USA > Massachusetts > Suffolk County > Boston > The memorial history of Boston : including Suffolk County, Massachusetts, 1630-1880. Vol. I > Part 46
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).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76
4 New England, ii. 190.
3.40
THE MEMORIAL HISTORY OF BOSTON.
had, information concerning the Commission before it was perfected in the public offices in London.
On September 3, the General Court adopted orders for the erection of fortifications on Castle Island in Boston Harbor, and at Charlestown and Dorchester. The captains were authorized "to train unskilful men so often as they pleased, provided they exceeded not three days in a week." Dudley, Winthrop, Haynes, Humfrey, and Endicott were appointed "to consult, direct, and give command for the managing and ordering of any war that might befall for the space of a year next ensuing, and till further order should be taken therein." Arrangements were made for the collec- tion and custody of arms and ammunition.1
During the few following months no alarm came from abroad; but in January, 1634-35, all the ministers, except Mr. Ward newly arrived, met the Governor and Assistants in Boston, to confer on the existing state of affairs. And to the question, " What we ought to do if a general governor should be sent out of England?" "they all agreed that we ought not to accept him, but defend our lawful possessions if we were able; otherwise, to avoid or protract." 2
At the next General Court, in March, the same subject agitated their councils. It was ordered " that the fort at Castle Island, now begun, shall be fully perfected, the ordnances mounted, and every other thing about it finished ; " and the Deputy-Governor was authorized "to press men for that work." It was ordered " that there should be forthwith a beacon set on the centry hill at Boston, to give notice to the country of any danger, . . . and that, upon the discovery of any danger, the beacon should be fired." Musket-balls were made a legal tender at the rate of a farthing a piece, instead of coin, the circulation of which was forbidden. The " Freeman's Oath" was required to be taken by every man "resident within the jurisdiction," and being " of or above the age of sixteen years." A military commission was established, with powers " to dispose of all military affairs whatever;" "to imprison or confine any that they should judge to be enemies to the commonwealth, and such as would not come under com- mand or restraint, as they should be required, it should be lawful for the commissioners to put such persons to death." 3
No other notice was taken by the General Court of the demand for the transmission of the charter than what these proceedings intimate. The troubles which environed the government at home prevented the pursuance of a vigorous and consistent policy against the Colony. But the Lords Commissioners, in December, 1634, sent an order to the Lord Warden of the Cinque Ports and other haven towns, directing that the officers suffer no person, being a subsidy man, to embark thence for any of the planta- tions without license from his Majesty's Commissioners ; nor any person,
1 Palfrey, New England, i. 394, 395, sum- 3 Palfrey, New England, as above, and Mass. mary from Mass. Col. Rec., i. 123-128.
" Winthrop, New England, i. 154.
Col. Rec., i. 135-143.
341
THE CHARTER OF KING CHARLES THE FIRST.
under a subsidy man, without evidence that he had taken the oath of supremacy and allegiance, and that lie conforms to the discipline of the Church of England.1
Other measures were in progress. The great Council for New England . having failed satisfactorily to dispose of or to settle the vast territory granted to them, Nov. 3, 1620, by James I., and having, as Hubbard truly says, "spent much time and cost, and taken a great deal of pains, and perceiving nothing like to come to perfection, and fcaring that they should ere long be forced to resign up their grand charter into the hands of the King, they adventured upon a new project in the latter end of the year 1634, and beginning of the year 1635, which was to have procured a General Governor for the whole country for New England, to be forthwith sent over, and to reduce the whole country into twelve provinces, from St. Croix to the Lord Baltimore's province in Virginia; and because the Massachusetts Patent stood in their way (which province was then well peopled and planted) they endeavored to get that patent revoked, and that all might be reduced to a new form of government, under one general governor."2
This measure was taken by the Council for New England by under- standing or collusion with the Government, and in reference to measures in process for vacating the charter of Massachusetts. In a petition from the Council for New England to the Lords of the Privy Council, they say : " Whereas it pleased your Lordships to give order to Sir Ferdinando Gorges to confer with such as were chicfly interested in the plantations of New England, to resolve whether they would resign wholly to his Majesty the patent of New England," &c .; they agree to resign their charter on the implied condition that the whole territory, divided into twelve provinces by a plan submitted, be confirmed to certain members of the Council, by patents direct from his Majesty. Certain other requests then follow, of which the first is, " That the patent for the Plantation of the Massachusetts Bay may be revoked." 2
The public declaration of reasons for the surrender of the grand patent is entered on the records of the Council for New England, April 25, 1635, and the King's acceptance of the same is also recorded at the same meeting. The formal resignation was effected June 7 following.3
1 IIazard, Collections, i. 347, 348.
: Hubbard, New England, pp. 226-229.
8 In the Council's declaration of reasons for resigning their charter of Nov. 3. 1620, written probably by Sir Ferdinando Gorges, they refer to the troubles they had encountered from the beginning; namely, the opposition of the Vir- ginia Company, which was prosecuted in Parlia- ment, the death of several " of the most noble and principal props " of the Company, and the opposition of the French ambassador, all which left them, as it were, "a carcass in a manner breathless." Then came the application of cer-
tain religious persons for lands in the Massa- chusetts Bay, who "easily obtained their first desires, but those being once gotten, they used other means to advance themselves a step from beyond their first proportions to a second grant surreptitiously gotten of other lands also, justly passed unto Captain Robert Gorges long be- fore " (it may be added here, in parenthesis, that Gorges, in his Briefe Narration, pp. 40, 41, says, in speaking of this grant, that the Earl of War- wick wrote to him, " then at Plymouth, to con- descend that a patent might be granted to such as then sued for it, whereupon I gave my appro-
3-4
THE MEMORIAL HISTORY OF BOSTON.
To effect the contemplated overthrow of the Massachusetts Charter, a que warranto was brought against the Company in June, 1635, by Sir John Banks, the Attorney-General. Fourteen allegations were made. They may be seen in Hutchinson's Collection of Original Papers. Nearly all the allegations relate to the due exercise of powers granted in the charter itself, rather than to the abuse of powers, and probably were intended to be so regarded. The purpose evidently was to deny the legality of the charter itself; to strike a blow at its existence as being void ab initio ; bation so far forth as it might not be prejudicial sce the Massachusetts l'atent, " because, as they alleged, it preindicted former grants. Mr. Ilum- frey answered that the said patent was now in New England." to my son Robert Gorges' interests," &c.) ; that they "exorbitantly bounded their grant from cast to west through all that main land from sea to sea, being near about 3,000 miles in length. . . . But, herewith not yet content, they labored and obtained unknown to us a confirmation of all this from his Majesty, and unwitting there- of, by which means they did not only enlarge their first extents to the west limits spoken of, but wholly excluded themselves from the pub- lic government of the council authorized for those affairs, and made themselves a free people, and for such hold of themselves at this present," &c. Proc. Am. Antiq. Soc., April, 1867, p. 124.
The allegations here made against the Mas- sachusetts patentees as to the use of dishonest methods in obtaining their lands are very blindly stated. They speak of "a second grant surrep- titiously gotten." I have never heard of but one grant made to these patentees. It would not be at all unlikely that, before the patent of March 19, 1627-28, was issued, negotiations were pending for better terms than those the company were willing at first to concede, and that their efforts were finally successful. The members of the Council for New England were at this time at loggerheads among themselves. Their business was very loosely done, there being no proper record kept of the patents issued. Be- sides, they had no accurate maps or plans of the coast and lands which they pretended to convey. The Massachusetts l'atent, it is true, covered the carlier grant to Robert Gorges of Dec. 30, 1622, but that was the Council's business, and not that of the petitioners, who were prob- ably ignorant of any such collision. The extra- ordinary grant issued to the Massachusetts patentees, bounded "from sea to sea," in like manner as the grand patent itself, is probably due to the influence of their powerful friends in the Council, of whom the Earl of Warwick was one, and which gave rise subsequently to com- plaints from some of the opposite faction, in- cluding Gorges and Mason, who were probably not present when the instrument passed the seals of the Council. Al a meeting of the Council in June. 1632, Mr. Humfrey, one of the patentees, being present on a matter of busi- ness, some members of the Council desired to
The statement further on, that the subsequent charter from the King was a means of enlarging "their first extents to the west limits spoken of," must be understood to mean that his Ma- jesty's grant operated as a confirmation of that boundary. In Gorges's Briefe Narration, cited above, it is also said that the grant which passed the Council " was after enlarged by his Majesty and confirmed under the Great Seal of England." No copy of the Massachusetts Patent from the Council for New England is extant, llumfrey's reference to it above is the last we have heard of it ; but it is cited in the royal charter of March 4, 1628-29, which simply confirmed the bound- aries of the former, and make the patentees a corporation. By the enlargement referred to, the writer may intend that of powers and not of boundaries.
The Council also allege, as a grievance, that the patentees " obtained, unknown to us, a con- firmation of all this from his Majesty, and un- witting thereof." To say that there was any thing "unwitting " on the part of the King or the Government in granting the charter of incorporation is unlikely. The Council may not have intended to relinquish their right of gov. ernment over the lands granted. They say that those who had complaints to make against the Colony applied to them for redress as the respon- sible party, but "we easily made it appear that we had no share in the evils committed, and wholly disclaimed the having any hand therein, humbly referring to their Lordships to doe what might best sort with their wisdoms ; who found matters in so desperate a case as that they saw a necessity for his Majesty to take the whole business into his own hands, if otherwise we could not undertake to rectify what was brought to ruin." Whatever may have been the inten- tions of the Council for New England respect- ing the government of the territory ceded to the Massachusetts patentecs, the Chief Justices in 1677 held that the Council, by its grant of 19th of March, 1627-28, must be presumed to have " deserted the government." Chalmers, Aunals, P. 500.
343
THE CHARTER OF KING CHARLES THE FIRST.
denying the defendants' claim to title to land, or their claims to be a corporation.1
Fourteen of the original patentees in the grant of the 4th March, 1628-29, residing in England, appeared, each of whom severally pleaded that he had never usurped any of said liberties, and disclaimed, and there was judgment that for the future they should not intermeddle with any of the said franchises. Cradock came in, and, having had time to interplead, made default, and judgment was given that he should be convicted of the usurpa- tion charged, and that the said franchises should be taken and scized into the King's hands, the said Matthew not to intermeddle with, and be excluded the use thereof, and to answer to the King for said usurpation.
The rest of the patentees were outlawed, and no judgment entered up against them. Of the eleven remaining original patentees, Humfrey, Endicott, Nowell, Bellingham, Pynchcon, and William Vassall were then in New England, and Johnson had died there. The process was pending about two years. There was no service of the writ on the corporation, nor on any of the members in Massachusetts.2
Whether or not this process against the Massachusetts Charter was considered by the Court which gave the judgment, and by the Government at home, as having settled the case against the colonists; and that, in view of English law, they had no rights and no property there, -such, at least for a time, was assumed to be the opinion. And yet the demand that the patent should be returned looks as if something more was felt to be needed to consummate the proceedings. Great importance seems to have been attached in that day, by both parties, to the possession of the original instrument itself in the hands of the patentees, while, so far as the Govern- ment at home was concerned, a copy of it was readily accessible in the public archives. The colonists felt that while they still held possession of
1 The writ of quo warranto is in 2 Mass. Hist. Col. viii. 97. The information on which it issued, and the result of the process, may be seen in Hutchinson, Collection of Original Papers, PP. 101-104.
2 Emanuel Downing, Governor Winthrop's brother-in-law, was in England at the time of this process against the charter. lle came over to the colony in 1638. In 1641, when IFugh Peter was about to sail for England, Downing wrote him a letter containing this passage : " The Bishop caused a quo warranto to be sued forth in the King's Bench against our patentees, thinking to damn our patent and put a general governor over us, but most of them that appeared I did advise to disclaim, which they might safely do, being not sworn magis- trates to govern according to the patent ; and those magistrates which do govern among us, being the only parties to the patent, were never summoned to appear. Therefore, if there be a judgment given against the patent, it's false and
erroneous, and ought to be reversed, which a motion in the King's Bench, without any long suit by Writ of Error, may set right again." 4 Jass. Hist. Coll., vi. 58. Hutchinson, Mass. Bay, i. S7, says : " It is said judgment was never en- tered in form against the corporation. . . . Mr. llubbard says judgment was given, &c., but the Government themselves, in some of their declar- ations in King Charles the Second's time, say that the process was never completed. Judg- ment was entered against so many as appeared, and they which did not appear were outlawed." The opinion of the Crown lawyers, Jones and Winnington, in 1678, was as follows: " Upon view of a copy of the record of the quo warranto, we find that neither the quo warranto was so brought, nor the judgment thercupon so given, as could cause a dissolution of the said charter." The reasons of the Attorney and the Solicitor Generals are not given by Chalmers, and may not have been embodied in the paper cited by him. Aunals, pp. 405, 439-
34-4
THE MEMORIAL HISTORY OF BOSTON.
the original parchment, with the Great Scal attached to it, their franchise was safe.1 These repeated calls for the patent may have been demands for its surrender, and may have been so understood.
Prof. Joel Parker says that the reason that there was no service of the writ in the colony was, " that the process of the King's Bench did not run into the colony, having no jurisdiction there; and there could therefore be no service there." For the same reason, then, the judgment of outlawry against the patentees resident in the colony could be of no effect.
The Privy Council Records have this entry under the date of May 3, 1637: "Their Lordships, taking into consideration the patent granted to the Governor of New England, did this day order, That Mr. Attorney-General be hereby prayed and required to call for the said patent, and present the same to the Board, or the Committee for Foreign Plantations."
The Council Records also show that during the year 1638 there were frequent orders for the stay of ships bound for New England, and that these orders were followed by others granting leave to depart, on the performance of the conditions required.
Under the date of September of this year (1638) Winthrop has this entry : -
" The General Court was assembled, in which it was agreed, that, whereas a very strict order was sent from the Lords Commissioners for Plantations for the sending home our patent, upon pretence that judgment had passed against it upon a quo warranto, a letter should be written by the Governor, in the name of the Court, to excuse our not sending of it ; for it was resolved to be best not to send it, because then such of our friends and others in England would conceive it to be surrendered, and that thereupon we should be bound to receive such a governor and such orders as should be sent to us ; and many bad minds, yea, and some weak ones, among ourselves, would think it lawful, if not necessary, to accept a general governor." 2
The very " strict order " for the sending home of the patent, referred to by Winthrop, was conveyed in the following paper : -
" A copy of a letter sent, by the appointment of the Lords of the Council, to Mr. Winthrop, for the patent of this Plantation to be sent to them.
AT WHITE HALL, April 4, 1638.
" This day the Lords Commissioners for Foreign Plantations, taking into con- sideration 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 government in those parts, and calling to mind that they had formerly
1 In that day parchment evidences of title to real property were rarely recorded, and were themselves the only proof of possession, and such muniments passed with the ownership of the property. And, although the Massachusetts Charter was recorded in the publie offices in London, the original parchment in the hands of the patentees seems to have been regarded as
evidence of a possession of the franchise while it remained in their hands. See a paper by Pro- fessor Emory Washburn on the " Transfer of the Colony Charter," in Mass. Hist. Soc. Proc., Jan- uary, 1859, pp. 154-167. He thinks the purpose of the home Government was, in the process here instituted, "to get possession of the charter itself." 2 New England, i. 269.
345
THE CHARTER OF KING CHARLES THE FIRST.
given order about two or three years since to Mr. Cradock, a member of that Planta- tion, to cause the grant or letters-patent of that Plantation (alleged by him to be there remaining in the hands of Mr. Winthrop) to be sent over hither, and that, notwithstanding the same, the said letters-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 order, 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 outlawed, --
"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 plantation." 1
From the citation given above from Winthrop's History, we have seen that the General Court agreed that a letter should be written by the Governor (Winthrop), in the name of the Court, to excuse their not sending the patent as directed in the above order. This letter, in the form of an official address from the General Court, is a remarkable paper, and is written in Winthrop's best manner; and it forms a striking contrast to many of the official documents issued by the Massachusetts authorities, under similar circumstances, at the Restoration. It deserves a place in this narrative, and is here given : -
COPY OF THE GENERAL COURT'S ADDRESS, THE 6TH OF SEPTEMBER, 1638.
" 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 hereby humbly and sincerely profess, that we are ready to yield all due obedience to our Sovereign Lord the King's Majesty, and to your Lordships 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 not answerable for any defects in other plantations, &c.
"This is that which his Majesty's subjects here do believe and profess, and there- upon we are all humble suitors to your Lordships, that you will be pleased to take
1 Hutchinson, Papers, pp. 105, 106.
VOL. 1. - 44.
3.10
THE MEMORIAL HISTORY OF BOSTON.
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 our- selves, before we be condemned as a people unworthy of his Majesty's favor or pro- tection ; 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 to put in.
" 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 confidence we had of that assurance, we have transported 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 looked on as runnigadoes 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 be forced to desert this place, the rest of the plantations (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 notice of and will justify our faithfulness in this behalf ) it will discourage all men hereafter from the like undertakings upon confidence of his Majesty'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 Majesty hath cast them off, and that, hereby, they are freed from their allegiance and subjection, and, thereupon, will be ready to confederate them- selves under a new government, 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.
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.