Massachusetts from Evacuation to Ratification

On the morning of Sunday, March 17, 1776, the British army in Boston boarded its ships and gave up the town. For nearly a year it had been besieged by an army of New England farmers and artisans. Less than two weeks earlier, that army had fortified Dorchester Heights in a single night, using cannon hauled from Fort Ticonderoga, and its guns now commanded the town and the harbor. General William Howe chose to leave rather than fight. Two days later George Washington reported the news to John Hancock, president of the Continental Congress and one of Boston's wealthiest merchants. "It is with the greatest pleasure I inform you," he wrote, "that on Sunday last, the 17th Instant, about 9 O'Clock in the forenoon, The Ministerial Army evacuated the Town of Boston, and that the Forces of the United Colonies are now in actual possession thereof." The town had "suffer'd greatly," he added, but it was "not in so bad a state as I expected to find it."^[1] The fleet lingered for days in the outer harbor before it stood out to sea.^[2]

Boston, where the Revolution had begun, would never be occupied again. Yet the departure of the army settled almost nothing about how Massachusetts would govern itself. The province had no constitution of its own and a war still to finance. Its people also disagreed sharply about who should hold power and who should pay for independence. Over the next twelve years they rejected one constitution and adopted another that still governs the state. Their highest court turned that constitution's promise of equality against slavery. They struggled under heavy war debts and faced an armed rising of their own farmers. By February 1788 those experiences had convinced a narrow majority of them that their liberty required a stronger national government. This is the story of those twelve years.

A Commonwealth Without a Constitution

When the British sailed, Massachusetts was governed by a makeshift arrangement. In June 1775 the Continental Congress had advised the province to treat the offices of its royal governor and lieutenant governor as vacant. The towns were to elect a House of Representatives, the House was to choose a Council, and the two bodies together were to govern until a royal governor agreed to rule according to the charter of 1691.^[3] The new House met in July 1775 and elected a Council that served as both the upper chamber and the executive. The system worked well enough to raise troops and taxes, but it rested on a charter granted by the king against whom Massachusetts was now at war. In May 1776 Congress urged the colonies to form new governments, and the question of a permanent constitution could not be postponed for long.^[4]

The difficulty lay in deciding who had the authority to write one. Many towns held that a constitution was a fundamental law, standing above ordinary legislation, and that a legislature could not write its own charter of powers. The General Court proceeded anyway. On June 17, 1777, its two houses resolved themselves into a constitutional convention. They adopted a draft on February 28, 1778, and in early March submitted it to the voters, who rejected it by roughly five to one. The one tally that survives, printed in a Boston newspaper that October, gave 2,083 in favor and 9,972 against. A recurring complaint was that the legislature, rather than a body chosen for the purpose, had written the document.^[5]

The most searching criticism came from Essex County. Delegates from twelve of its towns met at Ipswich in the spring of 1778. Their report, adopted at a session that began on April 29, became known as the Essex Result. Its author was Theophilus Parsons, a young lawyer from Newburyport who would later become chief justice of Massachusetts. The Result called for a bill of rights "clearly ascertaining and defining the rights of conscience" before any constitution was ratified. It objected that the proposed governor was "not vested with proper authority" and was not independent of the legislature. It also insisted that "the legislative power must not be trusted with one assembly."^[6] The pamphlet shaped the next attempt. In February 1779 the General Court put two questions to the towns, whether they wanted a new constitution written and whether they would empower their representatives to call a convention for that sole purpose. The towns favored the proposal by about two to one. The legislature then called such a convention and required that its work win the approval of two-thirds of the free adult men voting in their town meetings.^[7]

A Summer of Disaster

The delegates were chosen in the midst of a military humiliation. In June 1779 the British occupied the Bagaduce peninsula on Penobscot Bay, in the District of Maine, which then belonged to Massachusetts. The General Court organized a response without consulting either Congress or the Continental Army. It assembled nineteen armed vessels and more than twenty transports under Captain Dudley Saltonstall of the Continental frigate Warren, along with a force of militia under Brigadier General Solomon Lovell. Lieutenant Colonel Paul Revere commanded the artillery. The expedition arrived on July 25, but its commanders delayed their assault on the British fort. In mid-August a British squadron under Commodore Sir George Collier appeared, and accounts date its arrival from August 11 to August 13. Trapped in the bay, the Americans burned most of their own ships and retreated overland.^[8] Massachusetts lost every ship in the expedition, and one estimate puts its casualties at 474 men. The state's authorities blamed Saltonstall, who was court-martialed and dismissed from the Continental Navy. Revere was also court-martialed and was acquitted.^[9] One account puts the bill at roughly £1.74 million in inflated currency, one of many burdens the new government would inherit.^[10]

The Convention at Cambridge

The convention met at Cambridge on September 1, 1779, and elected James Bowdoin as its president. After a week spent organizing, it named a drafting committee of thirty and adjourned. The committee gave the work to a subcommittee of three, Bowdoin, Samuel Adams, and John Adams, recently back from France. The subcommittee in turn gave the draft to John Adams. He wrote most of it between mid-September and mid-October, largely at his farm in Braintree.^[11]

Adams drew on the charter of 1691, on his own earlier pamphlet Thoughts on Government, and even on language from the rejected constitution of 1778.^[12] The result was a long and carefully balanced frame of government preceded by a Declaration of Rights. It divided the legislature into a House of Representatives and a Senate, both elected every year. It also gave the state an independent judiciary, whose judges held office during good behavior. Adams wanted the governor to hold an absolute veto. "The Executive, which ought to be the Reservoir of Wisdom, as the Legislature is of Liberty," he wrote to Elbridge Gerry on November 4, 1779, "without this Weapon of Defence will be run down like a Hare before the Hunters."^[13] The convention disagreed and allowed a two-thirds vote of both houses to override a veto. It took from the governor the power to appoint militia officers and let the militia elect them instead. It rejected Adams's rule that no man could serve as governor for more than five one-year terms out of seven. And it narrowed the religious test for officeholders, confining the explicit requirement that they be Christians to the governor and lieutenant governor.^[14] Adams did not see the final version. He sailed for Europe on November 15, 1779, carrying printed copies of the committee's report with him.^[15]

The most contentious provision was Article III of the Declaration of Rights, which Adams later said he had not written. It declared public worship necessary to the preservation of civil government and required towns to support Protestant teachers of religion through taxation. A taxpayer could direct his payment to a minister of his own denomination. Baptists and other dissenters saw the article as a continuation of the old Congregational establishment, and the convention debated it at length.^[16]

The People Approve

On March 2, 1780, the convention sent the completed constitution to the towns. Each town meeting was invited to vote on the document article by article, to explain its objections, and to propose changes. About 16,000 men voted. The convention reconvened in Boston on June 7 to examine the returns, and on June 15 a committee reported that the people had accepted the constitution as it stood.^[17] The constitution took effect on October 25, 1780.

Historians have long questioned how faithfully the convention counted. Samuel Eliot Morison, writing in 1917, observed that many towns had voted for amended versions of articles rather than the originals, and that the convention counted such conditional votes as approvals. Working through the tally sheets in the state archives, he concluded that at least two articles had not carried the required two thirds, and that the convention "deliberately juggled the returns in order to make it appear that there was" such a majority. Every article, he allowed, had won at least a bare majority.^[18] The political scientist Ronald M. Peters, studying the same returns six decades later, took a more favorable view of the process. He agreed that Article III had been the most controversial provision and that it passed only because the convention added votes for approval with revisions to votes for approval outright. Yet he also found that many towns had approved most articles unanimously. Either way, Massachusetts became the first state to adopt a constitution written by a convention elected for that purpose alone and then approved by the people.^[19]

The first governor elected under the new constitution was John Hancock, the merchant to whom Washington had reported the evacuation. Hancock won every annual election from 1780 until January 1785, when he resigned, pleading ill health.^[20]

"Born Free and Equal"

The first article of the new Declaration of Rights declared that all men "are born free and equal" and have natural and unalienable rights.^[21] When the constitution took effect, however, slavery remained legal in Massachusetts, and people of African descent were still bought, sold, and held as property. Within months, enslaved people and their lawyers began testing whether the words meant what they said.

The first test came from Berkshire County, at the western edge of the state. An enslaved woman known as Bett, or Mum Bett, and an enslaved man named Brom sued for their freedom against Colonel John Ashley of Sheffield, who was himself a judge of the county court. In May 1781 their lawyers obtained a writ ordering their release. Ashley refused to comply, and the case went to trial at Great Barrington that August. Their attorney, Theodore Sedgwick, argued that the constitution had abolished slavery. The jury found that Brom and Bett were not Ashley's property, and the court awarded them thirty shillings in damages. Ashley appealed but later dropped the appeal. Bett went to work in Sedgwick's household. She remained known as Mum Bett throughout her life, though in her will she identified herself as Elizabeth Freeman.^[22]

A more sweeping ruling came out of Worcester County. In 1754 James Caldwell bought an enslaved couple and an infant boy named Quock Walker. Walker later maintained that Caldwell had promised him his freedom at twenty-five and that Caldwell's widow, Isabell, had promised it at twenty-one. Caldwell died in 1763, and his widow married Nathaniel Jennison, who then claimed Walker as his property. In 1781 Walker ran away and went to work for John and Seth Caldwell, his late master's brothers. Jennison found him, beat him, and carried him back. Three related lawsuits followed. In Walker's own suit for assault, tried at Worcester in 1781, a jury found him a free man and awarded him fifty pounds. In a separate criminal case, the state prosecuted Jennison for assault and battery, and the trial came before the Supreme Judicial Court in April 1783.^[23] Chief Justice William Cushing charged the jury, and his notes for that charge survive. In them he wrote that slavery was "as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence." The jury convicted Jennison, and the court fined him forty shillings.^[24] The same notes put the point more plainly still, "I think the Idea of Slavery is inconsistent with our own conduct & Constitution," and "there can be no such thing as perpetual servitude of a rational Creature."^[25]

No statute ever abolished slavery in Massachusetts, and the practice did not vanish overnight. Historians disagree about how much weight to give the Walker cases compared with changing public opinion and economic pressures. The federal census of 1790, however, recorded no enslaved people in Massachusetts.^[26]

The Price of Independence

The peace treaty of 1783 confirmed independence but left Massachusetts deeply in debt. The state owed large sums to its own creditors, and it also owed its share of the requisitions that Congress, lacking any power to tax, levied on the states.^[27] To meet these obligations the legislature imposed a series of taxes. They included "beef taxes" in 1780 and 1781 and a clothing tax in 1781, and they fell heavily on western towns where farmers had little hard money.^[28] When taxpayers could not pay in coin, collectors seized property, usually farm animals, and sold it at auction for a fraction of its value. Confrontations between collectors and townspeople began as early as 1782.^[29]

The burden grew heavier as the decade went on. The legislature levied land and other taxes to pay down the state's war debt and part of the nation's foreign debt. For farmers whose only real assets were their land and animals, demands for payment in coin were nearly impossible to meet. Governor Hancock had a reputation for leniency in pressing collections where they caused hardship. When he resigned in 1785, James Bowdoin succeeded him and pursued both current and overdue taxes vigorously.^[30] Debt suits by private creditors added to the pressure, and debtors who could not pay faced the loss of their property or confinement in jail.

In the spring of 1786, towns across central and western Massachusetts petitioned the General Court for relief, asking for paper money, lower taxes, or laws allowing debts to be paid in goods. County conventions met in July and August to draw up grievances.^[31] When the legislature adjourned without granting relief, protest turned into direct action.

The Regulation

Beginning in late August 1786, crowds of armed men gathered at county courthouses and prevented the courts from sitting. By the end of September, courts had been closed in five counties.^[32] The protesters called themselves Regulators, and many were veterans of the war. The most prominent was Daniel Shays of Pelham, a farmer who had served as a captain in the Continental Army. His name became attached to the movement, though it had no single commander. Shays himself denied writing at least one of the circulars issued under his name.^[33]

On November 29 a mounted force under Benjamin Hichborn, three hundred strong by one account, rode out from Boston. The next day at Groton, local horsemen took Oliver Parker and Benjamin Page, while Hichborn's men tracked Job Shattuck through the snow. He surrendered only after a sword blow wounded him in the knee.^[34] In January 1787 the state mobilized its militia and placed its main army under General Benjamin Lincoln. A second force under General William Shepard occupied the federal arsenal at Springfield, where muskets, cannon, and military stores were kept. Early in February the General Court formally declared that a rebellion existed in the Commonwealth.^[35]

The decisive encounter came on the afternoon of January 25, 1787. A column of Regulators under Shays advanced through the snow toward the arsenal. A second force under Luke Day, which Shays expected to join the attack, never came, and a letter Day sent to Shays that day was intercepted. Shepard's artillery first fired warning shots and then fired into the column. In his report to Governor Bowdoin the next day, Shepard counted four Regulators killed. Some later accounts give three dead, and others put the wounded at about twenty. The column broke and retreated, and Shepard told the governor that he could have killed most of them as they fled.^[36] Lincoln's army pursued them northward. On the night of February 3–4, Lincoln marched his men through a snowstorm and surprised the Regulators' camp at Petersham at daybreak. Rufus King, writing a few days later, reported about 150 prisoners. Shays and other leaders escaped. King heard that Shays had fled into New Hampshire. Shays later found refuge in Vermont.^[37]

Hancock's Return

In the elections of 1787, voters turned decisively against Bowdoin and returned Hancock to the governorship. They also elected 173 new members to the General Court.^[38] Hichborn, the leader of the Groton raid, had predicted in January that the crisis would leave Hancock "almost without a Rival in the Country at the next Election."^[39] In June 1787 he issued a general pardon that undid the harsh terms of the Disqualification Act passed under Bowdoin, though he excluded a handful of leaders, among them Shays and Day. Of the men condemned for their part in the rising, only two were hanged, both for looting. By June 1788 even Shays had been pardoned.^[40]

To many leaders across the states, courts closed by armed men and a federal arsenal under attack showed that the Confederation could not protect public order. Many Massachusetts leaders had been wary of calls for a general convention to revise the Articles of Confederation. According to the modern editors of the ratification documents, the rising turned many of them toward one, Rufus King and Elbridge Gerry among them.^[41] In March 1787 the General Court chose five delegates to the convention called to meet in Philadelphia. They were Francis Dana, Nathaniel Gorham, Elbridge Gerry, Rufus King, and Caleb Strong. Dana never attended, and Strong left in August because of illness in his family. Gorham and King signed the finished Constitution on September 17. Gerry refused, objecting among other things to the broad scope of the new government.^[42]

The Convention on Long Lane

On October 25, 1787, the General Court called a state ratifying convention to meet in Boston on January 9, 1788. Between November 19 and January 7, town meetings in Massachusetts proper and in Maine elected some 370 delegates, making the Massachusetts convention the largest in any state.^[43] The delegates first gathered in the State House, which could not hold both them and the spectators. On January 10 they moved to the Brattle Street Church, the only church in Boston with stoves, but poor acoustics sent them back after two days. On January 17 they settled in the Congregational meetinghouse on Long Lane, the church of the Reverend Jeremy Belknap.^[44] They chose Governor Hancock as their president, although gout kept him away from the sessions for three weeks.^[45]

As the convention worked through the Constitution section by section, opponents objected to elections every two years, to congressional control over the times and places of elections, to the power of direct taxation, and to the absence of a religious test for federal office.^[46] The sharpest exchange came on January 25, one year to the day after the shooting at Springfield. Amos Singletary, a delegate from Sutton in Worcester County, warned that the new government claimed the same power to tax that Britain had claimed. He then turned on its supporters, warning that "these lawyers, and men of learning, and moneyed men, that talk so finely" meant to manage the new government themselves. They would swallow up ordinary people, he said, "like the great Leviathan, Mr. President; yes, just as the whale swallowed up Jonah."^[47]

Jonathan Smith, a farmer from Lanesborough in Berkshire County, rose in reply. "I am a plain man, and get my living by the plough," he began, and he told the convention that he had "known the worth of good government by the want of it." He recalled that "a black cloud" had risen in the east the previous winter and spread over the west. When the Constitution appeared, he said, "I got a copy of it, and read it over and over." The learned and wealthy men whom Singletary distrusted, Smith concluded, shared the farmers' fate, "we must all swim or sink together."^[48] One delegate, Dummer Sewall, noted in his journal that Smith's speech "exceeded all."^[49]

By late January the Constitution's supporters, who came to be called Federalists, believed that a slim majority of the delegates leaned against ratification. They turned to Hancock. According to the editors of the ratification documents, Federalist leaders offered to support his reelection as governor. They also held out the prospect of the vice presidency, or even the presidency if Virginia failed to ratify, if he would attend the convention and propose amendments for the new Congress to consider after ratification.^[50] On January 30, Hancock was carried into the meetinghouse. The next day he explained that "painful indisposition of body" had kept him from his place and offered a proposal intended "to remove the doubts and quiet the apprehensions of gentlemen." Under it, the convention would ratify the Constitution unconditionally and at the same time recommend nine amendments. The first would reserve to the states all powers not expressly delegated by the Constitution. Others would require grand jury indictments in serious criminal cases, allow direct taxes only when import duties and excises fell short, and bar Congress from creating companies of merchants with exclusive trading privileges.^[51] A Federalist committee had secretly drafted the amendments, though Hancock presented them as his own.^[52]

Samuel Adams moved that the convention take up Hancock's proposal and spoke in its support, saying that "it is of the greatest importance that America should still be united in sentiment."^[53] On the afternoon of February 6, 1788, the delegates voted, and the Constitution was ratified, 187 to 168, a majority of nineteen.^[54]

One after another, opponents rose to say they would accept the result. A delegate named Widgery said he would tell his constituents that he had been "overruled," that the Constitution had been carried "by a majority of wise and understanding men," and that he would support it as far as he could. Cooley of Amherst said he would try to persuade his constituents of the propriety of adopting it, although he had been directed to vote against it. Dr. Taylor, a steady opponent, said he had been "fairly beaten" and promised to help "infuse a spirit of harmony and love among the people." Closing the debate before the question was put, Hancock had asked that, however it was decided, "there can be no triumph on the one side or chagrin on the other."^[55] Six of the seven states that ratified after Massachusetts followed its example and proposed amendments of their own.^[56]

Federal Street

Two days after the vote, Boston celebrated with a grand procession through its streets.^[57] The town also renamed the street where the convention had met. Long Lane became Federal Street.^[58] The Constitution still needed three more states before it could take effect, but Massachusetts had given it a decisive push. Hancock's promise of amendments was partly kept in the Bill of Rights, whose Tenth Amendment echoed the first of Hancock's proposals.

The twelve years between the evacuation and the vote transformed Massachusetts. When the British fleet sailed in March 1776, the province was governed under a royal charter with the king's officers removed. By 1788 it had a constitution written by a convention elected for that purpose and approved by the people in their town meetings, a method that other states and the nation would follow. Its courts had read that constitution as incompatible with slavery. At Springfield and Petersham it had also learned how fragile the new order could be when debt and taxes pressed hardest on those least able to bear them. Singletary and Smith had both spoken from that experience. One feared a distant and powerful government, and the other feared the disorder that came from too weak a one. In 1776 Washington had found that Boston had suffered greatly but was in better condition than he expected. The same might have been said of Massachusetts in 1788. It had come through war, debt, and rebellion with its institutions intact, and by nineteen votes it had chosen to place them within a stronger Union.