USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 2 > Part 2
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Notwithstanding the evils of the Andros government, the people did have during his régime a taste of more freedom of conscience. Dissenters were not required to attend the serv- ices of the Congregational church or to contribute to its sup- port. With the departure of Increase Mather to England in the spring of 1688 as agent of the colony, with the revolution of 1688-1689 in England and Massachusetts, and with the return of the clerical party to power, the stage was set for another attempt to solve the old problem.
THE INTERREGNUM (1689-1692)
The so-called inter-charter period, 1686-1692, has been treated to 1689 in a previous chapter. The events following the overthrow of the Andros government, from April 18, 1689, may be briefly summarized, before taking up the mission of Increase Mather and his associates, and the arrival of the new charter at Boston, May 14, 1692. At the fall of Andros an extralegal provisional "Council for the Safety of the People and Conservation of the Peace" was formed by the clerical party, with Bradstreet as president. This body called a con- vention of delegates from the towns, May 9, 1689. Owing to a disagreement, a second convention assembled May 22, with representatives from fifty-four towns; all but fourteen in- structed their representatives to vote for the restoration of the old charter. A new government was formed, which was understood to be only provisional; viz., "until by direction
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THE PROVINCE CHARTER
from England there be an orderly settlement of Government." The former Governor Bradstreet, now 87 years old, and the Council, chosen in 1686 at the last election under the old charter, assumed office. The General Court met in June, with a newly elected Lower House, and declared the old laws pro- visionally revived; but it soon adjourned. This weak govern- ment was soon in trouble. Governor Bradstreet complained of Indian depredations and an empty treasury. The outbreak of the war between England and France (May 7, 1689) added to the confusion; while lack of protection on the frontiers resulted in Indian massacres.
In December, 1689, a letter from the King gave authority to those in office to "continue their administration of the govern- ment" till further orders; but no such further orders were announced till the signing of the new charter nearly three years later. The King's letter, however, was interpreted to mean a temporary restoration of the old charter, and elections were held under it. One important act of the Lower House was that of December 3, 1689, when Elisha Cooke and Thomas Oakes, both members of the moderate party, were appointed to proceed to England as associates to Mather in his agency.
Indian wars in Maine combined with French intrigues with the eastern Indians on the Kennebec led Massachusetts to join with delegates from Plymouth, Connecticut and New York, May 1, 1690, resolving on an expedition against Quebec. Two days earlier Massachusetts had dispatched an expedition by sea to Acadia under Sir William Phips. He captured Port Royal and destroyed the French fort. The expedition against Quebec, however, ended in a failure the following October. However, the great questions which disturbed the people of Massachusetts were: first, the possibility of a restoration of the old charter, with or without alteration; and secondly, the degree of self-government they might hope to obtain. Out- side those questions was a deep dissatisfaction because of heavy taxation, issues of paper currency, and a generally de- pressed condition of trade.
AGENCY OF INCREASE MATHER (1688-1689)
April 7, 1688, nearly a year before the overthrow of the An- dros government, Reverend Increase Mather, minister of the
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AGENCY OF INCREASE MATHER
Second Church in Boston, sailed for England as a delegate of some twenty congregations, for the purpose of bringing com- plaints against the Andros administration and of obtaining a restoration of the privileges contained in the old charter, in short, a restoration under the old régime if possible. His de- parture was made at night, in secret and under a disguise, because of the effort of Randolph to prevent his voyage. After arrival in England (May 25, 1688), he had several conferences with King James, but without much result other than fair promises.
Mather busied himself with making friends, one of whom was William Penn. He presented a "Personal Memorial in behalf of New England" to the King in July 1688, and sent a petition to the Committee of the Privy Council for Trade and Foreign Plantations. Both were signed by Samuel Nowell, ex-treasurer of Harvard, and Elisha Hutchinson, formerly an assistant in the colony.
They set forth the grievances of Massachusetts and proposed remedies; and have an important bearing on the charter as finally granted. They show that Mather had much more liberal views at this time than might be supposed. In the "Memorial" he asked for confirmation of land titles; that no taxes be imposed without the consent of an assembly; that there be restoration of town government; and that there be "liberty of conscience in matters of Religion." In the petition he went even further and asked that the towns be allowed to decide town business by vote of a majority of the "free- holders" (not "freemen") or property owners. He asked that the General Assembly be elected by freeholders; that no man be obliged to maintain a religion he did not profess; and that each sect be left to support itself. He also presented a petition from Plymouth asking for freedom of worship.
Mather did not at this time, as has often been asserted, fight merely for the advantage of his own sect, but rather for the Massachusetts people as a whole. Some of the im- portant principles of liberal government, advocated by Mather, were rejected by the Committee for Trade and Foreign Plan- tations. The revolution of 1688 interrupted these efforts. He met James for the last time October 16. William landed in
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THE PROVINCE CHARTER
England in November, and James sailed for France Novem- ber 23, leaving William in Whitehall, master of the situation.
So ended the first stage of the negotiations. From this date on, Mather had to deal with a new king and his position was now considerably changed; for William III was looked upon as the preserver of the rights of Englishmen every- where. Mather had an audience with the new king, and the royal secretary, January 9. Soon after the interview an order was prepared confirming in office all the colonial gover- nors. Through Mather's efforts the King ordered that the letters to the New England colonies should be withheld, which proved to be a very fortunate move. Otherwise, Andros would have continued in power, and perhaps would have suc- ceeded in completing the consolidation of the Dominion of New England. Mather next petitioned for a restoration of the New England charters, including that of Massachusetts. Late in 1689 he also tried to obtain a reversal of the judg- ment against the old charter by act of Parliament. Meantime the overthrow of Andros had occurred, news of which reached England sometime in June 1689, an act which William fortu- nately approved. During 1689 Mather published several pamphlets in defence of the course of Massachusetts and the old regime. Among them were : A Narrative of the Miseries of New England; New England Vindicated From Unjust Asper- sions Cast on the Former Government There, etc .; A Further Vindication of New England, etc .; also A Brief Relation of the State of New England.
By the end of 1689 Elisha Cooke and Thomas Oakes, ap- pointed as agents of Massachusetts, arrived as associates of Mather. They sought the restoration of the old charter and were less conciliatory than Mather. Sir Henry Ashurst, a wealthy London non-conformist, was also recognized as an agent of the colony. By this time, however, conditions were becoming more unfavorable to Massachusetts. Letters were arriving from Mather's opponents in Boston, Randolph and the Episcopalians. In March, 1690, Andros, Randolph, and their friends were in London. Owing to a failure of the agents to agree on charges against Andros he was dismissed without a trial. This was a hard blow to Mather, for his complaints of the misgovernment of Andros were connected
7
THE CHARTER DRAFTED
with his plan for a restoration of the old charter. Pamphlets against such a restoration appeared, one of which declared that the New England charters were seized because of abuse "in destroying, not only woolen and other manufactures, but also the very laws and navigation of England, and making them- selves, as it were, independent of this crown." During most of 1690 William was not accessible and so Mather was obliged to bide his time.
The conditions which confronted the clerical agent were very serious from the standpoint of securing the kind of a charter Massachusetts wanted. William was first of all a soldier and had entered on a long conflict with France. His natural desire would be so to organize Massachusetts that he would find that commonwealth a help to him in the defense of the frontiers of the colonies. This made it necessary to establish a strong executive, dependent on the King. Indeed in the two years since the fall of Andros and the outbreak of the French war Massachusetts proved to be a broken reed in frontier defense. A petition from the inhabitants of Maine (1689) called attention to their defenceless condition. While Port Royal was captured by Sir William Phips, the expedition sent out by Frontenac captured Falmouth, Maine, in May 1690, burned the town, killed most of the garrison of seventy men, besides women and children. Phips arrived in England early in 1691 and urged an aggressive policy towards Canada, set forth the necessity of checking the French, and enlarged on the opportunity to seize the fur trade and fisheries of North America.
: THE CHARTER DRAFTED (1691)
Mather needed the strong support of the London merchants, a group naturally allied in many political and religious views. But they had been alienated by the attitude of Massachusetts towards the Navigation Acts, and the propensity toward smuggling. Accordingly they also wished a strong royal ex- ecutive, who would see that the Navigation Acts were enforced -hardly to be expected if the old charter were revived.
Mather was left with few allies in England, and now turned to King William III. He petitioned, October 1690, for a new charter. Orders were given accordingly. The task was re-
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THE PROVINCE CHARTER
ferred to the Committee for Trade and Plantations, in January, 1691. The important questions were : first, whether the people of Massachusetts should, through their assembly, make their own laws, and choose their own officers; secondly, whether there should be a royal governor appointed by the king, and other officers appointed by the royal governor ; third, whether the governor should have the power of vetoing the laws of the Assembly, and whether the crown should also have the power of disallowing such laws.
After discussion, the Committee asked the King whether he desired a governor appointed by the King, or would allow the people to choose their own governor. He replied that the former was his wish. The Privy Council, of course, by com- mand of the King, soon issued an order that the Governor should have the power to veto acts passed by the colonial Assembly.
To the Attorney General, Sir George Treby, was committed the task of drafting the charter; and he submitted his results to the Lords of Trade, June, 1691. In this first draft of the charter, the freemen (not the freeholders) had power to choose the deputy governor and other officers; and the gover- nor had no veto. It has been said that Mather influenced the Attorney General to insert partial revival of clauses of the old charter. The Council, however, declared "That by such a Charter ... the King's Governor would be made a Gover- nor of Clouts."
THE CHARTER REDRAFTED (1691)
Accordingly a new charter was, therefore, drawn up, giving the governor the power to appoint judges, justices of the peace, and sheriffs with the advice of the Council. In this draft the critical point for the suffrage was adjusted, namely, a clause giving the suffrage to "freeholders" rather than to "freemen" only.
This grant of the right of veto to the royal governor called out Mather's famous remark (a diplomatic blun- der) that he would sooner part with his life than consent to "minutes or anything else that did infringe any liberty or privilege of right belonging to his country." He was told by
By permission of The Secretary of The Commonwealth
THE CHARTER OF 1692
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THE CHARTER GRANTED
the ministers, however, that his "consent was not expected nor desired." Mather also objected to leaving to the Crown an indefinite time in which to disapprove laws. Mather did not on this occasion, as often asserted, specifically object to the suffrage clause. On the contrary, he and the agents agreed that the Assembly be chosen by the freeholders having £40 a year and by inhabitants worth £100 money. No evidence appears that Mather, as often stated, directly advocated the limiting of the franchise to church members. It would have been strange if he had, for he knew that the colony had already voted to the contrary ; and he also was aware that there was no possibility that the King would tolerate the old suffrage re- striction, in view of the English Toleration Act of 1689. More- over, William, who was a "Dutch King," had very liberal views on toleration.
In February, 1690, the General Court had passed an interest- ing act which was probably designed to quiet some of the dis- content, and perhaps was expected to influence the King to re- new the old charter. It greatly modified the law governing the franchise, by repealing the portion which required a testimonial to the candidate's religious character from his minister; and substituted a certificate from the selectmen to the effect that he was "not vicious in life." Thus the General Court had already voluntarily modified the old strict religious test.
Mather and his associates now "resolved to get as much good and prevent as much hurt to the country as possibly might be." They proposed several amendments, one for ad- ditional territory, one changing the nature of the oath, and one for the confirmation of land grants by the General Court.
The new charter was signed by the King, October 7, 1691. One important point was gained by Mather. He was allowed to nominate the first governor, Sir William Phips, a member of the church of his son, Cotton Mather; and twenty-eight Assistants or Councillors. Thus the old clerical party still had great influence when Mather and Phips sailed for Boston, May 14, 1692.
THE CHARTER GRANTED (1691)
The Charter of 1691, to which Mather thus assented, was a compromise. It created a semi-royal colony, a combination
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THE PROVINCE CHARTER
of the corporate and royal. Probably one reason for the form of the Charter was military. It was the desire of William, a soldier in arms, to keep as much of the good will of Massa- chusetts as possible as an aid to his military plans against the French. A second reason was religious. William was naturally tolerant and a defender of civil liberties. A third reason was that the trade interests of Great Britain required better enforcement of the Navigation Acts. In general, it was desirable to bring Massachusetts more thoroughly into the British system. The clerical party was angry and charged that Mather had betrayed them, especially on the franchise question. Mather's repeated attempts to secure a restoration of the old charter indicate that he desired to reestablish the old theocracy. Nevertheless, the documents cited show that he advocated a property franchise rather than a religious qualifi- cation, likewise that he in general favored toleration before the time of his specific attempts to recover the charter through act of Parliament and court action. After these attempts, Mather made no specific objections to clauses on these subjects. In the end he signed the charter. These facts place Mather in the position of a statesman representing the colony as a whole, rather than a representative of the narrow intolerant views of the theocratic party of which he had been an outstanding leader.
COMPARISON WITH THE OLD CHARTER (1691)
The new charter differed in many important respects from the old colony charter. It will be remembered that under the old charter, after its transfer to America, officers were chosen by the freemen, who were a small body of church members in full communion and approved by the General Court. In number they were not more than one fifth of the male citizens, during the seventeenth century. The old legislative power was in the General Court, from which there was no appeal to England. It had the sole power to make laws, raise money, levy taxes, dispose of lands, and receive appeals from inferior courts. It could not be adjourned or dissolved with- out the consent of a major part of the members. The Gover- nor had a casting vote but no veto. The executive power was
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FRAME OF GOVERNMENT
lodged in the Governor and Assistants, as was also most of the judicial power.
The new charter offered gains and losses, advantages and disadvantages. The original boundary of the Colony was con- firmed, except that "and every part thereof" was omitted after the phrase "three miles north of the Merrimac." Even the clause giving territory to Massachusetts all the way to the Pacific Ocean was retained. While Maine (acquired by Massachusetts in 1652-53 and now confirmed) was kept, New Hampshire was left out. The added territory included the old Plymouth Colony, Nova Scotia, for a brief period, and the islands south of Cape Cod; namely, Martha's Vineyard, Nan- tucket and the Elizabeth Islands, which up to that time were a part of New York under the Duke of York's grant of 1664. Massachusetts had now become a very large commonwealth. Except for a little stretch of coast at the mouth of the Pis- cataqua in New Hampshire, it occupied an unbroken coast line stretched from the mouth of the St. Lawrence to Rhode Island.
FRAME OF GOVERNMENT (1691)
The charter provided for a considerable degree of liberty and self-government, not inconsistent with the needful author- ity of England. In place of their former elective governor and other executive officials, a royal Governor, Lieutenant-Gover- nor and Secretary were thenceforth appointed by the King and responsible to the King. The official status and powers of the Governor resembled those of the Governor General of the Philippines. The governor was given the power to veto the acts of the General Court, and the King might veto any law within three years of its passage.
The Governor was also made commander-in-chief of the militia; could appoint militia officers; and could exercise martial law in case of necessity. With the consent of the Council he could appoint judges of the colonial courts and all other court officers, though their term of office remained in dispute. His consent was necessary for the appointment of all other officers nominated by the General Court. He could also summon, adjourn and prorogue the General Court. The Governor was not allowed to use funds except by consent
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THE PROVINCE CHARTER
of the deputies. On the other hand no money could be issued from the treasury without the Governor's warrant.
The Council or upper house was made up of 28 members, to be selected by the King. The first set was in fact nominated by Mather. Thereafter it was to be selected annually by the General Court, subject to the approval of the Governor. This Council was unlike the council of other royal colonies, in that it was more under the control of the Assembly. It was also somewhat representative in character; for 18 of the councillors must be inhabitants or land holders in Massa- chusetts; four in what had been the Plymouth colony; three from Maine; and one from the territory to the north. The Governor and Council had the power to constitute probate courts.
The House of Representatives, or lower house was elected annually by the freeholders in town meeting. It appointed officers other than military and judicial, with consent of the Governor. The salaries of the Governor and the judges were under the control of the lower house, an important power.
The Governor and Council and the House of Representatives together made up the legislature or General Court, composed of two branches. Bills passed by both branches must be ap- proved by the Governor; viz., they were subject to his veto and to disallowance by the King in council. The General Court had the power to constitute all judicial courts except courts of admiralty and probate courts. It also received power to impose fines and punishments and to levy taxes for the defense and support of the government.
ROYAL CONTROL UNDER THE CHARTER (1691)
The charter reserved to the Crown the creation of admiralty courts, the officials of which were later appointed by the Lords of the Admiralty, a cause of jealousy and disagreement. The officials were the judges, the prosecutors and other offi- cers-King's advocates, registrars, and marshals. The last provision of the charter called for the continuation of the office of Surveyor of Woods, a royal official, one of the an- noying offices held at one time by Edmund Randolph.
Another group of royal officials which continued, was that
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ROYAL CONTROL
in charge of the customs house, a later center of friction. The office of Collector of Customs previously had been held by Randolph. Imposts due the English exchequer were paid to the King's collectors; those levied by the General Court would be collected by colonial naval officers. Another set of officials, appointed by and accountable to the General Post- Office in England, was the managers of the post-office.
Clearly the source of power under the new charter was distributed widely. The points of contact were perhaps too many for a successful government : King and Privy Council; three departments, Admiralty, Customs and Post-Office; the Governor; the two houses and Governor must agree for the passage of laws; no laws to be passed contrary to acts of Parliament. Two possible vetos were provided, that of the Governor and that of the King in Council, on the advice of the Board of Trade. Besides this divided authority, an elective rather than an appointive council was a weakness from the standpoint of strength to the executive. Members who op- posed the assembly would fail of re-election; those who op- posed the Governor would be vetoed if re-elected.
ADVANTAGES AND DISADVANTAGES OF THE CHARTER (1691)
The critics of the charter were numerous. It was urged first that Massachusetts could not be as independent under the new charter as under the old one: the checks on self-govern- ment were too numerous. Secondly, the clerical party and the Congregational Church lost most of their religious, political, judicial, and educational power. In this sense Mather failed, if it is assumed either that the majority wanted the old charter, or that it was possible to get it. While it is probably true that the majority in Massachusetts wanted the same degree of independence given by the old charter, it is also probable that a majority did not wish a return to theocratic control. In fact, much of what Massachusetts lost under the new charter was that degree of independence, previously exercised by cus- tom rather than by legal right under the old charter. On the other hand, it is undeniable that a royal governor was sub- stituted for an elective governor, with such large powers that Massachusetts was brought more directly under the control
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THE PROVINCE CHARTER
of England and into the life of the Empire as a whole. It was now possible to watch the colony more closely, and to check tendencies to evade the laws and to act independently. The great offset to the power of the royal Governor was his de- pendency, through the legislative control of the House over the Council; and its financial control over the Governor's salary through the practice of annual grants for his salary.
PERSONAL PRIVILEGES (1691-1775)
The major gain to Massachusetts was the replacing of the provisional government of Andros by a permanent and reason- ably liberal charter, which confirmed many privileges exer- cised, however extralegally, under the old charter. Among them were the right to tax non-freemen, to establish towns and town government, to inflict capital punishment, to consti- tute courts, and to probate wills. Certain guarantees were also inserted. All titles to land granted by the old General Court were confirmed.
In matters of religion, "Forever hereafter there shall be a liberty of conscience allowed to the worship of God to all Christians" (Papists of course not included).
Colonists were allowed to appeal from the decision of the colony courts to the Privy Council in cases not exceeding the value of £300 sterling. By this limitation the Crown aban- doned the right to hear all cases on appeal. "Freeholders" rather than "freemen" constituted the voting class; £50 per- sonalty or a freehold of the value of 40 shillings, rather than church membership was the criterion for voting.
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