USA > Massachusetts > Essex County > Salem > Sketches about Salem people > Part 5
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LOCAL GOVERNMENT UNDER THE FIRST CHARTER.
BY HARRISON MERRILL DAVIS.
A free government, as commonly understood, is one in which the people make the laws through their elected representatives.
The government of Massachusetts under the first char- ter was not a free government. To call it a theocratic oligarchy, on the other hand, is not to describe it with accuracy, but to give it a bad name.
It is true that the Freemen re-elected from year to year practically the same group of leaders to be their Magis- trates, that is, the Governor, Deputy Governor, and Assis- tants, but those leaders were kept in office solely because of the personal influence which their acknowledged char- acter, orthodoxy, and ability secured to them.
The influence of the ministers was entirely unofficial : they had no political functions by law, but gave their advice when requested by the magistrates. Sometimes they did not wait to be consulted.
The government of Massachusetts by the chartered Company was very much like the government of a popu- lous borough in England by its Mayor and Aldermen, or similar officials, chosen not by the inhabitants at large, but by some comparatively small and select body of bur- gesses or freemen incorporated by royal charter. In all such cases the corporation was not composed of all the inhabitants, but only of the larger or smaller group to which the charter had given the franchise of acting as a body corporate.
The first government organized in Massachusetts, which
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LOCAL GOVERNMENT UNDER THE FIRST CHARTER
derived its authority from the charter granted by King Charles the First in March, 1628, to Sir Henry Roswell and his associates, was that of Endecott at Salem. Be- ginning at the time when he received from England one of the duplicate originals of the Charter together with notice of his appointment as Governor of the Company's plantation, his administration continued until the coming of Winthrop in the summer of 1630. With the advent of the Governor of the Massachusetts Bay Company in per- son accompanied by some of the Assistants, and bringing with him the other copy of the Charter, all in accordance with the vote of the Freemen in General Court assembled, the transfer of the corporation to the place of its intended operations was accomplished. The original plan of ruling the colony from England through a local governor and council subordinate to the corporation, which should re- main domiciled in the mother country, was thus super- seded.
Whether or not the leaders from the first contemplated such a removal as possible or probable, it does not appear to have been either illegal or surreptitious. The charter does not specify that the corporate meetings and elections must be held in England, and the Crown lawyers many years afterwards construed the charter as having created a corporation "upon the place," that is to say, as one empowered to have its corporate home and perform its corporate acts in the territory over-seas which it had been chartered to colonize and rule.
The removal to Massachusetts was proposed by the Governor of the Company, Mathew Cradock, but I have not seen it stated whether or not the idea originated with him. A number of wealthy and influential members of the corporation had agreed to go as settlers to the new colony provided the whole organization should first by "order of Court" be permanently removed thither. The words "by order of court" do not refer, as some writers have assumed, to legal proceedings, but to a proper order, vote, or resolution of the Company's own court, which was a meeting of the members or Freemen, as they were called, duly assembled in General Court.
Opposition to the removal of the corporation to Massa-
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BY HARRISON MERRILL DAVIS
chusetts and to the holding of future elections and meet- ings across the ocean might have been expected to come, not from the authorities, but from the Freemen of the Company, most of whom did not intend to become settlers, and many of whom had also invested their money in the enterprise. As a practical matter those who remained at home would not be able to attend future meetings of the General Court, nor vote, or be elected to office. It speaks well for their loyalty to the ideals and purposes of the leaders of the movement, and for their confidence in the ability and integrity of the few who were going to emigrate, that this radical departure met with general approval.
The number of the Freemen of the Company prior to the removal was a little over one hundred, and of these not over a dozen came to Massachusetts, so that at the first meetings of the General Court on this side of of the ocean, the Governor, Deputy Governor, and Assistants included nearly all the Freemen who were able to be present at a General Court.
The admission of over one hundred new Freemen, which took place within a year after the coming of Win- throp, was perhaps not intended solely as a concession to the demands of the settlers; for as soon as it became evident that the colony would be composed of numerous small settlements or plantations widely scattered in a wilderness destitute of roads and bridges, those few men who were not only the governing body but were at the same time nearly all who could assemble as the General Court of the Company, must have felt the necessity for so enlarging the number of Freemen that there would be a group of them residing in each community to represent the corporation and to organize and administer local gov- ernment.
The support of the ministry, the building and mainte- nance of meeting houses, roads and other common and public utilities, the keeping of the peace, the relief of the poor, the suppression of nuisances, the assessment of taxes for these local purposes, and the general oversight of the manners and morals of the people, could not pru- dently be left to the initiative and control of outsiders;
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LOCAL GOVERNMENT UNDER THE FIRST CHARTER
nor could they be conveniently administered by the Gen- eral Court and the executive officers of the Company charged with the concerns of the colony as a whole.
The theory that the first settlements, of their own initiative, organized town governments of a popular char- acter for the purpose of administering their local affairs, and that this development was at first tolerated and after- wards accepted by the authorities of the Colony, seems to me untenable. On the contrary, the General Court and the Assistants from the first treated the separate planta- tions as convenient administrative units, like the town- ships and parishes of England, on which to impose the obligation of providing for the local needs of the little communities, under the control of those of the inhabitants who were Freemen of the Company.
The Massachusetts Bay Company was a chartered cor- poration, the members of which, called the Freemen, had the sole and exclusive right to prescribe the qualifications of new members and the terms of admission to the Free- dom of the Company. It has been called a mere trading company, and the corporate proceedings have been de- scribed as an attempt to wrest the charter from its orig- inal purpose and make it serve as the written constitution of a commonwealth. This view does not seem to me to be in accord with the facts or with seventeenth century political ideas. That the corporation was not a trading company is clear to anyone who takes the trouble to read the Charter through. Its purpose was to found a colony of Englishmen in the overseas dominions of the Crown. The only reference to trading that I can remember is the exemption from taxation for a period of years of goods imported from England or exported to England.
The corporation was made in effect the Lord Proprietor of its domain, with power to govern all subjects of the King and all other persons willing to bear allegiance to the King, whom the Company might invite or permit to settle within its jurisdiction. The organization of the corporation itself was prescribed in the charter. It was to have a Governor, a Deputy Governor, and a Council of eighteen Assistants, all elected by the Freemen of the Company annually at a meeting of the General Court.
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BY HARRISON MERRILL DAVIS
But nothing was prescribed as to the form of govern- ment to be established by the Company for the inhabitants of its territory. The Company was left free to make such laws and to create such administrative and executive agencies as it saw fit, subject only to the limitations that the colonists were to have the civil rights of the King's subjects and that the laws must not be repugnant to the laws of England.
Charles was not a friend of the Puritans, and some writers have marvelled that he should have granted such powers to members of a despised denomination. It may have been that his advisers, because of the financial re- sources and respectable character of the promoters of the enterprise, welcomed this opportunity to make certain the colonization of New England by subjects of the King, as a bulwark against attempted colonization by other powers. That would have been a statesmanlike motive. It is quite probable also that the King was moved in part at least by financial reasons, and that he received a consideration from the promoters in coin of the realm. The Stuart kings, in their constant search for sources of revenue, made much use and abuse of the royal preroga- tive, and were constantly revoking and re-issuing charters of boroughs and cities, and granting new ones, generally for some consideration other than the King's "free grace and mere motion."
The idea of a written constitution, adopted by the people and deriving its force and validity from the con- sent of the governed, did not become general until long after the close of the seventeenth century. During the fifty odd years when Massachusetts was ruled by this chartered corporation, Englishmen were not free citizens but subjects of the King, and their civil rights and liber- ties were regarded either as founded on the custom and tradition of the common law or as derived from privileges and franchises expressly granted by the sovereign in Magna Charta or in some later charter.
The General Court of the Massachusetts Bay Company was from first to last an assembly of the Freemen or members of the corporation as provided in the charter. As the population increased and the towns grew more
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LOCAL GOVERNMENT UNDER THE FIRST CHARTER
numerous, more Freemen were admitted. It is said that record has been found of the names of about 2,500 Free- men in all, but of course by reason of deaths and of the many persons who went back to England or removed to other colonies, there were never as many as 2,500 Free- men at any one time, probably not as many as 2,000, even during the last years of the Company. It is estimated that the Freemen never exceeded one-fifth of the total number of adult men in the colony.
This appears to us like an unfair limitation of the franchise, especially as none but church-members were eligible as Freemen. But it probably did not seem strange or oppressive to the people of the colony, although here and there some individual may have objected to the re- quirement of church-membership as a qualification. It must be remembered that even church members had no right to demand admission as Freemen, and without doubt, almost any man of whom any considerable number of Freemen approved as a candidate for admission to their body, would be found to be a church member or able to become one. In the City of London, no one was qualified for admission as a Freeman who had not first been admitted a Freeman of one of the great London Companies. When we consider the kind of a common- wealth that the Puritans planned to establish in Massa- chusetts, it was obviously wise to restrict the Freedom of the Company to persons like-minded with the original associates. This policy evidently commended itself not only to the Assistants and the ministers, but also to the Freemen at large, for it could have been abandoned at any time by action of the General Court. And the policy cannot have been unpopular among the inhabitants who were not Freemen, for any serious discontent on the part of their neighbors, in the little towns where they lived, would have put such pressure upon the Freemen that they would not have been able to resist making a change.
It was soon found inconvenient for all the Freemen to leave their homes and assemble in General Court, and it was made lawful for the Freemen of every plantation to choose deputies to attend the General Court, with au- thority to deal on their behalf in the public affairs of the
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BY HARRISON MERRILL DAVIS
Commonwealth wherein the Freemen had to do; the mat- ter of election of Magistrates and other officers only ex- cepted, wherein every Freeman was to give his own voice. And the number of deputies was afterwards limited by the following provision :
"Forasmuch, as through the blessing of God, the num- ber of Towns are much increased, It is therefore ordered and by this Court enacted, That henceforth no town shall send more than two Deputies to the General Court, though the number of Freemen in any town be more than twenty. And that all towns which have not to the num- ber of twenty Freemen shall send but one Deputy, & such towns as have not ten Freemen shall send none, but such Freemen shall vote with the next town in the choice of their Deputie or Deputies til this Court take further order."
The deputies were not chosen by the inhabitants of the town but by the Freemen who resided therein. The town was not considered as a body politic, and as such entitled to representation; it was the Freemen who lived in the town who were entitled under the Charter to their voice in the General Court and who were permitted to be rep- resented by their deputies. This is confirmed by the fact that no deputy went to the General Court from any town where less than ten Freemen resided, but the Freemen in such a town joined with the Freemen of the adjoining town in choosing a deputy or deputies. Further confir- mation is found in the fact that the number of deputies was not fixed in proportion to the number of the inhabi- tants of the town, but in proportion to the number of Freemen who happened to live there. Also the Freemen of any town were permitted to choose as their deputy any Freeman of the Company, residing in any part of the colony.
From 1630 to 1642 was the period when many new settlers were coming to the colony, and they very often came in groups or companies under the leadership of a minister. The General Court was kept busy locating new settlements, granting lands and fixing the boundaries of the new townships. They did not think of the towns as municipal corporations. The only municipal corporations that they knew anything about were the English boroughs,
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LOCAL GOVERNMENT UNDER THE FIRST CHARTER
which under charters from the Crown, or in some cases by immemorial prescription, had a form of local govern- ment free from the control of the County Justices of the Peace and other officials who administered local govern- ment throughout England, outside of these privileged areas. They had all come from one or the other of the thousands of parishes into which England was divided, and they were familiar with the civil and religious func- tions of the usual parish officers, the Churchwardens, the Overseers of the Poor, the Surveyors of Highways, and the Constables. Neither the parishes of England, nor the townships, into which some of the larger parishes were sub-divided, had been created by Act of Parliament or by royal charter. Their boundaries, their obligations, and the powers and duties of their officials, all owed their existence to tradition and immemorial custom, except as Parliament had from time to time imposed new obliga- tions. Therefore the General Court, in dividing the set- tled area of the colony into townships and imposing upon town officers duties like those imposed upon parish officers in England, was not usurping the power to create cor- porations, but was merely adopting a machinery of local administration like that to which all the people had been accustomed in the mother country.
William Pynchon, one of the first group of Assistants or Magistrates, writes to Winthrop, in 1646, recommend- ing that the laws of England be preserved and adhered to "except those that be contrary to God"-"for I remem- ber," he writes, "at our first coming, as soon as ever the people were divided into several plantations, you did presently nominate a constable for each plantation as the most common officer of the King's peace, and gave them their oath in true substance as the Constables take it in England; likewise all controversies about meum and tuum were tried by juries after the manner of England, and after a while grand juries were appointed for further inquiry into such matter as might tend to the King's peace."
The power of legislating for the colony was vested by the Charter in the Freemen of the Company assembled in General Court, who made laws binding not only upon themselves but also upon all the inhabitants subject to
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BY HARRISON MERRILL DAVIS
the Company's jurisdiction. The power of taxation was plainly implied. The corporation could not govern a growing commonwealth with no financial resources other than income from its commercial activities and assess- ments laid upon its own members. As the source of title to the lands which it granted to towns, groups of pro- prietors, and individuals, the Company might have made its grants conditional upon the payment of graduated an- nual rentals. To levy taxes, for building forts and for other public purposes, and to apportion the same among the several towns, was a necessary exercise of the powers of government vested in the Company, and a much less vexatious method of raising a revenue than perpetual land rents.
A collection of laws was printed at Cambridge in 1648, which may properly be deemed the first of the series of Revised Statutes of Massachusetts. It was not a new body of laws, but a compilation, with additions and re- visions, of the laws and orders of a general nature which had been previously enacted by the General Court. This volume is entitled "The Book of the General Laws and Liberties concerning the Inhabitants of Massachusetts," published by the General Court at Boston on the 14th of the first month Anno 1647, printed at Cambridge 1648, "to be solde at the shop of Hezekiah Usher in Bos- ton." Apparently the Treasurer of the Company at the request of the General Court, underwrote the cost of the books, for he petitioned the General Court for re- imbursement, explaining that certain corrections and changes made by the General Court subsequent to the official date of publication in 1647 had been overlooked when the books were printed the following year, so that the edition was unsaleable and many of the books de- stroyed. The Treasurer was awarded twenty pounds to make good his loss. This incident may explain the fact that until quite recently not a single copy was known to be in existence. The copy now in the Huntington Li- brary in California came to light in England at the sale of a private library. In the vigorous language of the late Nathan Matthews: "That copy was bought by a London bookseller and sold to one of those despicable book collec-
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LOCAL GOVERNMENT UNDER THE FIRST CHARTER
tors whose sole objective is to spend their money in buying books and then hiding them, with the idea that when they die and their collection is sold they will bring a great price and incidentally bring great posthumous repute to them." Mr. Matthews explained however that he did not include Mr. Huntington in his strictures, as he was not at all that type of collector.
The vital principle of the Puritan political philosophy is expressed in the quotation from Scripture which ap- pears on the title page of this book of the Laws of 1648:
"Whosoever therefore resisteth the power, resisteth the ordinance of God, and they that resist receive to them- selves damnation."-Romanes 13: 2.
There is an introduction addressed to the Inhabitants of Massachusetts, in which the official theories as to Church and State and as to the status of the non-freemen find expression in passages like the following :
"This hath been no small priviledge and advantage to us in New England that our Churches and civil State have been planted and growne up (like two twinnes) together like that of Israel in the wilderness by which wee were put in minde (and had opportunitie put into our hands) not only to gather our Churches and set up the Ordinances of Christ Jesus in them according to the Apostolick patterne by such light as the Lord graciously afforded us: but also withall to frame our civil Politie and lawes according to the rules of his most holy word whereby each do help and strengthen other (the Churches the civil Authoritie, and the civil Authoritie the Churches) and so both prosper the better without such aemulation and contention for priviledges or prior- ity as have proved the misery (if not ruine) of both in some other places.
"You have called us from amongst the rest of our Bretheren and given us power to make these lawes: we must now call upon you to see them executed: remem- bring that old & true proverb, The execution of the law is the life of the law. If one sort of you viz: non-Free- men should object that you had no hand in calling us to this worke, and therefore think yourselves not bound to obedience &c. Wee answer that a subsequent or
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BY HARRISON MERRILL DAVIS
implicit consent is of like force in this case as an expresse precedent power : for in putting your persons and estates into the protection and way of subsistence held forth and exercised within this Jurisdiction, you doe tacitly sub- mit to this Government and to all the wholesome lawes. thereof, and so is the common repute in all nations and that upon this Maxim, Qui sentit commodum sentire debet et opus."
That they did not intend ever to condone disobedience to the "civil Authoritie" on the plea of the "higher law," they gave full warning in the following language: "That distinction which is put between the Lawes of God and the lawes of men becomes a snare to many as it is mis- applyed in the ordering of their obedience to civil Author- itie; for when the Authoritie is of God and that in way of an Ordinance Rom. 13.1. and when the administration of it is according to deductions and rules gathered from the word of God and the clear light of nature in civil nations, surely there is no humane law that tendeth to common good (according to those principles) but the same is mediately a law of God, and that in way of an Ordinance which all are to submit unto and that for conscience sake. Rom. 13.5."
Thus is proclaimed the Divine Right of the civil Au- thoritie, to wit: the Great and General Court of the Mas- sachusetts Bay Company; and that this Authoritie was "of God," and was exercised for the common good in accordance with the word of God and the law of Nature, admitted for them of no doubt or denial.
The introduction, in one paragraph, refers to the time spent by the General Court in making laws and repeal- ing and altering them so often, and quotes in excuse the saying of the Civilian (sic), "Crescit in orbe dolus."
There are many provisions in the Laws of 1648 relating- to towns and the duties of town officers. These pro- visions and those defining the jurisdiction of the Assis- tants as Magistrates, give the outlines of the system of local government under the Charter after it had become fully organized. The later revisions of 1660 and 1672 made few changes.
As three-quarters or more of the grown men of the
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LOCAL GOVERNMENT UNDER THE FIRST CHARTER
colony were not Freemen, it is interesting to observe what share, if any, the non-Freemen were entitled to take in the local affairs of their towns.
First, the General Court had ordered, decreed and declared: "That everie man, whether Inhabitant or For- reiner, Free or not Free shall have libertie to come to any publick Court, Counsell, or Town-meeting; and either by speech or writing to move any lawfull, seasonable or material question; or to present any necessarie motion, complaint, petition, bill or information whereof that Meeting hath proper cognisance, so it be done in conven- ient time, due order and respective manner."
Jurymen were chosen by the Freemen only, at meet- ings warned by the town constable pursuant to process from the Recorder of the Court. But the Freemen could choose as jurymen persons who were not Freemen, as appears by the following order of the General Court:
"This Court taking into consideration the useful Parts and abilities of divers Inhabitants amongst us which are not Freemen, which if improved to public use, the affairs of this Common-wealth may be the easier caried an end (sic) in the severall Towns of this Jurisdiction, doth order and hereby declare; That henceforth it shall and may be lawfull for the Freemen within any of the said Towns to make choice of such Inhabitants (though non- Freemen) who have taken, or shall take the Oath of fidelitie to this Government to be Jurie-men, and to have their Vote in the choice of the Select-men for the town Affairs, Assessments of Rates and other Prudentials proper to the Select-men of the several Towns. Provided still that the major part of all companyes of Select-men be Free-men from time to time that shall make any valid Act. As also, where no Select-men are, to have their Vote in ordering of Schools, hearding of cattle, lay- ing out of High-wayes and distributing of Lands; any Law, Use or Custom to the contrary notwithstanding. Provided also that no non-Freeman shall have his Vote untill he have attained the age of twenty one years."
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