USA > Massachusetts > Suffolk County > Boston > The memorial history of Boston : including Suffolk County, Massachusetts, 1630-1880. Vol. I > Part 51
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The first writ of scire facias, directed to the Sheriff of Middlesex, bore teste 16th April, 36 Car. 11. (1684), whereupon, on the Sth of May, a nihil was returned. An alias was directed to the same sheriff on the 12th of May, upon which the same return was made on the 2d of June. The agent of the Company now moved, by his counsel, for time (until Michaelmas Term next, about the 23d of October) to send to New Eng- land for a letter of attorney under seal to plead to these writs ; and, on hearing both sides, the Court ordered the conditional judgment cited above, which was finally confirmed on the first day of Michaelmas Term next. Hutchinson, Mass. Bay, i. 340 ; A Mass. Hist. Coll., ii. 246-278.
Dr. Palfrey, in his notes to his history of these transactions, discusses the reasons for the change of process from the King's Bench to the Court of Chancery. The sheriff's principal objection why he did not return a summons was that the notice was given after the return was past. " Ile did also make it a question whether he could take notice of New England being out of his bailiwick." Mr. Humphreys, the counsel of the Colony, had presented another difficulty, suggested in a letter to him from the General Court ; namely, that " particular persons were only mentioned in the writ, whereas they were to sue and be sued by the name of the Governor and Company." He said he had no authority to appear in the Court of King's Bench except for the Governor and Company.
In answer to the question why these infor- malities and defects were not cured by a new writ of quo warranto rightly drawn and served, instead of transferring the case by a scire facias to the Court of Chancery, Dr. Palfrey cites a letter from his learned friend, Mr. Horace Gray, - now Chief-Justice Gray, - to whom this whole matter was submitted, in which Mr. Gray sug- gests two answers: 1. A decision of the case for the Crown in Chancery would be more sure and weighty than in the Court of King's Bench ; and, 2. It would be more effectual and decis- ive ; and on the latter head he proceeds : " Great importance was attached in those days to the actual possession of the charter. Now a judg- ment for the Crown upon a quo warranto would have been only for a seizure of the franchises into the King's hands, but the judgment upon scire facias was not merely that the charter should be declared forfeited, but also that it should be cancelled, vacated, and annihilated, and restored into Chancery there to be can- celled. Blackstone, Commentaries, iii. 260, 262 ; 4 Mass. Ilist. Coll., ii. 278. Indeed, Lord Coke (4th Inst. pp. 79, SS), in enumerating matters within the jurisdiction of the Chan- cellor, put this first, and even derives his title from it, saying : 'Hereof our Lord Chancellor of England is called cancellarius, a cancellando, i.e., a digniori parte, being the highest point of his jurisdiction to cancel the King's letters-pa- tents under the Great Seal, and damning the en- rolment thereof by drawing strikes through it like a lettice.' "
Professor Joel Parker, who has discussed this question in the lecture above cited, says :
379
THE CHARTER OF KING CHARLES THE FIRST.
" Thus ended," says Chalmers, "the ancient government of that colony by legal process, - the validity of which, however, has been questioned by very great authority."
After the decree vacating the charter, several months passed before intelligence of it reached the colony. A special meeting of the Court was called by the Governor and Assistants for the 28th of January, 1684-85, in the record of which the following is the first entry : -
" At the opening of this Court the Governor declared it, that on the certain or general rumors in Mr. Jenner lately arrived, that our charter was condemned, and judg-
"The reason why the prosecutors could not make anything of it in the King's Bench may have been that suggested in relation to the former writ [in 1635], that, as the process of the court did not run into the colony, there could be no service there."
As to the proceedings in the Court of Chan- cery, Professor Parker says : "The proceedings may have been instituted in that court upon the ground of an ancient jurisdiction of the chancel- lor to repeal grants of the King which had been issued improvidently. But the assumption to enter a decree that a charter granting lands, and. corporate powers, and powers of government, and which had existed more than half a cen- tury, should 'be vacated, cancelled, and anni- hilated' on account of usurpations, which in case of ordinary corporations may be a subject for proceedings by writ of quo warranto in the King's Bench, -and especially to do this upon a writ issued to the sheriff of Middlesex, in Eng- land, under such circumstances that there could be neither service nor notice, - would be of itself a usurpation. And this seems to be its true character, whatever might be the reason alleged. . . .
" No judgment of forfeiture was entered, nor any decree ordering any person to bring in and surrender the charter, or to do any other act in relation to it. The Court adjudged that 'the letters-patent and the enrolment thereof be va- cated, cancelled, and annihilated, and into the said court restored, there to be cancelled,' but there was no attempt to enforce the latter part of the decree."
It is certain that this parchment muniment of the Governor and Company of Massachusetts Bay hangs to-day in the office of the Secretary of State in Boston, never having left the custody of its official guardian, and of course never hav- ing suffered the official mutilation decreed by the Court of Chancery ; and the same remark may be made of the parchment on which the "enrolment," subject to the same decree, is preserved, which now slumbers in its original entireness in her Majesty's Public Record Office in London, as inspected by the writer a few years ago.
" If the colonial government," continues Professor l'arker, "was exercising power in- consistent with the charter or with colonial dependence, the true remedy would at this day appear to have been, not by process to enforce a forfeiture or to vacate the charter, which, if effective, would leave the inhabitants without any legal government, but by an enforcement or amendment of the charter, in regard to its public powers and character, by the Crown, from which it was derived, or by an Act of Parlia- ment making the requisite provision for that purpose.
"The better opinion may be that, meeting with technical difficulties in the court of law, resort was had to Chancery because of a better assurance of a speedy success. (Palfrey, New Eng- land, iii. 391-394.)
" The proceeding appears to have been no more effective in its character than might have been a judgment of seizure in a process at law ; and, in fact, little better than would have been an order of the King in Council, that the char- ter was forfeited, with a revocation of its powers. However, the decree answered its purpose. The colonists were not in a situa- tion to contest it."- Lecture before the Mass. Hist. Soc., pp. 45-47.
After the Revolution, on the imprisonment of Andros in Boston, a provisional government was set up on the basis of the old charter, and an unavailing effort was made to procure its restoration. "The House of Commons, in- flamed, probably," says Chalmers, " by the just and general indignation against the violent pro- ceedings with regard to the corporations in England, at a subsequent period resolved, 'that those quo warrantos against the charters of New England were illegal and void.' But, when the judgment before mentioned was reconsidered by those eminent lawyers and Whigs, Treby, Somers, and Holt, they gave it as their opinion 'that, were it reversed, and the General Court exercised the same powers that before the quo warranto it had done, a new writ would issue against it, and there would be such a judgment as to leave no room for a writ of error.'" - Annals, p. 415.
3So
THE MEMORIAL HISTORY OF BOSTON.
ment entered up, &c, they looked at it as an incumbent duty to acquaint the Court with it, and leave the consideration of what was or might be necessary to them, &c." 1
They appointed a fast-day, to be held the following month, and made another attempt at pacifying the King, by a humble address, in which they say, as to the " scire facias late brought against us in the Chancery, . . . wc never had any legal notice for our appearance, and making answer; neither was it possible, in the time allotted, that we could."
A committee was also appointed to write a letter to their attorney, Mr. Humphreys; and, in this brief epistle, they say they have as yet received no particular information from him concerning their affairs, - being as yet advised only by rumor that their charter was condemned ; and they enclose to him, for speedy presentation to his Majesty, the letter prepared for him. They express a wish to discharge all pecuniary obliga- tions to their attorney, whenever they shall learn the extent of their indebt- edness. For the reason that " several of our vessels yet behind in England, and so possibly we may yet hear further, either from Mr. Humphreys or some other, - we having as yet received no particular intelligence about the entering up of judgment against us, - it is therefore ordered and concluded that this General Court be adjourned till the 18th day of March next, being Wednesday, at one of the clock in the afternoon."
Hutchinson says that the copy of the judgment against the charter was received by Secretary Rawson on the 2d of July.2 This must refer to the official notice. In the mean time King Charles the Second had died (Feb. 6, 1684-85) ; and Mr. Blathwait, one of the principal Secretaries of State, had written to Mr. Bradstreet, transmitting a printed copy of the proclamation of King James, issued on the day of his accession to the Jamesk . throne, directing that all persons in authority in his kingdoms and colonies should continue to ex- ercise their functions till further order should be taken. This was accompanied by an order to proclaim the new king. The Court met on the 6th of May, 1685, and registered the edict, and also made a record of the fact that the Governor had answered the letter of William Blathwayt, Esq., and informed him that the Government of the colony had already, on the 20th of April, proclaimed the new king, with all due solemnity, in the high street in Boston, - news of the death of Charles the Second and the proclaiming of his successor having been already received here by the arrival of a ship from Newcastle as carly as the 14th of April.
The Court met on the 21st of July, by adjournment, "to consult the
1 Mass. Colony Records, v. 465.
2 [Rawson, b. 1615, d. 1693, was for many years Secretary of the Colony, 1650-1686. 1lis portrait is preserved in the gallery of the Amer. Antiquarian Society at Worcester, and there are
other engravings of it in the N. E. Hist. and Geneal. Reg., and in Drake's Boston. He is buried in the Granary burial-ground. The present Bromfield Street bore his name, and was known as Rawson's Lane up to 1796. - ED |
38
THE CHARTER OF KING CHARLES THE FIRST.
weighty concerns of this colony; " and Mr. John Higginson was asked " to seek the face of God for his special guidance and direction." Another humble petition to the King was written, substantially rehearsing the arguments which had already proved so fruitless.
The elections in the colony took place this year as usual; but there were
gwar Rawson.
all the symptoms of an expiring Constitution. The Government was now regarded as only provisional; and they awaited with anxiety the arrival of a royal governor, in the person of the noted Colonel Kirke, as a much- dreaded infliction. Several towns neglected to send their deputies to the General Court this year; and, at the session July 10, they were warned to attend to their duty at their peril. On the 12th of May, 1686, the last
383
THE MEMORIAL HISTORY OF BOSTON.
election took place according to the provisions of the charter.1 On the 14th of that month the " Rose " frigate arrived at Boston, bringing the per- sistent Randolph, with an exemplification of the judgment against the charter," and commissions for the officers of a new government. Joseph Dudley was appointed President. News had already been received that a new governor was impending; and it was a relief to know that Kirke had not received the appointment.
The General Court was in session. On the 17th, a copy of the commis- sion was presented and read, and a reply made on the 20th, complaining of its arbitrary character, and that the people were abridged of their liberties. AA committee was appointed " for a repository of such papers on file with the secretary as refer to our charter and negotiations from time to time for the security thereof, with such as refer to our title of our land, by purchase of Indians or otherwise; and the secretary is ordered, accordingly, to deliver the same unto them." The concluding entry is as follows: "This day the whole Court met at the Governor's house; and there the Court was adjourned to the second Wednesday in October next, at cight of the clock in the morning." But it never met.
Charles Dease
1 [Professor Emory Washburn has a paper, the causes of forfeiture, as set forth in the " Did the vacating of the Colony Charter in 1684, or the adoption of the 1691 charter, annul The laws made under the former?" in the Mass. Hist. Soc. Proc., March, 1875 - En.]
2 By this instrument, printed in 4 Mass. Hist. Coll. ii. 246-278, it will be seen that
Court of Chancery, were: the assuming by the Governor and Company the power to levy money {by poll taxes and duties on merchan- dise and tonnage); to coin money; and to require an oath of fidelity to the government of the colony.
CHAPTER XI.
CHARLESTOWN IN THE COLONIAL PERIOD.
BY HENRY HERBERT EDES.
T' HE territory now designated as Charlestown is a peninsula, lying be- tween the estuaries of the Mystic and the Charles, containing less than a square mile of land. This now constitutes the third, fourth, and fifth wards of Boston, to which it was annexed in 1873. The oldest town, except Salem, in the Bay Colony, it was, in the year last named, the smallest municipality in the Commonwealth. At the time of its settlement, however, the area of Charlestown was much greater, including the whole or portions of the present cities of Somerville and Cambridge, and of the towns of Woburn, Burlington, Wilmington, Stoneham, Winchester, Melrose, Everett, Malden, Wakefield, Medford, and Arlington. Woburn was the first town set off, -- in 1642; and Somerville was the last,-exactly two centuries later.
The two Indian nations which occupied the region around Boston Harbor at the time of the settlement were the Massachusetts and the Pawtuckets. Chikataubut, or House-a-Fire, was the chief sachem of the former tribe, whose domain extended from Charles River on the north and west to Wey- mouth and Canton on the south. Nanepashemit, or The New Moon, was the chief sachem of the Pawtuckets, whose territory reached as far east as Pis- cataqua, and as far north as Concord, on the Merrimac River. These tribes, prior to 1613, could each bring into the field three thousand warriors, but they were soon after greatly reduced by pestilence. Nanepashemit lived in Lynn, when in 1615 he removed to the banks of the Mystic, where he was
The square Scham,
manha
killed about 1619.1 His queen, called The Squaw Sachem, subsequently married Webcowit, the medicine-man of the tribe; and from them, in 1639, the town received a deed of a large tract of land comprised within the present confines of Somerville. The Indian name of Charlestown was Misharum.
1 |Cf. Mr. Adams's chapter in this volume. - ED.]
384
THE MEMORIAL HISTORY OF BOSTON.
The first eight pages of what was until recently regarded as the first vol- ume of the town records have been printed by Dr. Young in his Chronicles of Massachusetts.1 While the account of the settlement of the town which is there given is not a contemporaneous record, it is not to be considered as untrustworthy except as regards the early chronology, - prior to 1631 ; for the order of the selectmen of April 18, 1664, under which John Greene (son of the ruling elder of the church ) made this compilation, mentions that these eight pages had been engrossed in the new book of records, and that the facts had been "gathered by information of known, honest men that lived and were actors in those times." Captain Richard Sprague was Richard Sprague 1662: then living, and from him, without doubt, many of these statements were procured. Mr. Everett, in his address commemorative of the bi-centennial of the arrival of Winthrop at Charlestown, in speaking of the three brothers, Ralph, Rich- ard, and William Sprague, says they were "the founders of the settlement in this place," and " were persons of character, substance, and enterprise : excellent citizens ; generous public benefactors; and the heads of a very large and respectable family of descendants." They arrived in Salem, - in 1628 says the record, but probably 1629 is the actual date of their coming, - and with three or four others journeyed through the woods "the same summer " to a " place situate and lying on the north side of Charles River, full of Indians, called Aberigians," whose chief at that time was Wonohaqua- ham (a son of Nanepashemit), called by the English Sagamore John, who lived either at Mystic Side or at Rumney Marsh (Chelsea), and owned land near Powder-Horn Hill. He was "a man naturally of a gentle and good disposition, by whose free consent they settled about the hill of the same place, ... where they found but one English palisadoed and thatched house, wherein lived Thomas Walford, a smith, situate on the South End of the westermost hill of the East Field, a little way up from Charles River side."
Mention is made of Thomas Walford in a previous chapter 2 of this volume, as one of Robert Gorges' company which arrived at Wessagusset (Weymouth) in 1623, and that he removed to Charlestown about 1625-1627, after the abandonment of the Eggmab Halfords Wessagusset settlement. Wal- ford had a wife, Jane ; and Sav- age mentions two sons, Thomas and Jeremiah, besides several daughters, all of whom married. His Episcopal tenets made him an un- desirable neighbor for the Puritan colonists of the Bay; and as early as
1 I'p. 371-387. 2 [By Mr. Adams, on " The Earliest Explorations in Boston Harbor." -- ED.]
385
CHARLESTOWN IN THE COLONIAL PERIOD.
May 3, 1631, the General Court fined him forty shillings, and enjoined him and his wife " to depart out of the limits of this patent before the twentieth day of October next, under pain of confiscation of his goods, for his con- tempt of authority, and confronting officers." He paid the fine by killing a wolf. September 3, 1633, the Court ordered " that the goods of Thomas Walford shall be sequestered . .. to satisfy the debts he owes in the Bay to several persons." He removed with his family to Strawberry Bank (Portsmouth), where he was much esteemed ; had grants of land ; was often one of the selectmen, or "townsmen; " served on the grand jury; took an active interest in public affairs; and in 1640 was one of the church wardens with Henry Sherburne. His will is dated Nov. 15, 1660, and was proved six days later. The precise date of Walford's removal to Portsmouth is not known. In a deposition dated 1682, Henry Lang- star, of Dover, testified that he knew Walford, of Portsmouth, fifty years before, which would indicate that 1632 was the year of his removal. In the Charlestown records, however, his name appears in a list of inhabitants on " the 9th of January, 1633-34," - four months after his goods had been sequestered. Probably he went to Portsmouth soon after this latter date, as his name does not again appear in our records.
On the tenth of March, 1628-29, the Massachusetts Company in England engaged Thomas Graves, a skilful engineer, of Gravesend, in Kent, to go to New England in their interest and lay out a town. Graves arrived at Salem cho: grances in the fleet with Higginson in June, 1629; and during the same month, or early in July, in company with the Rev. Francis Bright and about one hundred other persons (among whom prob- ably were the Spragues) he removed from Salem to Charlestown. Prince gives the date of their arrival here June 24 (or July 4, New Style), 1629, which, says Mr. Frothingham, is " the only date for the foundation of Charlestown for which good authority can be adduced."
The associates of the Spragues in the settlement of the town, whose names are recorded, were John Meech, Simon Hoyte, Abraham Palmer, Walter Palmer, Nicholas Stowers, John Stickline, Thomas Walford, " that lived here alone before," Thomas Graves, and the Rev. Francis Bright, who "jointly agreed and concluded that this place . . . shall henceforth, from the name of the river, be called Charlestown; which was also con- firmed by Mr. John Endicott, Governor." Mr. Graves proceeded without delay to " model and lay out the form of the town, with streets about the hill," which described an ellipse of which what are now Main Street and Bow Street constituted the periphery. It was agreed that each inhabitant should have a two-acre lot to plant upon ; and all were to fence in common. These lots were at once measured off. Ralph Sprague and others began to build their houses on Bow Street, and to fence- the field laid out to them, VOL. I. -- 49.
386
THE MEMORIAL HISTORY OF BOSTON.
which was situated on the northwest side of Town Hill. "Walter Palmer and one or two more shortly after began to build in a straight line upon their two-acre lots on the east side of the Town Hill, and set up a slight fence in common that ran up to Thomas Walford's fence; and this was 1al fox Palmosx 1636 the beginning of the East Field." It was also the beginning of what is now the Main Street. Graves, with "some of the servants of the Company of Patentees . .. built the Great House ... for such of the Said Company as are shortly to come over, which after- wards became the meeting-house." That this building was the only one deemed worthy to be called a house at the time of Winthrop's arrival in June, 1630, seems to be proved by the statement of Roger Clap (who visited the town a few days previously) that "we found some wigwams and one house ;" unless, as Dr. Young 1 suggests, reference was intended to Walford's house.
The preliminary visit to the peninsula, and the final removal hither of Winthrop and his company are described in another chapter.2
It was intended to place here the seat of government ; but that purpose was speedily abandoned, chiefly on account of the lack of good water. The town records mention the arrival of Winthrop and of -
"Sir Richard Saltonstall, Knight, Mr. Johnson, Mr. Dudley, Mr. Ludlow, Mr. Nowell, Mr. Pincheon [and] Mr. Bradstreet, who brought along with them the charter or patent for this jurisdiction of the Massachusetts Bay ; with whom also arrived Mr. John Wilson and Mr. [George] Phillips, ministers, and a multitude of people amounting to about fifteen hundred, brought over from England in twelve ships. The Governor and several of the patentees dwelt in the Great House. . .. The multitude set up cottages, booths, and tents about the Town Hill. They had long passage ; some of the ships were seventeen, some eighteen weeks a coming. Many people arrived sick of the scurvy, which also increased much after their arrival, for want of houses and by reason of wet lodging in their cottages ; and other distempers also prevailed ; and although [the] people were generally very loving and pitiful, yet the sickness did so prevail that the whole were not able to tend the sick as they should be tended ; upon which many perished and died, and were buried about the Town Hill."
The weather was hot, sickness prevailed, and a prejudice existed in the minds of many against water which was not taken from running springs. Only one of these could be found, and that " a brackish spring in the sands by the water side, on the west side of the North-west Field, which could not supply half the necessities of the multitude; at which time the death of so many was concluded to be much the more occasioned by this want of good water." This spring, generally referred to as " The Great Spring," is believed
1 Chronicles of Mass., P. 349, note. 2 By Mr. Winthrop, on "Boston Founded."
387
CHIARLESTOWN IN THE COLONIAL PERIOD.
to have been near the site of the State-prison.1 In this season of affliction Dr. Samuel Fuller came from Plymouth to minister to the sick; but lack of proper medicines prevented his rendering much assistance : -
" In the mean time, Mr. Blackstone, dwelling on the other side [of ] Charles River alone, at a place called by ye Indians Shawmut . . . came and acquainted the Gov- ernor of an excellent spring there ; withal inviting him and soliciting him thither. Whereupon, after the death of Mr. Johnson 2 and divers others, the Governor, with Mr. Wilson and the greatest part of the Church [which had been gathered here July 30] removed thither [September 7]; whither also the frame of the Governor's house, in preparation at this town, was also (to the discontent of some) carried ; where people began to build their houses against winter ; and this place was called Boston." 3
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