USA > Massachusetts > Suffolk County > Boston > The memorial history of Boston : including Suffolk County, Massachusetts, 1630-1880. Vol. I > Part 45
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Attorney-General. He must have been con- sulted, with his colleague the Solicitor-General, when the application for the charter was before the Privy Council, and was also officially con- cerned in drawing up the King's bill.
4 The Writ of Privy Seal (Bundle 281, part 71) thus concludes : "Given under our Privy Seale at our Pallace of Westminster, the eight and twentieth day of Februarie in the fourth year of our Reigne." " Recepi, 4 Martii 1628."
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THE CHARTER OF KING CHARLES THE FIRST.
to erect juridicatories, or courts for the probate of wills, or with admiralty jurisdiction, nor to constitute a house of deputies, nor to impose taxes on the inhabitants, nor to incorporate towns, colleges, or schools, - all which powers had been exercised, together with the power of inflicting capital punishment. Most, if not all, of the powers here exercised were necessary to the government of a colony remote from the mother country; and if the charter was issued for this purpose, as the colonists constantly claimed, they might well find a warrant for their exercise in the general provision authorizing them "to ordain and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instruc- tions, not contrary to the laws of this our realm of England, as well for the settling of the forms and ceremonies of government and magistracy fit and necessary for the said plantation and the inhabitants there," &c.
The charter of Connecticut, granted at the Restoration, - the corporate powers of which were avowedly to be executed on the soil, - authorized a house of deputies and the erection of courts of judicature, but was silent as to many other specified powers, which were nevertheless exercised in common with Massachusetts.
The coining of money by the Massachusetts Colony may well be re- garded as the exercise of a prerogative not conferred by their charter; and some of their legislation was probably against the Navigation laws of the realm.
The primary cause of the dissensions between England and her Ameri- can colonies, during the whole period of the existence of those relations, was the absence of any clear distinction between her imperial and their municipal rights. "Their early charters, faulty in many respects, were especially so in this particular, - that they left a wide and debatable ground between the local and imperial functions. Upon this ground, alternate inroads on either side produced irritation ; and a sort of border warfare was kept up, which naturally ended by bringing into collision the aggregate forces of each people, and involving them at length in implacable war." 1
The right to grant such a charter as this was regarded as one of the pre- rogatives of the Crown. "The title to unoccupied lands belonging to Great Britain, whether acquired by conquest or discovery, was vested in the Crown. The right to grant corporate franchises was one of the prerogatives of the King; and the right to institute and to provide for the institution of colo- nial governments . . was likewise one of the prerogatives. Parliament had then nothing to do with the organization or government of colonies." 2
The sovereigns of Europe assumed, in violation of natural rights, a claim of possession to all foreign lands discovered by their subjects, and not occu- pied by any Christian people. Agreeably to this rule, the kings of Eng- land assumed to grant patents for discovery, - of which the earliest relating
1 See Samuel Lucas's Introduction to Char- 2 Prof. Joel Parker, Lecture at the Lowell ters of the old English Colonies in America, &c., Institute, on "The First Charter," &c., 1869, p. 8. London, 1850, pp. 13, 14.
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to America, that to John Cabot and his sons, is an interesting example, - and to claim exclusive property in and jurisdiction over such lands, to the exclusion of the jurisdiction of the State. They called them their foreign dominions, their demesne lands in partibus exteris, and held them as their own. These were the king's possessions, not parts or parcels of the realm. So, when the House of Commons, in 1621, made repeated attempts to pass a law for establishing a free right of fishing on the coasts of Virginia, New England, and Newfoundland, and claimed the jurisdiction of Parlia- ment over those countries, they were told by the servants of the Crown " that it was not fit to make laws here for those countries which are not yet annexed to the Crown." "That this bill was not proper for this House, as it concerneth America." Indeed, it was doubted " whether the House had jurisdiction to meddle with these matters." A petition to the House, three years later, to take cognizance of the affairs of plantations, was, " by general resolution, withdrawn." The King considered these lands his demesnes, and the colonists to whom he granted them as his subjects in these his for- eign dominions, - not his subjects of the realm or State.1
" The confirmation, therefore, in the charter of the grant of the lands from the Council of Plymouth (which derived title from the grant of James I., and which could grant the lands, but could not grant nor assign powers of government), with a new grant in form of the same lands, gave to the grantees a title in socage, - substantially a fee-simple, except that there was to be a rendition of one-fifth of the gold and silver ores. The grant of corporate powers, in the usual form of grants to private corporations, conferred upon them all the ordinary rights of a private corporation, under which they could dispose of their lands and transact all business in which the Company had a private interest. And the grant of any powers of colonial government, embraced in the charter, was valid and effective to the extent of the powers which were granted, whatever those powers might be, - the whole, as against the corporation, being subject to forfeiturc for sufficient cause." 2
"'The grant and confirmation of the lands, and the grant of mere corporate pow- ers for private purposes, were private rights which vested in the grantees, and which the King could not divest, except upon some forfeiture regularly enforced. Upon such forfeiture the corporation would be dissolved, and all of the lands belonging to it woukl revert in the nature of an escheat. But this would not affect valid grants previously made by it.
" The grant of power to institute a colonial government, being a grant not for pri- vate but for public purposes, may have a different consideration. Whether, by reason of its connection with the grant of the lands and of ordinary corporate powers, it par- took so far of the nature of a private right that it could not be altered, modified, or revoked, except on forfeiture enforced by process, or whether this part of the grant had such a public character that the powers of government were held subject to alteration and amendment, is hardly open to discussion. At the present day it is
1 Pownall, Administration of the British Colonies, 5th ed., i. 47-50. 2 Prof. Parker, as above, p. 9.
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THIE CHARTER OF KING CHARLES THE FIRST.
held that municipal corporations, being for public uses and purposes, have no vested private rights in the powers and privileges granted to them, but that they may be changed at the pleasure of the government. That principle seems to be equally appli- cable to a grant of colonial powers of government ; and the better opinion would seem to be, that it was within the legitimate prerogative of the King at that day to modify and even to revoke the powers of that character which had been granted by the Crown, substituting others appropriate for the purpose.
" If the King had assumed to revoke the powers of government granted by the charter, without substitution, or if he had imposed any other form of government, by which the essential features of that which was constituted under the charter would have been abrogated, it might have been an arbitrary exercise of power, justifying any revolutionary resistance which the Colony could have made. But the Crown, under the then-existing laws of England, must have possessed legally such power over the Colony as the legislature may exercise over municipal corporations at the present day. The charter, so far as the powers of government were concerned, could not be treated as a private contract." 1
The transfer of the charter and government from London to Massa- chusetts Bay, previously agreed upon by a majority vote of the Company, was practically effected when Governor Winthrop sailed in 1630, with his fleet of fifteen ships, and nearly fifteen hundred passengers; and on his arrival the subordinate government was abolished .? "The boldness of the step," says Judge Story, " is not more striking than the silent acquiescence of the King in permitting it to take place."3
The foundations of the government in the Colony had been laid by Endicott, to whom a duplicate of the charter, and a seal, of the Colony had been sent, but of whose brief administration no records exist.+ The new order of things, under the Company's change of base, was silently, almost imperceptibly, inaugurated. The records of the Colony begin with the meeting of " the first court of Assistants holden at Charlton,5 August 23d, Anno Dom. 1630," - Winthrop having arrived at Salem June 12 preceding, had now taken up his residence at Charlestown. '
The accessions to the colony in 1631 were but few, but in the two following years they were more numerous ; and in 1633 a welcome addition
1 Professor Parker, as above, pp. 9, 10.
2 A board of trade, or joint-stock company, was to be kept up in London consisting of five persons who were to remain in England, and five who were expected to emigrate. It was a voluntary association, consisting of adventurers, who contributed to a fund for aiding the colony, expecting to be remunerated, and at the end of seven years a division to be made. The scheme seems to have come to naught. If not dissolved before, the quo warranto of 1635 may have had its influence in dissolving the association.
3 Commentaries on the Constitution, Book i. chap. iv. sec. 66.
4 Endicott, who had been sent over originally as agent of the patentees, was subsequently
confirmed in that position, with the additional authority of Governor of "London's Plantation in Massachusetts Bay in New England," - a sub- ordinate local government, established by the corporation in London agreeably to the provis- ions of the Charter, and apparently intended as a permanent municipal establishment. On the arrival of Winthrop, and the transfer of the com- pany to Massachusetts, the subordinate govern- ment was abolished, and its duties were assumed by its principal, the corporation itself, which took immediate direction of affairs. As the successor of Cradock, Winthrop was the second Governor of the Massachusetts Company, yet he was the first who exercised his functions in New England.
5 Charlestown was early so called.
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THE MEMORIAL HHISTORY OF BOSTON.
was made by the arrival of a number of eminent clergymen and laymen, some of whom had with difficulty succeeded in escaping the surveillance of the High Commission Court.
A few individuals found here by Governor Winthrop and his company, whose presence in the colony was unwelcome, were speedily sent away. Among these were Christopher Gardiner and Thomas Morton, who, arriving in England, failed not to make representations injurious to the Puritan settlement; and they were backed by the great interest of Sir Ferdinando Gorges and of John Mason. These representations had not been without effect, and well-founded apprehensions were now felt of annoyance from the home government.
These persons actually prevailed to have their complaints entertained by the Privy Council, whose records show that, on the 19th of December, 1632, " several petitions " were " offered by some planters of New England, and a written declaration by Sir Christopher Gardiner, Knt.," when, " upon long debate of the whole carriage of the plantations of that country," twelve lords were directed to " examine how the patents for the said plantations have been granted and how carried," and to "make report thereof to this Board ... for which purpose they are to call before them such of the patentees and such of the complainants and their witnesses, or any other persons, as they shall think fit." 1
Winthrop, under date of February following, notices these complaints, having intelligence thereof from his friends in England, namely, "that Sir Ferdinando Gorges and Captain Mason (upon the instigation of Sir Chris- topher Gardiner, Morton, and Rateliff) had preferred a petition to the Lords of the Privy Council against us, charging us with many false accusations ; but through the Lord's good providence; and the care of our friends in England (especially Mr. Emanuel Downing,2 who had married the Gov-
1 Citations in Palfrey, i. 365, 366. The Rec- ords of the Council for New England show that, before this date, the Massachusetts pa- tentees had had some grievances to allege against the Council. On the 26th June, 1632, Mr. Humfrey, one of the original patentees, complained to the President and Council for not permitting ships and passengers to pass hence for the Bay of Massachusetts without license first had from the President and Coun- cil, or their Deputy, they being free to go thither and to transport passengers, not only by a pa- tent from said Council, but by a confirmation thercof from his Majesty. Hereupon some of the Council desired to see the patent obtained from the Council, because, as they alleged, "it preindicted former grants." Mr. Humfrey an- swered that the patent was in New England, that they had often written for it to be sent hither, but had not as yet received it. It seems to us strange that no record of the grant to the Massachusetts patentees of 19th March, 1627-28,
was accessible among the archives of the Coun- cil for New England if an inspection of it was all that was wanted. No copy of it now exists. It is cited in the royal charter of 4th March. 1628-29. Mr. IIumfrey was requested to appear at the next meeting of the Council for New Eng- land, and to bring Mr. Cradock with him. Two days afterwards they appeared, and Mr. Ilum- frey was reproved "for charging Sir F. Gorges falsely" at the last meeting, of writing him- self the Lord Treasurer's letters to the officers of customs, for not suffering any ships to pass for New England without license first obtained from the President and Council for New England. Am. Antiq. Soc. Proceedings, April, 1867, pp. 59, 61. 2 " A circumstantial account," says Hutch- inson, ii. 2, "of an attempt to vacate it [the charterf, the second year after their removal, we have in a letter to the Governor from Eman- uel Downing, father of Sir George Downing." " I intended to have printed it, but it was un- fortunately destroyed."
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THE CHARTER OF KING CHARLES THE FIRST.
ernor's sister), and the good testimony given on our behalf by one Captain Wiggin, who dwelt at Pascataquack, and had been divers times among us, their malicious practice took not effect."
When Winthrop made this entry in his journal, he had not heard of the report of the committee of the Lords made at a meeting of the Privy Coun- cil January 19th preceding. It was to this effect: The complaints against the Colony were dismissed for the reasons alleged in the order adopted by the Council, -
" Most of the things informed being denied, and rested to be proved by parties that must be called from that place, which required a long expense of time ; and at the present their Lordships finding that the adventurers were upon the despatch of men, vietuals, and merchandises for that place, all which would be at a stand if the adventurers should have discouragement or take suspicion that the State here had no good opinion of that Plantation ; their Lordships, not laying the faults or fancies (if any be), of some particular men upon the general government, or principal adven- turers (which in due time is to be inquired into), have thought fit, in the mean time, to declare that the appearances were so fair and the hopes so great, that the country would prove both beneficial to this kingdom and profitable to the particular adventurers, as that the adventurers had good cause to go on cheerfully with their undertakings, and rest assured, that if things were carried as was pretended when the patents were granted, and accordingly as by the patents is appointed, his Majesty would not only maintain the liberties and privileges heretofore granted, but supply anything further that might tend to the good government of the place and prosperity and comfort to his people there." I
This result of the petition of the enemies of the Colony was received by Winthrop some time in May, 1633, and he makes this record concerning it : -
" The petition was of many sheets of paper, and contained many false accusations (and among some truths misrepeated) accusing us to intend rebellion, to have cast off our allegiance, and to be wholly separate from the Church and laws of England ; that our ministers and people did continually rail against the State, Church, and bishops there, &c. ; upon which such of our Company as were then in England, viz. Sir Richard Saltonstall, Mr. Humfrey, and Mr. Cradock, were called before a Com- mittee of the Council, to whom they delivered in an answer in writing ; upon reading whereof it pleased the Lord, our gracious God and Protector, so to work with the Lords, and after with the King's Majesty, when the whole matter was reported to him by Sir Thomas Jermin, one of the Council . . . that he said he would have them severely punished, who did abuse his governor and the Plantation ; that the defend- ants were dismissed with a favorable order for their encouragement, being assured from some of the Council that his Majesty did not intend to impose the ceremonies of the Church of England upon us ; for that it was considered that it was the free- dom from such things that made people come over to us; and it was credibly informed to the Council that this country would, in time, be very beneficial to England for masts, cordage, &c., if the Sound should be debarred." 2
Governor Winthrop's exultation on the receipt of this favorable intel- ligence was not concealed. He addressed a letter to his friend, Governor
1 Orders in Council, Jan. 19, 1632-33. 2 New England, i. 102, 103.
VOL. I .- 43.
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THE MEMORIAL IHISTORY OF BOSTON.
Bradford, of the Plymouth Colony, sending him a copy of the record of the Privy Council, and expressing the hope that he would join "in a day of thanksgiving to our merciful God" for so signal a deliverance from their enemies.
But the enemies of the Colony were not to be so easily silenced. The accession of Laud to the Primacy, in 1633, was nearly contemporaneous with the renewal of emigration to New England, and this was the signal for the renewal of complaints at Court against the Massachusetts Company by the disaffected persons, who now secured a more favorable hearing. " The spirit of the Court," says Dr. Palfrey, "had now reached its height . of arrogance and passion. It was at this time that ship-money was first levied, and the Star Chamber was rioting in the barbarities which were soon to bring an awful retribution. The precedent by which, in disregard of the chartered privileges of the Virginia Company, the government of Virginia had been taken into the King's hands, was urged in relation to the Massachusetts Company." An Order in Council was obtained, under date of 2t February, 1633-34, reciting that, -
" Whereas the Board being given to understand of the frequent transportation of great numbers of his Majesty's subjects out of this kingdom to the plantation called New England, amongst whom divers persons known to be ill-affected and discontented, as well with the civil as ecclesiastical government, are observed to resort thither, whereby such confusion and disorder is already grown there, especially in point of religion, as besides the ruin of the said Plantation, cannot but highly tend to the scandal both of the Church and State here ; and whereas it was informed in par- ticular that there were at this present divers ships now in the river of Thames, ready to set sail thither, freighted with passengers and provision ; it was thought fit and ordered that stay should be forthwith made of the said ships until further order from the Board. And that the several masters and freighters of the same should attend the Board on Wednesday next in the afternoon, with a list of the passengers and provisions in each ship. And that Mr. Cradock, a chief adventurer in that Plantation, now present before the Board, should be required to cause the letters-patents for that Plantation to be brought to the Board."
Chalmers says that Cradock's confession at this time, "that the charter was in the hands of the governor of the colony," discovered " what seems to have been hitherto unknown" to the government.1
In the following week, however (Feb. 28), an order for the relcase of the ships bound for New England was issued, the masters entering into bonds to cause certain rules prescribed to be put into execution, as to the use of the Book of Common Prayer at morning and evening service on board the ships, the requiring the oaths of allegiance and supremacy to be taken by persons to be transported, &c.
" It was therefore, for divers others reasons best known to their Lordships, thought fit, that for this time they should be permitted to proceed on their voyage."
1 Revolt, S.c., i. 49.
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THE CHARTER OF KING CHARLES THE FIRST.
But the progress of arbitrary power in England gave no assurance of peace to the Colony.
"Annoyance from the home government was therefore to be expected hy the colonists. For protection against it they were to look to their charter, as long as the grants in that instrument should continue to be respected. Against internal dis- sensions they had an easy remedy. The freemen of the Massachusetts Company had a right, in equity and in law, to expel from their territory all persons who should give them trouble. In their corporate capacity they were owners of Massa- chusetts in fee, by a title to all intents as good as that by which any freeholder among them had held his English farm. As against all Europeans, whether English or Continental, they owned it by a grant from the Crown of England, to which, by well-settled law, the disposal of it belonged, in consequence of its discovery by an English subject. In respect to any adverse claim on the part of the natives, they had either found the land unoccupied, or had become possessed of it with the consent of its early proprietors. .. . Their charter was their palladium. To lose it would be ruin. Whatever might imperil their possession of it required to be watched by them with the most jealous caution." 1
Mr. Humfrey, who arrived in July of this year, brought news of impend- ing danger ; and in the same month a letter was received from Mr. Cradock, addressed to the Governor and Assistants, sending a copy of the Council's order of the 21st of February, requiring the delivery of the patent. Mr. Cradock, who had " had strict charge to deliver in the patent," desired that it might be sent home. "Upon long consultation," says Winthrop,2 " whether we should return answer or not, we agreed, and returned answer to Mr. Cradock, excusing that it could not be done but by a General Court, which was to be holden in September next." They wrote letters "to mediate their peace," and sent them by Mr. Winslow.
The alarm, however, in the Colony reached its height when intelligence was received of a design to send out a general governor, and of the creation of a special Commission, with Laud, the Archbishop of Canterbury, at its head, to regulate all plantations, with powers to cause all charters, letters- patents, &c., to be brought before then, and if found to " have been preju- diciously suffered or granted . . . to command them, according to the laws and customs of England, to be revoked," &c. A copy of the Commission itself arrived in the Colony in September.3 It bears date April 10, 1634. It had been previously announced by Thomas Morton, in a letter from London, dated May 1, 1634, to his friend Jeffery, an old planter, who deliv- cred it to Governor Winthrop, in the early part of August. Winthrop has preserved this characteristic letter.4 The writer had, or professed to have
1 Palfrey, New England, i. 387, 388.
2 New England, i. 135, 137.
3 This Commission is a document of some length. A copy in Latin is contained in Pow- nall's Administration of the Colonies, 5th ed., ii. 155-163; same in Hazard, Collections, i. 344- 347; in English in Hubbard, New England,
264-268 ; Hutchinson, Mass. Bay, 1. 502-506 (copied from Hubbard) ; Bradford, Plymouth Plantation, pp. 456-460. There would seem to be two English versions of the document. See Bradford, as above, p. 456, uote ; llubbard, p. 698, uote a.
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