Appendix F THE PIG THAT CHANGED AMERICAN GOVERNMENT In a discussion regarding the inherent link between the judiciary and the legislature, it is useful to review a neglected story in early American history: the founding and early political development of Puritan New England. One of the results of that development, in 1644, was the establishment of the bicameral legislature in the Massachusetts Bay Colony. That invention was the result of a legal battle involving a pig. The pig had unleashed the politics of envy, and the modern bicameral legislature was the result of that conflict.
This was a significant part of the transformation of covenantal sovereignty in New England: from king to people, from corporation to civil covenant. It involved the creation of a new civil government, one which could not survive without a break with both the king and colony's original terms of incorporation. It is the story of a dedicated group of people who fled tyranny a decade prior to a civil war -- a war marked by the king's unlawful suspension of the national legislature (the House of Commons) -- and who wound up creating a new, subordinately sovereign regional legislature. It is the story of the judicial origins of one English civil war that resulted over a century later in another. Yet none of this was planned: by the king, by the new colonial rulers, or by the people who were to gain political sovereignty as the unintended result of these actions.
And in the middle of all this was a pig.
The Origins of Massachusetts' Charter Puritan New England was established by a group of immigrants from England whose goal was to establish a theocratic society in the wilderness of New England. They regarded themselves as a covenanted people comparable to the Israelites when they entered the Promised Land. But what was the judicial basis of their civil covenant? The Massachusetts Bay Company was established by royal charter on March 4, 1628/1629,(1) and was granted a tract of land in New England.(2) Two days before, Parliament had adjourned violently; six days after the charter was approved by King Charles I, he dismissed Parliament and established a decade of personal rule.(3) This decision eventually led to his downfall. In 1642, the English Civil War began; in 1649, the king was executed by Parliament's orders.
From the beginning of his reign in 1625, Charles I had allied himself with Archbishop Laud and the Arminian wing of the Church of England. Tanner's assessment of the problem is correct: Laud believed that the proper basis of saving faith is the Bible, as interpreted by the early church. "The Puritans with whom he had to deal followed Calvin, who had attempted to extract a definite system of doctrine from the Bible alone, and this view was in the ascendant, both among the clergy and in the Parliament House."(4) There was no way to reconcile these rival views of church authority. Either the Bible is sovereign over the church, or the church, under the guise of mere equality, becomes sovereign over the Bible. Laud's view was ultimately that of Rome's. Laud had abandoned the Protestant principle of biblical authority. Haller writes: "Puritan apologists held the New Testament to be both God's revealed word and a valid historical record, a body of constitutional precedents, by which the acts and decisions of the church in later times were to be determined. . . . This was of course the common Protestant view of church history, but since the accession of Elizabeth, it had flourished nowhere more vigorously than in England, where it was given a special English character and application."(5) A conflict was inevitable if Laud refused to back down. He refused. A decade of persecution of the Puritans was about to escalate in 1629, since Parliament would no longer serve as a check on the king's actions, meaning Laud's actions.
From Corporation to Covenant The Massachusetts Bay Company's charter created a "window of opportunity" for members of the company and all those who would submit themselves to its rule. The charter for some unknown reason did not require the company's headquarters and the charter itself to remain in England, in contrast to other joint-stock corporations of this kind. On August 29, 1629, at a meeting attended by 27 of the 125 members of the company's General Court, a majority voted to move the charter and therefore the company to the new plantation in New England.(6) This decision established the corporate charter of the Company as a civil covenant for the new colony, for there was no other English civil government in the boundaries of the new realm. In fact, the charter had been issued by the king in order to correct previously overlapping boundaries, which is why so much of it is taken up with establishing boundaries.(7)
This judicial move from profit-seeking firm to civil covenant went unnoticed in England. A handful of the original members of the company then took advantage of this historically unique legal loophole and moved the whole company and the charter to the new world. A judicial move was sealed by a geographical move. A small party of Puritans established a foothold in the new colony in 1629, under the leadership of Captain John Endecott, who had been sent out even before the charter had been approved. This group settled at what is now Salem, Massachusetts.(8) The next year, 1630, a larger body of immigrants arrived under the leadership of John Winthrop, settling in Boston.(9)
Freemen and Freedom
The original corporate charter established that the company was to be managed by a governor, a deputy-governor, a board of eighteen assistants, all of whom were to be elected annually by the shareholding members of the company, called "freemen." The board and its officers, along with the freemen, were to meet four times a year as a General Court. This court became the law-making body of the colony. The political battles of the day would be fought in the General Court.
The General Court had few officers at first, since only about a dozen of the hundred original members ("freemen") of the corporation actually came to New England.(10) In between the official meetings of the colony-wide General Court, the Court of Assistants met monthly with the governor. This court was roughly the equivalent of the board of directors of a modern corporation.(11) The two courts had essentially the same membership at first.(12)
Prior to the first meeting of the General Court in October of 1630, the assistants invited a large number of non-shareholding colonists to attend. Legally, these non-shareholding residents of the colony were not voting members of the corporation, and therefore were not eligible to exercise corporate sovereignty as freeman. But the formerly private corporation had in fact become a civil commonwealth. Its officers instinctively understood the judicial implications of this change, so they sought legitimacy by inviting in men from the colony. The visitors were asked to vote on a proposal to transfer the right of making laws from the General Court to the Court of Assistants, and a majority did so.(13) This act transformed the corporate office of "freeman" into the political office of "citizen."(14) At the next meeting, 116 persons were admitted as freemen -- all or almost all of the adult males in the colony.(15) This was a momentous event in American history, for it transferred the right of imposing political sanctions to voters.
Two months before, the Court of Assistants had conferred upon six of its members the power of English justices of the peace.(16) This was a crucial office in early colonial America; in eighteenth-century Virginia, it became the accepted road to personal political power.(17) Haskins comments: "Hence, the effect of the October meeting of the General Court was to concentrate in the hands of the `magistrates' (as all members of the Court of Assistants were hereafter referred to) all legislative, judicial, and executive powers of the government. It seems not to have concerned these few men that the assumption of the powers of the General Court was a clear violation of the charter."(18) More important, it was a violation that had been sanctioned by the voters.
This transfer of power to a dozen men lasted only four years. Residents of the colony from the time of that initial meeting had demanded to be admitted as freemen. In 1631, Winthrop and the Court decided to allow this. Only male church members were allowed to become freemen.(19) The original charter, not being a civil covenant, had not authorized any such religious requirement of the franchise. In the first decade, about 1,300 males became freemen, in a society of some 15,000 residents by 1641.(20) But a major change had come in 1631: Massachusetts inaugurated the direct election by the freemen of the governor, the deputy governor, and the assistants.(21)
In 1632, the Court of Assistants levied a colony-wide tax that met with resistance by a minister in Watertown. He warned his flock that it was not safe to pay taxes to which they had not consented, lest they bring themselves and their posterity into bondage.(22) Winthrop summoned them before him, chastised them, and they repented.(23) But none of this had been authorized by the original corporate charter, which Winthrop knew; therefore, he steadfastly refused to allow anyone else to see the charter. He counselled the assistants that the charter in effect authorized them to act as a parliament, with the right to levy taxes.(24) The government then wisely decided to authorize each town to appoint two people to advise the governor and assistants on taxation policy.(25)
A Legal Revolution in the Legal Order Two years later, in 1635, a political-legal revolution took place, all very peacefully. This was also the year of Roger Williams' flight 40 miles south to Rhode Island (January 1635/36), but the political changes were not related to that disruption. The freemen appointed two deputies from each town to consider what matters should be brought before the General Court that May. They requested to see the charter. Winthrop refused. The deputies then began acting as if they possessed legislative authority rather than mere advisory authority. They demanded that the legislative powers that had been delegated by the General Court to the Court of Assistants in 1630 be remitted back to the General Court. They also insisted that deputies, appointed by freemen in each town, be allowed to participate in the deliberations of the General Court.(26) The General Court assented. This decision made the General Court an elective body. But it was also a judicial body. Haskins comments: "Its activities were not limited to legislation, but included judicial and administrative functions as well; indeed, in conformity with ideas then current, little distinction was perceived between those functions."(27)
The assistants (magistrates) still retained executive power in between meetings of the General Court, either as the Court of Assistants or as an executive board. One additional step therefore remained in the extension of political authority to the larger population: the transformation of the General Court into a bicameral legislature -- deputies and assistants in separate houses. This took place in 1644, and it was the result (incredibly) of a seven-year dispute over a pig. This was the conflict between Captain Robert Keayne, a wealthy merchant, and Goodwoman Sherman.(28)
Before the case could become a major political issue, the General Court took two additional steps. First, it created the first in what was to become a system of lower judicial courts. This narrowed the jurisdiction of the Court of Assistants, transforming it into an appeals court. The initial step was taken in 1636.(29) The second step also came in 1636: the General Court passed a statute giving the magistrates the prevailing voice in the settlement of disputed questions coming before the General Court.(30) (Another major event of 1636 -- the controversy and trial of the antinomian, self-professed receiver of revelation from God, Anne Hutchinson, who departed for Rhode Island in 1637(31) -- left no political legacy comparable to the legacy of Mrs. Sherman's sow. A third event, however, left the biggest legacy of all: the founding of Harvard College.)
The Sow Incident Winthrop's diary account of the famous "sow" case is still fascinating to read. It involves the familiar political triumvirate of money, sex, and power. Also revenge. Mrs. Sherman, whose husband was in England, had a young merchant lodging in her home, George Story. Keayne had brought charges to Winthrop against Story for "living under suspicion."(32) Story soon took steps to get even.
Mrs. Sherman had lost a sow in 1636. Also in 1636, a stray sow had been brought to Keayne, and he kept it. No one identified it. A year later, he killed it. At this point, Mrs. Sherman claimed that it had been her sow. The matter was brought before the elders of the church. They cleared Keayne. Winthrop says that Story then persuaded her to bring the case before the inferior County Court at Boston. The trial took place in 1640.(33) Keayne was again cleared, and the jury awarded him 3 for his cost.(34) Keayne then brought suit against Story and Mrs. Sherman, and the jury awarded him 20 damages. Story then counter-sued, bringing in a new witness.
The case came before the General Court. The General Court was deadlocked after a week of hearing the details of the case. The magistrates, who represented the Company and tended to be of the upper class, and the deputies, who represented the towns, were divided. A majority of both the colony's nine magistrates and towns' thirty deputies was needed to convict, and the two groups groups were at odds with each other. Keayne was favored by the magistrates. Winthrop believed that Keayne had the stronger case, but acknowledged that Keayne had been a "hard dealer in his course of trading" and this "carried many weak minds strongly against him."(35) In short, Winthrop was arguing, political envy had been at work in the Court. Soon, it was loose in the colony. The case moved from a judicial deadlock to a political deadlock.
The public had expected the General Court to decide against Keayne, and when it did not do so, this "gave occasion to many to speak unreverently of the court, especially the magistrates, and the report went that their negative voice had hindered the course of justice, and that the magistrates must be put out, that the power of the negative voice might be taken away."(36) The voters could not be satisfied. For the next six years, complaints about this case continued to circulate. Finally, in 1643, the elders of the city of Boston then re-examined the whole case again, and again found Keayne innocent. Then they called together the magistrates, deputies, and elders of the region, to which many responded. The city's elders possessed the judicial influence to achieve this. They recommended that the case should be dropped because the Court had insufficient evidence to convict Keayne.(37) Richard Bellingham, a former governor of the colony, alone continued to object. He repeated his suggestion that the magistrates abandon the power of the veto -- a political demand.(38) This kept the dispute alive, even though the deputies agreed with the elders at this point in time.
Mr. Story continued as Mrs. Sherman's solicitor. (By colonial law, he was unpaid, as all lawyers were, in this era of American history.) He petitioned the court of elections for a new hearing. This court agreed. Winthrop's notes in his journal express his anguish over this decision, "which caused others to be much grieved to see such a spirit in godly men, that neither the judgment of near all the magistrates, nor the concurrence of the elders and their mediation, nor the loss of time and charge, nor the settling of peace in court and country could prevail with them to let such a cause fall. . . ."(39) The towns were not satisfied with the Boston court's award to Keayne of 20. This showed, in Winthrop's words, the "democratical spirit" of the deputies.(40)
The award had been made because of Sherman's slander of Keayne. Winthrop said that the public did not understand this, as if the court handed down the judgment because she had insisted on a fair return for the dead sow.(41) He said that Keayne had taken only the 3 in expenses and had offered to forego the 20 if she would say publicly that she had been in the wrong in her accusations. "But he being accounted a rich man, and she a poor woman, this so wrought with the people, as being blinded with unreasonable compassion, they could not see, or not allow justice her reasonable course."(42)
The "sow business," as Winthrop called it, then was extended to politics. The deputies resented the 1636 statute that gave the assistants a veto power over the deputies in the General Court. But the statute also gave the deputies a veto over the assistants. One magistrate wrote a treatise denying the legitimacy of the deputies' one-sided request, for if this veto power were removed, it would result in "mere democracy."(43) The deputies remained unmoved.
In case of an impasse, the 1636 law had specified, a committee of magistrates and deputies would be assembled to settle the case in question. But the judicial system had reached an impasse that a committee could not break. No committee was set up to settle the sow case. Instead, the General Court dissolved in June, 1643. Beginning in 1644, the Massachusetts court-legislature was permanently divided into upper and lower houses. Goody Sherman was unable to gain a majority vote in the upper house of assistants, and so lost the case. As two historians remarked three centuries later, she received "nothing more tangible than the gratitude of historians for her pains."(44) Samuel Eliot Morison, one of the most respected twentieth-century American historians, wrote in 1930: "If, as is claimed, this was the first full-fledged bicameral legislature in the English colonies, a monument on Beacon Hill to Goody Sherman's sow, as the mother of Senates, would seem to be in order."(45)
Court and Legislature There is no indication from the known records of the period that the Puritans of New England recognized the analytical distinction between legislatures and courts.(46) The magistrates sat as judges in county courts and in the Court of Assistants. They also served in the General Court. This meant that their veto power over the deputies in the General Court placed them in a position to overrule any decision by the deputies to reverse the findings of these lower courts. The deputies resented this judicial veto.(47) The magistrates retained this veto power after 1644, but the new institution of the bicameral legislature did make the existence of their judicial authority more obvious politically.(48) The deputies complained about the veto in 1645, but from then until 1649, the issue lay dormant.(49)
In 1649, the deputies tried to get a modification of the judicial system. They tried to gain exclusive jurisdiction in all cases sent by appeal to the General Court. This did not gain the votes of the magistrates, but what did pass was a law that allowed all appeals cases to be determined by a majority vote of the assembled houses. Thus, at least with respect to judicial disputes, bicameralism became majority rule. Furthermore, it was not clear from the language of the statute that the new rule applied only to court appeals. This was clarified only in 1652, when a new statute specified that majority rule applied only to judicial appeals.(50) "In legislative matters the Magistrates retained the negative voice without qualification, but in judicial matters that voice ceased to be of continuing importance in 1649."(51)
It is worth mentioning that in January, 1648/49, Parliament had removed the political headship of the king by removing the king's head. A new judicial world had arrived in Puritan New England, and these complex issues needed institutional solutions. The provisions of the original corporate charter lodged a veto power in the hands of the governor and six assistants, but its language was ambivalent. In any case, a charter established for commercial purposes and granted by the king in 1629 could no longer serve as an uncontested civil covenant in a world without a king, a world in which the Company had long since become a separate civil jurisdiction.
The magistrates in 1667 tried to get the deputies to reconsider the majority vote rule of 1649. They called for a restoration of the old veto system. The deputies turned it down.(52) They tried again in 1671. Again, the deputies refused.(53) They tried again in 1672, and this time they had the formal support of the church elders. They failed again.(54) They tried again in 1673. They failed again.(55) They tried one final time in 1685, and failed. This became moot when the news arrived that the Massachusetts colonial charter had been revoked by the Court of Chancery, the king's court, in 1684.
In 1691, the new monarchs, William and Mary, issued a new charter for Massachusetts. The Governor became a royally appointed official. The deputies became the elected representatives of "the Freeholders and other Inhabitants of the respective Townes and Places. . . ."(56) A voter had to have an annual income of 40 shillings or assets worth 40.(57) Each town elected two representatives to "the Great and Generall Court or Assembly." The higher branch of the legislature became the Council; no longer elected directly by the people, its 28 members would be nominated by the General Court annually and accepted or rejected by the Governor.(58) The Governor was granted the veto power over the legislation of the General Court.(59)
The General Court was given the authority to create new courts.(60) These courts were given the right to administer oaths to witnesses.(61) This is a mark of sovereignty; it was granted by the king. The courts became a separate branch of civil government, with appeal to the English Privy Council possible in cases involving 300 or more.(62) The governor would henceforth appoint all judges, sheriffs, justices of the peace, and marshals, with the approval of the Council.(63) The old debate over a legislative veto of the courts ended. There would be no veto of court decisions by political representatives. The General Court had ceased being a judicial court.
Conclusion The General Court of the Massachusetts Bay Colony began as a court. Step by step, it became a legislature. With the abolition of the colony's charter by the King in 1684, a new era began. The legislature, with the permission of the King, began to appoint judges to sit on courts. Three centuries later, the U.S. Supreme Court had become a de facto legislature possessing final authority operationally. By then, the most important authority possessed by the legislature -- specifically, "upper house," the U.S. Senate -- was the power to veto appointments by the President to the Supreme Court. Once on the court, each judge becomes judicially sovereign. Law becomes what five of the nine judges determine.
All this indicates that the legislative power is in fact judicial power. God, the final judge, also enacts the laws. A legislature, acting in its capacity as God's civil court, is supposed to interpret these fundamental laws of God as case laws and to announce these laws in advance. A court will then decide whether the conflicting litigants have obeyed or disobeyed these laws. While modern man likes to think of the legislature as a body that makes laws, it in fact is only a covenantal body empowered by God to interpret His laws and announce them to those under its jurisdiction. This is the work of casuistry. It is a judicial art. While modern constitutions may divide the legislature from the judiciary, in fact they are both concerned with announcing God's law and applying it. Magistrates are inescapably judges. Judges are inescapably magistrates.
Footnotes:
1. The calendar began the year in late March. October was the eighth ("oct") month, December was the tenth ("dec").
2. "Charter of the Massachusetts Bay, March 4, 1628/29," in Foundations of Colonial America: A Documentary History, 3 vols., edited by W. Keith Kavenaugh (New York: Chelsea House, 1973), I, Northeastern Colonies, pp. 45-59.
3. J. R. Tanner, English Constitutional Conflicts of the Seventeenth Century, 1603-1689 (Cambridge: At the University Press, [1928] 1962), pp. 68-70.
4. Ibid., p. 72.
5. William Haller, Liberty and Reformation in the Puritan Revolution (New York: Columbia University Press, 1955), pp. 46-47.
6. Selma R. Williams, Kings, Commoners, and Colonists: Puritan Politics in Old New England, 1603-1660 (New York: Atheneum, 1975), pp. 85-86.
7. Ibid., p. 79.
8. George Lee Haskins, Law and Authority in Early Massachusetts: A Study in Tradition and Design (New York: University Press of America, [1960] 1985), p. 10.
9. Three and a half centuries later, Boston was represented in Congress by Representative Thomas P. "Tip" O'Neill, a Roman Catholic (d. 1994). As Speaker of the U.S. House of Representatives, the lower chamber of a bicameral system, O'Neill exercised more power than any politician in the U.S. except the President. Governor Winthrop could not have predicted this. But both Winthrop and O'Neill understood that politics is local.
10. Haskins, Law and Authority, p. 16.
11. Ibid., pp. 9-10.
12. Ibid., p. 16.
13. Ibid., p. 27.
14. Edmund S. Morgan, The Puritan Dilemma: The Story of John Winthrop (Boston: Little, Brown, 1958), p. 91.
15. Idem.
16. Haskins, Law and Authority, p. 27.
17. In the late colonial era and the early national period, more than three-quarters of the members of the Virginia Assembly had at some point served as justices of the peace. Charles S. Sydnor, American Revolutionaries in the Making: Political Practices in Washington's Virginia (New York: Free Press, [1952] 1965), p. 100. Two exceptions to the rule were Patrick Henry and John Marshall. Marshall was appointed Chief Justice of the U.S. Supreme Court in 1800 by the outgoing President, John Adams -- the last Federalist Party members to hold either of these top offices -- and Marshall's leadership established the Court's reputation over the next two decades. He was the last Federalist Party politician to exercise influence nationally: through his court decisions. Politics and civil justice are intertwined.
18. Haskins, Law and Authority, p. 27.
19. Ibid., p. 29. This law did not apply automatically to town elections -- a very important exception, one ignored by most historians of early colonial New England.
20. Idem.
21. Morgan, Puritan Dilemma, p. 157.
22. Haskins, Law and Authority, pp. 29-30.
23. Ibid., p. 30.
24. Idem.
25. Idem.
26. Idem.
27. Ibid., p. 31.
28. Arthur P. Rugg, "A Famous Colonial Litigation," Proceedings of the American Antiquarian Society, New Series (1921).
29. Haskins, Law and Authority, pp. 32-38.
30. Ibid., p. 38.
31. Emery Battis, Saints and Sectaries: Anne Hutchinson and the Antinomian Controversy in the Massachusetts Bay Colony (Chapel Hill: University of North Carolina Press for the Institute of Early American Culture at Williamsburg, Virginia, 1962).
32. Winthrop's Journal: "History of New England", 2 vols., edited by James Kendall Hosmer (New York: Barnes & Noble, [1908] 1966), II, p. 64.
33. Haskins, Law and Authority, p. 38.
34. Winthrop's Journal, II, p. 64. When jury-cleared defendants later lost this benefit, the very accusation of a crime became in effect a judgment of "guilty," economically speaking.
35. Winthrop's Journal, II, p. 65. Entry for June, 1642. This indicates that the case was still simmering.
36. Ibid., II, p. 66.
37. Ibid., II, pp. 116-17. Entry for June, 1643.
38. Ibid., II, p. 117.
39. Ibid., II, p. 118.
40. Idem.
41. Idem.
42. Ibid., II, p. 119.
43. Ibid., II, p. 120.
44. Mark de Wolfe Howe and Louis F. Eaton, Jr., "The Supreme Judicial Power in the Colony of Massachusetts Bay," New England Quarterly, XX (1947), p. 293.
45. Samuel Eliot Morison, Builders of the Bay Colony (rev. ed.; Boston: Houghton Mifflin, [1930] 1958), p. 93.
46. Howe & Eaton, "The Supreme Judicial Power," p. 298.
47. Idem.
48. Ibid., p. 299.
49. Ibid., p. 300.
50. Ibid., p. 302.
51. Ibid., p. 303.
52. Ibid., p. 306.
53. Ibid., p. 307.
54. Ibid., pp. 307-12.
55. Ibid., pp. 313-15.
56. "The Charter of the Province of the Massachusetts-Bay" (1691), Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, 5 vols. (Boston: Wright & Potter, Printers to the State, 1869), I, 1692-1714, p. 11.
57. Idem.
58. Ibid., I, p. 12.
59. Ibid., I, p. 17.
60. Ibid., I, pp. 14-15.
61. Ibid., I, p. 15.
62. Idem.
63. Ibid., I, p. 12.
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