The Patriot Post® · Moving Forward Toward Self-Government

Less than 10 years after the Fundamental Orders of Connecticut, Thomas Hooker’s plan for a government based on the will of all free men in the colony, another step toward self-government was advanced — The New England Confederation (1643).

The Massachusetts Bay, Plymouth, Connecticut, and New Haven colonies formed a loose military and political alliance by agreement to handle disputes at the regional level without relying on the English crown. The arbitration would be handled by representatives — two from each colony — with disputes settled by a binding decision of six of the eight commissioners. The Board of Commissioners wielded jurisdiction over border disputes that arose from the vague language of their original charters. The commissioners also established policies and protocols for the extradition of criminals.

It was a step forward, but it was not a perfect solution. A structural flaw remained, and the future founders of our United States government would take note of it.

The voting system treated each colony equally on paper, which seemed appropriate, but it was not. Massachusetts Bay had a much larger population than the other colonies and contributed significantly more money to the government than the other three colonies combined. When the commissioners voted six to two to declare war on the Dutch in New Netherland in 1653, Massachusetts Bay simply refused to send troops, and the war ended before it began. The flaw was evident even though the Confederation would exist for several more decades. All four colonies would later agree to organize a united military front during King Philip’s War (1675-1676), proving that the Confederation could resolve some issues.

Almost simultaneously with the creation of the New England Confederation, a court case expanded the idea of representative government.

It began with a story that might sound like the introduction to a fairy tale.

A dispute erupted over a stray pig owned by a poor widow named Martha Sherman and a wealthy merchant, Captain Robert Keayne, who was accused of killing the sow. Within days, the neighbors were choosing sides as the widow sued Keayne in court, seeking a financial judgment for the sow’s death. The Massachusetts General Court (serving both as legislature and supreme court) was comprised of magistrates (upper class representatives) and deputies (working class representatives) who heard the case together in one room and then voted together. The magistrates managed to block a popular ruling in favor of the widow, much to the outrage of the deputies and the majority of the colony’s residents.

The public’s outcry was so severe that the court split into two separate bodies two years later — the birth of the two-house or bicameral legislative system. Sherman v, Keayne (1642) created a precedent that is reflected today in the 49 of our states, each with a bicameral legislature. Only Nebraska has a unicameral legislature.

Twenty years later, another legal case creating a profound legal precedent was argued and won by a young, unknown lawyer named Patrick Henry. Yes, that Patrick Henry. Colonial Virginia had always paid its Anglican minister in tobacco until a severe drought drove the tobacco costs high and the Virginia legislature decided that that pay arrangement was too costly to continue. Instead, the legislature passed a law that would have paid the ministers in cash — at a fixed and significantly lower rate. King George III vetoed the colonial law and one Anglican minister sued for back pay.

Enter Patrick Henry, who defended the taxpayers, arguing that the King’s action — vetoing a fair, locally drafted law — was a violation of the natural rights of his loyal subjects. He declared that King George III was acting as a tyrant. The jury sided with the young attorney and awarded the minister a single penny in damages.

The Parsons’ Cause (1763) established an early precedent for judicial independence and signaled the Crown and Parliament that Virginia believed its laws superseded royal authority. The fact that the court case arose at the same time as Parliament’s Proclamation of 1763 is another story.

Yes, another story...