USA > Massachusetts > Suffolk County > Professional and industrial history of Suffolk County, Massachusetts, Volume I > Part 3
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INTRODUCTORY CHAPTER.
jects whatsoever to use and exercise the trade of fishing upon that coast of Newe England in America by these presents menconed to be graunted : But that they and every or any of them shall have full and free power and liberty to continue and use their said trade of fishing upon the said coast in any the seas thereunto adjoyning or any armes of the seas or saltwater rivers where they have byn wont to fish and to build and sett up upon the landes by these presents graunted such wharfes stages and worke houses as shalbe necessary for the salting drying keeping and tacking up of their fish to be taken or gotten upon that coast ; and to cutt downe and take such trees and other materialls there groweing or being as shalbe needfull for that purpose, and for all other necessarie easements helpes and advantage concerning their said trade of fishing there in such manner and form as they have byn heretofore at any tyme accustomed to doe without making any wilfull waste or spoyle any thing in these presents contayned to the contrarie notwithstanding. And wee doe further for us our heires and successors ordeyne and graunte to the said Governer and Company and their successors by these presents, That these our letters patents shalbe firme good effectuall and available in all thinges and to all intents and construccons of lawe according to our true meaning herein before declared, and shalbe construed reputed and adjudged in all cases most favourable on the behalf and for the benefitt and behoofe of the saide Governor and Company and their successors although expresse mencon of the true yearely value or certenty of the premisses or any of them or of any other giftes or grauntes by us or any of our progenitors or predecessors to the aforesaid Governor or Company before this time made in these presents or not made or ainy statute act ordinance provision proclainacon or restrainte to the contrarie thereof heretofore had made published ordayned or pro- vided or any other matter cause or thinge whatsoever to the contrarie thereof in any wise notwithstanding. In witness whereof wee have caused these our letters to be made patent. Witness ourself at Westminster the fourth day of March in the fourth yeare of our raigne.
Per Breve de Privato Sigilio WOLSELEY.
Pracdictus Matthaeus Cradocke Juratus est de Fide et obedientia Regi et Successori- bus suis, et de Debita Executioni Officii Gubernatoris juxta Tenorem Praesentium, 18° Martii 1628. Coram me Carolo Cæsare Milite in Cancellaria Mro.
CHAR. CESAR.
The full text of the above charter is included in this narrative in or- der that readers may have a clear understanding of the foundation on which the judicial system of the Massachusetts colony rested and the source from which authority was derived for its establishment. Doubts have been entertained by some writers whether it was the royal intent that the charter and the corporation authorized by it should ever be transferred from England to America. A no less careful and discrim- inating writer than Hutchinson says in his history, " It is evident from the charter that the original design of it was to constitute a corporation
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HISTORY OF THE BENCH AND BAR.
in England like to that of the East India and other great companies, with powers to settle plantations within the limits of the territory, un- der such form of government and magistracy as should be fit and neces- sary. The first step in sending out Mr. Endicott, appointing him a council, giving him commission, instructions, etc., was agreeable to this construction of the charter."
It will perhaps be well in order that this reference to Mr. Endicott may be understood, to follow for a time the steps taken by the Massa- chusetts Company under the charter. One of the earliest movements among the members of the company was the withdrawal of Sir Henry Rosewell, Sir John Younge and Thomas Southcott, and the assignment of their interest to John Winthrop, Isaac Johnson, Mathew Cradock, Thomas Goffe and Sir Richard Saltonstall, and among the new mem- bers of the company when reorganized were Thomas Dudley, Nicholas West, Thomas Sharpe, William Browne and William Colbron. The financial affairs of the company were at first managed in England, and John Endicott was sent out to New England with a company in the sum- mer of 1628, before the issue of the charter, which did not pass the seals until the fourth of the following March. Endicott arrived at Salem in the ship Abigail on the sixth of September, and for a time acted as a quasi governor of the colony. The colony over which he had authority was merely a band of emigrants sent over by what may be termed the Mas- sachusetts Company, acting simply under the grant which they had re- ceived from the Plymouth Council or Northern Virginia Company and before the issue of the letters patent from the king. It will be seen there- fore that the mission of Endicott throws no light on the intent of the charter, as it was authorized before the charter was issued. After the issue of the charter to the company of which Endicott was one and to which his small Salem colony was subservient, he was permitted to act as local governor until Winthrop arrived with his larger company and with the charter from the king. After the issue of the charter, fa- vorable letters having been received from Endicott, at a meeting of the company held on the 28th of July, 1629, Mathew Cradock, the gover- nor of the company named in the charter, " read certain propositions conceived by himself," giving reasons for transferring the government to Massachusetts. At the next meeting of the company held on the 28th
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frank S allen
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INTRODUCTORY CHAPTER.
of August in the same year the deputy governor put the question as follows : " As many of you as desire to have the patent and the gov- ernment of the plantation to be transferred to New England, so as it may be done legally, hold up your hands, so many as will not, hold up your hands." The decision of the question is thus entered on the rec- ords of the company : " Where by erection of hands it appeared by the general consent of the company that the government and patent should be settled in New England, and accordingly an order to be drawn up."
Two days before the vote was taken, on the 26th of August, the fol- lowing agreement was executed :
" Upon due consideration of the State of the Plantation now in hand for New Eng- land, wherein we whose names are hereunto subscribed have engaged ourselves, and hav- ing weighed the greatness of the work in regard of the consequence, God's glory and the Church's good ; as also in regard of the difficulties and discouragements which in all probabilities must be forecast upon the prosecution of this business; considering withal that this whole adventure grows upon the joint confidence we have in each other's fidelity and resolution herein, so as no man of us would have adventured it with- out assurance of the rest; now for the better encouragement of ourselves and others that shall join with us in this action, and to the end that every man may without scruple dispose of his estate and affairs as may best fit his preparation for this voyage: it is fully and faithfully agreed amongst us and every one of us doth hereby freely and sincerely promise and bind himself in the word of a Christian, and in the presence of God, who is the searcher of all hearts, that we will so really endeavor the prosecution of this work, as by God's assistance we will be ready in our persons, and with such of of our several families as are to go with us, and such provision as we are able conven- iently to furnish ourselves withal, to embark for the said Plantation by the first of March next, at such port or ports of this land as shall be agreed upon by the Company, to the end to pass the seas (under God's protection) to inhabit and continue in New England : Provided always, that before the last of September next the whole government together with the patent for the said Plantation, be first, by an order of Court legally transferred and established to remain with us and others which shall inhabit upon the said Planta- tion ; and provided also, that if any shall be hindered by such just and inevitable let or other cause to be allowed by three parts of four of those whose names are hereunto sub scribed, then such persons, for such times and during such lets, to be discharged of thi- bond. And we do further promise, every one for himself, that shall fail to be ready through his own default by the day appointed, to pay for every day's default the sun of £3 to the use of the rest of the company who shall be ready by the same day and time.
Richard Saltonstall
Isaac Jolinson
John Winthrop
Thomas Dudley
John Humphrey
William Pinchon
William Vassall
Kellam Browne
Nicholas West
Thomas Sharpe Increase Nowell
William Colbron.
4
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HISTORY OF THE BENCH AND BAR.
On the 20th of October, 1629, at " a Generall Court holden in Eng- land at Mr. Goffe the Deputye's House," the records of the company state, Governor Cradock having declared the object of the meeting to be the election of a new governor, deputy governor and assistants on account of the proposed transfer of the government to New England :
" And now proceeding to the election of a new Governor Deputy and Assistants, which upon serious deliberation hath been and is conceived to be for the special good and advancement of their affairs, and having received extraordinary great commenda- tions of Mr. John Winthrop both for his integrity and sufficiency as being one every way well fitted and accomplished for the place of Governor, did put in nomination for that place the said Mr. John Winthrop, Sir R. Saltonstall, Mr. Isaac Johnson and Mr. John Humfrey ; and the said Mr. Winthrop was with a general vote and full consent of this court by erection of hands chosen to be Governor for the ensuing year to begin on this present day ; who was pleased to accept thereof and thereupon took the oath to that place appertaining. In like manner and with like free and full consent Mr. John Humfrey was chosen Deputy Governor and
Sir R. Saltonstall
Mr. Thomas Sharpe
Mr. Isaac Johnson
Mr. John Revell
Mr. Thomas Dudley
Mr. Matt: Cradock
Mr. Jo : Endicott
Mr. Thomas Goffe
Mr. Noell
Mr. Aldersey
Mr. William Vassall
Mr. John Venn
Mr. William Pinchon
Mr. Nath : Wright
Mr. Sam : Sharpe
Mr. Theoph : Eaton
Mr. Edw : Rossiter
Mr. Tho: Adams
were chosen to be Assistants : which said Deputy and the greatest part of the said As- sistants being present took the oaths to their said places appurtaining respectively."
The departure of Winthrop for New England occurred on the 8th of April, 1630, after detentions by unfavorable winds at Cowes and Yar- mouth, and he arrived at Salem on the 12th of June. On his arrival of course the administration of Endicott ceased, the colony of emigrants was merged in the Massachusetts Company, of which it was only a fore- runner and part, and henceforth the government of the Massachusetts Colony was vested in a governor, deputy governor and assistants living on the plantation, and with the royal charter in their possession, not answerable to any company officers at home.
The question may now be resumed as to the power of the company to transfer their patent and government to New England. The opinion of Hutchinson has already been quoted, and his opinion, as stated by
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INTRODUCTORY CHAPTER.
Mr. Charles Deane in his paper on the charter in the Memorial History of Boston, has been concurred in " by such historians as Chalmers, Rob- ertson, Grahame, Hildreth and Young and by the distinguished Judge Storey." On the other hand Mr. Deane says that " Dr. Palfrey, the eminent historian of New England, and the late Professor Joel Parker of Cambridge are of the opinion that the charter was actually drawn with a design on the part of the patentees to be used either in England or in New England-there being an absence of any language locating the corporation in England."
Mr. Deane in the paper referred to fails to express his own opinion on the mooted question, and his failure is the more to be regretted be- cause the almost unerring instinct which he exhibited in the investiga- tion of historical points would have given his opinion the form of a ju- dicial decision. With a natural hesitation to attempt to decide a ques- tion on which leading antiquaries are divided, the writer ventures to add a word in maintenance of the position of Professor Parker that the transfer of the charter and company to New England were in accord- ance with powers conferred by royal authority. Aside from the silent acquiescence of King Charles in the transfer, which of itself affords an argument not to be ignored, a careful reading of the text discloses at least two provisions which look directly to the possible administration of the government outside of England. With regard to the oaths to be taken by the officers of the company the text of the charter reads as follows : " That is to say, the said Mathew Cradock who is hereby nom- inated and appointed the present Governor of the said Company shall take the said oaths before one or more of the Masters of our Court of Chancery for the tyme being, unto which Master or Masters we do by these presents give full power and authority to take and administer the said oaths to the said Governor accordingly. And after the said Gov- ernor shall be sworne then the said Deputy Governor and Assistants, before by these presents nominated, shall take the said several oaths to their offices and places respectively belonging before the said Mathew Cradock the present Governor so formerly sworn as aforesaid. And every such person as shalbe at the time of the annual election or other- wise upon death or removal, be appointed to be the new Governor of the said Company shall take the oaths to that place belonging before
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HISTORY OF THE BENCH AND BAR.
the Deputy Governor or two of the Assistants of the said Company at the least for the time being." It is fair to presume that the provision for a different method of taking the oath by Governor Cradock before a Master in Chancery, from that permitting the oaths of his successors to be taken before the deputy governor or two of the assistants was in- tended to meet the contingency of a removal of the company to New England where no master in chancery would be accessible.
Again the charter provides " That it shall and may be lawful to and for the chief commanders, governors and officers of said company for the time being who shalbe resident in the said part of New England in America by these presents granted and others there inhabiting by their appointment and direction from time to time and at all times hereafter for their special defence and safety to encounter, expulse, repel and re- sist by force of arms as well by sea as by land and by all fitting ways and means whatsoever, all such person and persons as shall at any time hereafter attempt or enterprise the destruction, invasion, detri- ment or annoyance to the said plantation or inhabitants." This pro- vision certainly contemplates the residence of the officers of the com- pany in New England, and it is impossible to understand why, if the officers were authorized to reside on the plantations of the company, they could not by authority have in their possession there the charter from which they derived all their powers. This provision is only one of many to be found in the text manifestly indicating that the charter contemplated the establishment of a company in New England with duly chosen officers, and with all the necessary powers to make laws, provide methods of punishment for their infraction, and organize to all intents and purposes a government of their own. ·
It has also been doubted by some whether the charter contained any authority " to erect judicatories or courts for the probate of wills or with admiralty jurisdiction ; or to incorporate towns, colleges or schools, all which powers were exercised, together with the power of inflicting cap- ital punishment." How such a doubt can be seriously entertained it is difficult to understand after reading the provision that the chief com- manders, captains, governors and other officers and ministers shall from time to time have full power and authority to correct, punish, pardon, govern and rule according to laws established by the company. The
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INTRODUCTORY CHAPTER.
power to punish carries with it the power to establish courts to try per- sons accused, and the broad power to govern includes all the powers necessary toestablish and maintain a peaceable and well organized com- monwealth.
But though the Massachusetts Company had no hesitation in the trans- fer of their patent and in the exercise of the powers conferred by it, some years elapsed before they were left in undisturbed possession of the patent and its privileges. Without entering upon a detailed history of their annoyances, it is sufficient to say that repeated complaints were made to the home government of what were called usurpations by the company, and to state the final conclusion of the action of the govern- ment which these complaints elicited. Though these complaints took exception chiefly to the exercise of civil power, it is quite evident that the theological attitude of the colony and its apparently changed rela- tions to the established church excited more uneasiness at home than any acts of the colony committed under the presumed authority of the patent or charter. Repeated demands were made by the Privy Coun- cil for the return of the charter to England, and at various times ships ready to sail for New England were temporarily detained. The Massa- chusetts Company turned a deaf ear, however, to these demands, and finally the disorders of the mother country became so serious that the colony in New England was overlooked and permitted to go on in its career of development and manage its affairs in peace.
The closing incidents in the long- continued effort to secure the return of the charter were a letter to John Winthrop from the Privy Council and the response of the Massachusetts General Court, after which the interference of the council in the affairs of the colony ceased under the pressure of more serious matters at home. With the presentation of this letter and response as parts of this narrative, this sketch of the charter will close.
" At Whitehall, April 4, 1630.
" This day the Lords Commissioners for Foreign Plantations, taking into consideration that the petitions and complaints of his Majesty's subjects, planters and traders in New England grow more frequent than heretofore, for want of a settled and orderly govern- ment in those parts, and calling to mind that they had formerly given orders about two or three years since to Mr. Cradock, a member of that Plantation to cause the grant or letters patent of that Plantation (alleged by him to be there remaining in the hands of
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HISTORY OF THE BENCH AND BAR.
Mr. Winthrop) to be sent over hither, and that notwithstanding the same, the said let- ters patent were not as yet brought over : and their Lordships being now informed by Mr. Attorney General that a quo warranto had been by him brought, according to former orders, against the said patent, and the same was proceeded to judgment against so many as had appeared, and that they which had not appeared were out- lawed,-
"Their Lordships, well approving of Mr. Attorney's care and proceeding therein, did now resolve and order that Mr. Mewtis, Clerk of the Council, attendant upon the said Commissioners for Foreign Plantations, should in a letter from himself to Mr. Winthrop, enclose and convey this order unto him. And their Lordships hereby in his Majesty's name, and according to his express will and pleasure, strictly require and enjoine the said Winthrop, or any other in whose power and custody the said letters patent are, that they fail not to transmit the said patent hither by the return of the ship in which the order is conveyed to them; it being resolved that in case of any further neglect or contempt by them shown therein, their Lordships will cause a strict course to be taken against them, and will move his Majesty to reassume into his hands the whole planta- tion."
The response was as follows :
" To the Right Honorable the Lords Commissioners for Foreign Plantations :
" The humble petition of the Inhabitants of the Massachusetts in New England of the General Court there assembled, the 6th day of September in the 14th year of the reign of our Sovereign Lord King Charles.
" Whereas it hath pleased your Lordships, by order of the 4th of April last, to require our patent to be sent unto you, we do humbly and sincerely profess, that we are ready to yield all due obedience to our Sovereign Lord the King's Majesty, and to your Lord- ships under him, and in this mind we left our native country, and according thereunto hath been our practice ever since, so as we are much grieved that your Lordships should call in our patent, there being no cause known to us, nor any delinquency or fault of ours expressed in the order sent to us for that purpose, our government being according to his Majesty's grant and we are not answerable for any defects in other plantations.
" This is that which his Majesty's subjects here do believe and profess, and therefore we are all humble suitors to your Lordships, that you will be pleased to take into further consideration our condition, and to afford us the liberty of subjects, that we may know what is laid to our charge; and have leave and time to answer for ourselves before we are condemned as a people unworthy of his Majesty's favor or protection ; as for the quo warranto mentioned in the said order, we do assure your Lordships we were never called to answer it, and if we had, we doubt not but we have a sufficient plea against it.
" It is not unknown to your Lordships that we came into these remote parts with his Majesty's license and encouragement, under his Great Seal of England, and in the con- fidence we had of that assurance, we have transferred our families and estates, and here have we built and planted to the great enlargement and securing of his Majesty's dominions in these parts, so as if our patent should now be taken from us we shall be:
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INTRODUCTORY CHAPTER.
looked on as runnigados and outlawed, and shall be enforced either to remove to some other place, or to return into our native country again; either of which will put us to unsupportable extremities, and these evils (among others) will necessarily follow: (1) Many thousand souls will be exposed to ruin, being laid open to the injuries of all men. (2) If we are forced to desert this place, the rest of the plantation (being too weak to subsist alone) will, for the most part, dissolve and go with us, and then will this whole country fall into the hands of the French or Dutch, who would speedily embrace such an opportunity. (3) If we should lose all our labor and costs, and be deprived of those liberties which his Majesty hath granted us, and nothing laid to our charge, nor any failing to be found in us in point of allegiance (which all our countrymen do take no- tice of and will justify our faithfulness in this behalf) it will discourage all men here- after from the like undertakings upon confidence of his Majestie's royal grant. Lastly, if our patent be taken from us (whereby we suppose we may claim interest in his Majesty's favor and protection) the common people here will conceive that his Maj- esty hath cast them off, and that, hereby, they are freed from their allegiance and sub- jection, and therefore will be ready to confederate themselves under a new govern- ment, for their necessary safety and subsistence, which will be of dangerous example to other plantations, and perilous to ourselves of incurring his Majesty's displeasure, which we would by all means avoid.
"Upon these considerations we are bold to renew our humble supplications to your Lordships, that we may be suffered to live here in this wilderness, and that this poor plantation, which hath found more favor from God than many others, may not find less favor from your Lordships; that our liberties should be restrained, when others are en- larged ; that the door should be kept shut unto us, while it stands open to all other plantations ; that men of ability should be debarred from us, while they have encour- agement to other colonies.
" We dare not question your Lordship's proceedings; we only desire to open our griefs where the remedy is to be expected. If in anything we have offended his Maj- esty and your Lordships, we humbly prostrate ourselves at the footstool of supreme authority ; let us be made the objects of his Majesty's clemency, and not cut off, in our first appeal, from all hope of favor. Thus, with our earnest prayers to the King of Kings for long life and prosperity to his sacred Majesty and his royal family, and for all honor and welfare to your Lordships, we humbly take leave."
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