James Iredell: "After all it appears to me that there can be no check on the Representatives of the people in a democracy, but the people themselves; and in order that the check may be more efficient, I would have annual elections." Jbnes, Defence of A'orth Carolina, 279, 280. ' Art. 6, Cf. Virginia Declaration of Rights, Art. 4. *Art. 24. *Art. 25, Cf. Maryland Declaration of Rights, Art. 16. * Art. 20, Cf. Virginia Declaration of Rights, Art. 7; Delaware Declaration of Rights, Art. 7. ' Art. 21, Cf. Maryland Declaration of Rights, Art. 8; New Hampshire Declara tion of Rights (1784), Art. 30. "Art. 22, Cf. New Hampshire Declaration of Rights (1784), Art. 31; Dela ware Declaration of Rights, Art. 8. 2 54 FROM PROVINCIAL TO COAIMONWEALTH [254 "No subsidy, charge, tax, impost, or duties, ought to be es tablished, fixed, laid, or levied, under any pretext whatso ever, whhout the consent of the people, or their representa tives in the legislature."' Turning to matters of religion, it is stated to be " the duty of aH men in society, pubhcly, and at stated seasons, to wor ship " God. In the same article perfect freedom is assured to each one to worship " in the manner and season most agreeable to the dictates of his own conscience ; or for his religious profession or sentiments ; provided he doth not dis turb the public peace, or obstruct others in their religious worship."" As has already been indicated, this, and espec- ' Cf. New Hampshire Declaration of Rights (1784), Art. 28; Maryland Decla ration of Rights, Art. 12; North Carolina Declaration of Rights, Art. 16. 'Art. 2. Cf. Georgia Constitution, Art. 56; Cf. Maryland Declaration of Rights, Arts. 33, 34; Cf. New Hampshire Declaration of Rights (1784), Arts. 5, 6; Cf. New Jersey Constitution, Arts. 18, 19; Cf. New York Constitution, Art. 38; Cf. North Carolina Declaration of Rights, Art. 19; Cf. Pennsylvania Decla- tion of Rights, Art, 2; Cf. South Carolina Constitution (1778), Art. 38; Cf. Yet- mont Declaration of Rights, Art. 3; Cf. Virginia Declaration of Rights, Art, 16; Cf. Delaware Constitution, Art, 29; Cf. Delaware Declaration of Rights, Arts, 2, 3; Cf. New Hampshire Declaration of Rights (1779), Art, 5 : " The future leg islature of this State shall make no laws to infringe the rights of conscience, or any other of the natural, unalienable Rights of Men, or contrary to the laws of God, or against the Protestant religion," Collections ofthe New Hampshire His torical Society, IV,, 155, In the Mass, Convention of 1820 Mr, Dearborn, of Roxbury, said: "Of the constitutions of the several United States, those of this State and of Maryland were the only ones which were marked by bigotry and ecclesiastical intolerance. This was owing to peculiar circumstances existing at the time of their adoption. These circumstances are passed away," Journal of the Constitution of 1820, 171. Speaking of this, Mr. Hubbard, in 1820, " denied that our happiness and good morals were owing to the third article; on the contrary that article grew out of our good morals. . . . No law was passed until 1800 to enforce this provision; so that it remained for twenty years a dead letter, . . ." Ibid.. 397. The Address of the Convention of 1820 stated: " It is known to us that the eminent men who framed the constitution under which we have lived bestowed on the only article of the declaration of rights which has occasioned much dis cussion among us the greatest attention." Ibid., 623. 255] GOVERNAIENT IN MASSACHUSETTS 255 ially the succeeding article, occasioned, both in and out of the convention, a vigorous debate. The latter article is not able for its spirit of New England theocracy. Its provisions rest on the assumption that "good order and preservation of civil government, essentially depend upon piety, religion and morality;"' to secure which the people assert their right to direct the legislature to " authorize and require the several towns, parishes, precincts, and other bodies-politic, or re ligious societies, to make suitable provision, at their own ex pense, for the institution of the public worship of God, and for the support and maintenance of public protestant teachers of piety, religion and morality, in all cases where such pro vision shall not be made voluntarily." The selection of public teachers is left to the towns, societies, or other bodies. The money paid by each man shall, if he require it, be used for the support of a teacher of his own denomination, " pro vided there be any on whose instructions he attends : other wise it may be paid towards the support of the teacher or teachers of the parish or precinct in which the said monies are raised." Equal protection of the law was accorded to all denominations of peaceable Christians, and the subordina tion of one sect or denomination to another was never to be established by law. The whole article was made still more tangible to each citizen by the action of the people in assum ing to themselves the right to invest the legislature "with authority to enjoin upon all subjects an attendance upon the instructions of the public teachers aforesaid, at stated times 'Art. 3, as reported October 28, 1779, began: "Good morals being necessary to the preservation of civil society," the legislature has the " right, and ought, to provide at the expense of the subject, if necessary, a suitable support for the pub lic worship of God, and of the teachers of religion and morals; and to enjoin upon all the subjects an attendance upon their instructions, at stated times and seasons; Provided there be any such teacher on whose ministry they can con scientiously and conveniently attend." The article then contained nothing further, except the clause, as in the text, on the disposal of money paid for such support. Journal of the Convention, 193. 256 FROM PROVINCIAL TO COMMONWEALTH [256 and seasons, if there be any on whose instructions they can conscientiously and conveniently attend." The conclusion of the declaration of rights as reported October 28, 1779, was as follows: "The judicial depart ment of the State ought to be separate from, and indepen dent of, the legislative and executive powers."' This theory of government had been vigorously supported; in it was supposed to be a safeguard of liberty; and to it in theory there was a strong prejudice. This made natural the de velopment of the theory from the earlier crude statement to the following: "In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them. The executive shall - never exercise the legislative and judicial powers, or either of them. The judicial shall never exercise the legislative or ex ecutive powers, or either of them : to the end it may be a gov ernment of laws and not of men."" While those parts of the declaration of rights pertaining to civil rights were a normal expression of free Englishmen of the time, while the utterances which it contained on political rights and on sovereignty were purely a definition of the Revolution, and while the pro visions on religion were a not unnatural outcome of a Mass- 'Art. 31. The bill of rights of October 28, 1779, contained 31 articles, but ar ticles 12 and 14 were combined in Art. 12 of the later draft; the later form, how ever, omitted the provision for a unanimous vote in jury trials. ' Georgia Constitution, Art. i : " The legislative, executive, and judiciary de partments shall be separate and distinct, so that neither exercise the powers pro perly belonging to the other." Cf. Maryland Declaration of Rights, Art. 6; cy: North Carolina Declaration of Rights, Art. 4; Cf. Virginia Declaration of Rights, Art. 5 : " That the legislative and executive powers of the State should be sepa rate and distinct from the judiciary; . . . ." New Hampshire Declaration of Rights (1784), Art. 37: " In the government of this state, the three essential powers thereof, to wit, the legislative, executive and ju-iicial, ought to be kept as separate from and independent of each other, as the nature of a free government will admit, or as is consistent with that claim of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity." 257] GOVERN.ME.yT IN AIASSACHUSETTS 257 achusetts convention of the time, the tripartite division of government appears as one of the new and striking products of the eighteenth century.' Although owing its inception to no originality of the Americans, it was due to their clear understanding of political relations, to their insistence upon the most careful expression of those relations, that it at this time became a part of the constitutional system of the American commonwealths." Such in theory, it was other wise in fact; for the theory and the actual situation could rarely, if ever, coincide, 3 although in many points an approx imate coincidence would be attained, and the independence, thus, of each branch of government assured. The remainder of the constitution comprised the " frame of government," at the opening of which the position earlier stated was reaffirmed ; there again the people "solemnly and mutually agree with each other, to form themselves into a free, sovereign, and independent body-politic or state." The 'Joseph Story said in 1820: "Our whole system of government is novel. It is a great experiment in the science of politics. The very principle of representa tion and the theory of a division of powers is of modern origin, as are many of our dearest and most valuable institutions." Journal of the Convention of 1820, 290. ' Journal ofthe Convention of 1820, 267. ' Cf. Speech of Daniel Webster, in 1820 : "Nor has it been found easy, nor in all cases possible, to preserve the judicial department from the progress of legis lative encroachment. ... As if Montesquieu had never demonstrated the neces sity of separating the departments of government; as if Mr. Adams had not done the same thing, with equal ability, and more clearness, in his defence of the American Constitution; as if the sentiments of Mr. Hamilton and Mr. Madison were already forgotten; we see, all around us, a tendency to extend the legis lative power over the proper sphere of the other departments. ... If we look through the several constitutions of the states, we shall perceive that generally the departments are most distinct and independent, where the legislature is com posed of two houses, with equal authority, and mutual checks. If all legislative power be in one popular body, all other power, sooner or later, will be there also." Journal of the Convention of 1820, 306, 307. Cf. Ibid., 475, 476. Cf. J. Adams to R. Rush, May 14, 1821. Works of John Adams, X., 397. Cf. Elliot, Debates, IL, 504, 505; IIL, 608. 258 FROM PRO VIxVCIAL TO COMMONWEALTH [258 organization of this commonwealth was along the lines indi cated, and of the six chapters of the "frame" the first three were devoted, respectively, to the legislative, the executive, and the judicial power. To the provision for a bicameral legislature was attached the grant to each house of a negative on the other. Thus assured of their favorite "check and balance" system', the constructive work could proceed on the broad lines incident thereto. Yet their theories were accentuated in practice by the adoption for each house of a different basis of represen tation. The forty senators, thus, were assigned to several districts, coincident then with the counties for the sake of convenience," in " the proportion of public taxes paid by the said Districts;" but with the limitations that there should never be less than thirteen districts, and that no district should ever be entitled to more than six senators. 3 The lower house, in distinction, was intended as "a representa tion of the people, annually elected, and founded upon the principle of equality.'' Its number was not fixed, but the principle of town representation was adopted, with a modifi cation admitting the effect of the relative size of town popu lations. Thus, while a single representative was allowed to every town already incorporated, no town thereafter-* was to be incorporated or be entitled to a representative unless it contained 150 " rateable polls, "s each increase of 225 over •- Cf. Elliot, Debates, IL, 103. '' A single exception to this was the union of Nantucket and Dukes in a single district. ' In the convention of 1820, Mr, Flint, of Reading, said : " Had it not been for six words in the constitution, relative to the apportionment of senators, the people never would have called this Convention." Journal of the Convention of 1820, 133. Cf. Debates and Proceedings ofthe Convention of 18^3, 845. * Cf. Debates and Proceedings of the Convention of 18^3, 869. * In the convention of 1820 it was proposed to make population instead of polls the basis of representation. Of the computation on polls, Mr. Lawrence then 259] GOVERNAIENT IN AIASSACHUSETTS 259 which number entitled the town to an additional representa tive. Differing in this respect, each house, however, was elected annually, and by virtually the same electors, the sen ators being chosen by the male inhabitants of the respective senatorial district, twenty-one years of age, owning within the commonwealth a freehold estate of the annual income of £">), or any estate of the value of £Qo. The electors of the lower house must have similar general qualification, and must have resided in the town where they voted for one year next pre ceding the election ; and in the matter of the alternative property qualification, the freehold estate of £'^ must in this case lie in the town of residence. Turning to the qualifica tions of the legislators, a senator must have been an inhabi tant of the commonwealth for five years immediately preced ing his election, he must at the time of his election be a resi dent of the district choosing him, and he must further own a freehold estate in the commonwealth of ;^300, or an estate, either personal or mixed, of ;£'6oo. In a representative it was essential that for one year immediately preceding his election he should have been both a resident and an owner of a freehold estate of £100 in the town he represented; an alternative property qualification was the ownership of any " rateable estate " valued at ;£'200. On ceasing to be thus quahfied a loss of his seat would result. " presumed this basis never would have been adopted, if there had been at the time of the framing of the constitution any provision for the periodical enumera tion of the inhabitants. Polls did not before that time form the basis of repre sentation. By the laws of 1692 and 1776, the number of freeholders was the basis. There was at the time of the formation of the constitution no mode of ascertaining the number of inhabitants; but there was of rateable polls." Jour nal of the Convention of 1820, 244, Speaking upon this matter in 1820, Joseph Story, of Salem, later Chief Justice, uttered a noteworthy sentence: "I have lived long enough to know that in any question of government, something is to be yielded up on all sides. Conciliation and compromise lie at the origin of every free government; and the question never was and never can be, what is abso lutely best, but what is relatively wise, just and expedient." Ibid., 289. 26o FROAI PROVINCIAL TO COMMONWEALTH [260 The quorum of the senate was fixed at sixteen and of the house at sixty ; the processes of popular election were indi cated, as were also the principal powers of the legislature. Chief among these last was the power to erect all courts "for the hearing, trying, and determining of aH manner of crimes, offenses, pleas, processes, plaints, actions, matters, causes, and things whatsoever, arising or happening within the Com monwealth, or between or concerning persons inhabiting or residing, or brought within the same ; whether the same be criminal or civH, . . . capital or not capital, . . . real, per sonal, or mixt; ..." Provision was made for a decennial valuation of estates. The trial of impeachments was vested in the senate alone. The usual legislative function of law making was expanded into an enumeration of the proper objects, such as the public welfare and defence, the crea tion and control of an administrative and of a military system, the provision of a revenue, and the disposal, under executive warrant, of the public funds.' The usual privileges of legis lative bodies were assured, and provision made for annulling an executive veto by the passage of the returned bill by a two-thirds vote in each house. The executive of Massachusetts was, as were the legisla tors, elected for a single year ; electors of the latter were en titled to vote for the former, but more than one phase of the philosophy of the time was emphasized in the provisions that the chief executive should have been an inhabitant of the state for seven years immediately preceding his election, that he should own a freehold of £\ooC) in the state, and that he should "declare himself to be of the Christian religion." The calling, proroguing, and dissolving of the legislature, the ' In the convention of 1820 Josiah Quinry, referring to the convention uf 1780, said: "They had no difficulty in providing that all the powers which were then possessed by the Provincial legislature, should continue to be exercised by the General Court of the Commonwealth, with the limitation which before existed." Journal ofthe Convention of 1820, 73. 26l] GOVERNMENT IN MASSACHUSETTS 261 power of pardon, the appointment of aH judicial officers, of sheriffs, coroners, and registers of probate, of the attorney-gen eral and solicitor-general, and the power to grant, by warrant, the public money, were vested in the governor; but in each in stance with a limitation which presented a peculiar institution. From the senate were chosen nine men by the two houses ; their seats remained vacant ; if nine did not consent to the new service the completion was effected by the election of men at large. No more than two councillors were to be taken from any one senatorial district ; and the nine, with the lieutenant-gov ernor, were to advise the governor, and " hold and keep a Council, for the ordering and directing the afifairs of the commonwealth, according to the laws of the land.'" Completing the executive department, the third chapter provided also for the annual election by joint ballot of sen ators and representatives, of a secretary, treasurer and receiver-general, a commissary, naval officers, and notaries public. The secretary was to be responsible for the keep ing of the state records, and no one was to be treasurer and receiver- general more than five years successively, in order, as was quaintly stated, that the citizens "may be assured, from time to time, that the monies remaining in the public treasury, upon the settlement and liquidation of the public accounts, are their property, . . . ."" Under the legislative powers provision was made for the erection of courts. Chapter three added a variety of minor regulations, such as that the probate courts should be held on ' Cf. Debates and Proceedings of the Convention of 18^3, I., 502. Journal of the Convention of 1820, 209. Cf. Brooks Adams, Emancipation of Massachusetts, 306. ^ Northampton, May 22, 1 780, expressed the wish that the clause on the treas urer's term of office " should be expressed in such Manner that the People may understand the Reason why the Treasurer cannot with Safety to the Common wealth hold his Office more than five years." Hawley Papers, IL, Bancroft Col lection. 262 FROM PROVINCIAL TO COMAIONWEALTH [262 fixed days at such places " as the convenience of the people shall require," that the powers of justices of the peace should not continue for more than seven years without renewal, that the tenure of aH officers holding by commission should be expressly stated therein, and that aH judicial oflficers, unless otherwise directed by the constitution, should hold during good behavior, subject only to removal by the governor, with the consent of the council, and on the address of both houses of the legislature. The only further step of import ance was the inclusion in this chapter of a duty foreign to an independent judiciary and inconsistent with the theory of the tripartite division of government. It was decreed as follows : " Each branch of the Legislature, as well as the Governor and Council, shall have authority to require the opinions of the Justices of the Supreme Judicial Court, upon important questions of law, and upon solemn occasions."' One typical peculiarity of the Massachusetts constitution was the careful manner in which the corporate privileges and property rights of the President and Fellows of Harvard College, acquired through the Act of General Court of 1642, and by gifts and grants at various other times, were con firmed to them." The continuance of the instituting act in force throughout the revolutionary period was recognized, and the ofifi;ers were named who should represent the com- ' In 1820 Mr. Story said that "it was exceedingly important that the judiciary department should, in the language of the constitution, be independent of the other departments; and for this purpose, that it should not be in the power of the latter to call in the judges to aid them for any purpose. If they were liable to be called on, there was extreme danger that they would be required to give opinions in cases which should be exclusively of a political character." Journal ofthe Convention of 1820, 489. Cf. Ibid., 629. ''Josiah Quincy in the Convention of 1820: " The gentleman's argument pro ceeded upon the principle that the constitution made some alteration in the charter of Harvard College. But it was not so. . . . The great men who formed the constitution of 1780, knew how sacred pre-existing chartered rights were." Journal ofthe Convention of 1820, 72. 263] GOVERNMENT IN AIASSACHUSETTS 263 monwealth on the Board of Overseers, as during the contin uance of the province charter the governor, deputy-governor, and magistrates had done; but it was further "provided that nothing herein shall be construed to prevent the Legislature of this Commonwealth from making such alterations in the government of the said university, as shall be conducive to its advantage, and the interest of the republic of letters, in as full a manner as might have been done by the Legislature of the late Province of the Massachusetts-Bay."' The fifth chapter" contained a further section not found in the earlier constitutions. This was a -general exhortation to a diffusion of " wisdom and knowledge, as well as virtue," to the encouragement of agriculture, arts, commerce, and man ufactures, to the support of institutions of learning, and to the development of "public and private charity, industry, and frugality, honesty, .... good humor, and all social affections and generous sentiments among the people. "3 The sixth, and concluding, chapter included a variety of matters, such as the forms of oaths of office, of writs, com missions, and the enacting style, the continuance, until altered or made void, of all laws previously " adopted, used and ap proved in the Province, Colony or State of Massachusetts Bay," and the continuance in office, until the appointment of successors, of officers serving under commission of the existing government. The unbroken existence of courts and other branches of government was assured until the new sys tem went into operation. The disabilities incident to plural ity of offices were stated. Provision was also made for grant- ' Chap, v.. Sec. i, Art. 3. * The fourth chapter was devoted to the election, term, commission, and tenure, of delegates to the Continental Congress. 'Into the New Hampshire Constitution of 1784 this section was introduced almost bodily, although with slight changes, as of " economy " for " frugality," and of " sobriety " for " good humor." 264 FROM PROVINCIAL TO COMMONWEALTH [264 ing to the inhabitants both of towns and of unincorporated plantations an opportunity, in the year 1795, to express " their sentiments on the necessity or expediency of revising the Constitution," an affirmative action on which 'A^as to be followed by the summoning of a constitutional convention. § 3. Submission of the Constitution The new constitution and the accompanying address of the constituent convention were immediately distributed to the several boards of selectmen, and for a second time the people of Massachusetts were, called upon to exercise the highest function of a state in the ratification or rejection of a proposed form of government. Again the vigor and the breadth of the political education of the people were apparent and were influential. As was the case two years before, the action was much more than one of assent or of dissent. The re fusal to consider the instrument en bloc led to a multitude of local discussions on each paragraph, resulted in a bewilder ing variety of action, and occasioned the production of a mass of material, controversial and explanatory, by which the towns aimed to establish the reasonableness of their views and votes. Considering the large majority secured against the constitution of 1778 by pubhc criticism, the stiH larger mass of criticisms and queries and suggestions di rected against the constitution of 1780 rendered the success ful ratification of the latter document problematical. How ever, owing to the striking variety of preferences and criti cisms with reference to the several parts of the document, a dangerously large negative vote was approached in only a few cases ; and fortunately even in those the towns often ex pressed their wiHingness to yield their opposition rather than by it to cause the defeat of the last step toward reconstruction. The process of submission was made sufficiently simple by the undisturbed continuance of the local governments ; the 265] GOVERNMENT IN MASSACHUSETTS 265 action of the town-meeting was direct and effective, and even for a work of so important a nature there was little delay aside from that occasioned by the adjournments of the town- meetings to afford to their committees time for the prepara tion of their reports. In the adoption of these reports, of varying size and excellence, the towns formally and deliber ately expressed their views ; some reached the end more simply by single direct votes, but the number of such latter cases was small enough to give to the series the type of the former. In their mode of action' and report" there was general similarity ; in the contents of the returns there were shown the extremes of divergence ; and by the material of the reports a wide range of political theory and practice was covered. Hardly a point escaped the notice of the local politician. Thus even the address of the convention drew from Medway the admission that, although no part of the constitution, it was "not onely Pohte but very Plosible."3 Bellingham, with an effort at sarcasm, likewise voted: "We agreed the Address set forth before the Bill of Rights is no Part of the forme of Government."-* So, too, the section on Harvard University, although a portion giving rise to no ' But Cf. Gloucester, May 22, 1 780 : " The Constitution was read, & those for accepting were desired to walk round the Meeting House to the Eastward & those against to walk the other way — 48 Walked to Eastward, none the other way. Col. Foster and Capt. Sargent said they objected to it." Lincoln Papers. ^As a type of several, Cf. So. Brimfield, whose selectmen. May 29, 1780, wrote on the back of a printed copy of the Constitution: "pursuant to the Resolve of the Convention we have Laid this Constitution and Frame of Government before our town and they have after mature Consideration voted as we have inserted in the foregoing pages." Mass. Archives. E.g., the vote of Stockbridge is en closed in the Moderator's letter of appointment to one of tbe Delegates; the letter ends : " P. S. — Your Family is well." ' Dated June 6, Mass. Archives. The material attributed to the Mass. Archives without volume or page has been drawn from a package of manuscripts which had not, at the time of examination, been bound or numbered. ' April 24-June 5, Mass. Archives. 266 FROM PROVINCIAL TO COMMONWEALTH [266 strenuous contest, occasioned in Petersham the fear that the institution would endanger the liberties of the public through its excess of corporate riches, while its rejection by Belling ham was coupled with a suggestion that the accounts of the institution be published. The further observation was added : " We have litle kowledge of said University."' In the treatment of more important matters there was an evident thoroughness, from Medway's proposal of a governor's mes sage at every session of the assembly to Chelsea's vote, "That the Scheme of Rotation be adopted in the principal Depart ment of Government."" The lack of a bill of rights contributed materially toward the rejection of the constitution of 1778; in 1780 some of the sharpest discussions were occasioned by the contents of the new bill of rights. Especially did the third article arouse the public. Ashfield bluntly declared that this was " unconstitutional to human Nature, And no Precept in y' word of God to Support it." To the people was given the power to invest the legislature with authority to require local provision for "the institution of the public worship of God, and of public instruction in piety, religion, and moral ity;" and to enjoin attendance upon such services. This, with its context, the town of Middleborough declared to be " unmeaning or otherwise admits of Different meanings." With more dignity Granville objected, because " True Reli gion has evidently declined & been currupted by the inter ference of Statemen & Politicians." Gorham opposed the article on the ground that it was an invasion of property rights.3 BeHingham demanded freedom of worship and con science, and opposed compulsory rates for church support. Such rates, too, were opposed in the fVfassachusetts Spy,'- by ' Report attested, June 5, 1780, Mass. Archives. 'May 9-June I, Mass. Archives. ^Boston Gazette, No. 1346; June 12, 1780. -'No. 471, May 18, 1780. 267] GOVERNMENT IN MASSACHUSETTS 267 " Libertatis Amici," who threatened that thousands would refuse submission to such an establishment. In the Boston town-meeting this third article occasioned " much but candid debate,"' which ended in the proposal of the article in a modified form, and in the statement of the position of Boston as a recognition of the freedom of the minority, while stress was also laid upon the necessity of some religious establishments for all, and for which all should pay." But even the modification suggested by Boston was opposed. Reasons for such opposition were promptly given by "A Freeholder," who, insisting upon the incompetency of the civil powers to deal with religious questions, opposed both compulsory payments and legislative control of the clergy.3 The vigorous debate in the convention on the question of the civil establishment of religion was repeated in the press. Such writers as " Irenaeus, a Member of Convention," de fended article 3, and his attention was mainly given to answering the " extemporaneous gabblings " of " Philanthro- pos," the opponent of the article, who would suggest that the effort to legislate for conscience and religion implied a charge of insufficiency against God's law. "This savors of fifth monarchy enthusiasm, that all civil government ought to be pulled down, that king Jesus alone may rule :..."-* ' Letter of Samuel Adams, Adams Papers, Bancroft Collection. He wrote also : " The Town of Boston have been in Meeting three Days upon this important Affair. The Town have unanimously agreed to the Constitution with a few Alterations (I think for the better) except the Third Article." 'Alass. Archives ; Cf. Boston Gazette, No. 1342, May 15, 1780. ^Boston Gazette, No. 1343, May 22, 1780. * Boston Gazette, Nos. 1349, 1350, July 3, 10, 1780. Articles by " Philanthropos " appeared in the Boston Gazette, Nos. 1350, 1353, 1355, 1356, dwelling on the method, not the fact, of supporting worship. He cites Penn., N. Y., N. J., and Va. on confining the civil powers to civil matters. " Irenseus " has articles in Boston Gazette, Nos. 1349, 1350, and one continued article in Boston Gazette, Nos. 1365, 1370, 1373, 1374, Oct. 23, Nov. 27, Dec. 18, 25, 1780. He claims a victory for the supporters of Article 3. 268 FROAI PROVINCIAL TO COMMONWEALTH [268 The bill of rights in its sixteenth article stated that the liberty of the press was essential to freedom, and so should not be restrained. This drew from the town of Dunstable' a plea for the restraint of the press, lest they " Dishonour god by printing herasy;" and Chelsea" asked for the article the following addition : " But as its freedom is not such as to Exempt any printer or printers from being answerable for false Dafamitory and abusive Publications." The other tendency, that toward unrestrained expression, was represented by Stoughton's 3 proposed addition of liberty of speech, by Milton's-* inclusion of freedom of speech in town-meetings, and by Boston's insistence upon freedom of speech for public men, " an essential and darling right of every member of a free state." = The position of the towns on the general subject of absolute personal freedom was in dicated from another point of view in the various votes oc casioned by the article on the writ of habeas corpus. With abundant demands for the fullest toleration of personal ac tivity, there appeared at points a lamentable absence of breadth. Thus a strong and wide expression was given to the demand for the qualification of oaths of office by the in sertion of the word " Protestant" either before or in place of the word " Christian." The town of Lexington* presented a long reason for inserting this "word, which took Rise from the pious, noble and truly heroic Stand, which Luther and the first Reformers, . . . made," and Roxbury? voted that such insertion " seems to us necessary to secure the peace and tranquility of the State, as well as to the promotion of that Religion which our venerable Forefathers suffered every thing but death, to establish." ' May 15-30, 1780, Mass. Archives. i'May 9, 23, June I, 1780, Ibid. 'May 24-31, 1780, Alass. Archives. • May 22, 1780, Ibid. ^May 12: Boston Gazette, no. 1342, May 15, 1780. The action of Boston, in full, is in Boston Town Records, xxvi., 125-135. « May 22, June 5, 1780, Mass. Archives. ' May 17, 1780, Ibid. 269] GOVERNAIENT IN MASSACHUSETTS 269 The important question of the suffrage qualification drew forth a series of proposals expressing mainly the relative importance attributed in each locality to property and to polls. It was usually a matter of degree ; but again there were instances in which a property qualification was not even given consideration. Thus, while Wrentham' voted simply, " that the representatives elected in each town ought to be Representatives of the property as well as the per sons," the town of Richmond" would ask for no qualification but the possession of a certificate of " sober Life and Con versation " given to the voter by the selectmen. The town of Colerain3 would grant the suffrage to every male of full age who should be recognized as " a friend to the Independance of said State & of Sober Life and Conversation," and the extreme was reached by Stoughton-* when, in connection with the inconsistent proposal that the suffrage should be granted to all resident, tax-paying males of full age, the town declared : " Ye right of election is not a civil ; but it is na tural right, which ought to be consider'd as a principle cor ner-stone in y= foundation for y= frame of Government to stand on ; consequently it is unsystematical and contrary to y" rules of architecture to place, or make it dependent on y^ frame, . . ." The narrow range of influence of many of the views at this time brought forward, limited strictly the results attain able therefrom. Thus the constitution, as established, did not greatly differ from the constitution of the convention either in regard to freedom of conscience, freedom of expres sion, or the suffrage. Equally without definite results were the many proposals to alter the provisions relative to repre sentation. The constitution passed from submission to promulgation with no change even in this part, with reference 'May 8, 26, 1780, Mass. Archives. 'May 29, 17S0, Ibid. 'May 26, I7i:o, Ibid. *May 24-31, 1780, Ibid. 270 FROM PROVINCIAL TO COMMONWEALTH [270 to which so many towns proposed abundant alterations. Their proposals, to be sure, consisted in a variety of mathe matical statements ; of this character were the larger number of schemes presented, although in the history of the move ment note should be made of the action of those towns which insisted upon the propriety and the justice of accord ing representation to every town.' In addition to such a claim, the town of BeHingham, for instance, would grant two representatives to every town of 400 taxable polls ; three to a town of 800 such ; four to one of 1,600; and five, the maxi mum representation, to a town of 3,200 taxable polls. The town of Monson also took five as the largest representadon to be granted to the most populous towns, and would grant fewer representatives to the other towns in proportion " to their bigness." The town of Medway proposed that eight should be the largest number of representatives allowed;" and there was frequently a recognition of the fitness ¦ of allowing to such towns as Boston an especially large repre sentation. Monson would not limit to Boston the maximum representation, and Oakhams would allow more than one rep resentative only to Boston and five or six other seaport towns of some size ; while Lanesborough would recognize three grades and give to Boston, as in the constitution, four representatives, to the six towns next in size two representa tives each, and to all other towns only a single representative each. At the same time the ratio of representation was subjected to numerous schemes of revision ; and abandon ment of the long established unit of representation was even 'E.g., Mansfield, Norton, Wilbraham, Wrentham Bellingham. '' Giving 1 representative for 100 voters, 2 for 300 voters, 3 for 600, 4 for 1000,, 5 for 1500, 6 for 2100, 7 for 2800. '" Oakham made a second proposal, assigning one representative to all towns, 2 representatives to towns of 500 ratable polls, 3 to towns of 1000, 4 to towns of 1500, etc. 271] GOVERNAIENT IN MASSACHUSETTS 271 threatened. Presumably with laudable motives, the town of New Salem suggested a house of not over 200 members from as many districts, and claimed that on such an entirely new arrangement could be established a plan of permanence.' But amid these inventions appeared a distinct type in Athol, which town conservatively recommended the reestabhshment of the laws of 1770 concerning representation. The pro posals of future constitutional changes and the efforts to revive earlier practices alike were fruitless. Excellence of theory without sufficient ballots was unavailing; a mass of opinion was suggestive and at some time might prove useful; but for the present the constitution of 1780 was to stand as the embodiment of what the men of Massachusetts regarded as the highest and truest political conceptions of their day. Not only was it so in regard to the points mentioned, but also in regard to all points at issue. Even the many demands for radical change in the construction of the legis lative branch effected no result;" and in the qualifications for ofifice holders no change was made, in spite of Middlebor- ough's pungent comment: "We find that money makes Senators and not men :...." The action of the people in their consideration of the pro posed form of government thus involved expression upon all matters of theory and of practice from the beginning to the end of the political philosophy of the time. Although in effectual, the activity of the towns was of more than transitory significance. It expressed the trend of public thought ; but it did more. A view of the activity of the year can- ' Likewise Mendon proposed a house of representatives from as many districts as there were members. ^On this point West Springfield and Southborough voted to abolish the senate; Westminster, Middleborough, Athol, Oakham, Walpole, Bellingham and Medway would abolish the council; Petershara, Athol and Bellingham would discard a governor. Petersham evolved a plan of giving to each house a negative on the other for seven days, to be followed by a joint session. 272 FROM PROVINCIAL TO COMMONWEALTH [272 not be concluded without reference to the frequent and out spoken assertions of local independence.' Thus there were repeated demands for the establishment of a registry of deeds and of a probate court in every town;" the election and con trol of the appropriate officers therefor was considered a proper function of the town,3 and there are indications, as well, of a desire to increase the prominence of the county as an electoral and administrative unit at the sacrifice of some of the functions of the larger unit.-* The beginnings of con stitutional disintegration and the prevalence of pronounced divergence of views, nevertheless, failed to produce the un fortunate result which they seemed to portend.' Especially ' Cf. vote of Lee, March 9, 1779, " that we hold ourselves bound to support the Civil Authority of this State for the sum of one year, and Bound to obey the laws of this State." Quoted in Hyde, Centennial History of Lee, 161. Berkshire county, throughout the period, was continually asserting local rights and hamper ing the provincial government. Thus, on August 26, 1778, a convention of town delegates had been held at Pittsfield, by which a petition was sent to the General Court asking that a special convention should be called to form a constitution and bill of rights. They admitted that their county was the first in which the royal courts had been closed, but they denied that they were a " mobbish, ungovernable, refractory, licentious, and disolute People." If their appeal should not be granted, they would petition the Committee of Safety, and if given no satisfaction by them, they suggested that " there are other States, which have Constitutions who will we doubt not, as bad as we are, gladly receive us, . . ." This was signed by 26 delegates from 18 tovfus, and was read in the council, October 16, 1778. Mass. Archives, 184: 196-198. -''Thus, as to one point, or both; Bellingham, Medway, Wrentham, HoUiston, Scituate, Warwick; the town of Lanesborough voted "That there be a Court of Probate in every rigiment." Cf. 'Daggett, History of Aitlebororgh, 12^^; Stough ton, Alass. Archives, 160: 266-277. ' The action of Bellingham on this is especially plain. *Thus Wilbraham would have the counties elect annually the justices of the Superior Court, the judges of probate, and the justices of the peace, Wilbra ham proposed the election by counties of justices of the Inferior Court, justices of the peace, and judges of probate; and also urged an annual election of judges of the Superior Court. Bellingham suggests annual county assemblies for the election of all county offioers. ^ Cf. War/5i o/^John Adams, IX., 510, 511. 273] GOVERNMENT IN AIASSACHUSETTS 273 striking was the result in view of the movements from among which examples have been drawn.' Equally noteworthy was it that during this period Samuel Adams could write that the " great business was carried through with much good humor by the people, even in Berkshire, where some persons led us to expect it would meet with many obstructions," Yet in his next sentence he indicated one potent cause of the final harmony when he wrote : " Never was a good constitution more needed than at this juncture,"" The constitutional convention had, on March 2, adjourned for a recess which should cover the period allowed for the popular consideration of its work ; the concluding session of the convention opened, on June 7, in the Brattle Street meet ing-house at Boston. The membership was somewhat changed by the presentation of the credentials of new mem- bers,3 but the earlier organization and practice in deliberative bodies allowed an immediate consideration of the prin- ' But Hawley in his criticism wrote : " I am well informed Gentlemen that a majority of the voters in divers towns have been induced to give their sanction to the said form of Government with all its imperfections from an earnest desire that some form of Government may be more firmly established in the State, than that which at present is exercised, and that, unless we should immediately unite in [some] plan we shall fall into absolute anarchy and never unite [in] any form whatever. I am Sirs, fully satisfied that the danger of such an event, has been unreasonably and extravagantly magnified by divers individuals." Referring to the resolution of March 2, 1780, and supposing an iUiberal inter pretation thereof by the Convention, Hawley made this further attack : " The case in truth will be That the State of the Massachusetts Bay, will have an Unad vised, unconsulted, undiscussed, undigested, tautological, ragged, inconsistent, and in some parts unmeaning, not to say futile plan, established in it, for its con stitution of Government." Hawley Papers, IL, Bancroft Collection, ^ Samuel Adams to John Adams, July 10, 1780. Wells, Life of Samuel Adams, IIL, 103. So Pittsfield in its instructions expressed the opinion that the Consti tution would be accepted by two-thirds of the voters, " as the Reins of Government are so relaxed & this County in particular so long deprived of all Law," Cf, Mass. Hist. Soc. Proceedings, 2 Series, VIIL, 290. ¦'Newmembers reported as follows: 10 on June 7, 12 on June 8, 3 on June 9, I on June 12, l on June 13; Journal ofthe Convention, 170-178. 274 FROM PROVINCIAL TO COMMONWEALTH \j2.y/^ cipal, and practically the sole, work of the session, the recep tion of the returns of the action of the towns and the possible preliminaries of promulgation. The returns received were at once referred to a committee,' which, on July 8 and July 12, made preliminary reports, stating on the latter date that returns from 1 74 towns had been received, and express ing the difficulty of making immediately a complete report." The method of local procedure, which involved the possi bility of a distinct vote by each town on every section of the constitution, rendered necessary an elaborate tabulation by the committee.3 From this they were able to report a total ' At first a committee of 5; 7 were added, and later 12 were added; finally, on June 12, the number was further increased by 5. Ibid., 170-178. '' On June 13 it was voted that thereafter no more returns be received. Jour nal of the Convention, 178. On June 14 the returns of 2 towns were received, and on June 1 5 those of 3 towns. Ibid., 1 79. ' Large portions of the Committee's manuscripts are in the Alass. Archives, although not bound or numbered at the time the writer used them. Thus there are posted in one set, but without totals completed, the returns for Plymouth, Barnstable and York Counties. Provision is made for 14, 10 and 17 towns respectively, but some returns, especially from Barnstable County, were not given. Another set was stated to contain the returns of Middlesex, Dukes and Nantucket Counties; the word Middlesex was crossed off, but evidently the table contains returns simply from Middlesex County. The reports are from 42 towns. In the table one column throughout is given to the votes in case the amendment proposed by the town voting did not prevail ; 30 double columns are given to the votes on the Bill of Rights, and 70 are given to the votes on the body of the Constitution. Of these towns, only two, Cambridge with 41 votes, and Townshend with 29 votes, gave a unanimous vote throughout in the affirmative. As to the numbers partici pating in these acts, it may be noted that Charlestown recorded 21 voters, "New town" 49, Chelmsford 103 and Concord 147. The table for Hampshire County shows a total of over 1800 voters; in few cases was the negative vote over 100. Article 3 of the Bill of Rights was accepted by a vote of 1 1 35 to 237. A vote conditioned on the success of their amendments was in the affirmative, 115 to 51, although peculiarly defective. The table for Worcester County shows over 2500 voters; returns from 44 towns are scheduled, among which are only three deficiencies. Article 3 of the Bill of 275] GOVERNMENT IN MASSACHUSETTS 275 vote of 5654 for the constitution and 2047 against it' With the detailed report before it the convention proceeded to the last stages of the process in hand. Each article of the de claration and of the " frame " was read separately before the convention and on each article in turn the question was put : " Is it your opinion that the people have accepted of this article ? — Which, upon every individual article, passed in the affirmative by a very great majority."" The convention refused to take a vote by yeas and nays on the constitution " in gross," but a motion " that the People of the State of Massachusetts Bay have accepted the Constitution as it stands in the printed form, submitted to their revision . . ." was "passed in the affirmative by a very great majority."3 The formalities of sanction being thus completed, the con vention further,-* apart from provision for prospective pro mulgation, arranged for the inauguration of the first admin istration under the new forms. On this closing day the convention relaxed sufficiently to ask the legislature " to Rights was accepted, by a vote of 1506 to 803, In case amendments should not prevail the vote was 482 to 65 in the affirmative. The table for Suffolk County includes 24 towns; if amendments prevailed, the vote was 592 to 34; if they did not prevail, 969 to 168. Boston voted for article 3 ofthe Bill of Rights, 277 to 140, and for its own amendments of the same, 420 to 140. Boston's vote for the Constitution in case amendments should not prevail, was 747 to 140. '^ Mass. Archives, 22-3,: 192; cf. Mass, Archives, 12-^: 198-201. ^ Journal of the Convention, 180. ^IHd., 1 80. *The Convention Resolves of June 16, as to the acceptance of the Constitution and the designation of the last Wednesday in October as the day for the inaugura tion of the new government, with the signatures of Pres. Bowdoin and Sec'y Barrett, are in Alass. Archives, 171 : 180-182. The same, attested by Pres. Bowdoin and bearing the House endorsements as well as the Council endorsements of June 17 as to a committee thereon; and bearing also the committee report as to the election day preacher, are in Mass. Archives, 228: 448-451. Cf. Mass. Archives, 228: 447, 458. These resolves appeared in the Mass. Spy, no. 479, July 13, 1780. 276 FROM PROVINCIAL TO COMMONWEALTH [276 order the provision for the usual entertainment had on the days of General Election, to be made on the last Wednesday in October next,"' but at the same time the members showed their balance and devotion in refusing to pass a resolution asking the legislature to pay from the public treasury for the travel and attendance of members of the convention." Thanksgiving and prayer by the Rev. Mr. Thatcher con cluded the proceedings of the day and of the convention, and the body thereupon dissolved. Of its acts in this last session the essential parts were announced to the public, under date of the day of adjournment, in a proclamation3 by President Bowdoin, stating the acceptance of the constitution by two- thirds of those -voting, and announcing further the appoint ment of the first Monday in September as the day of the election of governor, lieutenant-governor, council and senate ; of any day in October ten days before the last Wednesday for the election of representatives ; and, finally, of the last Wednesday in October as the day established for the first meeting of the Great and General Court and for the organi zation of the new government. '^ Journal of the Convention, 183. ¦'Ibid., 183. The text is in Ibid., 186, 187. CHAPTER IX THE TRANSITION COMPLETED In the same month in which the ratification of the new constitution was authenticated, the General Court passed an act, approved by the council, June 24, 1780,' which provided for the secure completion of the last step in the transition by giving to the council the right to exercise powers of suffi-r ciently wide extent to meet any further emergency. Upon this body was conferred, for the period ending with the ope ration of the constitution, practically complete control of civil and mihtary affairs ; to it was given the authority to issue paper money, and to negotiate loans, under restrictions both as to amount and as to term," on the credit of the com monwealth ; and to it, as well, was given the discretionary power to call at an earlier date a special session of the new General Assembly, the formation of which was incident to the operation of the new constitution, and the first meeting of which had been appointed, in the plan for the new organ ization of government, for the last Wednesday in October. No exigency requiring such modification of the original plan arose, and the period of such further provisional direction of all commonwealth affairs by the council was, after some four months, brought easily to an end, after the chief body had prepared for the succession by the issue of the usual precepts for the choice of a governor, lieutenant-governor, senate and house of representatives. After the ordinary ' Mass. Archives, 228 : 464-466. ' Limited to twelve months, and not to exceed ;^6o,ogo. 277] '277 278 FROM PROVINCIAL TO COMMONWEALTH [278 processes of election' and return, the representatives met in Boston at the appointed time. John Hancock," the newly elected governor, was then inaugurated. By him and by the legislators were taken the appropriate oaths of office. Before them all the customary election sermon was preached by Dr. Cooper, in " the Old Brick Meeting-House," upon the highly significant text from Jeremiah : "And their congregation shall be estab lished before me ; and their nobles shall be of themselves ; and their Governor shall proceed from the midst of them. "3 The proceedings of the day were, finally, given balance and completeness by an " entertainment" in Fanueil Hall, with its round of thirteen toasts. The formal installation of the government under the first constitution of the commonwealth having been thus ef fected,-* the more detailed work was at once begun. On the last day of the month, the house and the council appointed a committee to inform the governor that they were organ ized and ready to proceed to business. ' The governor on the same day formally addressed the legislative bodies in an 'A letter to Samuel Adams, dated September 3, 1780, states: "To-morrow will probably usher in the first election of Government, under the New plan .... Lieut. Gvr. probably Cushing, your friend Warren however is a Candidate, But he has too much integrity, steadiness, consistency, & the genuine principles of a republican to make much head in times like these." Adams Papers, Ban croft Collection. '' Cf. Samuel Adams, Philadelphia, October 17, 1780, to his wife: "I had reason to beUeve that Mr. Hancock would be the Governor. I am disposed to think, that my Fellow Citizens had upright Views in giving him their Suffrages, Many Circumstances have combined to make his election appear to be politically necessary; . . . ." A variation reads: " honest and upright." Adams Papers, Bancroft Collection. ' Bullock, Centennial ofthe Constitution, 35. *An account of the inauguration, with a list of the members of the new as sembly, appeared in Boston Gazette, no. 1 366, October 30, 1 780. ^ Mass. Archives, 229: 455. 279] GOVERNMENT IN MASSACHUSETTS 279 inaugural, bearing largely upon matters naturally incident to such an occasion.' With the completion of the preliminary routine the new ofificers of government entered upon the regular and active performance of their functions, and the transition was virtually completed. Much, to be sure, re mained to be accomplished. The completion of the judi ciary establishment and the organization of the executive department were still to be effected ; but all essentials were attained in the constitution which provided, either directly or by definite delegation, for the exercise of all powers of government, and which afforded an ample basis for subse quent development. The consideration of that development involves the history of Massachusetts from the time of the establishment of the commonwealth to the present day." 'The address was printed in Boston Gazette, no. 1367, November 6, 1780. ^ The reader should consult the pamphlet of 67 pages. Constitution ofthe Com monwealth of Alassachusetts. Published by ihe Secretary of the Commonwealth. Boston, i8gb, which gives the various amendments and cites numerous judicial decisions bearing upon the constitution. 28o FROAI PROVINCIAL TO COMMONWEALTH [280 NOTE The following list is given as a means of identification and not as a bibliography. More newspaper and manuscript collections than indicated have been consulted, although not used in the present work. It should be stated also that practically everything in print bearing upon this period, both, in Massachusetts and in the other colonies, has been consulted; secondary material, however, has proved of little service. Use has been made of the libraries of the American Antiquarian Society, the Connecticut Historical Society, the Essex Institute, Harvard Univer sity, the Massachusetts Historical Society, the New York Historical Society, the Historical Society of Pennsylvania, and of the libraries of several other corpora tions, as well as of the Library of Congress, Especial mention should be made of ample facilities accorded by the staff of the Lenox Library, now merged in The New York Public Library, Astor, Lenox and Tilden Foundations. Certain cita tions from the Adams Papers a^e necessarily incomplete, but more detail would be of little value, as the collection is soon to be rearranged and improved. LIST OF TITLES A. Alanuscripts, original and copied The volumes indicated by the first seven titles are in the Lenox Library of The New York Public Library, Astor, Lenox and Tilden Foundations. For detailed description, see Sabin, J. Y ., Library of the late Hon. George Bancroft, n. p. [1892]. Samuel Adams Papers, 9 vols. Joseph Ha-wley Papers, 2 vols. Letters of Thomas Hutchinson to Israel Williams, i vol. Revolutionary Correspondence, 3 vols, Ezra Stiles Papers, I vol. Autograph Letters of Joseph Warren, 1 vol. W. V. Wells Papers, Samuel Adams and the American Revolution, 3 vols. Lincoln Papers. Transcripts from town records of Mass., collected by Wm. Lincoln, in the Library of the American Antiquarian Society, Worcester, Mass. Alassachusetts .Archives. A Collection of Original Documents, in the Bureau of Archives, Office of the Secretary of the Commonwealth, Boston, Mass. Sparks Papers. A Collection of Documents formed by Jared Sparks, in the Harvard College Library. See Library of Harvard University. Bibliographical Contributions, edited by Justin Winsor, Librarian. No. 22. Calendar of the Sparks Manuscripts in Harvard College Library, by Justin Winsor. Cam bridge, 1889. Stevens, B. F. Facsimiles of Alanuscripts in European Archives Relating to America, 1773-1783, with Descriptions, Editorial Notes, Collations, References, and Translations. London, 1889- A copy is in the Library of Columbia University. 28l] COl'ER.XAIENT IN AIASSACHUSETTS 281 B. Newspapers Boston Evening Post, The. T. and J. Fleet, Boston. Boston Gazette, and the Country Journal, The. Edes and Gill [Benj, Edes; Benj, Edes and Sons,] Boston [Watertown], Connecticut Courant, lhe. [ The Connecticut Courant, and Hartford Weekly Intelligencer^ Eben. Watson [Watson and Goodwin] Hartford. Connecticut Gazette ; and the Universal Intelligencer. [ I'he N'ew London Gazette.'] Timothy Green, New London. Connecticut Journal, and iVeir Haven Post-Boy, The. \_The Connecticut Journal.'] T. and S. Green, New Haven. Continental Journal, and Weekly Advertiser, The. J. Gill, Boston. Essex Gazette, The. \_i\'ew England Chronicle; or, the Essex Gazette, lhe. New England Chronicle, The. Independent Chronicle, The, q v.] S, and E. Hall [Powars and Willis], Salem [Cambridge, Boston], Essex Journal and A'ew Hampshire Packet, lhe. [ The Essex Journal.] J, Mycall and H, W, Tinges [J. Mycall], Newburyport, I reeman's Journal, or New Hampshire Gazette, The. Benj. Dearborn, Ports mouth, Independent Chronicle, lhe. [^Independent Chronicle ^ Universal Advertiser, I'he.] Powars and \\ illis [Nath'l Willis], Boston. Alassachusetts Gazette and Boston Post Boy and Advertiser, 1 he. Mills and Hicks, Boston. Massachusetts Gazette and the Boston Weekly News Letter, 'The. Richard Draper [Margaret Draper], Boston. Massachusetts Spy, Tke. \^7 he Massachusetts Spy or, Thomas' Boston Journal. The Alassachusetts Spy; or, American Oracle of Liberty.] I, Thomas, Boston [Worcester], New England Chronicle, The. Powars and Willis, Boston. New York Journal ; or, the General Advertiser, The. J. Holt, New York. New 1 ork Packet, and the American Advertiser, The. S. Loudon, New York. Pennsylvania Evening Post, lhe. Benj. Towne, Philadelphia. Rivington's New York Gazetteer; or the Connecticut, New Jersey, Hudson's River and Quebec Weekly Advertiser. \_Rivington' s Gazette, or the Connecticut, Hudson's River, A'ew Jersey and Quebec Weekly Advertiser, Rivington' s New York Loyal Gazette. Rivington's New York Royal Gazette^ J. Rivington, New Y'ork. Salem Gazette, and Newbury and Marblehead Advertiser, The. E. Russell, Salem. APPENDIX A. Educational Institutions attended by the author Boston Latin School, 1882-1885. Holyoke, Mass., High School, 1885-1887. Amherst College, 188 7-1 891. Columbia University, 1893-1895. B. Degrees and Appointments A. B., 1891, Amherst College. A. M., 1894, Columbia University. Instractor in History and Latin, Beloit, Wis., College Academy, 1891-1893. University Fellow in History, Columbia University, 1894-1895. Prize Lecturer on History, Columbia University, 1895-1896. Assistant in History, Barnard College, 1895- Tutor in History, Columbia University, 1896- a39002 002555tt32b