J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Monday, June 01, 2020

“The Illegality of holding the Court in any other Town than Boston”?

On 1 June 1770, the Massachusetts house continued its discussion with acting governor Thomas Hutchinson about why the legislature was meeting in Cambridge.

The dispute over that issue began in 1769, when Gov. Francis Bernard moved the Massachusetts General Court out of Boston. It continued when Hutchinson convened a second session of that term in March.

The first thing the new house did after electing their officers was to prepare a “remonstrance” against not meeting in Boston. The committee to write that protest included James Bowdoin (named first and thus probably the principal author), Samuel Adams, Joseph Hawley, John Hancock, and Daniel Leonard.

The remonstrance began:
BEING returned by our respective Towns to represent them in the Great and General Court or Assembly of this Province, directed by his Majesty’s Writ under your Hand and Seal, to be convened at Harvard-College in Cambridge, We beg Leave to represent to your Honor our Opinion: That the only Writ established by Law for the convening a General Assembly, is apparently formed, upon a Supposition that the Town-House in Boston is the only Place where the said Assembly is to be convened, held and kept.

Our Fathers in the Year 1721 were evidently of Opinion, that the convening holding and keeping the Assembly at any other Place, was contrary to the Act of this Province, of the Tenth of William the Third, which establishes the Form of the Writ: Accordingly, when the Assembly was then adjourned to this Place, though the Providence of God had rendered it impossible for them, consistent with Safety to their Lives, to meet in Boston, by reason of a contagious Distemper which raged there, Governor [Samuel] Shute declared, that he did not mean the Adjournment should ever after be drawn into Precedent; And the three Branches of the Legislature passed a Resolve, to make valid their Proceedings; which they would not have done, if they had thought the Adjournment from the Town-House in Boston, however necessary, had been consistent with the aforementioned legal Establishment.
The message went on to discuss Gov. William Burnet convening the assembly in Salem in 1729.

Hancock was the one member of the drafting committee also named to the committee to deliver the result to Hutchinson. But the lieutenant governor avoided meeting with Hancock and his colleagues on 30 May. He read the remonstrance and replied with a letter dated the next day, and it was entered into the house record 250 years ago today.

The acting governor said:
By the Charter the Governor has the sole Power of Adjourning and Proroguing the General Assembly. There is no Limitation of Time or Place. Can it be supposed that merely by Force of the Form of a Writ for calling the General Assembly, this Power is taken away or abridged? Will it not rather be supposed that the Word Boston in this writ, is meer Matter of Form, especially when it is considered that it will be equally necessary for the Writ to be dated at Boston, (for that is a Part of the Form) as it is for the Court to be convened there? Now it must, in the very Nature of the Thing, be perfectly indifferent in what Place the Writ is dated.
As for deploying historical precedents, you don’t address the author of The History of the Colony of Massachusets-Bay without having all your evidence in order. Hutchinson acknowledged what happened under Shute and Burnet but said those disputes actually showed the question had been decided in favor of his position. He then went on to a historical moment of his own:
I must put you in Mind that in the Year 1737, the King, for the more convenient carrying into Execution a Commission for settling the Line between this Province and New-Hampshire, instructed the Governor to remove the General Court to Salisbury, where more than one Session was held: Whether this was necessary or not, I will not determine; but if it was necessary, I know that his late Majesty was the sole Judge of the Necessity.

I was then a Member of the House, and do not remember a Word to have been said of the Illegality of holding the Court in any other Town than Boston. The Point had been settled a few Years before, and was fresh in the Memory of the House.
Neither side in this debate mentioned how the General Court had met in Cambridge during the smallpox epidemic of 1764, only six years before. As under Gov. Shute, people agreed that a raging contagious distemper required taking unusual steps, especially when their own health was concerned.

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