Massachusetts -- Church history; Massachusetts -- History -- Colonial period, ca. 1600-1775; Puritans -- Massachusetts
However this may have been, progress was thenceforward rapid. In April
Lechmere produced a schedule of debts, which have at this day a
somewhat suspicious look, and when they were allowed, he petitioned the
legislature for leave to sell land to pay them. Winthrop appeared and
presented a remonstrance, which “the Assembly, observing the common
course of justice, and the law of the colony being by application to the
said Assembly, when the judgments of the superior courts are grievous to
any person... dismissed,” and immediately passed an act authorizing the
sale, and making the administrators’ deed good to convey a title.
Then Winthrop was so incautious as to make a final effort: he filed a
protest and caution against any illegal interference with his property
pending his appeal, declaring the action already taken to be contrary to
the common and statute law of England, and to the tenor of the charter.
The Assembly being of the opinion that this protest “had in it a great
show of contempt,” caused Winthrop to be arrested and brought to the
bar; there he not only defended his representations as reasonable, but
avowed his determination to lay all these proceedings before the king
in council. “This was treated as an insolent contemptuous and disorderly
behaviour” in the prisoner, “as declaring himself _coram non judice_,
and putting himself on a par with them, and impeaching their authoritys
and the charter; and his said protest was declared to be full of
reflections, and to terrifie so far as in him lay all the authorities
established by the charter.” So they imprisoned him three days and fined
him twenty pounds for his contemptuous words.
This leading case was afterward elaborately argued in London, and
judgment was entered for Winthrop, upon the ground that the statute of
distribution was in conflict with the charter and therefore void; but
as Connecticut resolutely refused to abandon its own policy, the utmost
confusion prevailed for seventeen years regarding the settlement of
estates. During all this time the local government made unremitting
efforts to obtain relief, and seems to have used pecuniary as well as
legal arguments to effect its purpose; at all events, it finally secured
a majority in the Privy Council, who reversed Winthrop v. Lechmere, in
Clark v. Tousey. The same question was raised in Massachusetts in 1737,
in Phillips v. Savage, but enough influence was brought to bear to
prevent an adverse decision. [Footnote: _Conn. Coll. Rec._ vii. 191,
note; _Proc. Mass. Hist. Soc._ 1860-62, pp. 64-80, 165-171.] A possible
distinction between the two cases also lay in the fact that the
Massachusetts act had received the royal assent.
Public-domain text, read in full here on John Shaqi.
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