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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

BOSTON, Jan. 20, 1707-8.

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

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

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

Your humble and faithful servant,

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

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

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

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

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

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

I am your humble servant,

J. DUDLEY

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

CHAPTER X. – THE LAWYERS

In the age of sacred caste the priest is likewise the law-maker and the judge, and as succeeding generations of ecclesiastics slowly spin the intricate web of their ceremonial code, they fail not to teach the people that their holy ordinances were received of yore from divine lips by some great prophet. This process is beautifully exemplified in the Old Testament: though the complicated ritualism of Leviticus was always reverently attributed to Moses, it was evidently the work of a much later period; for the present purpose, however, its date is immaterial, it suffices to follow the account the scribes thought fit to give in Kings.

Long after the time of Solomon, Josiah one day sent to inquire about some repairs then being made at the Temple, when suddenly, “Hilkiah the high priest said unto Shaphan the scribe, I have found the book of the law in the house of the Lord.” And he gave the book to Shaphan.

“And it came to pass, when the king had heard the words of the book… he rent his clothes.” And he was greatly alarmed for fear of the wrath of the Lord, because their fathers had not hearkened unto the words of this book; as indeed it was impossible they should, since they knew nothing about it. So, to find out what was best to be done, he sent Hilkiah and others to Huldah the prophetess, who told them that the wrath of the Lord was indeed kindled, and he would bring evil unto the land; but, because Josiah’s heart had been tender, and he had humbled himself, and rent his clothes, and wept when he had heard what was spoken, he should be gathered into his grave in peace, and his eyes should not see the evil. [Footnote: 2 Kings xxii.]

Such is an example of the process whereby a compilation of canonical statutes is brought into practical operation by adroitly working upon the superstitions fears of the civil magistrate; at an earlier period the priests administer justice in person.

Eli judged Israel forty years, and Samuel went on circuit all the days of his life; “and he went from year to year in circuit to Bethel, and Gilgal, and Mizpeh, and judged Israel in all those places.” [Footnote: 1 Samuel iv., vii.] But, sooner or later, the time must come when a soldier is absolutely necessary, both to fight foreign enemies and to enforce obedience at home; and then some chief is set up whom the clergy think they can control: thus Samuel anointed Saul to be captain over the Lord’s inheritance. [Footnote: 1 Samuel x.] So long as the king is submissive to authority all goes well, but any insubordination is promptly punished; and this was the fate of Saul. On one occasion, when he was in difficulty and Samuel happened to be away, he was so rash as to sacrifice a burnt offering himself; his presumption offended the prophet, who forthwith declared that his kingdom should not continue. [Footnote: 1 Samuel xiii.] After this the relations between them went from bad to worse, and it was not long before the priest began to intrigue with David, whom he presently anointed. [Footnote: Idem, xvi.] The end of it was that Saul was defeated in battle, as Samuel’s ghost foretold, for not obeying “the voice of the Lord;” and after a struggle between the houses of Saul and David, all the elders of Israel went to Hebron, where David made a league with them, and in return they anointed him king. [Footnote: 2 Samuel v.].

Thenceforward, or from the moment when a layman assumed control of the temporal power, the Jewish chronicles teem with the sins and the disasters of those rulers who did not walk in the way of their fathers, or who, in other words, were restive under ecclesiastical dictation.

So long as this period lasts, during which the sovereign is forced to obey the behests of the priesthood, an arbitrary despotism is inevitable; nor can the foundation of equal justice and civil liberty be laid until first the military, and then the legal profession, has become distinct and emancipated from clerical control, and jurisprudence has grown into the recognized calling of a special class.

These phenomena tend to explain the peculiar and original direction taken by legal thought in Massachusetts, for they throw light upon the influences under which her first generation of lawyers grew up, whose destiny it was to impress upon her institutions the form they have ever since retained.

The traditions inherited from the theocracy were vicious in the extreme. For ten years after the settlement the clergy and their aristocratic allies stubbornly refused either to recognize the common law or to enact a code; and when at length further resistance to the demands of the freemen was impossible, the Rev. Nathaniel Ward drew up “The Body of Liberties,” which, though it perhaps sufficiently defined civil obligations, contained this extraordinary provision concerning crimes:—

“No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, … unlesse it be by virtue or equitie of some expresse law of the country waranting the same, … or in case of the defect of a law in any parteculer case by the word of God. And in capitall cases, or in cases concerning dismembring or banishment according to that word to be judged by the Generall Court.” [Footnote: Mass. Hist. Coll. third series, viii. 216]

The whole of the subtle policy, whereof this legislation forms a part, well repays attentive study. The relation of the church to the state was not unlike that of Samuel toward Saul, for no public man could withstand its attack, as was demonstrated by the fate of Vane. Much of the story has been told already in describing the process whereby the clergy acquired a substantial ascendency over the executive and legislature, through their command of the constituencies which it was the labor of their lives to fill with loyal retainers. Nothing therefore remains to be done but to trace the means they employed to invest their order with judicial attributes.

From the outset lawyers were excluded from practice, so the magistrates were nothing but common politicians who were nominated by the priests; thus the bench was not only filled with trusty partisans without professional training or instincts, but also, as they were elected annually, they were practically removable at pleasure should they by any chance rebel. Upon these points there is abundant evidence: “The government was first by way of charter, which was chiefly managed by the preachers, who by their power with the people made all the magistrates & kept them so intirely under obedience, that they durst not act without them. Soe that whensoever anything strange or unusuall was brought before them, they would not determine the matter without consulting the preachers, for should any bee soe sturdy as to presume to act of himself without takeing advice & directions, he might bee sure of it, his magistracy ended with the year. He could bee noe magistrate for them, that was not approved and recommended from the pulpit, & he could expect little recommendation who was not the preacher’s most humble servant. Soe they who treated, caressed & presented the preachers most, were the rulers & magistrates among the people.” [Footnote: An Account of the Colonies, etc., Lambeth MSS. Perry’s Historical Collections, iii. 48.]

From the decisions of such a judiciary the only appeal lay to a popular assembly, which could always be manipulated. Obviously, ecclesiastical supervision over the ordinary course of litigation was amply provided for. The adjudication of the more important controversies was reserved; for it was expressly enacted that doubtful questions and the higher crimes should be judged according to the Word of God. This master-stroke resembled Hilkiah’s when he imposed his book on Josiah; for on no point of discipline were the ministers so emphatic as on the sacred and absolute nature of their prerogative to interpret the Scriptures; nor did they fail to impress upon the people that it was a sin akin to sacrilege for the laity to dispute their exposition of the Bible.

The deduction to be drawn from these premises is plain. The assembled elders, acting in their advisory capacity, constituted a supreme tribunal of last resort, wholly superior to carnal precedent, and capable of evolving whatsoever decrees they deemed expedient from the depths of their consciousness. [Footnote: See Gorton’s case, Winthrop, ii. 146.] The result exemplifies the precision with which a cause operating upon the human mind is followed by its consequence; and the action of this resistless force is painfully apparent in every state prosecution under the Puritan Commonwealth, from Wheelwright’s to Margaret Brewster’s. The absorption of sacerdotal, political, and juridical functions by a single class produces an arbitrary despotism; and before judges greedy of earthly dominion, flushed by the sense of power, unrestrained by rules of law or evidence, and unopposed by a resolute and courageous bar, trials must become little more than conventional forms, precursors of predetermined punishments.

After a period of about half a century these social conditions underwent radical change, but traditions remained that deeply affected the subsequent development of the people, and produced a marked bent of thought in the lawyers who afterward wrote the Constitution.

At the accession of William III. great progress had been made in the science of colonial government; charters had been granted to Connecticut and Rhode Island in 1662 and 1663, which, except in the survival of the ancient and meaningless jargon of incorporation, had a decidedly modern form. By these regular local representative governments were established with full power of legislation, save in so far as limited by clauses requiring conformity with the law of England; and they served their purpose well, for both were kept in force many years after the Revolution, Rhode Island’s not having been superseded until 1843.

The stubborn selfishness of the theocracy led to the adoption of a less liberal policy toward Massachusetts. The nomination of the executive officers was retained by the crown, and the governor was given very substantial means of maintaining his authority; he could reject the councillors elected by the Assembly; he appointed the judges and sheriffs with the advice of this body, whose composition he could thus in a measure control; he had a veto, and was commander-in-chief. Appeals to the king in council were also provided for in personal actions where the matter in difference exceeded three hundred pounds.

On the other hand, the legislature made all appropriations, including those for the salaries of the governor and judges, and was only limited in its capacity to enact statutes by the clause invariably inserted in these patents.

This, therefore, is the precise moment when the modern theory of constitutional limitations first appears defined; distinct from the ancient corporate precedents. By a combination of circumstances also, a sufficient sanction for the written law happened to be provided, thus making the conception complete, for the tribunal of last resort was an English court sustained by ample physical force; nevertheless the great principle of coordinate departments of government was not yet understood, and substantial relief against legislative usurpation had to be sought in a foreign jurisdiction. To lawyers of our own time it is self-evident that the restrictions of an organic code must be futile unless they are upheld by a judiciary not only secure in tenure and pay, but removed as far as may be from partisan passions. This truth, however, remained to be discovered amid the abuses of the eighteenth century, for the position of the provincial bench was unsatisfactory in the last degree. The justices held their commissions at the king’s pleasure, but their salaries were at the mercy of the deputies; they were therefore subject to the caprice of antagonistic masters. Nor was this the worst, for the charter did not isolate the judicial office. Under the theocracy the policy of the clergy had been to suppress the study of law in order to concentrate their own power; hence no training was thought necessary for the magistrate, no politician was considered incompetent to fill the judgment-seat because of ignorance of his duty, and the office-hunter, having got his place by influence, was deemed at liberty to use it as a point of vantage, from whence to prosecute his chosen career. For example, the first chief justice was Stoughton, who was appointed by Phips, probably at the instigation of Increase Mather. As he was bred for the church, he could have had no knowledge to recommend him, and his peculiar qualifications were doubtless family connections and a narrow and bigoted mind; he was also lieutenant-governor, a member of the council, and part of the time commander-in-chief.

Thomas Danforth was the senior associate, who is described by Sewall as “a very good husbandman, and a very good Christian, and a good councillor;” but his reputation as a jurist rested upon a spotless record, he having been the most uncompromising of the high church managers.

Wait Winthrop was a soldier, and was not only in the council, but so active in public life that years afterward, while on the bench, he was set up as a candidate for governor in opposition to Dudley.

John Richards was a merchant, who had been sent to England as agent in 1681, just when the troubles came to a crisis; but the labors by which he won the ermine seem plain enough, for he was bail for Increase Mather when sued by Randolph, and was appointed by Phips. Samuel Sewall was brought up to preach, took to politics on the conservative side, and was regularly chosen to the council.

This motley crew, who formed the first superior court, had but one trait in common: they belonged to the clique who controlled the patronage; and as it began so it continued to the end, for Hutchinson, the last chief justice but one, was a merchant; yet he was also probate judge, lieutenant-governor, councillor, and leader of the Tories. In so intelligent a community such prostitution of the judicial office would have been impossible but for the pernicious tradition that the civil magistrate needed no special training to perform his duty, and was to take his law from those who expounded the Word of God.

And there was another inheritance, if possible, more baleful still. The legislature, under the Puritan Commonwealth, had been the court of last resort, and it was by no means forward to abandon its prerogative. It was consequently always ready to listen to the complaints of suitors who thought themselves aggrieved by the decisions of the regular tribunals, and it was fond of altering the course of justice to make it conform to what the members were pleased to call equity. This abuse finally took such proportions that Hutchinson remonstrated vigorously in a speech to the houses in 1772.