What Harvard Law Students Should Know about the Popular Roots of Law in Massachusetts

On August 27, 1774, a Saturday, Timothy Paine (Harvard 1748, fifth in class, ranked at the time by “dignity of family”) received some visitors at his home in Worcester. Two thousand militiamen had gathered on the town common, they told him, to obtain his resignation from the Council. King George III had just appointed Paine and 35 others to serve on that powerful body, taking the place of council members who had been duly elected in May, and each of these appointees, like Paine, now had to face the people’s wrath.

Reluctantly, Paine signed a statement saying he was “very sorry” to have accepted his seat, and “thereby given any uneasiness to the People of the County, from whom I have received many favors.” He assumed that would end the matter, but it did not. Those parading on the common wanted a public recantation, in their presence. In normal times, Paine rode about in “a handsome green coach, trimmed with gilding and lined with satin,” but now he was ushered on foot through town to the common. There, he stood midst the crowd while a member of the committee read his statement, but the people wanted to hear from Paine himself. He obliged, but even that would not suffice. Insisting they must all bear witness, they made Paine walk through their ranks and read his recantation over and over, until each had heard.

Ten days later, on September 6, an even larger crowd gathered in Worcester—4,622 militiamen from 37 distinct townships by an actual head count, literally half the adult male population of this sprawling rural county. Their mission this time was to close both the Court of General Pleas, which heard appeals from cases that had come before justices of the peace, and the Court of General Sessions, which handled the executive business of Worcester County. Rather than submit to the British Parliament’s recent Massachusetts Government Act, they would shut down the government. They had good cause to do so. Had they taken no action, they would no longer be able call town meetings or have a say in selecting government officials who ruled over them: council members, sheriffs, and even jurors. For a century-and-one-half, the people of Massachusetts had governed themselves in most matters, but that would all be lost. Before the Government Act, Massachusetts provincials were politically divided, but this harsh measure pulled them together, save for a thin veneer of officeholders or diehards. Nobody could argue that disenfranchisement was a good thing.

With militiamen occupying the courthouse, judges, justices of the peace, and other court officials huddled within Daniel Heywood’s tavern, their fates to be determined by the mass assemblage. At issue was not whether they would refuse to serve but the dramatization of their recantations. Each of the 37 militia companies selected a representative to meet with court officials, but the arrangement this committee worked out had to be presented to the various companies before implementation. After turning down the first draft, the companies approved a final script. They lined both sides of Main Street between Heywood’s tavern and the courthouse, and then, one by one, with hat in hand to show deference, each official—including Justice of the Peace Timothy Paine, by now a veteran recanter—stepped forth, disavowed “the unconstitutional act of Parliament . . . which, if effected, will reduce the inhabitants to mere arbitrary power,” and pledged to stay all judicial proceedings. Again, since every militiaman wanted to hear, each official had to walk the gauntlet, reciting his recantation more than thirty times. With this humiliating display of submission, all British authority disappeared from Worcester County, never to return.

Throughout Massachusetts similar gatherings closed the county courts, the farthest outposts of imperial authority. In Plymouth, to celebrate their victory, enthusiasts “attempted to remove a Rock (the one on which their fore-fathers first landed, when they came to this country) which lay buried in a wharfe five feet deep, up into the center of the town, near the court house. The way being up hill, they found it impracticable, as after they had dug it up, they found it to weigh ten tons at least.” Only in Boston, where British soldiers were garrisoned, could Governor Thomas Gage, who was also commander-in-chief for armed forces in North America, convene a court of law.

Inadvertently, by eschewing imperial rule, the people of Worcester County placed themselves in a “state of nature,” with its terrifying war of all against all. With the courts closed and British authority gone, what body could prevent disorder? In Worcester, to fill the vacuum, the County Convention of Committees of Correspondence took the reins of government, deciding who would exercise authority, and how. Until a permanent arrangement could be made, it advised: “If any disputes concerning debts or trespasses should arise, which cannot be settled by the parties, we recommend to them to submit all such causes to arbitration; and if the parties, or either of them, shall refuse to do so, they ought to be considered as co-operating with the enemies of the country.” Voluntary good behavior, enforced only by extra-legal gatherings such as that which secured Timothy Paine’s resignation, took the place of codified law.

On October 4, 1774, the Worcester Town Meeting, seeking to finalize and legitimize the rebellion, decided it was time “to raise from the dissolution of the old constitution, as from the ashes of the Phenix, a new form, wherein all officers shall be dependent on the suffrages of the people, whatever unfavorable constructions our enemies may put upon such procedure.” No longer should citizens be bound by a distant Parliament, in which they were not represented, or be subjects of a king or queen, whom they had not elected. This is the earliest known record of a public body in British North America issuing a declaration in favor of a new and independent government—exactly twenty-one months before the Continental Congress approved its own Declaration of Independence.

All this happened more than half-a-year before redcoated soldiers marched on Lexington and Concord. That offensive was a counter-revolutionary military maneuver, the first stab at reclaiming a province Britain had lost. The revolution itself, the transfer of political and military authority throughout Massachusetts, had already occurred, and the people who staged that revolution had spent six months preparing for the attack they knew would come.

Remarkably, the Massachusetts Revolution of 1774 succeeded without the loss of life or a battle casualty of any sort. The people were so united that none dared resist. Timothy Paine had no choice to submit, and two dozen court officials in Worcester were no match for 4,622 militiamen. Had the sides been more balanced, blood would likely have been shed—and we would have heard more about this unique moment. In fact, that soon happened. In 1786, at many of the same places, crowds tried to close the Massachusetts courts. This uprising, misnamed “Shays’ Rebellion” after one of its several leaders, was actually modeled after the successful one in 1774, but the insurgents were fewer in number and the citizenry divided. How ironic that textbooks include the story of the smaller, failed rebellion but not the larger, successful one.

Further, the rebels of 1774 were democratic to the core. Whether forcing council members to resign or closing the courts, crowds voted at every turn. One night in Braintree, Abigail Adams witnessed an out-of-doors council from her window. Having successfully seized gunpowder from the local powder house, a troupe of about two hundred men forced the sheriff to burn two warrants he was attempting to deliver. To celebrate, some wanted to loudly “huzzah,” but it was Sunday. Should they or should they not disturb the Sabbath? “They call’d a vote,” Abigail reported to her husband John, and “it being Sunday evening it passed in the negative.”

“Let the people decide”—that calling cry of the 1960s protests—was alive and well in Massachusetts in 1774. Yet despite the push by the Worcester Town Meeting and other rural radicals, the Provincial Congress, fearful of loosing support from other colonies, refrained from setting up a new and independent government. Massachusetts remained under interim management until after Lexington and Concord, when it reverted to the 1691 Charter, minus only the royal governor.

This did not satisfy. In westernmost Berkshire County, for several years, citizens refused to open the courts under rules of government they had no part in creating and had never ratified. In 1778, when judges appointed by the state attempted to open the courts, the people made certain that courts must remain closed “rather than to have Law dealt out by piece meal as it is this Day, without any Foundation to support it.” The state legislature finally drafted a new constitution, but the people of Massachusetts, voting at their town meetings, overwhelmingly rejected it. The proposal lacked a bill of rights, they complained, and worse yet, the people had played no part in writing it.

Finally, in a statewide referendum held in the spring of 1779, Massachusetts citizens voted overwhelmingly to hold a special constitutional convention. Through the summer towns chose delegates and sent them forth, often with specific instructions. As citizens of Bellingham told their delegate, “We your constituents claim it as our inherent right at all times to instruct those that represent us, but more necessary on such an important object which not only so nearly concerns ourselves but our posterity.” Written instructions had formed the backbone of participatory democracy since colonial times; in the words of Worcester’s town meeting in 1766, its representative must “adhere to these our instructions, and the spirit of them, as you regard our friendship, and would avoid our just resentment.” To the people of Massachusetts, the right to instruct, and thereby maintain a hand in government, was a critical as free speech is to us today.

The constitution drafted in 1779 and ratified by town meetings in 1780 explicated the very nature of political authority: “All power residing originally in the people, and being derived from them, the several magistrates and officers of government vested with authority, whether legislative, executive, or judicial, are the substitutes and agents, and are at all times accountable to them.” To insure a direct say in government, it guaranteed that “the people have the right … to give instructions to their representatives.”

At the national level, when the First Federal Congress considered amendments to the Constitution, South Carolina’s Thomas Tucker moved that the right to instruct representatives be included in what would become the First Amendment. He was voted down, but in Massachusetts, the right to instruct remains enshrined in the Constitution, a living legacy of grassroots democracy in Revolutionary Massachusetts.

Why do law students at Harvard, reared on stare decisis, not study the historical foundation of constitutional law in their state, the ultimate precedent?

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Among Ray Raphael’s books on the Founding Era are Constitutional Myths, Founding Myths, The First American Revolution, A People’s History of the American Revolution, and most recently The Spirit of ’74: How the American Revolution Began. A complete list can be found at rayraphael.com.

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