USA > Massachusetts > Records of Massachusetts under its first charter : a lecture of a course by members of the Massachusetts Historical Society delivered before the Lowell Institute, Jan. 26, 1869 > Part 1
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REYNOLDS HISTORICAL GENEALOGY COLLECTION
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Digitized by the Internet Archive in 2015
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Mass.
RECORDS OF
MASSACHUSETTS
1st
UNDER ITS FIRST CHARTER:
A LECTURE
OF A
COURSE BY MEMBERS OF THE MASSACHUSETTS HISTORICAL SOCIETY,
Delivered before the Lowell Institute,
JAN. 26, 1869. -
BY
CHARLES W. UPHAM.
PRINTED FOR THE
BOSTON: e AUTHOR. 1869.
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1774609
RECORDS OF MASSACHUSETTS
UNDER ITS
FIRST CHARTER.
BY CHARLES W. UPHAM.
869
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Uphan, Charles Wentworth, 1802-1875.
F 844 .93 Records of Massachusetts under its first charter. A lecture of a course by members of the Massachusetts historical society, delivered before the Lowell institute, Jan. 26, 1869 ... Boston, 18 69. (Lowell institute lectures, 136?)
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One Hundred copies printed.
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T' `HIE design of the lecture this evening is to consider the Records of Massachusetts, under its first charter, from the point of view in which they illustrate the formation of a body- politic.
The organization of families and communities into some established order is demanded by the conditions of our nature. More than any other temporal concern, it merits and compels the attention of thoughtful minds; and the questions relating to it have always been acknowledged to rank in the highest depart- ment, as subjects of inquiry and meditation. Through the entire range of history, the greatest minds have been turned to it. But a glance at the condition of the nations of the earth shows how unsatisfactory have been the results. The experience of ages has effected little; and the theories of philosophers, not much more. The human race in all lands, and all ages, has groaned under the crushing weight of institutions constructed on false principles. Governments everywhere are upheld by military force ; and depend for continuance upon ignorance and supersti- tion. So far as we are an exception, it becomes us to inquire to what we owe the degree of our exemption.
Enlightened views on the subject of government are especially important to a people that governs itself. We can hardly expect to obtain them from treatises and essays, however ingenious and learned. There is, indeed, an inherent obstacle in the way of attaining to the truth by these means. Attempts to reason and speculate concerning it are thwarted by the influence on the
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mind of pre-existing usages and ideas. Every suggestion of reform is encountered by the necessity of adapting it to a sur- rounding state of things, and by well-grounded fear, that, how- ever specious the theory, it may not work well in practice. The elements of motive, sentiment, and association, that actuate man- kind, are so infinitely diversified that they cannot be calculated. Casual events, and complicated circumstances, not to be foreseen, may bring to naught the best considered schemes.
On this subject, the world craves and needs, not what theorists have conjectured, or philosophers propounded, but what has been tried, and found sufficient. The question is - Has a fair experi- ment ever been made, under favorable auspices, of laying the foundation, and building the fabric of a government of men ? and, if so, let it be brought before us.
As answering this question, and meeting this demand, I cite the colony of Massachusetts, during its first half-century, as more to the purpose than any other instance in history.
In pursuance of the recommendation of Governor Clifford, in a special message of Feb. 12, 1853, the Legislature of Mas- sachusetts ordered the first and second volumes of the " Records of the Governor and Company of the Massachusetts Bay in New England," to be printed, embracing the proceedings in London prior to the transfer of the patent; and continued after that event, under the style of " Colony Records," to 1649. The next year a resolve was passed, approved by Governor Washburn, February 17, for printing the third, fourth, and fifth volumes, carrying the record to 1686, and covering, altogether, the entire period of the government under the first charter. The form and manner in which they were printed do honor to the Commonwealth, and to the distinguished member of our society, intrusted with the responsible duty of editing them, Nathaniel Bradstreet Shurtleff. The copying was done, under his appointment, by David Pulsifer, whose thorough acquaintance with the chirography of early colonial times gives assurance of exactness.
These volumes supply the most important instruction any- where to be found, on the formation of a civilized State. They are the text-book on the subject; and stand alone in their char- acter, and the value of their contents, as I proceed to show.
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On the 3d of November, 1620, James I. granted by letters- patent all that section of North America, between the fortieth and forty-eighth parallels of latitude, from sea to sea, to the " Council established at Plymouth, in the County of Devon, for the Planting, Ruling, Ordering, and Governing of New England in America."
The Council at Plymouth conveyed by a contract, indented March 14, 1628, so much of the territory, included in their afore- said patent, as was between lines, three miles north of Merrimack River and three miles south of Charles River, running from sea to sea, to Sir Henry Rosewell and Sir John Young, Knights, Thomas Southcott, John Humphries, John Endicott, and Simon Whitcomb, their heirs, assigns, and associates.
One year afterwards, namely, on the 4th of March, 1629, in the fourth year of the reign of Charles I., letters-patent passed the seals, confirming to the above-named six persons, and twenty · others, severally named, who had become associated with them, and their heirs, and assigns, " to their only proper and absolute use and behoof forevermore," the territory purchased from the Council at Plymouth. These twenty-six individuals thus came into complete possession, and were owners, so far as the crown of England could give title, of the continent within the limits described. The vocabulary of ordinary language, and of the law, was exhausted in expressing, in every possible iteration and reiteration, the fulness, absoluteness, and perpetuity of the feofment and jurisdiction thus conveyed. In three particulars only was any limitation imposed.
The company was forbidden, in ruling its vast American domain, to make regulations repugnant to the laws of England. . But this was merely nominal, as no provision was made, or re- quired to be made, for redress of any wrong done by the com- pany to a planter, or to any outside party. There was, indeed, no way left open, through which the regulations of the company could be brought to adjudication on this point. No political powers, or rights whatever, were given by the patent to the people of the settlement; for the negative protection implied in the language, that no laws should be imposed upon them in con- flict with the statutes of the realm, was a mere shadow of a shade, as events proved.
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The company was required to pay to the crown one-fifth part of all ores of gold or silver found in the country. This amounted to nothing.
There was one other condition, which also, in practice, hardly amounted to any thing. The patent exempted the settlements, to be made by the company, from all duties of any kind, " in- ward or outward," for seven years; and, after that, for twenty- one years more, with this exception only, that, during the latter period, they were to be subject to a duty of five per cent upon goods shipped from the plantations to any other part of the dominions of England. But this had no sensible effect here, for the duty was to be exacted at the outer end of the voyage, in the port of discharge; and was there imposed upon all alike, foreigners as well as other colonists. Further, it was pledged by the crown, that on the re-exportation, at any time within thirteen months, of goods upon which this duty had been paid, to any country whatever, no further duty of any kind should be levied on them. The whole arrangement was justly to be regarded as the assurance of a privilege rather than the imposition of a burden. No provision was made relating to the subject, on the expiration of the twenty-one years, but the whole matter left, as between the crown and the company ; for it must be noticed that there is no reference whatever, in the patent, to the authority, or even the existence, of Parliament, except as implied in the clauses requiring the regulations of the company not to be repugnant to the laws of England. The duty on goods was not in deference to any acts of Parliament, but carefully described, as " according to the ancient trade of merchants." In order that it might be made clear and certain, that the territories embraced in the patent should not be subject to Parliament, but exclusively con- nected with the personal private property of the crown, the device was adopted, as in the patent to the Council at Plymouth, of repeating over and over again, that they were appendages of the royal demesnes, " to be holden of us, as of our manor of East Greenwich." They were to be regarded as an enlarge- ment of the grounds of one of the favorite residences of the sovereign. While thus protecting them from interference by any other parts of the government, the King bound himself, and his heirs and successors, to the end of time, not to encroach upon,
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but, on the contrary, to uphold the administration of the grantees in governing their territory; and enjoined the same upon all ex- ercising authority, civil or military, throughout his dominions.
The persons to whom the patent was issued, were constituted a body-politic. They were to choose, annually, from among themselves, a governor, deputy governor, and eighteen assistants. Any seven or more of the assistants, together with the governor or deputy governor, were to hold a monthly court, for disposing of questions arising from time to time, and requiring immediate attention. There were to be quarterly meetings, held at specified times, by the whole body of the members, or " freemen," as they were called, of the company. These were for making laws or regulations, and the transaction of weighty business. They are spoken of in the patent as "great, general, and solemn assem- blies," and termed the " four Great and General Courts" of the company. At the quarterly meeting, occurring in Easter term, that is, in the latter part of May, the annual elections were required to be made.
The King, in the patent, named the persons who were to fill the offices of the company, until the time fixed for an election · should arrive. It is remarkable, that, although there were several knights among the grantees, he selected an untitled one for gov- ernor. " We do, by these presents, for us, our heirs, and succes- sors, nominate, ordain, make, and constitute our well-beloved Matthew Cradock, the first and present Governor of the said company." Cradock was a London merchant of great wealth, and, as the Records show, of eminent practical ability, energy, and wisdom. He is said to have been connected by family ties, in some way, with Endicott, which accounts, perhaps, for his having been drawn in as an associate of the six original proprie- tors, and for the deep interest he took in the enterprise. It can hardly be doubted, I think, that he was the same Matthew Cra- dock, son of a wool merchant in Stafford, who, in the reign of James I., became the owner of the baronial estate in Stafford- shire, called Caverswall. The castellated mansion, built as early as the Norman conquest, was reconstructed by him, under the superintendence of Inigo Jones. It is still standing in the form Cradock gave to it, and justly regarded as "one of the most striking, picturesque, and interesting remains of a distant age. A
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venerable and " solemn fortress-like structure," it demands special attention, as "presenting the ideal of the great architect of the transition from the ancient castle to the baronial mansion." To an American it has a deeper interest. If its possessor and occupant was the "well-beloved" Matthew Cradock, of the patent, it will appear, as we proceed, that to us that noble man- sion will ever be invested with sacred memories and associations. Within its massive walls the thought, perhaps, was conceived which has made Massachusetts and our country what they are to-day. Cradock was returned to Parliament from the city of London, in 1640, and died not long after.1
It is important to bear in mind that the patent conferred upon the company, in the most emphatic language, all political power whatever, without any reservation that touched the sub- stance of the grant. This is so vital to the case, as I am pre- senting it, that the expressions used may be quoted, -
" We do, of our further grace, certain knowledge, and mere motion, give and grant to the said governor or deputy governor, and such of the assistants and freemen of the said company, for the time being, as shall be assembled in any of their General Courts, or in any other courts to be specially summoned and assembled for that purpose, or to the greater part of them, that it shall and may be lawful to and for them, from time to time, " to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions, and instructions, not con- trary to the laws of this our realm of England, as well for settling of the forms and ceremonies of government and magistracy fit and necessary for the said plantation and the inhabitants there, and for naming and styling of all sorts of officers, both superior and inferior, and setting forth of the several duties, powers, and limits of every such office and place, and for impositions of lawful fines, mulcts, imprisonment, or other lawful cor- rection, and for the directing, ruling, and disposing of all other matters and things." .
Some dozen or two knights and gentlemen, more or less, sit- ting in the parlors of Matthew Cradock, in Swithen's Lane, within the ancient limits of London, by virtue of powers thus granted, held absolute sway over this part of America, from
1 Baronial Halls and Ancient Picturesque Edifices of England, by S. C. Hall, F.S.A. London, 1858. Proceedings of Essex Institute, vol. i. p. 242: Memoir of Cradock, by David Roberts.
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Massachusetts Bay to the Pacific Ocean ; and they proceeded to administer their government by transporting settlers forthwith.
Very soon it was found expedient to send some one over to superintend affairs here on the spot, and John Endicott, an orig- inal purchaser of the country from the Council at Plymouth, was despatched accordingly. Some months after his departure, the company, on the 30th of April, 1629, elected him " Governor of the Plantation in the Massachusetts Bay," and a commission was duly forwarded to him with the form of an oath of office. This- was, however, an arrangement, whereby no power was parted with by the .company. It was a limited appointment. Endicott's office was to terminate in one year from the day when he took the oath, and the right was expressly reserved of remov- ing him at any time within the year. His authority was limited by sundry conditions, and reports of all his doings were required to be transmitted to London for approval. He executed his functions with fidelity, energy, and ability. But, notwithstand- ing all his efforts and those of his employers, the affairs of the company were getting into embarrassment, and its operations threatened with ruin.
Cradock, a thorough business man, appreciated the condition of things. He saw the impending catastrophe; and, being of a bold and courageous spirit, with the comprehensive views of a statesman, proved himself competent to discover and apply the only remedy that could save the enterprise. That which had been fatal to colonial success in other attempts, was the difficulty in the Massachusetts plantation. It was managed by a distant administration. Deliberations and determinations by a body sitting in London could not meet the exigencies of a community, with an ocean between, and the interlapse of months in the transmission of orders and intelligence. Forming a plan by which all concerned might be extricated from the responsibilities in which they were becoming more and more involved, he was so fortunate as to secure the co-operation of parties competent to carry it through. A number of gentlemen of property, char- acter, and influence, were found willing to join the company and assume its burdens, with the understanding that they would per- sonally transport themselves and families to America, and make it their permanent home, provided they were allowed to carry
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the patent with them, hold its offices, execute its functions, and possess all its rights and powers. This was Cradock's proposal, and the arrangement was consummated.
John Winthrop, Thomas Dudley, and others, took their seats in the company, at a meeting, Oct. 15, 1629. At a meeting, five days afterwards, Cradock vacated the chair, and Winthrop was elected governor, with a new board of assistants, all to hold office for one year from that date. Early the next spring, he em- barked for Massachusetts Bay, with the patent, and the frame and body of the government. Not a vestige of it was left in England.
There were undoubtedly great and daring irregularities in these proceedings, which could not have escaped notice, and would have been summarily arrested, had there been the slight- est suspicion of their ultimate consequences. There is no pre- tence of authority in the patent for the removal of the company out of the realm, or for the relinquishment of his office by Cra- dock, in the time and manner. His stepping out of the chair, on the 20th of October, without even going through the cere- mony of a resignation, and the election of Winthrop to serve an annual term, when by the patent he could only fill out an unex- pired term, were equally without justification. Indeed, no pro- vision is made in that instrument for the resignation of any office, and it is a procedure inadmissible by English usage. The transfer of the company to America brought with it another violation of the patent, inasmuch as they were on the passage across the Atlantic at the date fixed in express terms for the annual election, which was pretermitted in consequence alto- gether. These departures from and violations of the implied meaning and explicit requirements of the patent were necessi- ties involved in the operation of the transference of it from England to America. Those engaged in it, faced the responsi- bilities of the occasion without shrinking. No stricture, or comment of any kind, appeared from any quarter; and the thing was done. :
From the Records, Matthew Cradock alone appears as the originator and manager of this business ; but from the nature of the whole proceeding, it is evident that Winthrop shared with him, as a principal co-actor. Let them each have the glory of
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the transaction. It is a glory that will become brighter through all time. History sheds no purer lustre upon any names than belongs to the men whose wisdom and statesmanship led to the bold and decisive step that enabled the colony of Massachusetts to bear its great part in teaching how a republic can be built up on a solid and permanent foundation.
The patent of Charles I. to the Massachusetts colony is what is called our First Charter; and, from this point, I shall speak of it under that appellation.
When Winthrop's fleet came to anchor in the harbor of Salem, he, and such members of the company as had accompanied or preceded him, found themselves in absolute and uncontrolled possession of the country, within the limits of their charter. Their jurisdiction and powers were complete; and had they been actuated by selfish motives, or a low ambition, and retained the character of a close corporation, the fortunes of the plantation, and their own fame, would have had the same fate, that of a brief duration and an ignoble end.
The charter gave to them, in express and repeated terms and without limitation, the right to admit new associates. Persons thus admitted became full partners and equal members of the company, called, as has been stated, Freemen. The exercise of this right was the magic by which they converted what was originally a royal act of incorporation for business and com- mercial purposes, into the constitution of a free and noble Com- monwealth. In the year 1631, one hundred and twenty-six of the resident population were admitted, and in the next ten years twelve hundred more,
By this generous and enlightened policy, the PEOPLE here acceded to the rights and powers given in the charter. The Colony of Massachusetts became an independent State. Parlia- ment could not touch it, and the crown had bound itself to keep its hands off.
The result of the proceedings thus far may be restated, at this point, in a few words : The charter gave to the Massachusetts Company sovereignty over its territory. The admission of the people of the plantation into the company gave that sovereignty to them. Having the charter in their possession, and rightfully ' lding under it, they claimed and exercised absolute self-govern- ment.
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One hundred and forty-six years before the Declaration of the Independence of the United States, this was an independent government, and continued so for more than half a century, - more independent, in fact, than it has ever been since. Between the period of the First Charter and the war of the Revolution, it was a dependent province, its governors appointed by the British monarch, and the royal assent needed to give validity to its laws. Since the opening of the Revolutionary conflict, to this hour, it has been, in many respects and to a considerable extent, subject to the old Congress of the Confederation, and subsequently to the Government of the United States. But during the fifty-eight years of the First Charter, the people were as free to rule them- selves as if they had been on another planet. They chose all their own officers, asked no approval of their laws, suffered no appeal in any case to the mother country, and bowed to no tribunals but of their own erection. This was, and ought to be considered, the first era of American independence.
In this respect, that is, in exemption from foreign interference, the situation of the original colonists of Massachusetts was all that could be desired; in other respects it was equally favorable. All the requisite conditions for the formation of a good govern- ment existed. A country lay before them, unoccupied, open, and free ; sufficiently large to give room for the experiment, and comprising features and resources adapted to the uses of an in- dustrious and intelligent people, with only here and there a soli- tary previous settler, or remnants of Aboriginal tribes in no way fastened to the soil. They had among them many persons of large experience in affairs, conversant with the laws and customs, not only of their own native country, but of the nations of Con- tinental Europe, and well read in ancient history. Some of them had held eminent social position, and were of enlarged culture ; and not a few, having enjoyed the advantages of the highest schools and seats of academic learning, and of Inns of Court, were remarkably. qualified to act the part of statesmen. There probably was a greater amount of practical wisdom and energy among them than in any community, of equal numbers, ever brought together. What they had endured in the old country, and the sacrifices they had encountered in getting away from it, and in opening their wilderness homes, had given them an indi-
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vidual force and independence of character, and liberated their minds from the influence of all sentimental associations and tra- ditional attachments to the usages, institutions, and social fixtures of all kinds in the old country.
An opportunity was thus given to solve the problem of govern- ment ; to ascertain and determine the true method of forming a political organization in accordance with nature, reason, justice, and right, not to be paralleled elsewhere in the old or new world.
The colony of Plymouth, although dating ten years earlier than Massachusetts and extending its distinct history to the close of the era of our First Charter, cannot, in some respects, be regarded as standing on the same level. Its territory was not large enough to form the basis of a State, developed to its full dimensions and ramifications. Until after the process of political organization was under way here, the older colony could hardly give its attention to any thing else than the struggles required to extricate itself from financial entanglements with parties in Eng- land. It was long before they could feel that the houses they had built, and the lands they had cleared, were their own. The infant community springing from Plymouth rock demands, how- ever, the sympathy, veneration, and imitation of the friends of freedom and virtue.
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