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Browsing: Legal Papers of John Adams, Volume 2


Docno: ADMS-05-02-02-0003-0002-0001

Editorial Note

The Province Charter of 1691 provided that there should be “a liberty of Conscience allowed in the Worshipp of God to all Christians (Except Papists)” who inhabited Massachusetts. Despite these bold if less than all-embracing words, the faith of the founding Puritans constituted the “establishment” of the province. It continued as such beyond the time of independence and well into the 19th century.1 As the discussion in Pierce v. Wright, No. 36, suggests, however, the term “establishment” is here used in a rather special sense. Local autonomy meant that Massachusetts had neither an established religion nor quite an established church.
Nevertheless, there were established churches. Within each town in the Province at least one church or congregation—generally Calvinist in doctrine and congregational in polity—was entitled under the existing laws to receive special favors from the government. Statutes provided financial and other support for the church with which a majority in each “town or place” was affiliated. That majority in almost every case subscribed to doctrines which, however variant, had enough in common to occupy the broad theological center which was Congregationalism. Dissenters to the left and right might worship as they chose, but they were rarely in a position to receive the kind of state sanction and assistance accorded to the Congregational churches. Moreover, despite exemption acts, they had to battle constantly to avoid contributing to support the established order.
The principal dissenting denominations in 18th-century Massachusetts were the Episcopalians, the Quakers, and the Baptists. All three fought establishment actively, but after about 1750, the Baptists were its chief { 33 } opponents. Green v. Washburn is an example of the varied litigation which their struggle produced.
Barely a year after the promulgation of the Charter, the basic principle of establishment was laid down by statute. “Able, learned, orthodox” ministers “of good conversation,” approved by a majority of the church-going voters in a “town or place” were to be supported by taxes levied upon all of the inhabitants. If a town was delinquent in providing itself with such a minister, the Court of General Sessions for the county could “take effectual care to procure and settle a minister qualified as aforesaid, and order the charge thereof and of such minister's maintenance to be levied on the inhabitants of such town.”2 A dissenter was free to support his own church as well, but if he did so he paid twice.
In 1724 the Privy Council ordered the remission of part of the province tax intended to support Congregational ministers in two towns in which a majority of the inhabitants were Quakers. This decision was itself of narrow effect, but the dissenters pressed the attack, perhaps inspired by the Board of Trade's position that the tax in question was contrary to the Charter.3 At length, in 1728, having previously granted { 34 } Episcopalians the right to have their taxes paid to their own pastors in certain cases, the General Court passed legislation relieving Quakers and Baptists (or “Anabaptists” as they were called) from taxes “assessed for the support of the minister or ministers of the churches established by the laws of this province.” Eligibility for exemption was first determined on the basis of attested lists of those who attended meeting and professed themselves Baptists or Quakers, which were to be furnished by principal members of the denominations in each town. A re-enactment in 1734 provided that lists of exempt Baptists were to be prepared by the town assessors, but omissions could be supplied on the certificate of “two principal members of that perswasion” that they believed omitted persons “to be conscientiously of their perswasion, and that they do frequently and usually attend their meetings for the worship of God, on the Lord's Day.”4
{ 35 }
After the Great Awakening of the 1740's had left an irremediable split within Congregationalism, problems in the administration of these laws increased. The “New Lights,” who had supported the revivalist movement, in many cases formed Separate churches and sought the same tax relief that had been given earlier to the dissenting sects; but the “Old Lights,” and those New Lights who continued to support the established order, resisted, apparently finding outright dissent easier to tolerate than Separatism. The inspiration of the Great Awakening had also produced a division in the Baptist ranks between the old General Baptists with their Arminian beliefs and New Light Baptists, who adhered to the strict Calvinism of the revival. With doctrinal differences few, many Congregational Separates became Baptists, forming for themselves, or joining New Light Baptists in, what came to be called Separate Baptist churches. This development brought forth from the Standing Order and from unconverted Separates alike the charge that the converted ones had had themselves “dipped to wash away their taxes.”5 The criteria for determining who was a Baptist took on a new importance as this sudden growth in what had theretofore been a static and relatively innocuous minority began to threaten both the doctrinal and the financial stability of the established churches.
To meet the situation the General Court tightened the exemption laws, requiring in an Act of 1753 that a Baptist's certificate of faith and attendance was to be given by the minister of his church, as well as by two principal members, all of whom had to be vouched for in turn by three other Baptist churches.6 The latter requirement, which had proved most { 36 } obnoxious to the Baptists, was eliminated in 1758 when a statute was enacted to replace all previous exemption acts for Baptists and Quakers, which had by then expired. The new measure carried forward the exemption in terms similar to those of previous acts, but provided that no person was to be “esteemed or accounted an Annabaptist” unless his name appeared on a list given to the assessors over the certificate of the minister and three principal members of his church to the effect that all those on the list were “really belonging thereto, that they verily believe them to be conscientiously of their perswasion, and that they do frequently and usually attend the publick worship in such church on the Lord's day.” The first-quoted clause apparently added actual church membership to the requirements under earlier law.7
Since the assessors were often hostile toward those seeking exemption, these provisions produced much dispute and consequent litigation. A detailed study of this litigation based upon court records has yet to be made and cannot be undertaken here. Secondary sources and the documents in a few cases in which John Adams was involved indicate that the usual suit was one brought by the dissenting taxpayer against the town officials who had either collected the tax from him or had had his goods or body taken by way of distress. These suits seem to have turned principally on the questions whether the plaintiff's eligibility for exemption was made out by his certificate, and whether the certificate itself was executed in proper form. And procedural points, common to all litigation in Massachusetts, were often present to cloud the issue.8
{ 37 }
Although larger questions of fundamental rights may have been raised in argument, these cases can hardly be said to have adjudicated any such { 38 } issues. The famous controversy concerning the Baptists of the town of Ashfield did seem to resolve more basic questions, but resolution took place on a level higher than that of the courts of the province. The earlier exemption acts had provided that the exemption should not “extend to new towns, granted upon condition of settling an orthodox minister and erecting a house for the public worship of God, till such time as those things are accomplished.”9 This provision was omitted from the 1758 exemption act, but since that statute applied to taxes levied in a “town, district, precinct, or parish,”10 the practice under the former act of denying exemption in unincorporated “plantations” was apparently continued. After the plantation of Huntstown was “erected into a town by the name of Ashfield” in 1765, indeed, the proprietors continued to assess ministerial taxes against all, regardless of religion.11 When the Baptists sought legislative relief, they were met with a special act which only strengthened the proprietors' position, providing that the taxes should be levied against every part of each proprietor's right, “in whose hands soever the same may be,” and that the lands of delinquents might be sold to pay the tax.12
{ 39 }
Despite more petitions, the Baptists' lands were sold in 1769 for nonpayment of the tax. The conflict which then arose brought forth a full range of the kind of argument on religious toleration and human rights with which today such controversies are customarily clothed.13 The General Court remained unmoved, but in 1771 the Ashfield Act came before the Privy Council and was disallowed. While the exact grounds of this decision are unknown, it in effect adopted a Board of Trade recommendation based on a broadly worded finding that “This Clause, whereby all persons of whatever sect or persuasion in religion, occupying Lands in this Township are equally and indiscriminately taxed for the support of the Independent Church therein established, is in our opinion equally unusual and unreasonable particularly in the case of the Sect commonly called the Antipedobaptists.”14
Perhaps as important to the Baptist churches as the right of their membership to freedom from ministerial taxes was the right of their ministers to the privileges and immunities of the established clergy. An act of 1760 provided that no assessments could be levied for the support of a minister who did not have either a suitable formal education, or the testimony of a majority of the clergy in his county that his learning was sufficient.15 Baptist ministers apparently both lacked the requisite learning and experienced great difficulty in obtaining the necessary support among { 40 } their Congregational counterparts. As a result, in one well-known case, even though the majority in the town of South Brimfield were Baptists, they were not allowed to apply their taxes to the support of a minister of their own persuasion.16
A further problem was the status of the ministers themselves as taxpayers. The annual acts which authorized the towns to assess and levy province, county, and town taxes exempted a long list of persons, including “settled ministers.” In 1762, early in the Ashfield controversy, the town assessors, themselves Baptists, had applied this exemption to their minister, Ebenezer Smith. According to a later report by Smith and one of the assessors, a taxpayer complained to the Hampshire County Court of General Sessions that he had been “overrated.” The assessors were summoned and on the trial in May 1762, the court “would not suffer [them] to bring any Proof of the said Ministers Settlement neither by Certificate nor by living Evidence and said that if they should prove his Ordination yet he should not be free paying Taxes. And in the Conclusion cast 4 pounds lawful Money Charges on the two Assessors,” denying them an appeal to the Superior Court on the grounds that no appeal lay in such a case.17
These problems of ministerial status were at least partially resolved by Green v. Washburn. Nathaniel Green, pastor of what was known as the Second Baptist Church in Leicester, had been ordained a minister in October 1763, at which time he took charge of his congregation, which had gathered only the year before. Green's church first met in Spencer, but soon moved to the western part of Leicester. Perhaps because of its pastor's experiences, to be related, the church joined the newly formed Warren Association in 1768 and thus became part of the organized Separate Baptist movement for the attainment of religious liberty.18
{ 41 }
In December 1767 when Seth Washburn and others, the assessors of Leicester, had levied the province, county, and town taxes upon Green, he had refused to pay. Accordingly, in February 1769, his body was taken in distress by the constable, and he was held in custody for several hours until he paid the tax. At the May 1769 Worcester Inferior Court, with John Worthington as his attorney, Green brought suit against Washburn and the other assessors in an action of the case, alleging that, knowing of his status as a settled minister, they had illegally assessed him, and had ultimately procured his arrest. Adams, for the assessors, entered a plea of not guilty, and the case went to trial.19
Adams' minutes of the trial (printed below) suggest that he relied largely on the language of Province statutes dealing with the ministry to define the term “settled minister” in the tax act. The earliest statutes could be read to mean that only those “able, learned and orthodox” ministers who had been approved by a majority of the voters in a town and were to be supported by all of the town's taxpayers were “settled.” The act of 1760, already referred to, seemed to add the further requirement of education, or at least ministerial approval. In contrast, the only Act which dealt with the qualifications of a Baptist minister required that for him to certify members of his church to the tax assessors he need have only certificates attesting to his faith from three other Baptist churches.20 James Putnam, who joined Adams, elaborated upon this theme in a brief but notable address which seemed to sum up all the contempt of the Harvard-bred establishment for the rude and argumentative religion of the Baptists.
Worthington, citing Locke, argued for a broader construction of the tax act, urging that it covered any man chosen by his flock as a minister. Witnesses testified as to Green's ordination and the size and continuing existence of his church. Despite other testimony apparently intended to show that, even among Baptists, Green's was merely a splinter group not entitled to recognition as a church, the jury brought in a verdict for the plaintiff of £2 and costs.21 On appeal to the Superior Court in September 1769, with Adams no longer involved in the case, Green won again, although his recovery was reduced to£1 13s. 6 1/2d., the amount of the tax, and costs.22
{ 42 }
If no great constitutional pronouncement came out of this case, the principle which it announced was nevertheless considered an important one. In his Church History of New England, Isaac Backus, a leading figure in the Warren Association and a participant in many such battles, capped his account of the storms of the 1760's by reporting that “one thing that gave check to oppression was a determination of authority, that the ministers of the Baptist Churches were lawful ministers, so as to have a right to marry people, and to be exempted from civil taxes.” This “determination” took place in two Superior Court decisions, one of which was Green v. Washburn. 23
1. For the 1691 Charter provision, see 1 A&R 14. As to its construction, see Susan M. Reed, Church and State in Massachusetts, 1691–1740 21–23 (Urbana, Ill., 1914). The nature of the problem was altered after independence by the terms of the Declaration of Rights in the Massachusetts Constitution of 1780, which, in requiring the legislature to make the towns provide “for the public worship of GOD,” allowed taxes paid by an individual who so requested to “be uniformly applied to the support of the public teacher or teachers of his own religious sect or denomination, provided there be any on whose instructions he attends.” Declaration of Rights, Art. III, in Robert J. Taylor, ed., Massachusetts, Colony to Commonwealth 128–129 (Chapel Hill, N.C., 1961). For cases and other materials on the gradual decline of the establishment under this provision and its abolition by constitutional amendment in 1833, see Mark DeWolfe Howe, Cases on Church and State in the United States 27–54 (Cambridge, Mass., 1952). See also Edward Buck, Massachusetts Ecclesiastical Law 39–65 (Boston, 1866); Jacob C. Meyer, Church and State in Massachusetts from 1740 to 1833 90–200 (Cleveland, Ohio, 1930); Butterfield, “Elder John Leland, Jeffersonian Itinerant,” 62 Amer. Antiq. Soc., Procs. 155, 207–215 (1952); Leonard Levy, The Law of the Commonwealth and Chief Justice Shaw 29–42 (Cambridge, Mass., 1957).
2. Act of 4 Nov. 1692, c. 26, 1 A&R 62, as amended by Act of 17 Feb. 1693, c. 46, §§8–11, 1 A&R 102–103. The latter act was made expressly inapplicable to Boston, where ministers had always been supported by voluntary contributions. Id., §9; see Reed, Church and State in Mass. 38. Parts of both acts are set out in notes 2 25 and 3 26 , below. The Act of 13 June 1695, c. 8, 1 A&R 216, provided that a council of ministers called by the church might overrule a town's rejection of the church's choice. Later acts permitted ministerial taxes to be raised in precincts set off for church purposes from existing towns. Act of 9 Nov. 1702, c. 10, §2, 1 A&R 506; Act of 24 Dec. 1732, c. 14, 2 A&R 306. The Act of 19 June 1718, c. 1, 2 A&R 99, permitted taxes to be levied for the construction and repair of meeting houses in precincts. Presumably such taxes were levied in towns under their general power to levy taxes “for the defraying of other necessary charges.” Act of 16 Nov. 1692, c. 28, §6, 1 A&R 66. Another provision strengthened the power of the Court of Sessions by authorizing it to appoint assessors in delinquent towns or districts and to direct the grand jury to investigate conditions in such communities. Act of 9 Nov. 1702, c. 10, §1, 1 A&R 505. If the towns remained recalcitrant, the General Court was empowered to settle a suitable minister and provide for his maintenance. Act of 14 Nov. 1706, c. 9, 1 A&R 597; Act of 20 Dec. 1715, c. 17, 2 A&R 26, extended to May 1730 by Act of 5 July 1722, c. 4, 2 A&R 244. As to all of this legislation and its enforcement, see Reed, Church and State in Mass. 24–34, 50–85. Despite these provisions, in a few instances where dissenters were in the majority in a town, they were permitted to treat their church as the established one, thus gaining the benefit of the tax collection process. See id. at 70–73; Shipton, “The Locus of Authority in Colonial Massachusetts,” in George A. Billias, ed., Law and Authority in Colonial America (Barre, Mass., in press). After 1760 the requirement that ministers have the equivalent of a college education provided a further basis for opposing this practice. See notes 15, 16, 3 27 , below. Although the Privy Council held certain applications of the establishment acts invalid (notes 3 and 14 below), the basic principle of establishment embodied in the acts of 1692 and 1693 was upheld by the Crown law officers against an attack based on the charter clause in 1732. See 2 A&R 477–484; Reed, Church and State in Mass. 183–184.
3. On the 1724 decision, see Reed, Church and State in Mass. 75–78, 119–127. The General Court had acted under the Act of 20 Dec. 1715, note 2 above. The tax act in question, the Act of 3 July 1722, c. 8, §1, 2 A&R 251, 254–255, had not provided on its face that the assessments were intended to support ministers, although the Quakers presented evidence that this was its effect. The Board of Trade in its report of 20 Dec. 1723 to the Privy Council thus did not recommend disallowance, but pointed out that taxing the majority to support the minority's minister was not consistent with the Massachusetts Charter's grant of an “absolute and free liberty of conscience for all Christian Inhabitants there, except Papists.” 2 A&R 276. The tax act for the next year, Act of 29 June 1723, c. 8, §1, 2 A&R 293, 296, contained an express statement of the purpose of the assessment. The Board of Trade, on 6 May 1724, recommended disallowance of this act, urging both the Charter clause and an inconsistency with the establishment statutes, in which it was “laid down as a just and equitable rule that the majority of each Town or Congregation shou'd have the choice of their own Teacher.” 2 A&R 277. The Privy Council, in its Order of 2 June 1724, granted relief only under the 1722 act and did not disallow it. Ibid.; see 3 Acts, Privy Council (Col.) 58–59. Other materials concerning the case, which pertained to Dartmouth and Tiverton, are collected in 2 A&R 269–277.
4. The Episcopalian relief measure was the Act of 19 Dec. 1727, c. 7, 2 A&R 459, which provided that members of the Church of England should be taxed at the same rate as members “of the churches established by the laws of this province,” but that if there were a minister of the Church of England within a town, taxes assessed against inhabitants who worshipped with him and lived within five miles of the church were to be paid over to him by the town treasurer. They were also exempt from meetinghouse taxes. For the problems of Episcopalians generally, and subsequent legislation concerning them, see Reed, Church and State in Mass. 141–143, 148–189; Meyer, Church, and State in Mass. 14, 27–30, 69–89. The Act of 20 June 1728, c. 4, §1, 2 A&R 495, exempted from tax the polls of Baptists and Quakers “enrolled or entred in their respective societies as members thereof, and who alledge a scruple of conscience as the reason of their refusal to pay any part or proportion of such taxes as are from time to time assessed for the support of the minister or ministers of the churches established by the laws of this province in the town or place where they dwell,” with the proviso that they attend “meetings of their respective societies” regularly and live within five miles of the meetinghouse. The provision for determining eligibility for exemption was in id., §3. Persons so exempted were barred from voting on church questions in town meeting. Id., §5. See note 7 below. By Act of 20 Dec. 1729, c. 6, 2 A&R 543, the estates of Baptists and Quakers were exempted under the same conditions. For the passage of this legislation, see Reed, Church and State in Mass. 128–135. After the expiration of these acts, separate measures were passed for Quakers until 1758. See id. at 135–144; Meyer, Church and State in Mass. 15–17. The exemption for Baptists “who alledge a scruple of conscience” was continued and extended to taxes for the construction of meetinghouses, by Act of 4 July 1734, c. 6, §1, 2 A&R 714. The certificate provision for determining exemption was in id., §2. It was superseded in 1753. See note 6 below. The 1734 act omitted the five-mile requirement, but provided that the exemption did not apply in “new towns.” See text at note 9 below. This statute was re-enacted in virtually identical form by Act of 30 June 1740, c. 6, 2 A&R 1021, renewed until 1757 by Act of 29 June 1747, c. 6, 3 A&R 362. For the Baptists' account of the passage and implementation of all of this legislation, see Petition of a Committee of Baptists to the General Court, 29 May 1754, 4 A&R 122–126. See also Reed, Church and State in Mass. 132–135, 141–143.
5. Quoted in Meyer, Church and State in Mass. 36. See also id. at 18; C. C. Goen, Revivalism and Separatism in New England, 1740–1800 213 (New Haven, 1962). Mr. Goen argues convincingly that this charge was largely unfounded, since in some communities even unquestioned Baptists were not able to take advantage of the exemption acts, and where this was not the case many Separates hesitated to become Baptists precisely because of the material advantage. Even the sources which he quotes, however, show that adoption of Baptist principles was urged by some “as the way God had opened to escape such sufferings [i.e. ministerial taxes].” Id. at 213–215. It is clear, however, that there were many other factors—doctrinal as well as practical—which influenced conversion. Id. at 208–257. As to the Great Awakening and its effect generally, see id. at 34–67, 206–207, 272–275, 285–287 and throughout; see also Meyer, Church and State in Mass. 20–47. For an example of a typical transition from Standing Church to Separate to Separate Baptist, see note 9 32 below.
6. Act of 5 Jan. 1753, c. 15, §§1, 3, 3 A&R 644, quoted in part in note 5 28 below.
7. Act of 25 Jan. 1758, c. 20, §§1, 3, 4 A&R 67–68, renewed to 30 Jan. 1771 by Act of 31 Jan. 1761, c. 21, 4 A&R 420. As to the construction of this act, see note 8 below. The 1758 act did not contain the provisions of earlier measures (note 4 above) that those exempted should be deprived of the vote on church matters and that the exemption should not apply in new towns. As to the former, see No. 31, note 5 11 . As to the latter, see text at note 10 below. Subsequent legislation carried forward the exemption and certificate provisions, with the major variation that a town could vote to exempt Baptists and Quakers without regard to certificates. See Act of 20 Nov. 1770, c. 10, 5 A&R 111; Act of 16 June 1774, c. 6, 5 A&R 392. For Baptist objections to the 1753 act, see Petition of 29 May 1754, 4 A&R 122–126, discussed in Goen, Revivalism and Separatism 270–271. Although the 1753 act's requirement of certification by other churches (text at note 6 above) was not carried forward by statute after 1758, the practice seems to have been continued. The Baptists of Haverhill in John White's case (note 8 below) submitted to the assessors not only the requisite certificate of their pastor and elders, but certificates of the First and Second Baptist churches of Boston and James Manning's Warren, R.I., church that the Haverhill church had been received as “Breathern and Sisters of the same Denomination,” and that the pastor, Hezekiah Smith, was duly ordained and qualified. SF 131793.
8. For a discussion of many of the cases from the viewpoint of an active Baptist participant in the struggle, see Isaac Backus, A Church History of New England, 2:239–265, 277–282 (Providence, R.I., 1784), a continuation of Backus' A History of New England, With particular Reference to the Denomination of Christians called Baptists (Boston, 1777). Volume 3 of this work, also entitled A Church History of New England, was published at Boston in 1796. See also Meyer, Church and State in Mass. 51–68. JA was a participant in one of the best known of these suits, White v. Bartlett. John White, “shopkeeper” of Haverhill, sued Enoch Bartlett and Jonathan Webster, the town assessors, in trespass for £30 damages, alleging that they had taken from him goods and chattels valued at £16 12s. 8d. White won on demurrer in the Inferior Court, Ipswich, in March 1767, and on appeal to the Superior Court under an agreement stipulating “The trial of this appeal to be final,” won a verdict of £30 and costs at the Salem Nov. 1767 term. Min. Bk. 85, SCJ Essex, June 1767, N–11; Nov. 1767, C–19. White remitted £12 to the defendants, but they moved for a new trial on the grounds that the verdict was against law and the damages excessive. The new trial was granted, although the court, apparently paraphrasing English authority, noted that there were “Few new Tryals after a Tryal at Bar. Not to be taken out of the course of the Law.” SF 131793. Min. Bk. 85, SCJ Essex, Nov. 1767, C–19; Nov. 1768, C–7. See No. 12. On the new trial at Ipswich in June 1769 it was stipulated by the parties that the issues were limited to the legality of the town's actions, “The sufficiency and legallity of the appellees Certificate in the case (it being agreed that the Certificate was given in to the assessors before the first assessment was voted) and whether the appellee was Conscientiously of the Anabaptist persuasion.” SF 131793. With JA now appearing for White, the jury reversed the former judgment, awarding costs to the assessors. Min. Bk. 85, SCJ Essex, June 1769, C–3. Backus was incensed by this result, both on account of the technicality which was used to avoid the agreement that the first appeal would be final and by the fact that Baptists were not allowed to testify on grounds of interest. He reported that the ground for the decision was a ruling by the court that the law exempted only “a steady worshipper,” not “a baptized church member,” and that White's certificate did not state that he was the former. 2 Backus, Church History 241–242. Ezra Stiles, in a diary entry of 11 Jan. 1773, reported that in conversation Justice Peter Oliver of the Superior Court gave a slightly different reason: “By the old Law [i.e. pre-1770] the Baptists were to certifie themselves as to three things—that they were conscientiously Baptists—usual Attendants—and Members i.e. baptized by immersion and Communicants. Mr. Whites Certificate showed the two first, not the last; and for this Defect Judgment was given against him.” 1 Stiles, Literary Diary 333. Oliver's version is borne out by the certificate of the pastor and elders of the Haverhill church that White and fourteen others “are conscientiously of our Persuasion and that they do frequently and usually attend the Publick Worship with us on the Lord's Day.” SF 131793. That the content of the certificate was the issue, rather than the actual facts as to White's persuasion, is also suggested by the statutory language (text at note 7 above), which would seem to make the certificate conclusive. If the court found that it could look only to the certificate, despite the stipulation of the parties, then its ruling excluding the Baptists as witnesses may have been based merely on a finding that their evidence as to White's beliefs was immaterial. JA was of counsel in at least one other similar case, this time arguing for the successful assessors. See Taft v. Cragin, Min. Bk. 101, SCJ Worcester, April 1774, C–3. SF 152818. He appeared for the assessors also in Follansbee v. Pearson, a case in which a Newburyport Presbyterian was successful in claiming an exemption under an order of the General Court dating from 1752 which expressly exempted members of his society from tax, there being no general statute covering Presbyterians. Min. Bk. 85, SCJ Essex, Nov. 1767, N–11; June 1768, C–12; June 1769, N–8; Nov. 1769, C–11. SF 131661, 131867. In at least two cases involving the tax on members of the Church of England (note 4 above), JA appeared for the church. Richmond v. Walker, Min. Bk. 84, SCJ Taunton, Oct. 1770, N–4. SF 145564 (plaintiff discontinued after jury impaneled); Bass v. Knight, Min. Bk. 93, SCJ Essex, June 1773, N–9; Min. Bk. 102, SCJ Essex, June 1774, C–21; Min. Bk. 108, SCJ Essex, June 1780, C–3. SF 92148, 132321, 132714 (verdict for assessors; on review continued after special verdict until neither party appears).
9. Act of 4 July 1734, c. 6, §5, 2 A&R 715. The provision was carried forward in re-enactments and renewals of this act cited in note 4 above.
10. Act of 25 Jan. 1758, c. 20, §1, 4 A&R 67. See note 7 above. The Act of 4 July 1734, note 9 above, and its successors prior to the 1758 act applied to taxes levied on Baptists “in the town or place where they dwell.”
11. Act of 21 June 1765, c. 13, 4 A&R 815. §3 of this act provided
“That all taxes already raised for settling a minister, or that may be raised for his support, for building a meeting house, clearing and repairing roads, be levied on the several proprietors of said plantation, according to their interests, until the further order of this [i.e. the General] court; and that said inhabitants and proprietors of said town proceed by the same rules, in levying and collecting said taxes, as proprietors in new plantations are obliged, by law, to observe.”
The last clause presumably refers to the Act of 19 June 1753, c. 1, §2, 3 A&R 670, which provided machinery for the proprietors of undivided lands to assess proportionally their individual shares for the purpose of raising funds “for bringing forward and compleating the settlement of such common lands . . . and for carrying on and managing any other affairs for the common good of such proprieties.” That the proprietors considered this legislation a sufficient basis for taxing the Baptists and proceeded to do so appears in the complaints of the latter to the General Court in 1768 and 1769 set out in 4 A&R 1036–1037. A provision similar to that involved in the Ashfield controversy is found in other acts of incorporation passed at the same time. See Act of 21 June 1765, c. 14, 4 A&R 815 (Lanesborough); Act of 21 June 1765, c. 15, 4 A&R 816 (Charlmont).
12. Act of 24 June 1768, c. 5, 4 A&R 1015. Although the proprietors had proceeded to levy taxes under the 1765 act of incorporation, note 11 above, they had been aware of its ambiguities, since in March 1767 they had petitioned the General Court, reciting that the provision for levying taxes was “a clause of great uncertainty” and praying for an act to remedy the consequent difficulties. These appear to have been at least three: (1) the lack of any express authority to tax the Baptists; (2) the fact that many provisions of the statute governing meetings of proprietors of undivided lands (note 11 above) did not apply to lands that were actually within a township and had been laid out; (3) the fact that the Act of 6 March 1762, c. 44, 4 A&R 532, detailing the machinery for levying against unimproved lands, had expired on 1 April 1765. The first problem was met by the statutory language quoted in the text. To resolve the second it was provided that meetings were to be called in accordance with the Act of 25 March 1713, c. 9, 1 A&R 704, covering meetings of proprietors of common lands within a town, and that the provisions for levying and collecting taxes were applicable to lands “already laid out or agreed to be laid out.” Finally, the machinery of the 1762 act was expressly adopted.
13. See the various petitions and complaints of the Baptists in 1770 and 1771 in 4 A&R 1038–1045.
14. The Representation of the Lords of Trade, 31 May 1771, is set out in 4 A&R 1016, and in slightly different form in 5 Acts, Privy Council (Col.) 323–324. For the decision itself, see ibid.; 4 A&R 1045. The memorial on which the Board of Trade acted asserted only that the Ashfield Act was contrary to the general exemption law, but the Board seems to have taken a broader position. It was not until 1774 that the complicated financial questions arising out of the Act's disallowance were resolved. See Act of 6 March 1773, c. 30, 5 A&R 228; Act of 9 March 1774, c. 24, 5 A&R 331. See also notes, 5 A&R 278–279, 371–375. On the controversy generally, see 2 Backus, Church History 246–261; Meyer, Church and State in Mass. 54–66. JA does not seem to have been directly involved in the dispute, but in 1774 as a member of the Continental Congress he felt the effects of the organized Baptist campaign for religious liberty of which the Ashfield matter was a part. Isaac Backus, James Manning, and other Baptist leaders, through the offices of Philadelphia Quakers, procured a meeting with the Massachusetts delegation at which the Ashfield case and other complaints were aired and the intolerance of the Massachusetts establishment was urged as an obstacle to colonial union. JA and his colleagues promised to have action taken on the matter at home, and the Massachusetts Provincial Congress accordingly resolved in favor of the Baptists. A committee of the General Court was appointed to bring in a bill, but the onset of revolution brought a postponement of such problems until after the end of hostilities. See 2 JA, Diary and Autobiography 152–154 and sources there cited; 3 id. at 311–313; Meyer, Church and State in Mass. 92–95.
15. Act of 13 Feb. 1760, c. 24, 4 A&R 288, set out in part in note 4 27 below.
16. See 2 Backus, Church History 242–243. Compare 4 A&R 876. The minister involved was apparently James Mellen. 3 Backus, Church History 185.
17. Memorial of Ebenezer Smith and Reuben Ellis [1768], 4 A&R 1037. See also 2 Backus, Church History 246–247; note 23 below. The statute affording relief for an “overrated” taxpayer provided that he might complain to the General Sessions and be reimbursed whatever amount he was entitled to, “with the charges” (presumably costs of court) to be paid “out of the town or parish treasury.” The court had power “to require the assessors to produce the lists of their assessment.” Act of 3 Oct. 1730, c. 1, §7, 2 A&R 551. It is not clear whether the “charges” adjudged against the assessors here were merely costs of court, or were a reimbursement of the tax, perhaps assessed against them by analogy to §6 of the Act, which provided that assessors “failing of their duty” should themselves pay the sums which they were to have assessed.
18. As to the formation of Green's church, see note 9 32 below. Green (1721–1791) and his congregation moved again in 1772, this time to Charlton, where he remained pastor until his death. See generally 3 Backus, Church History 176; Estes, “Historical Discourse,” in The Greenville Baptist Church in Leicester, Massachusetts 56–57 (Worcester, Mass., 1889); Emory Washburn, Historical Sketches of the Town of Leicester 114–115 (Boston, 1860). As to the Warren Association, see David Benedict, A General History of the Baptist Denomination in America and Other Parts of the World 469–470 (N.Y., 1848); Henry S. Burrage, A History of the Baptists in New England 80–85 (Phila., 1894); Goen, Revivalism and Separatism 272, 277–282.
19. See the various warrants in the tax proceedings, the writ, and the pleadings in SF 152427.
20. The statutes cited by JA appear in notes 2–5 25–28 below.
21. The Inferior Court judgment is in SF 152427.
22. Min. Bk. 90, SCJ Worcester, Sept. 1769, N–10. SCJ Rec. 1769, fol. 115. According to this source “Sewall” joined Putnam as counsel for the assessors in the Superior Court. While this might not be conclusive as to JA 's participation in the argument, an examination of the rest of the cases heard at this term does not reveal his name as counsel in any of them, strongly suggesting that he did not even attend this session of court. An MS account of Baptist sufferings by John Davis states that on appeal to the Superior Court
“it went in Greens favor there also and they allowed him Costs, all that it had cost him; that is, what Mony he had expend in the Law, and lawful Cost. The Jury did not go out—because the Judges advise Green to settle it. Green says it cost him 20 Dollars more than what he was allowed—beside all his Travelling for Witnesses—to prove himself a Minister.” Isaac Backus Papers, Andover Newton Theological School, Newton Center, Mass., on temporary loan to RPB.
As to Davis, an important figure in the Warren Association and a member of the American Philosophical Society, see 2 Backus, Church History 275–276.
The Warren Association (note 18 above) on 12 Sept. 1769 “Voted to give a Certificate acknowledging that he is regular, and in Fellowship to Rev. Nathaniel Green, to be made use of at the Superior Court at Worcester.” MS Minutes, p. 3, Backus Papers. No such document appears in the Superior Court file of the case. SF 152427. The editors are indebted to Prof. William G. McLoughlin of Brown University for these and subsequent references to the Backus Papers, as well as for his invaluable aid in plumbing various ecclesiastical mysteries.
23. 2 Backus, Church History 263. Backus did not positively identify the cases in his printed history, but in a draft of the work, discussing the case of Ebenezer Smith of Ashfield (note 17 above), he said “And though they assert that Mr. Smith is not a minister in law, yet the honorable justices of our Superior court, by their decisions in two parallel cases, have made them know that therein they did not speak the truth: and consequently that it was a violation of law and equity, to punish the baptists assessors in 1762, for allowing him the privileges of such an one.” Backus subjoined a footnote identifying the “two parallel cases” as “The case of elder Green of Charlton, and of elder Clark of Wilbaham, the last of which was decided in the court of Northampton near the close of this year [1771].” 2 Backus, Church History ( MS —preliminary draft) 248, Backus Papers.
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