(Part Two, 1765–1772)
DANIEL R. COQUILLETTE
J. Donald Monan, S.J. University Professor, Boston College Law School Charles Warren Visiting Professor of American Legal History, Harvard Law School
With special thanks to Brandon Bigelow, Kevin Cox, James Dimas, Elizabeth Kamali, Thomas J. Murphy, Christina Nolan, Nicole Scimone, Brian Sheppard, Susannah Tobin, Elisa Underwood, and Mark Walsh, exceptional research assistants and colleagues, and Charles Riordan and Patricia Tarabelsi, the invaluable Editorial Assistants to the Monan Chair.
(part two, 1765–1772)
Daniel R. Coquillette
In the Editor’s Foreword to the last volume,1 I spoke of the Reporter and his devoted great-grandson, Samuel, who preserved this extraordinary record of colonial times. But equally extraordinary is the focus of their efforts, the Superior Court of Judicature of the Province of Massachusetts Bay, which still exists today as the Supreme Judicial Court of Massachusetts. The oldest surviving court in continental North America, its unbroken sovereignty since 1692 predates the federal Constitution by a century.2
It has, indeed, been powerfully argued by Barbara Aronstein Black that the continuous legal culture in Massachusetts is even older, established as an inherent part of the polity of the First Charter of 1629 and the judicial power of the General Court.3 But, as Russell Osgood has irrefutably pointed out, “[T]he institutional breach caused by the revocation by the Court of Chancery in 1684 of the Company’s charter . . . and the eight-year period of institutional disarray that followed the revocation preclude any strong claim to an institutional existence prior to the implementation of the Second Charter in 1692.”4
Too bad, as this leaves the Island of Bermuda as the oldest judicial system in the Western Hemisphere, with a Court of Judicature established five years earlier in 1687.5 On the other hand, Bermuda had no law reports until 2002, the judgments of the Bermuda Supreme Court and Court of Appeals being kept, since 1903 and 1965, respectively, in binders in the Bermuda Supreme Court Library.6 Quincy would take great pleasure that his Massachusetts Reports are, very arguably, the oldest of any continuous court in the Western Hemisphere, although I will concede to Bermuda a better climate.7
This volume is designated “Part Two” of Quincy’s Reports, and covers cases in the years 1765–1772.8 It begins with a traumatic event, the destruction of Chief Justice Hutchinson’s house by the Boston mob during the Stamp Act Riots of August 20, 1765. Quincy’s opening words are profound:
There cannot, perhaps, be found in the Records of Time, a more flagrant Instance, to what a Pitch of Infatuation an incensed Populace may arise, than the last Night afforded. The Destructions, Demolitions and Ruins caused by the Rage of the Colonies, in general perhaps too justly inflamed, at that singular and ever memorable Statute called the Stamp Act, will make the present Year one of the most remarkable Æras in the Annals of North America.
Reports, p. 168. Such intensity of feeling and violence directed at a leading member of the Judiciary naturally raises the question of how the Court survived the Revolution. Indeed, loyalists like Thomas Hutchinson and his successor as Chief Justice, Peter Oliver, were forced into exile.9 On August 23, 1775, the General Court passed the “Revolutionary Acts,” which provided that all appointments made before that session, i.e., July 19, 1775, “shall be utterly null, void and of none effect.” New appointments, made by the Council, would run the government and the courts.10
But the Superior Court of Judicature was not abolished, and subsequent statutes treated it as an existing court.11 At least one case, Dewing v. Train, Reports, p. 339, Case 74 (1772), originated when the Superior Court was a royal court, and concluded, without a hiccup, after the Court was reconstituted in 1775. See id., Notes 1 and 6. The words “King of Great Britain, France, and Ireland etc.” were simply deleted and replaced by the “Government and People of Massachusetts Bay in New England” on process forms and the like. Id., Note 6. Even the new appointments to the existing court were not entirely new. Justice William Cushing, who was originally appointed in 1772, was reappointed in 1775, with John Adams named as Chief Justice.12 Adams actually never sat as Chief Justice and resigned in 1776.13 He was replaced as Chief Justice by . . . William Cushing! Cushing served as Chief Justice until 1789, when he was appointed to the “new” Supreme Court of the United States.14 The Court retained its exact colonial designation, Superior Court of Judicature, until its name was changed by the Constitution of 1780 to the Supreme Judicial Court.15
Quincy’s Reports, however, demonstrate a much more substantial source of continuity than the facts that William Cushing did not have to “clean out his desk,” or that at least one case spanned both the royal and the reconstituted Court, or that the Court was not officially abolished, or that it initially kept its colonial name. Given the practice of giving oral judgment from the bench rather than written opinion, Quincy necessarily spent most of his time recording the arguments and conduct of counsel in the courtroom.16 We soon notice that the bar had a professional collegiality and a sense of a cultural heritage that counter-balanced political divisions. Chief Justice Hutchinson, in the midst of revolutionary unrest in the streets outside, noted this remarkable cohesion:
Gentlemen of the Bar: I cannot but with Pleasure observe to you the Harmony which has subsisted between all of you in our present Session, and that Unanimity and Order which has prevailed universally amongst us through this whole Term. I the rather observe this, because, in most Parts of the Province there has been great Disturbances. I thought this Notice justly due, and cannot but hope ’twill serve as a future Precedent to us all, and a good Example to the Community.17
The source of this cohesion was not social friendships or good manners, although there was some of that.18 Rather it was a shared professional learning, a shared common law heritage, and a particular sense of civic duty.19 Quincy’s descriptions of his “brethren” battling it out in the courtroom, Gridley against Otis, Adams against Auchmuty, and the accompanying professional banter between lawyer and lawyer, and between bench and law, reminds this former litigator of many a case in the Supreme Court two centuries later, where courtroom fireworks for the clients were, often as not, followed by a friendly beer with opposing counsel in the tavern across the street. Quincy’s Reports is an account of cases decided when Massachusetts was a Province of the British Crown. Yet it has been cited for two subsequent centuries as precedential authority, not just by the Supreme Judicial Court, but by the Supreme Court of the United States and numerous other federal and state courts, the most recent citation by the Supreme Court of the United States being by Justice O’Connor in dissent in 1987!20 It is not amazing. Given the continuous professional culture of the bar and the common law tradition, it is the most natural thing in the world.
And it is not just the persistent similarities of the lawyer’s life-the courtroom, the client, the adversary system, precedent justice, professional education and collegiality-that we recognize. At moments of great emergency, such as the Stamp Act Riots and the Boston Massacre, Quincy and his colleagues demonstrated the commitment to the rule of law and civic responsibility that continue to inspire us today.21 We can only hope that this heritage and these professional values, that have survived a Revolution, a Civil War during which the Reports were first published, and two World Wars, will guide us through the Twenty-First Century as well.22