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 2
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Before landing, on the 11th of November, 1620, the Pil- grims executed a written instrument, known as " The Compact," covenanting and combining themselves together "into a civil body politick," subscribed by forty-one persons. Among the names are those of several who were servants, some who were sailors, and one, at least, who could have had no pretensions to consideration on the ground of personal merit, for he is spoken of by Bradford as having been "shuffled into their company." From the first, he appears to have incurred censure for his " mis- carriages." In 1621, he was tied together " neck and heels " for contempt of authority and " opprobrious speeches," and in 1630, hanged for murder.
In view of these facts we must consider the compact, drawn. up in the cabin of the " Mayflower," as an instance of universal suffrage, announcing the cardinal principle of a government rest- ing upon the whole people, and deriving its authority from the
19
14
RECORDS OF MASSACHUSETTS
voices of all descriptions of persons, without distinction of rank, condition, or character, with a comprehensiveness which Massa- chusetts was long in reaching, and to which the United States could only have been brought by passing through the Red Sea of our recent intestine war.
The public documents and records of the colony of Plymouth have justly been regarded as among the chief historical treasures of the Commonwealth in which it was merged. In 1836, a resolve of the Massachusetts Legislature was approved by Gov- ernor Everett for the publication of the Laws of the Old Colony ; and by his appointment they were prepared for the press and edited by our esteemed associate who, in a preceding lecture of this course, has done justice to the legislation of that colony. The result of his labors appeared in a valuable and interesting volume entitled " The Compact, with the Charter and Laws of the Colony of New Plymouth." In 1855, a resolve was passed, approved by Governor Gardner, to publish the " Records of the Colony of New Plymouth; " which was executed by printing them in the same beautiful shape as the Massachusetts Records, during the period of the First Charter. The work was performed under the superintendence of the same editor, Dr. Shurtleff. They show in detail the proceedings of a community, of a comparatively small population, on a limited area, conducting its affairs wisely and justly. Its institutions were simple and unpretentious, and administered by enlightened men, with as righteous purposes and free a spirit as the world ever saw. But when we con- sider government, as branching out in the directions demanded by a people in the exigencies of an expanding growth, requiring complicated arrangements and functions to meet its wants, it is obvious that such an opportunity to develop it was not afforded in Plymouth as in Massachusetts. It was not, for instance, until 1640 that any thing like a House of Deputies appeared, representing towns in a General Assembly in the older colony. In such respects it fell in our rear, even in the order of time.
Rhode Island originally consisted of several plantations, con- flicting with each other, and carrying their contentions to the notice of the mother country, thereby keeping their affairs more or less within its jurisdiction. Its first General Court, in which
1
15
UNDER ITS FIRST CHARTER.
towns were represented, was held in 1647. Nothing, however, can impair its glory, in having first planted and ever sacredly cherished the immortal principle of religious liberty.
What is now Connecticut consisted, for some time, of distinct jurisdictions. Their affairs, like those of Rhode Island, were dependent upon decisions looked for from the mother country ; and finally, in 1665, they were consolidated, by the authority of the crown, extinguishing the colony of New Haven, into one government. The gallant rescue of the charter obtained at that time, from the grasp of Sir Edmund Andros, at Hartford in 1687, is justly regarded one of the most memorable incidents of Ameri- can history. It continued in force to the time of the Revolution, and saved Connecticut from experiencing the fate to which Massachusetts was subjected, after the loss of its First Charter privileges, of a dependent province. It remained, in fact, the constitution of the State of Connecticut until 1818.
What are now Maine and New Hampshire were claimed by conflicting proprietors; a large part of the former, more or less, under a foreign jurisdiction, and both of them much of the time under that of Massachusetts.
As this colony was organized, and in full action, as a civil government, before the other New-England plantations ; as it was central to them, to a great degree their common mother, and so much more populous than either, - its history is of larger signifi- cance and importance. In many instances, - indeed, for the most part, - they followed in its track and conformed to its practices.
New York was a Dutch dependency until 1664; and its first legislative Assembly was in 1683. New Jersey, Pennsylvania, Delaware, and the Carolinas were proprietary provinces. Mary- land had a legislative Assembly in 1639; but remained a pro- prietary government. The early colonial condition of Virginia was much interrupted, and long in an unsettled state.
The records and memorials of all the colonies are, however, of great value, presenting many features worthy of study, and, in some particulars, severally having claims to special credit.
Massachusetts alone, was all along, for more than half a century, left unmolested to form a government, at her leisure, and as she saw fit. The Records that tell how she did it, pos- sess, therefore, a value altogether unique. They exhibit precisely
F
16
RECORDS OF MASSACHUSETTS
what a student of political science needs to know, and what can nowhere else be found. I proceed to note a few of the stages in the progress of eliminating the elements, and shaping the forms, of an effective, natural, and well-adjusted social and political organization, narrated in them.
After admitting the people to the freedom and power of the company, the founders of Massachusetts applied themselves slowly and cautiously, but with decisive measures, to their work. For some time, the company, at its meetings, which were all called Courts, took the entire management of affairs, however trivial, into its own immediate hands, acting directly on all matters whatsoever relating to person or property. At their first meeting, the governor and assistants were invested with the necessary powers to execute orders and decisions. At the next meeting, a beadle, afterwards dignified with the title of marshal, was sworn in, whose duty it was to attend the governor and execute his commands ; also to be present at the Court, to main- tain and enforce respect for its authority. The character and functions of justices of the peace were conferred upon the governor, deputy governor, and six of the assistants. Constables were appointed in the principal settlements.
It soon became apparent, that it was impracticable for assem- blies of the whole body of the freemen, or for the Governor and assistants at their monthly meetings, to attend to the multifarious matters constantly demanding adjudication, in settlements as yet without known laws or established customs, and separated from each other by pathless forests. Cases could not reach the Court, with all the evidence required to decide upon them justly ; and the Court, therefore, had to go to the cases. Certain persons were appointed in several localities, with limited jurisdiction, “ to end small causes," as they expressed it. The body of the free- men, in General Court assembled, having thus begun to part with a portion of their power, and entered upon the path that separates judicial from legislative functions, carefully felt their way along, creating local tribunals in the towns, establishing counties with courts of trial within them, and gradually develop- ing a comprehensive system of judicature.
In 1630, certain persons, their number not always being twelve, were appointed by the General Court to find and report
6
-
17
UNDER ITS FIRST CHARTER.
to it the facts relating to particular cases, thus originating here the institution of a jury, as it has come down to us. The General Court continued, however, in most cases, to examine and decide matters directly. In 1635, grand juries were provided to present cases to the General Court.
The administration of estates, and the distribution of property, whether of testates or intestates, the General Court, for some time, kept in its own hands, heeding the law and practice in England, as far as it saw fit; but at a very early period, the policy was discussed, and finally carried into effect, of passing the whole business over to special functionaries. Probate officers were provided. Special care, however, was taken to divest this branch of the law of the ecclesiastical character given to it in the mother country. In arranging the judicial department, the General Court, consisting as it did, immediately or by representation, of the whole people, seems during the entire period of the First Charter, to have retained in its own hands an ultimate control. An appeal to its revising and final judgment was kept open from all tribunals and in all descriptions of cases. Although subsequent experience has shed great additional light upon the subject of the true position of the judiciary, the records, now under review, may well be studied, conveying, as they do, much pertinent instruction and matter for reflection.
As the plantations multiplied, and spread into the interior, it became inconvenient for the people to be fully present at the meetings of the General Court, and the transaction of business was embarrassed by an irregular and unreliable attendance. In 1632, the expedient was adopted of advising the appointment of two persons in each plantation to confer with the Governor and assistants, about the raising of a public stock. In 1634, it was made lawful for the freemen of the several settlements, to choose two or three of their number to attend the Court, to confer about public affairs generally, and to " have the full power and voices of all the said freemen derived to them for the making and establishing laws, granting lands," &c. The principle of representation was thus gradually introduced. All the planta- tions fell into the practice of appointing such delegates, who were called deputies. For a few years they sat with the assist- ants in the same room, the Governor or deputy governor presiding
2
-
-
18
RECORDS OF MASSACHUSETTS
over the joint body. It seems to have become the custom for the deputies, to vote separately from the assistants; and a concur- rence of the votes of the two portions of the assembly was required to carry a measure. Finally, it was concluded to have them sit in different rooms ; and the deputies were organized as a distinct house, choosing their own speaker .. In this way a double legislature was established. The fact that it has been adopted in all our States, and in the United States government, would seem to prove that it is founded on sufficient reasons, and essential to good legislation. In this, as in all things else, where the practice established here resembled that of the mother country, the resemblance was not the result of a spirit of con- formity, or in deference to authority from that quarter, but solely because, in the natural progress_of events, it was found expedient.
At an early day the General Court parted with a very con- siderable portion of its sovereignty to the several plantations, together with the fee of the lands within the limits of the same, thereby calling into existence what has always been regarded one of the chief elements of our political civilization, - Towns. John Adams declared, that to them, in a great degree, was to be attributed the preparation of this people to engage in, and carry through, the conflict of the Revolution. They are the nurseries of freedom, schools of universal education in popular rights, and alone can fit a people to make, obey, and execute the laws. No country can take the true start, or secure reliable progress in political reform, without them ; and there is no race so degraded, as not to be redeemed to a capacity for self-government, if trained by such an institution to the exercise of control over affairs, by local communities in distinct neighborhoods.
Similar arrangements had existed for centuries in the mother country ; and to them can be traced the characteristics which have made the English people competent to uphold a constitu- tional government. The encroachment upon these small local jurisdictions, - by modern Parliamentary interference and the establishment of central commissions or bureaus, -is regarded as having already lowered the character of the population of the rural districts of the kingdom. Towns were the basis of what are called hundreds ; and in different sections of England, at
19
UNDER ITS FIRST CHARTER.
different times, had different appellations, as thorp, now village, or hamlet; burgh, now borough; and town. The last, being prob- ably the original name, was the prevalent one; 1 although when our fathers left England, it had become superseded, in some locali- ties, by ville, and parish. But, under the latter designation, the in- stitution had been perverted from its original character, which was purely secular, brought under the power of the Church, and made to receive an ecclesiastical impress.2 The lawgivers of Massachu- setts were too true to their British ancestry to call them villes, and their repugnance to associations, connected with the hierarchy at home, forbid their calling them parishes. They went back to the old Anglo-Saxon name. They made the jurisdiction of towns quite limited at first, gradually enlarging it, until it reached the dimensions still retained, embracing powers the most momentous, and constituting by far the greatest portion of what we feel to be the government under which we live.
When the public exigencies demanded it, a confederation of colonies was effected at the suggestion of the Connecticut plan- tations, but under the lead of Massachusetts. The entries con- tained in the Records on this subject, and the documents connected with its organization and operation, may be safely said to stand the test of comparison with the State papers of the originators of the Confederation of the Revolutionary age, and of the founders of our Federal Constitution, as showing the legitimate boundaries between the powers of separate States and of any general govern- ment that may be established among them.
'The elements that give energy to a commonwealth, in peace or war, are strikingly disclosed and illustrated in the history of Massachusetts under the First Charter. A more efficient gov- ernment for the preservation of order, security, and the common welfare, has never existed ; and the rapidity with which the public resources were brought to bear in military movements, while it was repeated at the opening of the war of Independence, has never been surpassed, even in our day, which has witnessed
4
1 A Restitution of Decayed Intelligence in Antiquities concerning our Nation, by Richard Verstigan, 1605, chap. ix. p. 295.
2 The Parish, its Obligations and Powers ; its officers and their duties, with illus- trations of the practical workings of the institution in all secular affairs, by Toulmin Smith. London, 1854.
..
Mo
20
RECORDS OF MASSACHUSETTS
the uprising in their might of a great people to save the national life.
The early records of Massachusetts shed light upon all sub- jects that relate to the development of the moral as well as physical strength of a State, particularly the diffusion of knowl- edge, and of a public spirit ready to assume burdens and face dan- ger ; and to sacrifice ease, property, and life, for the common weal.
The promptitude, boldness, and impartiality of the internal administration of the government are particularly noticeable. Offences were rebuked and disorder suppressed by sure and decisive measures : no rank or station, no popular affection or habitual reverence for particular persons, however eminent er honored, could obstruct the course or embarrass the movements of even-handed power. The General Court, in the exercise of its sovereignty, treated all men alike, in as well as out of its own body. Sir Richard Saltonstall was fined ; Endicott was admon- ished, disqualified temporarily for holding office, and committed for contempt of the authority and dignity of the Court; and even Winthrop, once in a while, was dropped from his high place.
In the administration of external affairs, the General Court was equally disregardful of all weak and timid considerations. Nothing can surpass the spirit, courage, ability, and success, with which it withstood, and repelled attempts of encroachment from the mother country.
There was always a powerful party busily at work in the Court at London, bent upon the suppression of the Massachu- setts colony ; but by skilful diplomacy on the part of the Court and its able agents in England, following the policy compre- hended by Winthrop in two words, - " Avoid and protract;" by standing tenaciously and resolutely upon their charter, particu- larly that feature of it which left no opening for an appeal to the mother country, and provided no process by which complaints could legitimately be brought against the company; by the opportune diversion of attention from colonial matters to occur- rences in England, especially those connected with the contro- versy between the King and Parliament ; and by the blessing of Providence, - every blow was warded off, until two generations had laid the foundations of the political fabric too deep to be moved.
21
UNDER ITS FIRST CHARTER. .
It became, indeed, quite early a general feeling, among sensi- ble people in England, that it was about as well to let the unmanageable and spunky little colony alone.
Collier, in his " Ecclesiastical History of Great Britain," quotes at length the Order in Council Archbishop Laud issued, June 17, 1634, to all places of trade and plantation where the English were settled, enjoining the establishment of the national church in them, and remarks, that, while that order was extended to all the four great divisions of the world, and generally received and obeyed in all colonies and settlements, " New England was some- what of an exception. The Dissenters," he continues, " who transported themselves thither, established their own fancy."
Charles II., however, was prevailed upon by the enemies of the colony to send over, in 1664, Commissioners to reduce it to sub- ordination ; but they went back as they came, disconcerted by the firmness and outgeneralled by the strategy of the colonial authorities. The records containing the communications that passed between these gentlemen and the General Court, show the wonderful sagacity, wariness, and ability of the latter. The royal commissioners were allowed to gain no advantage in the encoun- ter, but were drawn into false positions and exposed attitudes by the expert fencing of their adversary, until they were utterly discomfited and disarmed. The whole affair, as we read its particulars, becomes absolutely amusing, from the superior wis- dom and adroitness of the Court. Every attempt to bring the administration here under the control of the mother country, ended in equally humiliating failure.
It cannot, indeed, be doubted, that, if matters had come to extremities at any time, even at the earliest period, when the population scarcely reached up into the thousands, they would have resisted in arms any hostile force that should have ventured to land on their shores, from whatever quarter it might come ; relying on the justness of their cause, and the Divine aid, on which they cast themselves with prayer and faith, as no other people ever did. Winthrop informs us, that in January, 1635, in the prevalence of an apprehension that a General Governor was about to be sent over from England, the Court asked the minis- ters, convened on the occasion, what ought to be done in that event? and they replied, with one voice, that he ought not to be
Je
P
22
RECORDS OF MASSACHUSETTS
received. The fort at Castle Island was immediately built, and a large commission appointed, consisting of the principal inhabi- tants, of which Winthrop was at the head, for " military affairs," to organize and arm the whole strength of the country for either " offensive or defensive war." The idea was familiarly expressed by all, that they would no sooner relinquish their rights under the charter than their estates, that they would fight for both; and, if driven from their houses and lands on the seashore, they would withdraw deeper and deeper into the forests, carrying their charter, the ark of their covenant, with them. And finally, when James II. abrogated the charter and took ruthless possession of the country, with a design, as the colonial statesmen believed, in pursuance of a secret treaty, to cede it to France, the people of Boston and the vicinity rose in their wrath. Sir Edmund Andros found himself, the next morning, in the lock-up at Fort Hill. He was removed for safer keeping to Castle Island, which, by holding as a prisoner the deposed royal governor, fairly won a right to the title, subsequently given it, of Fort Independence. Finally, he was shipped back to England. In the mean time, old Simon Bradstreet, in his eighty-seventh year, who, fifty-nine years before came over with Winthrop, and was the first secretary and the last governor under the First Charter in Massachusetts, was recalled to his place by an insurgent people, and for three more years affairs were administered as in the days of the old charter. 'The bold procedure was acquiesced in at home and abroad, no one was called to account for it, and Andros got no redress. The First Charter history of Massachusetts thus closed in glory.
'The study of these records will help us avoid errors into which the Fathers of Massachusetts were led. A large department of their legislation, that embracing sumptuary laws and police regulations, is now considered as passing beyond the bounda- ries of the legitimate power of government, and trenching upon the rights of private life, and the domain of personal freedom. The severities of their penal code are condemned by the sen- timents of a more enlightened age; but, in reference to this point, allowance must be made for their circumstances. In the prevention and punishment of crime, they had not what we possess in philanthropic, reformatory, and penitentiary estab- lishments.
23
UNDER ITS FIRST CHARTER. .
In initiating and organizing a government, errors were com- mitted, but they were readily rectified when discovered. In 1636 and 1637, the General Court was led into a measure sin- gularly in conflict with its usual policy and the spirit of the people : a council for life was established, and Winthrop, Dudley, and Endicott elected to it. The prevalence of sounder views prevented any further proceedings, and the plan was dropped.
There is one branch of their administration exposed especially to stricture, and universally condemned, at the present day, which must not be overlooked; for their views and designs in relation to it are proved to have been fallacious and impracti- cable. They came here with a purpose most dear to their hearts, of establishing and enjoying a system of society and government in which all would be of one mind, in the reception of a particular theological creed and ecclesiastical order. This did not, in their view, involve any violation of the rights of con- science. The New World, as they reasoned, could accommodate persons of all persuasions. They had purchased and planted their territory, and cherished the hope of enjoying it in peace and unity. This idea had captivated their imaginations. The agitations and dissensions arising from conflicting religious theories were distasteful to their feelings. They had left the Old World to get rid of them, and thought it no wrong to ask those who desired to establish and propagate opinions in conflict with theirs, as there was room enough for all, to go elsewhere. To preserve peace, tranquillity, and order, they undertook to keep out Anabaptists, Antinomians, and Quakers. It was an error to expect to succeed in such a policy, and the attempt involved them in the follies and mischiefs of intolerance and persecution. As followers of the divine Word, and disciples of the Great Teacher, they ought to have known better. Tares will spring up with the wheat. LET THEM BOTH GROW TOGETHER UNTIL THE HARVEST. The Lord of the harvest, and he alone, has the right or the power to separate them. In this, then, - it cannot too emphatically be affirmed, - the founders of Massachusetts were in the wrong, and their example is to be held up as a warning. For having pursued the opposite policy, in opening a shelter for all sorts of opinions, and patiently enduring the
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.