OBSERVATIONS

ON THE RECONSTRUCTION OF GOVERNMENT IN MASSACHUSETTS DURING THE REVOLUTION.

So early as the month of May, 1775, the difficulties attending the peculiar attitude of the patriotic party in Massachusetts had become sufficiently serious to elicit a letter from the Provincial Convention, the only centre of authority acknowledged at the time by the great body of the people, to the Continental Congress, requesting "most explicit advice respecting the taking up and exercising the powers of civil government," and, curiously enough, declaring a readiness to "submit to such a general plan as the congress might direct for the

colonies."

An answer was not given to this modest, and even humble application, until it had been urgently repeated; and when at last it came, it was by no means so explicit as was requested, evidently partaking of the distracted counsels of the time. It evaded the true question of the source of power, by a resort to a fiction of law, much like that formerly used by the Long Parliament against Charles I. It assumed the charter granted by the King of Great Britain to be yet binding upon the people; whilst it charged upon the Governor, who was only his agent, acting under his appointment and pursuing his instructions, such a violation of it as forfeited all claim to their obedience. Until such a governor "should consent to govern the colony according to its charter," it recommended a resort to the usual forms of election for a representative body, and in lieu of that officer, the substitution, by election of the convention, of a provisional council clothed with executive authority.

In this transition state, the advice thus given seems to have been deemed decisive; accordingly a new house, under the forms of the charter, was called; and a council was soon afterwards chosen, which proceeded to reorganize the courts, and "in the absence of the governor and lieutenant-governor," to grant commissions. Some particulars respecting this period have been already given in a former volume, together with a copy of the invitation of the council to Mr. Adams, to occupy the chief place in the new judicial organization which it undertook to establish. But it was not long before the obstacles to this arrangement proved its utter inefficacy. Many of the people, oppressed by debts, were not slow in availing themselves of the objection, that the civil process still ran in the king's name, although the king's authority had been thrown off; and they went, in some places, to the length of obstructing by force the meeting of the inferior courts. A jealousy of all those denominated executive officers became so general, that they were marked for exclusion in the new elections to the representative body. Last of all, a contention arose between the council and the

house, respecting the right to make military appointments, which threatened, at one moment, the most serious consequences to the weaker body. All these things served to show the slippery nature of the foundation upon which the community was standing, and from which nothing could have prevented a fall, but the immediate presence of the enemy, and the engrossing nature of the first duty of self-defence. On the fifteenth of May, 1776, the last support was taken from the charter, by the adoption in the continental congress, of the celebrated resolution and preamble, declaring it to be necessary, for reasons therein stated, "that the exercise of every kind of authority under the crown should be suppressed," and "all the powers of government exerted under the authority of the people of the colonies." In colonies like Pennsylvania and New York, less advanced in the struggle, this measure was construed as a dissolution of all existing forms of government, and as creating an immediate necessity for reorganization. In Massachusetts, the intermediate steps taken, though only temporary in their nature, seem to have been sufficient to dispel immediate anxiety for the consequences. Hence, it was not until September, 1776, that a proposition was adopted in the assembly, to appoint a committee, to prepare a form of government. A reasonable doubt of the extent of their powers restrained their going further without a reference to the people for authority to proceed. This course was finally agreed upon, but not until May of the next year, 1777. The people responded favorably; and, in pursuance of their instructions, the next legislative assembly devoted a considerable part of the year to the effort to make a constitution.

It is to be regretted, that, owing in some degree to the disturbed condition of things, the record of this proceeding was almost entirely neglected. The journals of the house and council furnish no light, probably for the reason that it was a matter not strictly within the province of either body, and one wherein both were fused into a single assembly having the attributes of neither. Hence, we can only gather the fact, that on the fourth of March, 1778, the form of instrument agreed upon was submitted to the people, by a resolution providing that the assent of two thirds of the voters should be required to give it validity.

This form failed to pass the ordeal of the popular judgment, so far as an opinion could be gathered from the very partial returns made of the votes. But a hundred and twenty towns neglected to express any opinion at all; and but twelve thousand persons, out of the whole state, went to the polls to answer in any way. Five sixths of them, however, voted in the negative, under the lead of a unanimous sentiment in Boston, the influence of which was at that time at its height. At this late period, it is difficult fully to comprehend the reasons of this decided condemnation. The rejected constitution of 1778 was certainly a very imperfect instrument, largely partaking of the haste and confusion of the time in which it was made; but, on the other hand, it was very much better than none at all, or than the temporary system which necessity had created. There was no bill of rights or definition of powers. The executive, legislative, and judicial departments were singularly commingled, and threatened some degree of confusion in the practical working of the machine; yet, notwithstanding these defects in the draught, it was at least a remedy for immediate evils, and the labor bestowed upon it can scarcely be said to have been wasted; for it contains the germ of some of the valuable fruits secured in the subsequent constitution.

Strange though it may seem, yet there is little reason to doubt that interests had already grown up, in this period of interregnum, adverse to the establishment of any more permanent government. So uncertain had the legislative body become of the sense of the majority on this point, that on the nineteenth of February of the next year, 1779, it adopted a resolution, proposing, that a vote of the people should be taken on two questions as a test of the will of the commonwealth. These two questions were, - first, whether the people would choose, at this time, to have any new form of government at all. Secondly, whether in case they did, they would empower their representatives to summon an assembly for the sole purpose of preparing such a form. To these propositions, nearly a third of the towns neglected to give any answer. Of the remainder, a majority of the voters responded in the affirmative. In obedience to this decision, a call of a convention was immediately issued; and elections were accordingly held, of delegates, to assemble on the first of September following, exclusively to form a constitution.

The share of Mr. Adams in this labor must now be explained. Prior to this time, he had confined himself to an expression of preference of the constitution of 1778, as a temporary measure, however imperfect, over the hazardous state of things under the provisional government. His first mission to Europe intervened, from which he only got back home on the second of August. The election of a delegate from his native town to the convention, took place seven days later, and he was the person chosen. He attended the opening of that body at Cambridge, on the first day of September, and remained in attendance until the eleventh of November, when he embarked upon his second mission to Europe. It is during this period, that his services in preparing the frame of government which was reported to the convention, and with some modifications finally adopted, were rendered. The precise nature of them, so far as they can now be distinguished, will be defined.

On Friday morning, the third of September, the convention, by a vote of 250 to 1, resolved, that it would prepare a declaration of rights of the people of the Massachusetts Bay. After some debate, it went a step further, and resolved, that it would "proceed to the framing a new constitution of government;" and it concluded the action of the day with the two following propositions:

"Resolved, unanimously, That the government to be framed by this convention shall be a FREE REPUBLIC.

"Resolved, That it is of the essence of a free republic, that the people be governed by FIXED LAWS OF THEIR OWN MAKING."

The next day, a committee was chosen, consisting of thirty persons, to prepare a declaration of rights and the form of a constitution, out of whom the Hon. James Bowdoin, Samuel and John Adams, and John Lowell, were selected on behalf of the county of Suffolk, including the town of Boston. Monday, the sixth, was spent in what was called a free conversation upon the subjects that had been referred, and then it was voted to adjourn until the twenty-eighth of October, for the purpose of giving the committee time to prepare a report. Immediately upon the adjournment, the committee met in Boston, and, after extended discussion, delegated to a sub-committee of three members, the duty of preparing a draught of a constitution. The three were Mr. Bowdoin, Mr. Samuel Adams, and John Adams. By this sub-committee the task was committed to

1

John Adams, who performed it. To them the draught was first submitted, and they accepted it, with one or two trifling erasures. It was then reported to the grand committee, who made some alterations. The preparation of a declaration of rights was intrusted by the general committee to Mr. Adams alone. It was reported by him, with the exception of the third article, upon which he could not satisfy his own judgment.

At the present moment, it is impossible to define the precise extent of the modifications made of Mr. Adams's draught, in the report as finally presented to the convention. So little attention was paid to the preservation of any of the papers, that not only the first draught is not to be found in the archives of the State, but even a copy of the report, as printed for the use of the members, was not there, when the committee, appointed by the legislature of 1832, to superintend the publication of the Journal of the Convention, undertook the task. Neither did they succeed in obtaining one from elsewhere, however necessary to the usefulness of their undertaking, until the body of their work had gone to press. It is sufficient for the present purpose, however, to know that, in its leading features, and in most of its language, the plan of Mr. Adams is preserved in the report. Even the most marked changes, which in later life, his recollection imputed to the action of the committee, now appear, by the report, not to have been made by them, but by the convention itself.

Considering all these circumstances, as well as the entire coincidence of the leading features of the system with the views of his whole life, it is fair to infer, that the paper was so far the product of his mind, as to merit a place in these volumes of his works.

That this was the idea which Mr. Adams himself had at the time is certain. For, in a letter dated 7 June, 1780, that is, immediately after the constitution had been ratified by the people, and addressed to Mr. Edmund Jenings, he sums up the matter thus: "I was chosen by my native town into the convention two or three days after my arrival. I was, by the convention, put upon the committee; by the committee, upon the sub-committee ttee; so that I had the honor to be principal engineer. The committee made some alterations, as, I am informed, the convention have made a few others, in the report; but the frame and essence and substance is preserved."

Of the care and attention devoted to perfecting the constitution, he says, in another letter: "There never was an example of such precautions as are taken by this wise and jealous people in the formation of their government. None was ever made so perfectly upon the principle of the people's rights and equality. It is Locke, Sidney, and Rousseau and De Mably reduced to practice, in the first instance. I wish every step of their progress printed and preserved." Yet, if reliance can be placed upon a statement made by Dr. Gordon in the newspapers, he was not of those who held that absolute perfection could ever be reached; or that what had been done in one age might not be susceptible of improvement, by adaptation to the altered condition of things, in another.2