Massachusetts -- Church history; Massachusetts -- History -- Colonial period, ca. 1600-1775; Puritans -- Massachusetts
Thomas Danforth was the senior associate, who is described by Sewall
as “a very good husbandman, and a very good Christian, and a good
councillor;” but his reputation as a jurist rested upon a spotless
record, he having been the most uncompromising of the high church
managers.
Wait Winthrop was a soldier, and was not only in the council, but so
active in public life that years afterward, while on the bench, he was
set up as a candidate for governor in opposition to Dudley.
John Richards was a merchant, who had been sent to England as agent in
1681, just when the troubles came to a crisis; but the labors by which
he won the ermine seem plain enough, for he was bail for Increase Mather
when sued by Randolph, and was appointed by Phips. Samuel Sewall was
brought up to preach, took to politics on the conservative side, and was
regularly chosen to the council.
This motley crew, who formed the first superior court, had but one trait
in common: they belonged to the clique who controlled the patronage; and
as it began so it continued to the end, for Hutchinson, the last
chief justice but one, was a merchant; yet he was also probate judge,
lieutenant-governor, councillor, and leader of the Tories. In so
intelligent a community such prostitution of the judicial office would
have been impossible but for the pernicious tradition that the civil
magistrate needed no special training to perform his duty, and was to
take his law from those who expounded the Word of God.
And there was another inheritance, if possible, more baleful still. The
legislature, under the Puritan Commonwealth, had been the court of last
resort, and it was by no means forward to abandon its prerogative. It
was consequently always ready to listen to the complaints of suitors who
thought themselves aggrieved by the decisions of the regular tribunals,
and it was fond of altering the course of justice to make it conform to
what the members were pleased to call equity. This abuse finally took
such proportions that Hutchinson remonstrated vigorously in a speech to
the houses in 1772.
“Much time is usually spent ... in considering petitions for new trials
at law, for leave to sell the real estates of persons deceased, by their
executors, or administrators, and the real estates of minors, by their
guardians. All such private business is properly cognizable by the
established judicatories.... A legislative body ... is extremely
improper for such decisions. The polity of the English government seldom
admits of the exercise of this executive and judiciary power by the
legislature, and I know of nothing special in the government of this
province, to give countenance to it.” [Footnote: Mass. State Papers,
1765-1775, p. 314.]
Public-domain text, read in full here on John Shaqi.
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