Imagens das páginas
PDF
ePub

against the negative voice, as himself acknowledged upon record. He was adjudged by all the court to be disabled for three years from bearing any public office." This Deputy, so democratic in his ideas, was Israel Stoughton, who, later returning to England, rose to be a Lieutenant-Colonel among the Ironsides; it was his son whose gift to Harvard led to the perpetuation of his name by Stoughton Hall. At the General Court in May "a petition was preferred by many of Dorchester, etc., for releasing the sentence against Mr. Stoughton the last General Court; but it was rejected, and the sentence affirmed by the country to be just." Of the same court Winthrop writes: "Divers jealousies, that had been between the magistrates and deputies, were now cleared, with full satisfaction to all parties."

It was an ingenious arrangement that they devised, an amplification of what now we call a conference committee. The record of March 3, 1635/6, reads: "No law, order, or sentence shall pass as an Act of the Court, without the consent of the greater part of the magistrates on the one part, and the greater number of the deputies on the other part; and for want of such accord, the cause or order shall be suspended, and if either party think it so material, there shall be forthwith a committee chosen, the one-half by the magistrates, and the other half by the deputies, and the committee so chosen to elect an umpire, who together shall have power to hear and determine the cause in question."1

Several years passed before the question of the negative voice came to the front again. Winthrop tells the important story at length, beginning with his Journal entry of June 22, 1642. "At the same General Court," he says, "there fell out a great business upon a very small occasion. Anno 1636, there was a stray sow in Boston, which was brought to Captain Keayne." It should be understood that Keayne was a leading merchant of the town. He had already figured in the Journal, under date of November 9, 1639, as being "notorious above others observed and complained of" for oppression in the sale of foreign commodities; "and, being convented, he was charged with many particulars; in some, for taking above six-pence in the shilling profit; in some above eight-pence; and, in some small things, above two for one; and being hereof convict, (as

1 Records of the Colony of the Mass. Bay in N.E., 1, 170.

appears by the record,) he was fined £200." The curious particulars of the discussion about the propriety of his charges and the extenuating circumstances will interest any student of the history of economics. After the Court censured him, the Church took him in hand, "where (as before he had done in court) he did, with tears, acknowledge and bewail his covetous and corrupt heart." His excuses led to a sermon by Mr. Cotton in which the preacher learnedly discussed the rules for trading. Keayne came near being excommunicated, but escaped with an admonition. Other episodes in his career put him in a better light. He was one of the promoters and was the first commander of the Ancient and Honorable Artillery Company, at times a delegate to the General Court, and evidently an influential citizen. He took a singular revenge on his critical fellow-citizens by leaving to the town three hundred pounds toward their first town-house, in a will of nearly two hundred pages, a large part of which was devoted to vindicating his mercantile honor.

These particulars about Keayne are of consequence here as throwing some light on the sow controversy, for evidently he had the sympathy of many of the well-to-do and was in disfavor with the plainer folk, who thought him an extortioner and very likely were jealous of his prosperity. To go on with the story of the sow brought to Keayne: "He had it cried divers times, and divers came to see it, but none made claim to it for near a year. He kept it in his yard with a sow of his own. Afterwards one Sherman's wife, having lost such a sow, laid claim to it, but came not to see it, till Captain Keayne had killed his own sow. After being showed the stray sow, and finding it to have other marks than she had claimed her sow by, she gave out that he had killed her sow. The noise hereof being spread about the town, the matter was brought before the elders of the church as a case of offence; many witnesses were examined and Captain Keayne was cleared."

Not satisfied with this, Mrs. Sherman went to law, and there followed a long course of litigation, with the suit on appeal finally reaching the General Court, then a trial court as well as a legislative body. It gave the best part of seven days to the case, without decision, "for there being nine magistrates and thirty deputies, no sentence could by law pass without the greater number of both, which neither plaintiff nor defendant

had, for there were for the plaintiff two magistrates and fifteen deputies, and for the defendant seven magistrates and eight deputies, the other seven deputies stood doubtful. . . . The defendant being of ill report in the country for a hard dealer in his course of trading, and having been formerly censured in the court and in the church also, by admonition for such offences, carried many weak minds strongly against him. And the truth is, he was very worthy of blame in that kind, as divers others in the country were also in those times, though they were not detected as he was; yet to give every man his due, he was very useful to the country both by his hospitality and otherwise. But one dead fly spoils much good ointment."

Winthrop goes on to tell how there was great expectation in the country that the cause would pass against the Captain, "but falling out otherwise, gave occasion to many to speak unreverently of the court, especially of the magistrates, and the report went, that their negative voice had hindered the course of justice, and that these magistrates must be put out, that the power of the negative voice might be taken away.'

[ocr errors]

Observe that had joint ballot prevailed, Mrs. Sherman would have won by 17 to 15, but that if the action of Magistrates and Deputies was to be taken separately, there was a deadlock — a victory for the Captain.

Before the Court broke up, the Governor tried to allay the feeling. He "tendered a declaration in nature of a pacification, whereby it might have appeared, that, howsoever the members of the court dissented in judgment, yet they were the same in affection, and had a charitable opinion of each other; but this was opposed by some of the plaintiff's part, so it was laid by." Thus Winthrop's customary rôle of peacemaker failed, which may indicate the intensity of the public feeling in the matter. He made it worse by forgetting that the man who gives an opinion would best not accompany it with his reasons. He proceeded to publish a declaration of the necessity of upholding the Magistrates. This took the form of a "Breaviate of the Case betwene Richard Sheareman plt. by petition & Capt. Robert Keaine defentt. about the title to A Straye Sow." It was an ingenious quibble to show that the vote of the Magistrates was not final, for the cause might have been argued again, or else committees might have been chosen, "to order the Cause according to Lawe." Passages of it gave so much offense that

Winthrop felt it necessary to explain and apologize in his speech to the General Court the next June. Although he refused to retract, he went on to say: "Howsoever that which I wrote was upon great provocation by some of the adverse party, and upon invitation from others to vindicate ourselves from that aspersion which was cast upon us, yet that was no sufficient warrant for me to break out into any distemper. I confess I was too prodigal of my brethren's reputation." Other language of like tenor he concluded with a sentence that would hardly be spoken by a Chief Executive of the present day: "These are all the Lord hath brought me to consider of, wherein I acknowledge my failings, and humbly intreat you will pardon and pass them by; if you please to accept my request, your silence shall be a sufficient testimony thereof unto me, and I hope I shall be more wise and watchful hereafter."

The "sow business," as Winthrop calls it, had become the great political issue of the hour. "That which made the people so unsatisfied, and unwilling the cause should rest as it stood, was the 20 pounds which the defendant had recovered against the plaintiff in an action of slander for saying he had stolen the sow, etc., and many of them could not distinguish this from the principal cause, as if she had been adjudged to pay 20 pounds for demanding her sow, and yet the defendant never took of this more than 3 pounds, for his charges of witnesses, etc., and offered to remit the whole, if she would have acknowledged the wrong she had done him. 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."

The constitutional bearing of the momentous controversy was upon the procedure of the General Court. Should there be in effect two branches, each with a negative on the other, each with power to prevent affirmative action, each with a "negative voice"?

To be sure, the reference then was wholly to the "negative voice" of the Magistrates (the Assistants, virtually the upper House, if such it was to be). Clearly, though, if the Magistrates could block the Deputies, the Deputies could block the Magistrates, and so the whole bi-cameral, two-chamber question was really at issue.

Winthrop's story concludes with this about the Court of

March, 1644: "Upon the motion of the deputies, it was ordered that the court should be divided in their consultations, the magistrates by themselves, and the deputies by themselves, what the one agreed upon they should send to the other, and if both agreed, then to pass, etc. This order determined the great contention about the negative voice." And had he the gift of prophecy, he might have added, “and in the end gave two chambers to every Legislature in the United States, as well as to the Federal Congress itself."

The separate Records of the "House of Deputies" begin with the 29th of May, 1644. The Charter made no provision for such a House, and its legality has therefore been questioned. Forty years later this gave occasion for one of the complaints believed to have led to vacating the Charter. However, the system had become an institution prized by the people, and it was destined to survive.

[ocr errors]

Winthrop was wrong in thinking that the controversy over the negative voice was in reality ended by the order of March, 1644. In November of that very year a new plan for choosing the General Court included a proposition that "the magistrates & deputies thus chosen shall sit togeather as a full & sufficient Generall Court, to act in all things by the major vote of the whole Court.' It was ordered that by the last of the next month every town should vote on the plan, but no record of the result appears and it must have been in the negative. The "whereas" of the order had this clause: ". . . it being thought a matter worthy the triall, dureing the standing of this order, to have the use of the negative vote forborne," etc. We may infer that this took place, for immediately afterward appears an entry for a complainant in the case of his petition for his father against "the towne of Watertowne," with the further entry: "The deputies of Watertown, after the order was entered, tooke exception against it, alleadging that the major part of the magistrates did not vote for the complainant. It was hereupon put to the vote of the Court, whether the said order should not be judged to be good & effectuall, notwithstanding the allegation; and the vote was, that it should stand good." 1

In the following May a joint committee of the two Houses was appointed "to consider of some way whereby ye negative vote may be tempered, that justice may have free passage." 2 1 Records of the Colony of the Mass. Bay in N.E., 11, S8-90. 2 Ibid., III, 11.

« AnteriorContinuar »