« AnteriorContinuar »
the governor and other officers to administer the oath of supremacy, thereby probably intending to discourage the settlement of papists in the colony. But there is nothing in it which exhibits on the part of the monarch any disposition to relax in favor of the Puritans the severe maxims of conformity so characteristic of his reign.2 The first emigrants, however, paid no attention to this circumstance; and the very first church planted by them was independent in all its forms, and repudiated every connection with Episcopacy or a liturgy.3
§ 65. But a bolder step was soon afterwards taken by the company itself. It was ascertained that little success would attend the plantation, so long as its affairs were under the control of a distant government, knowing little of its wants, and insensible to its difficulties. Many persons, indeed, possessed of fortune and character, warmed with religious zeal, or suffering under religious intolerance, were ready to embark in the enterprise, if the corporation should be removed, so that the powers of government might be exercised by the actual settlers.5 The company had already become alarmed at the extent of their own expenditures, and there were but faint hopes of any speedy reimbursement. They entertained some doubts of the legality of the course of transferring the charter. But at length it was determined, in August, 1629, "by the general consent of the company, that the government and patent should be settled in New England." This resolution infused new life into the association; and the next election of officers was made from among those proprietors who had signified an intention to remove to America. The government and charter were accordingly removed; and henceforth the whole management of all the affairs of the colony was confided to persons and magistrates resident within its own bosom. The fate of the colony was thus decided; and it grew with a rapidity and strength that soon gave it a great ascendency among the New England settlements, and awakened the jealousy, distrust, and vigilance of the parent country.
1 But see 1 Grahame, Hist ch. 1, p. 245, note.
2 Robertson's America, Book 10, and note; 1 Chalm. Annals, 141.
8 Robertson's America, B. 10; Hutch. Coll. 201; 1 Chalm. Annals, 143, 144, 145. 4 1 Chalmers's Annals, 94, 95.
5 1 Hutch. Hist. 12, 13; 1 Chalmers's Ann. 150, 151.
61 Hutch. Hist. 13; Hutch. Coll. 25, 26; Robertson's America, B. 10; Marsh. Colonies, ch. 3, p. 89; 1 Holmes's Annals, 197; 1 ́Chalm. Annals, 150.
§ 66. It has been justly remarked, that this transaction stands alone in the history of English colonization.1 The power of the corporation to make the transfer has been seriously doubted, and even denied." But the boldness of the step is not more striking than the silent acquiescence of the king in permitting it to take place. The proceedings of the royal authority a few years after sufficiently prove that the royal acquiescence was not intended as any admission of right. The subsequent struggles between the crown and the colony, down to the overthrow of the charter, under the famous quo warranto proceedings, in 1684, manifest a disposition on the part of the colonists to yield nothing which could be retained; and, on the part of the crown, to force them into absolute subjection.
§ 67. The government of the colony, immediately after the removal of the charter, was changed in many important features; but its fundamental grants of territory, powers, and privileges were eagerly maintained in their original validity. It is true, ast Dr. Robertson has observed, that, as soon as the Massachusetts emigrants had landed on these shores, they considered themselves, for many purposes, as a voluntary association, possessing the natural rights of men to adopt that mode of government which was most agreeable to themselves, and to enact such laws as were conducive to their own welfare. They did not, indeed, surrender up their charter, or cease to recognize its obligatory. force.5 But they extended their acts far beyond its expression of powers; and, while they boldly claimed protection from it against the royal demands and prerogatives, they nevertheless did not feel that it furnished any limit upon the freest exercise of legislative, executive, or judicial functions. They did not view it as creating an English corporation, under the narrow construction of the common law, but as affording the means of founding a broad political government, subject to the crown of England, but yet enjoying many exclusive privileges.
1 Robertson's America, B. 10.
2 See 1 Hutch. Hist. 410, 415; 1 Chalmers's Annals, 139, 141, 142, 148, 151, 173.
8 1 Hutch. Hist. 25; Hutch. Coll. 199, 200, 203, 205, 207.
4 Robertson's America, B. 10.
5 Hutch. Coll 199, 203.
Hutch. Hist. 35, 36, 37, 410, 507, 529; Hutch. Coll. 196, 199, 200, 203, 205, 207, 329, 330, 417, 418, 420, 477; 1 Hutch. Hist. 410, 415; 1 Chalmers's Annals, 151, 153, 157, 161; Robertson's America, B. 10; Marsh. Hist. Colon. ch. 5, 139.
§ 68. The General Court, in their address to Parliament, in 1646, in answer to the remonstrance of certain malecontents, used the following language:1" For our government itself, it is framed according to our charter and the fundamental and common laws of England, and carried on according to the same, (taking the words of eternal truth and righteousness along with them, as that rule by which all kingdoms and jurisdictions must render account of every act and administration in the last day,) with as bare allowance of the disproportion between such an ancient, populous, wealthy kingdom, and so poor an infant, thin colony, as common reason can afford." And they then proceeded to show the truth of their statement by drawing a parallel, setting down in one column the fundamental and common laws and customs of England, beginning with Magna Charta, and in a corresponding column their own fundamental laws and customs. Among other parallels, after stating that the supreme authority in England is in the high court of Parliament, they stated: "The highest authority here is in the General Court, both by our charter and by our own positive laws."
§ 69. For three or four years after the removal of the charter, the governor and assistants were chosen, and all the business of the government was transacted, by the freemen assembled at large in a General Court. But the members having increased, so as to make a general assembly inconvenient, an alteration took place, and in 1634 the towns sent representatives to the General Court. They drew up a general declaration that the General Court alone had power to make and establish laws and to elect officers, to raise moneys and taxes, and to sell lands; and that therefore every town might choose persons as representatives, not exceeding two, who should have the full power and voices of all the freemen, except in the choice of officers and magistrates, wherein every freeman was to give his own vote.2 The system thus proposed was immediately established by common consent,3 although it is nowhere provided for in the charter; and thus was formed the second house of representatives (the first being in Virginia) in
11 Hutch. Hist. 145, 146; Hutch. Coll. 199, &c. [See Palfrey, Hist. of New England, II. 174.]
2 Robertson's America, B. 10; 1 Hutch. Hist. 35, 36, 203; 1 Haz. Coll. 320. 3 Col. and Province Laws (1814), ch. 35, p. 97; Hutch. Coll. 203, &c.; 1 Hutch. Hist. 449.
any of the colonies. At first, the whole of the magistrates (or assistants) and the representatives sat together, and acted as one body in enacting all laws and orders; but at length, in 1644, they separated into two distinct and independent bodies, each of which possessed a negative upon the acts of the other.2 This course of proceeding continued until the final dissolution of the charter.
§ 70. It may be well to state, in this connection, that the council established in Plymouth in a very short period after the grant of the Massachusetts charter (in 1635) finally surrendered their own patent back to the crown. They had made other grants of territory, which we shall hereafter have occasion to notice, which had greatly diminished the value as well as importance of their charter. But the immediate cause of the surrender was the odious extent of the monopolies granted to them, which roused the attention of Parliament and of the nation at large, and compelled them to resign what they could scarcely maintain against the strong current of public opinion. The surrender, so far from working any evil, rather infused new life into the colonies which sprung from it, by freeing them from all restraint and supervision by a superior power, to which they might perhaps have been held accountable. Immediately after this surrender legal proceedings were instituted against the proprietors of the Massachusetts charter. Those who appeared were deprived of their franchises. But fortunately the measure was not carried into complete execution against the absent proprietors acting under the charter in America.4
§ 71. After the fall of the first colonial charter in 1684,5 Massachusetts remained for some years in a very disturbed state under the arbitrary power of the crown. At length a new charter was in 1691 granted to the colony by William and Mary; and it henceforth became known as a province, and continued to act under this last charter until after the Revolution. The charter comprehended within its territorial limits all the old colony of the
1 1 Hutch. Hist. 35, 36, 37, 94, note, 449; 1 Holmes's Annals, 222; 1 Haz. Coll. 320, 321; 1 Chalmers's Annals, 157. [Palfrey, Hist. of New England, I. 371.]
2 1 Hutch. Hist. 449; 1 Chalmers's Annals, 166; Col. and Province Laws (1814), ch. 31, p. 88; Hutch. Coll. 205; 1 Doug. Summ. 431.
8 1 Holmes's Annals, 227; 1 Haz. Coll. 390, 393; 1 Chalmers's Annals, 94, 95, 99.
* 1 Holmes's Annals, 227; Hutch. Coll. 101, 104; 2 Haz. Coll. 423, 425; 3 Chalmers's Annals, 161.
5 1 Holmes's Annals, 412.
Massachusetts Bay, the colony of New Plymouth, the province of Maine, the territory called Acadie, or Nova Scotia, and all the lands lying between Nova Scotia and Maine; and incorporated the whole into one province by the name of the Province of the Massachusetts Bay in New England, to be holden as of the royal manor of East Greenwich, in the county of Kent. It confirmed all prior grants made of lands to all persons, corporations, colleges, towns, villages, and schools. It reserved to the crown the appointment of the governor, and lieutenant-governor, and secretary of the province, and all the officers of the Court of Admiralty. It provided for the appointment annually of twenty-eight counsellors, who were to be chosen by the General Court, and nominated the first board. The governor and counsellors were to hold a council for the ordering and directing of the affairs of the province. The governor was invested with authority, with the advice and consent of the council, to nominate and appoint "judges, commissioners of oyer and terminer, sheriffs, provosts, marshals, justices of the peace, and other officers to the council and courts of justice belonging.' The governor was also invested with the command of the militia, and with power to appoint any chief commander or other officer or officers; to train, instruct, exercise, and govern the militia, to lead them in war, and to use and exercise the law martial in time of actual war, invasion, or rebellion. He had also the power of calling the General Court, and of adjourning, proroguing, and dissolving. it. He had also a negative upon all laws passed by the General Court. The General Court was to assemble annually on the last Wednesday of May, and was to consist of the governor and council for the time being, and of such representatives being freeholders as should be annually elected by the freeholders in each town, who possessed a freehold of forty shillings' annual value, or other estate to the value of forty pounds. Each town was entitled to two representatives; but the General Court was from time to time to decide on the number which each town should send. The General Court was invested with full authority to erect courts, to levy taxes, and make all wholesome laws and ordinances, "so as the same be not repugnant or contrary to the laws of England"; and to settle annually all civil officers whose appointment was not otherwise provided for. All laws, however, were to be sent to England for approbation or disallowance; and if disallowed, and so signified