USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 1 > Part 11
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ORGANIZATION OF THE GOVERNMENT (1630)
The disputes and controversies just described remained of course in the future when Winthrop landed at Charlestown in the summer of 1630. The immediate problem was to convert the machinery provided by the charter for the management of the Company into a political mechanism for the government of the colony. Other companies, such as Virginia, founded colonies and governed them ; but they had preserved their own identity distinct from the identity of the body politic subject to them ; and the government of the colony was subordinate to, and not identical with, the management of the Company. In Massachusetts the two were merged; and unusual results in- evitably followed in the train of such an innovation.
The original Company was a comparatively small one. We have knowledge of one hundred and ten persons who at one time or another were freemen (stockholders) ; but apparently hardly any of these not holding the office of assistant emi-
By permission of the Secretary of the Commonwealth
CHARTER OF THE MASSACHUSETTS BAY COMPANY
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EARLY LEGISLATION
grated. The charter provided for eighteen assistants; but ten is the largest number of which we have any record as actually in the colony during the year 1630. The resulting situation seems from the modern point of view extremely embarassing. Out of two thousand souls only ten or a dozen had political competence.
Under these circumstances it is apparent that it made little difference whether the Company governed through its Court of Assistants or through its General Court, which was techni- cally a stockholders' meeting. The latter body, as matters stood, would hardly have been more inclusive than the former ; and there was this in favor of the Court of Assistants, that the charter made seven a quorum, and permitted action by a majority; whereas on the construction of the charter later adopted by the leaders, assent by the Governor and at least six of the assistants was essential to action by the General Court. It was accordingly only natural that the Court of Assistants at once became to all intents and purposes the gov- ernment of Massachusetts and remained so during the first four years of the existence of the colony.
EARLY LEGISLATION (1630)
It exercised all the functions of government, legislative, executive, and judicial, and mingled them in the quaint and curious way which always marks a primitive stage of political development, and which is well illustrated by the minutes of the session of the Court of November 9th, 1630:
"A Court of Assistants holden at Boston, November 9th, 1630,
Present
The Governor, Deputy Governor, Sir Richard Saltonstall, Mr. Ludlow, Captain Endecott, Mr. Coddington.
Mr. Pinchon, Mr. Bradstreet.
"It is ordered that whereas the usual rate of beaver hath been after 6s the pound, it shall be hereafter left free for every man to make the best profit and improvement of it that he can.
"It is ordered that every English-man that killeth a wolf in any part within the limits of this patent shall have allowed
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him 1d for every beast and horse and ob. for every weaned swine and goat in every plantation, to be levied by the con- stables of the said plantation.
"It is further ordered that whosoever shall first give in his name to Mr. Governor that he will undertake to set up a ferry betwixt Boston and Charleston and shall begin the same at such a time as Mr. Governor will appoint, that he shall have 1d for every person and 1d for every hundred weight of goods he shall so transport.
"Mr. Clarke is prohibited frequent keeping com- pany with Mrs. Freeman under pain of such punishment as the Court shall think meet to inflict.
"Mr. Clarke and Mr. Freeman hath bound themselves in £XX apeece that Mr. Clarke shall make his personal appear- ance at the next Court to be holden in March next and in the meantime to carry himself in good behaviour towards all people, and especially towards Mrs. Freeman, concerning whom there is strong suspecion of incontinency.
"It is ordered that Rich. Diffy, servt. to Sir Richard Salton- stall, shall be whipped for his misdemeanor toward his master.
"A jury impanelled for the tryall of Walter Palmer con- cerning the death of Austin Bratcher. Mr. Edmond Lock- wood, Wm. Rockewell, Christopher Conant, Wm. Phelps, Wm. Gallard, John Hoskins, Richard Morris, Wm. Ballston, Wm. Cheesbrough, John Page, John Balshe, Laurence Leach. The jury finds Walter Palmer not guilty of manslaughter whereof he stood indicted, and so the Court acquits him."
CONTROVERSY OVER SUFFRAGE (1631-1660)
The subordination of all the freemen and all the rest of the population to the ten Assistants could not but produce dis- satisfaction; which apparently was not long in making itself felt. On the records of the Court held on the nineteenth of October, 1630, there is a list of the names of 108 persons who "desire to be made freemen" of the Company; and the desire was not one which could easily be resisted.
A question destined to be troublesome for fifty years was raised by the applicants, men of prominence "who were not of the churches." They considered that the mass of the settlers
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SUFFRAGE
crossed the ocean rather to better their worldly condition than for religious reasons; on the other hand Winthrop and the other leaders assumed that they were in Massachusetts unlike those that "go and come chiefly for matter of profit; but we came to abide here, and to plant the gospel." The formation of two parties in the Commonwealth was certain. The pro- spect of having their weight and influence in the management of the colony immediately submerged by a mass of voters who could not be depended on to share their views as to the purpose and nature of the enterprise, doubtless gave the lead- ers pause and caused them to cast about for some way to avoid such a result. This is no doubt the reason for the following remarkable enactment which was passed at this Court of 1630:
"For the establishing of the government it was propounded if it were not the best course that the freemen should have the power of choosing Assistants when they are to be chosen & the Assistants from amongst themselves to choose a Governor and Deputy Governor who with the Assistants should have the power of making laws & choosing officers to execute the same. This was fully assented unto by the general vote of the people, & erection of hands."
In other words the leaders, seeing the control of the Gen- eral Court about to pass forever from their hands, sought to minimize its power by depriving it of its legislative function and its right to elect the Governor and Deputy-Governor. That these functions were conferred upon it by the charter seems to have meant nothing to them.
At the next General Court in the following spring a fur- ther step was taken to safeguard the colony from falling into the hands of those of its inhabitants who might not be in sympathy with the religious views of the founders. One hundred and sixteen persons, including many of those who had applied in the preceding autumn, were now admitted as freemen; but at the same time a rule was passed "that for time to come no man shall be admitted to the freedom of this body politic but such as are members of some of the churches within the limits of the same." In other words the leaders provided against the day when they would inevitably be com- pelled to surrender their supremacy to the General Court by limiting the composition of the General Court in advance to
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members of the churches,-i.e. to that element in the popula- tion which could be expected to take the view of the found- ers as to the dominantly religious purpose of the plantation.
The restriction of political rights thus inaugurated re- mained in force until after the English Restoration, and did much from the very beginning to stiffen the social life and at- mosphere of Massachusetts into that rigid theocratic mould which characterized it throughout the seventeenth century. Hereafter there might be contests between freemen and magis- trates, between General Court and Assistants; but they would be contests within the bosom of the church, and the church members as a class would be bound together against outsiders by their interest in preserving their monopoly of political power. Thus the leaders, by sharing a portion of their power with the element in the population in which they had the greatest confidence, solidified their own position and laid the basis for a peculiar type of religious aristocracy.
After the first great admission of new freemen, the move- ment for wider participation in the government, at least by church members, seems to have gone on apace. Its next ad- vance was in connection with a question of taxation. The men of Watertown protested against a tax levied by the Gover- nor and Assistants on the ground "that it was not safe to pay moneys after that sort for fear of bringing themselves and posterity into bondage." Since Winthrop was a statesman and a keen-sighted one, the protest had its effect.
CONTROVERSY OVER DEPUTIES (1630-1634)
Some two months after the Watertown protest, a General Court was held in Boston; and its first act was to repeal the measure of October 19, 1630, so far as it related to the elec- tion of the Governor and Deputy-Governor, but not in so far as it conferred legislative power upon the Assistants. "Where- as it was at our first coming agreed," says Winthrop, "that the freemen should choose the assistants and they the gover- nor, the whole court agreed now that the governor and assis- tants should all be new chosen every year by the general court." The Court went further and enacted a measure which was a step towards the establishment of a representative assembly.
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DEPUTIES
"It was ordered that there should be two of every plantation appointed to confer with the court about raising of a public stock,"-in other words, about taxation.
We hear no more of these men soon called "deputies" until April 1st, 1634-nearly two years afterwards. The interval was apparently barren of constitutional development, but was marked by an episode, which, considering the consequences, may well have helped in its way to forward that development. This was a quarrel, making up in stubbornness and duration for what it lacked in heat, between Governor Winthrop and Deputy-Governor Dudley. Although these fathers of the church "met and went about their affairs without any appear- ance of any breach or discontent; and kept peace and good correspondence together, in love and friendship," yet the olig- archy of the Assistants could ill afford such schism between its members.
On April 1st, 1634, there is this entry in Winthrop's diary: "Notice being sent out of the General Court to be held the 14th day of the third month, the freemen deputed two of each town to meet and consider of such matters as they were to take order in at the same General Court." The first act of these deputies was to call on Governor Winthrop and "desire a sight of the patent;" of which, it must be remembered, the vast majority had before this hardly more knowledge than they had of the Code of Hammurabi. From their examina- tion the deputies "conceived that all their laws should be made at the General Court;" and in spite of a formidable theoretic exposition given them by the Governor, in which he told them there were not as yet in the colony a sufficient number of per- sons qualified for law-making, and suggested an arrangement whereby a committee from the towns might recommend pro- posed changes in the law annually to the Assistants, the depu- ties appear to have stubbornly treasured up their "conception" against the meeting of the Court.
The Court assembled on the appointed day, and John Cotton preached. There must have been a foreboding of the inten- tion of the voters, for his discourse was directed against the principle of rotation in office. He "delivered this doctrine, that a magistrate ought not to be turned into the condition of a private man without just cause no more than
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the magistrates may not turn a private man out of his freehold without like public trial." There is a certain irony in the fact that the voters thereupon promptly proceeded to elect Thomas Dudley Governor in the place of Winthrop, and to establish a system of representative government for the col- ony.
It was first of all resolved "that none but the General Court hath power to choose and admit freemen.
"That none but the General Court hath power to make and establish laws, nor to elect and appoint officers, as Governor, Deputy Governor etc., or any of like moment, or to remove such upon misdemeanor, as also to sett out the duties and powers of the said officers.
"That none but the General Court hath power to rayse mo- neys or taxes or to dispose of lands" (which, incidentally, had become a favorite occupation of the Assistants).
They then proceeded to fine the Assistants for disregard of an order of a previous General Court and went on to es- tablish the government for the future.
Four General Courts were to be held yearly, and not to be dissolved without the consent of the majority. "In the court of elections every freeman was to give his own voice." As regarded the other three courts it was ordered that "it shall be lawful for the freemen of every plantation to choose two or three of each town before every General Court to confer and prepare such public business as by them shall be thought fit to consider of at the next general court, and that such per- sons as shall be hereafter so deputed by the freemen of the several plantations to deal in their behalf in the public affairs of the commonwealth shall have the full power and voices of the said freemen derived to them for the making and es- tablishing of laws, granting of lands, etc., and to deal in all other affairs of the commonwealth wherein the freemen have to do, the matter of election of magistrate and other officers only excepted."
REPRESENTATIVE GOVERNMENT (1634-1660)
From now on Massachusetts had a supreme legislative body more democratic in character than the Court of Assistants.
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REPRESENTATIVE GOVERNMENT
The representation of the towns in the General Court was ap- portioned by an act of 1636 which provided that towns hav- ing less than ten freemen were not entitled to be represented; that towns with more than ten but less than twenty should send not more than one deputy ; towns having between twenty and forty freemen might send two; and towns with more than forty freemen, not more than three ; but by a later act (1639) it was provided that no town should in any case send more than two. The number of annual sessions of the General Court was limited to two instead of four. The spring session not only transacted legislative business, but was also a "court of elections" for the choice of the Governor, Deputy-Gover- nor, and Assistants. At this court of elections voting was by "papers," and it remained the privilege of any freeman to appear in Boston personally and give his vote; but a statute of 1637 provided that the freemen in their respective towns might fill out their ballots in the form of proxies and entrust these to their deputies to bring to the court.
So many of the freemen continued, however, to attend in person that with the growth of population "the multitude was found to be overburdensome and the day appointed not to afford sufficient time"; and accordingly by an act of 1641 an effort was made to introduce compulsory indirect voting by requiring the freemen of each town to select a delegate for every ten of their voters, and confer on these delgates the exclusive right of attending the court of elections in Boston to vote on behalf of all the freemen of the town. In 1647 the system was further changed by an act requiring all elections for Governor, Deputy-Governor, Assistants and other colony officials to take place in the towns, the "beans and papers" by which the voters expressed their choice to be then sealed up and brought to the court of elections by the deputies of the towns. At the same time a primary or nominating system for the choice of candidates for Assistants was provided which was amplified in 1649 and in later years. The magistrates seem to have been particularly anxious to devise some way of discouraging the freemen from appearing in person in Boston, doubtless because of their fear of the influence of a large democratic assembly on the conduct of the General Court; but
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it is not clear that they ever succeeded in putting an end to the practice.
THE NEGATIVE VOICE (1630-1660)
Side by side with this development of representative and electoral machinery there went on the evolution of the colonial government in other directions: the closer definition of the respective functions of the Assistants and town deputies in the General Court; the establishment of separate judicial in- stitutions; the provision of a code of general laws; and the organization of local government in the towns.
The charter provided that in the General Court action was to be taken by "the Governor, or, in his absence, the Deputy- Governor, and such of the Assistants and freemen of the said company as shall be present, or the greater number of them so assembled, whereof the Governor or Deputy-Governor and six of the Assistants, at the least to be seven, shall have power," etc. This ambiguous, or at least incomplete, language may mean on the one hand that the Governor and six of the Assistants were to have a veto on action taken by a majority of the freemen; or, on the other hand, may mean only that the Governor and six Assistants must always be present to con- stitute a quorum of the Court, the decisions of which might, however, be arrived at by a majority vote of the whole num- ber, including both Assistants and freemen. If the former construction be adopted, we have in substance the requirement of a bi-cameral legislature; if the latter, the votes of the As- sistants, even conceiving them to be unanimous, might be over- ridden by the greater numerical strength of the freemen. Some support would seem to be given to the latter construc- tion by the fact that the concurrence of only six Assistants, (i.e. a number which is not a majority of the whole member- ship of the board), is required ; and that if we suppose a veto given to this number, difficulty would arise in a case where more than the required number of Assistants sided with a majority of the freemen, while at the same time an actual majority of the Assistants voted in the opposite sense. On the theory of a bi-cameral legislature such a result would de- feat the measure; but the charter requirements for its passage would have been complied with.
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THE NEGATIVE VOICE
This question arose at the autumn General Court of 1634. It was not settled by constitutional argument or on the basis of legal principles of construction, but under the influence of a sermon. In the face of the difficulty of the problem a fast day was appointed and John Cotton preached. He argued that a society consisted of three elements, the magistracy, the ministry and the people; and that the concurrence of all three was essential to what could be called a popular decision. His eloquence prevailed, and in Winthrop's words, "it pleased the Lord so to assist him and to bless his own ordinance that the affairs of the court went on cheerfully; and although all were not satisfied about the negative voice to be left to the magistrates, yet no man moved aught about it."
The question, however, apparently continued to be regarded as still an open one, and arose again in 1642 in connection with the famous case of Sherman v. Keane for the recovery of a lost sow. The plaintiff, a poor widow, had lost her case be- fore the lower court, and appealed to the General Court, which, as will appear in the sequel, was not only a legislative body, but also the highest judicial court in the colony. Popular prejudice was strong against the defendant, a well-to-do shop- keeper, who in Winthrop's words "was of ill report in the country for a hard dealer in his course of trading," and per- haps for this reason a majority of the town deputies in the General Court voted to reverse the judgment. The Assistants on the other hand voted to sustain it, and the question of the "negative voice" of the magistrates was thus opened once more to public controversy.
Arguments were published on both sides, and we have one of these preserved in the form of a defence by Winthrop of the power claimed by the Assistants. After an effort to de- duce the power in question by verbal logic from the words of the charter, he relies fundamentally on the argument that "if the negative voice were taken away, our government would be a Democratie, whereas now it is mixt. £ Now if we should change from a mixt Aristocratie to a mere Demo- cratie, 1st, we should have no warrant in scripture for it: there was no such government in Israel. 2nd, we should vol- untarily abase ourselves and deprive ourselves of that dignity which the providence of God hath put upon us, which is a
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manifest breach of the Fifth commandment; for a Democratie is, among most civil nations, accounted the meanest and worst of all forms of government."
The view of Winthrop and the Assistants prevailed, and the question was finally set at rest by an act of the General Court of 1644 which provided that in General Courts thereafter the Assistants and the deputies were to sit and deliberate as sepa- rate bodies, and that the concurrence of both should be neces- sary for the adoption of a measure. The same practice was to be followed when the Court was acting "in matters of judi- cature." The inconsistency of this arrangement with the re- quirements of the charter seems plain. It was especially un- fair when the Court was acting in a judicial capacity, because in almost all such cases the Court was hearing appeals from the Assistants, and to allow the Assistants a negative voice in such cases means nothing less than giving them the power to defeat appeals from their own decisions. Accordingly this part of the act was repealed in 1649, when it was provided that in judicial cases the two houses should sit together and reach their decision by a majority vote of the whole member- ship.
THE ARISTOCRATIC CONSTITUTION (1634-1660)
The controversy over the "negative voice" of the Assistants, was but a phase of a stubborn conflict which had been going on ever since the freemen asserted themselves in 1634 between their deputies and the small group of "elder statesmen" from whom the Assistants always continued to be chosen. There is something truly remarkable about the faithfulness with which year after year the same small body of men continued to be elected to the chief offices in the colony. Between 1630 and his death in 1648 Winthrop was Governor for no less than twelve years, and during every year but one between 1649 and 1664 Endecott was Governor. In all the years when Winthrop or Dudley were not holding the office of Governor, they were holding that of Deputy-Governor or Assistant. Prior to 1650 the list of Assistants is practically confined to the three leaders just mentioned and a small group of others, including Bradstreet, Nowell, Humphrey, Pynchon, and John Winthrop, Jr.
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ARISTOCRATIC CONSTITUTION
Apparently the electors had a full measure of confidence in these tried and trusted leaders, and were willing to keep them in office, but they were not altogether content to allow them the full measure of power which they claimed. One of these claims, the substance of which the freemen showed themselves ready enough to accept by constantly re-electing them to office, but which they were reluctant to admit as a matter of right, was that magistrates were entitled to life-tenure so long as they faithfully performed their duties. In 1636 the leaders were momentarily successful in inducing the General Court to establish a "council for life, for that it was showed from the word of God that the principal magistrates ought to be for life;" and to this council Winthrop, Dudley, and Endecott were chosen. But the council had no chance to take root and create for itself a real place in the government of the colony in the face of the dislike of it which at once developed.
This dislike came to a head at the General Court in the spring of 1639 at a moment when some of the freemen were dissatisfied with the act already mentioned which reduced the representation of certain towns from three deputies to two. Accordingly the magistrates gave way, and consented to an interpretative act declaring that the life concillors should exer- cise no authority except such as might be conferred on them from time to time by their election as annual magistrates, thus reducing the council to a nullity; and perhaps by virtue of this concession the reduction of deputies was allowed to stand.
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