Boston City (part 34 of 67)

The primary cause of the dissensions between England and her American 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 cither 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." *

The right to grant such a charter as this was regarded as one of the prerogatives 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; arid the right to institute and to provide for the institution of colonial governments . . . was likewise one of the prerogatives. Parliament had then nothing to do with the organization or government of colonies." ^

The sovereigns of Europe assumed, in violation of natural rights, a claim of possession to all foreign lands discovered by their subjects, and not occupied by any Christian people. Agreeably to this rule, the kings of England assumed to grant patents for discovery, - of which the earliest relating 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 Parliament 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 foreign dominions, - not his subjects of the realm or State.^

" 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 forfeiture for sufficient cause." ^

''The grant and confirmation of the lands, and the grant of mere corporate powers for private purposes, were private rights which vested in the grantees, and which the King coukl not divest, except upon some forfeiture regukgrly enforced. Upon such forfeiture the corporation would be dissolved, and all of the lands belonging to it would revert in the nature of an escheat. But this would not affect valid grants previously nuide by it.

"The grant of power to institute a colonial government, being a grant not for private but for public purposes, may have a different consideration. Whether, by reason of its connection with the grant of the lands and of ordinary cor]>oratc powers, it i)artook 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 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 applicable 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." *

The transfer of the charter and government from London to Massachusetts 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." -

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,* August 23d, Anno Dom. 1630," - Winthrop having arrived at Salem June 12 preceding, had now taken up his residence at Charlestown. -

* A board of trade, or joint-stock company, authority of Governor of " London*s Plantation was to be kept up in London consisting of five in Massachusetts Bay in New England," - a subpersons who were to remain in England, and ordinate local government, established by the five who were expected to emigrate. It was a corporation in London agreeably to the provisvoluntary association, consisting of adventurers, ions of the Charter, and apparently intended as who contributed to a fund for aiding the colony, a permanent municipal establishment. On the expecting to be remunerated, and at the end of arrival of Winthrop, and the transfer of the comseven years a division to be made. The scheme pany to Massachusetts, the subordinate govemseems to have come to naught. If not dissolved ment was abolished, and its duties were assumed Ixforc, the quo wttrranto of 1635 may have had by its principal, the corporation itself, which took its influence in dissolving the association. immediate direction of affairs. As the successor

* Ccmmefttariet on the Coitsiihithn^ Book i. of Cradock, Winthrop was the second Governor chap. iv. sec. 66. of the Massachusetts Company, yet he was the

* Endicott, who had been sent over originally first who exercised his functions in New England as agent of the patentees, was subsequently ^ Charlestown was early so called.

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 iit."^

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 Christopher Gardiner, Morton, and Ratcliff) 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,^ who had married the Gov-

1 Citations in Palfrey, i. 365, 566. The Rec- was accessible among the archives of the Counords of the Council for New England show cil for New England if an inspection of it was that, before this date, the Massachusetts pa* all that was wanted. No copy of it now exists, tentees had had some grievances to allege It is cited in the royal charter of 4th March, against the Council. On the 26lh June, 1632, 1628-29. Mr. Humfrcy was requested to appear Mr. liumfrey, one of the original patentees, at the next meeting of the Council for New Engcomplained to the President and Council for land, and to bring Mr. Cradock with him. Two not permitting ships and passengers to pass days afterwards they appeared, and Mr. Humhence for the Bay of Massachusetts without frey was reproved " for charging Sir F. Gorges license first had from the President and Coun- falsely " at the last meeting, of writing himcil, or their Deputy, they being free to go thither self the Lord Treasurer's letters to the o(Hcers and to transport passengers, not only by a pa- of customs, for not suffering any ships to pass tent from said Council, but by a confirmation for New England without license first obtained thereof from his Majesty. Hereupon some of from the President and Council for New England, the Council desired to see the patent obtained /fi//./fM//|/.5'<v./V(v^r<///ifi, April, 1867, pp. 59,61. from the Council, because, as they alleged, "it > " A drcumstanlial account,** says Hutchpreindicted former grants." Mr. Humfrey an- inson, ii. 2, *'of an attempt to vacate it [the swered that the patent was in New England, charter), the second year after their removal, that they had often written for it to be sent we have in a letter to the Governor from Emanhither, but had not as yet received it. It seems uel Downing, father of Sir George Downing." to us strange that no record of the grant to the " I intended to have printed it, but it was un- MassachusetU patentees of 19th March, 1627-28^ fortunately destroyed."

The Charter Of King Charles The First

crnor'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, victuals, 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 Ix)rdships, not laying the faults or fancies (if any be), of some particular men upon the general government, or principal adventurers (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 nutintain 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."*

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: -

" ITie 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. Humfirey, and Mr. Cradock, were called before a Committee 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 wouM have them severely punished, who did abuse his governor and the Plantation ; that the defendants 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 u|)on us ; for that it was considered that it was the freedom 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 Engkmd for masts, cordage, &c., if the Sound should be debarred." *

Governor Winthrop's exultation on the receipt of this favorable intelligence was not concealed. He addressed a letter to his friend, Governor

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 21 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 particular that there were at this present divers ships now in the river of lliames, 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 aflemoon, 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*

In the following week, however (Feb. 28), an order for the release 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."

The Charter Of King Charles The First

''Annoyance from the home government was therefore to be expected by 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 dissensions 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 Massachusetts 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 cliarter was their palladium. To lose it would be ruin. Whatever might imperil their possession of it required to be watched by tlicm with the most jealous caution."^

Mr. Humfrey, who arrived in July of this year, brought news of impending 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,* " 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, letterspatents, &c., to be brought before them, and if found to " have been prejudiciously suffered or granted ... to command them, according to the laws and customs of F.ngland, to be revoked," &c. A copy of the Commission itself arrived in the Colony in September.' It bears date April 10, 1634. It had been previously announced by Thomas Morton, in a letter from London, dated May i, 1634, to his friend Jeffery, an old planter, who delivered it to Governor Winthrop, in the early part of August Winthrop has preserved this characteristic letter.* The writer had, or professed to have

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 collection and custody of arms and ammunition.^

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." '^

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 afiairs whatever;" "to imprison or confine any that they should judge to be enemies to the commonwealth, and such as would not come under command or restraint, as they should be required, it should be lawful for the commissioners to put such persons to death." ^

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 plantations without license from his Majesty's Commissioners; nor any person, under a subsidy man, without evidence that he had taken the oath of supremacy and allegiance, and that he conforms to the discipline of the Church of England.*

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 fearing 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." *

This measure was taken by the Council for New England by understanding 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 Lx>rds of the Privy Council, they say: " Whereas it pleased your Lordships to give order to Sir Ferdinando Gorges to confer with such as were chiefly 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." ^

The public declaration of reasons for the surrender of the grand patent IS entered on the records of the Council for New England, April 2$, 1635, and the King's acceptance of the same is also recorded at the same meeting. The formal resignation was effected June 7 following.'

1 Hazard, CciUctions^ \. 347, 348. tain religious persons for lands in the Massa- ' Hubbard, ATew England^ pp. %1^%2X^ chusetts Bay, who " easily obtained their first * In the Council's declaration of reasons for desires, but those being once gotten, they used resigning their charter of Nov. 3, 1620, written other means to advance themselves a step from probably by Sir Ferdinando Gorges, they refer beyond their first proportions to a second grant to the troubles they had encountered from the surreptitiously gotten of other lands also, justly beginning; namely, the opposition of the Vir- passed unto Captain Robert Gorges long l)eginia Company, which was prosecuted in Parlia- fore ** (it may lie added here, in parenthesis, that ment, the death of several " of. the most noble Gorges, in his Briefe Narration^ pp. 40, 41, says, and princip.1l props *' of the Company, and the in speaking of this grant, that the Earl of Waropposition of the French ambassador, all which wick wrote to him, "then at Plymouth, to conleft them, as it were, "a carcass in a manner descend that a patent might be granted to such breathless.** Then came the application of cer- as then sued for it, whereupon I gave my appro-

To effect the contemplated overthrow of the Massachusetts Charter, a quo 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 Car forth as it might not be prejudicial to my son Robert Gorges' interests," &c) ; that they ** exorbitantly bounded their grant from east 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 hb Majesty, and unwitting thereof, by which means they did not only enlarge their first extents to the west limits spoken of, but wholly excluded themselves from the public 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 Massachusetts patentees as to the use of dishonest methods in obtaining their lands are very blindly stated. They speak of '* a second grant surrci>- 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 patenu issued. Besides, they had no accurate maps or plans of the coast and lands which they pretended to convey. The Massachusetts Patent, it is true, covered the earlier grant to Robert Gorges of Dec. 30, i6aa. but that was the Council's business, and not that of the petitioners, who were probably ignorant of any such collision. The extraordinary 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 complaints from some of the opposite faction, including Gorges and Mason, who were probably not present when the instrument passed the seals of the Council. At a meeting of the Council in June, 1632, Mr. Humfrey, one of the patentees, being present on a matter of business, some members of the Council desired to see the Massachusetts Patent, ** because, as they alleged, it preindicied former grants. Mr. Humfrey answered that the said patent was now in New England."

The statement further on, that the subsequent charter from the King was a means of enlarging ''their first extents tu the west limits spoken of," must be understood to mean that his Majesty's grant operated as a confirmation of that boundary. In Gorges's Brie/e 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, llunifrey*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 boundaries 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 confirmation of all this from his Majesty, and unwitting 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 government over the lands granted. They say that those who had complaints to make against the Colony applied to them for redress as the responsible 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 l..ordships to doe what might best sort with their wisdoms \ who found matters in so desperate a case as ihat 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 intentions of the Council for New England respecting the government of the territory ceded to the Massachusetts patentees, the Chief Justices in 1677 held that the Council, by its grant of i9ih of March. 1627-28, must be presumed to have ** deserted the government. " Chalmers, AhhoIs, p. 506.

The Charter Of King Charles The First

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 usurpation charged, and that the said franchises should be taken and seized 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, Bcllingham, Pyncheon, and William Vassall were then in New England, and Johnson had died there. The process was pending about t^vo years. There was no service of the writ on the corporation, nor on any of the members in Massachusetts.*

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 Government 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 o£ que warranto is in 2 Mass, Hist, Col, viii. 97. Tlie information on wliich it issued, tnd the result of the process, may be seen in Hutchinson, Collection of Original Papers^ pp. 101-104.

' Emanuel Downing, Governor Winthrop*s brother-in-law, was in England at the time of this process against the charter. He came over to tlie colony in 1638. In 1641, when Hugh Peter was al>out 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 magistrates to govern according to the patent ; and tho^e 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 onght to be reversed, which a motion in the King's Bench, without any long suit by Writ of Error, may set right again.** 4 Mass, Hist, Coll,, vl. 58. Hutchinson, Mass, Bay, i. 87, says: "It is said judgment was never entered in form against the corporation. ... Mr. Hubbard says judgment was given, &c., but the Government themselves, in some of their declarations in King Charles the Second's time, say that the process was never completed. Judgment 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 thereupon so given, as could cause a dissolution of the said charter.*' The reasofts of the Attorney and the Solicitor Generals are not given by Chalmers, and may not have l>een embodied in the paper cited by him. Annals, pp. 405, 4J9.

the original parchment* with the Great Seal attached to it, their franchise was safe.^ 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 tliis 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.

** 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 ^uo 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." *

" A copy of a Utter 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 consideration tliat 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 fomierly real property were rarely recorded, and were it remained in their hands. See a paper by Frothemselves the only proof of possession, and fessor Emory Washburn on the " Transfer of the such muniments passed with the ownership of Colony Charter," in Afass. Hist. Soc, /V<ir., Janthe property. And, although the MassachuseUs uary, 18591 PP- > 54-167* H^^ thinks the purpose

London, the original parchment in the hands of instituted, *'togetposscasioR of the charter itself.*' the patentees seems to have been regarded as < Ntw Enj^Umd, i. 269.

The Charter Of King Charles The First

given order about two or three years since to Mr. Cradock, a member of that Plantation, 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, -

" 'ITieir 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." '

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 VVinthrop'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 : -

" 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 tlie 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 tp 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 thereupon we are all humble suitors to your Lordships, that you will be pleased to take 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 ourselves, before we be condemned as a people unworthy of his Majesty's favor or protection ; 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 sufiicient 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 fi'om 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 (anK>ng others) will necessarily follow : (i) 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 &11 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 firom their allegiance and subjection, and, thereupon, will be ready to confederate themselves 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.

" Upon these considerations we are bold to renew our humble supplications to your Lordships, that we may be suffered to live here in this wilderness, and that this poor plantation, which hath found more favor fi-om God than many others, may not find less &vor firom your Lordships ; that our liberties should be restrained, when others are enlarged ; that the door should be. kept shut unto us, while it stands open to all other plantations ; that men of ability should be debarred fiom us, while they have encouragement to other colonies.

''We dare not question your Lordships' proceedings; we only desire to open our griefe where the remedy is to be expected. If in anything we have offended his Majesty and your Lordships, we humbly prostrate ourselves at the footstool of supreme authority ; let us be made the object of his Majesty's clemency, and not cut off, in our first appeal, fit>m all hope of favor. Thus, with our earnest prayers to the King of kings for long life and prosperity to his sacred Majesty and his royal fomily, and for all honor and welfare to your Lordships, we humbly take leave." ^ had been as Tainiliar with Winthrop's manuscript Journal, or History, as he was with Hubbard's History, he would have found, under date of May, 1639, the following entry : -

" The Governor received letters from Mr. Cradock, and in them another order from the Lords Commissioners, to this effect : " That, whereas they had received our petition upon their former order, &c., by which they perceived we were taken with some jealousies and fears of their intentions, &c., they did accept of our answer, and did now declare their intentions to be only to regulate all plantations to be subordinate to the said Commission ; and that they meant to continue our liberties, &c. ; and therefore did now peremptorily require the Governor to send them our patent by the first ship ; and that, in the mean time, they did give us, by that order, full power to go on in the government of the people until we had a new patent sent us ; and, withal, they added threats of further course to be taken with us if we failed."

The next paragraph of the Journal is interesting, as giving a little piece of private history, and showing the shrewd qualities of those with whom the English Government had to deal : -

" This order being imparted to the next Genera] Court, some advised to return answer to it. Others thought fitter to make no answer at all, because, being sent in a private letter, and not delivered by a certain messenger, as the former was, they could not proceed upon it, because they could not have any proof that it was delivered to the Governor ; and order was taken, that Mr. Cradock's agent, who delivered the letter to the Governor, &c., should, in his letters to his master^ make no mention of the letters he delivered to the Governor."

This furnishes a sufficient reason why Hutchinson never heard of this order of the Commissioners and the action taken on it. No official record was made of it, and no papers were left op file. Indeed, as to most of the transactions narrated here respecting the patent, and which were the subject of so much anxiety, the records of the General Court are wholly silent.

In this last order the Lords Commissioners frankly admit their object. They intended to bring all the plantations into subjection under their commission. " The charter," says Professor Parker, " stood in their way. They called for it, and it did not come. Process to enforce a forfeiture of it had failed. There was a very good reason for this thrice-repeated demand by the Commissioners. Their commission purported to give it to them, with authority to revoke it if, upon view of it, they found anything hurtful to the King, his crown, or prerogative royal. The possession of it was thus made necessary to a revocation by the Commissioners. A view of the copy was not sufficient. No reason is apparent why this might not have been made otherwise. Perhaps it would have been if there had been any apprehension of difficulty in obtaining possession. But so it stood. Therefore the repeated attempts to obtain a surrender, with the threats if it was not forthcoming. It was important to exhibit a semblance of a legal revocation. There were too many complaints of the exercise of arbitrary power in England to render it expedient to add others in relation to the colonies." *

All these proceedings, at least in Massachusetts, were a nullity. " Everything went on as if Westminster Hall had not spoken. The disorders of the mother country were a safeguard of the infant liberty of New England." Sir Ferdinando Gorges, the newly-appointed General Governor, did not come to New England. There was a rumor that the " great ship," which Mason and others had built " to send over the General Governor, . . . being launched, fell in sunder in the midst." ^

* [This is engraved, by permission of the Hon. Robert C. Winthrop, from a contemporary miniature, ascribed to Cooper, whose ownership is traced back from Mr. Winthrop through the late Joseph Coolidge, President Jefferson, and Geo. W. Erving. Mass, Hist, Soc, Proc., March, i8So, p. 365. For Cromwell's purpose to fly to America see l/. E. Hist and Geneai. Reg,^ April, 1866. - Ed.]

The Charter Of King Charles The First

For thirty years the freemen of Massachusetts managed their aflfairs with very little interruption from the mother country. There were times of anxiety, and there were occasions of annoyance, as we have already seen, but during this period they were substantially independent. From the year 1640 to the Restoration they had little apprehensions of danger to their civil or religious privileges. They recognized the importance of keeping on good terms with the Parliament, and subsequently with Cromwell. Hutchinson says he has ** nowhere met with any marks of disrespect to the memory of the late King, and there is no room to suppose the colonists were under disaffection to his son; and if they feared his restoration it was because they expected a change in religion, and that a persecution of all Nonconformists would follow it." ' The i-estoration of royal authority gave occasion to some fears, grounded in part on uncertainty as to the character of the new King and his ministers and advisers, as well as respects the policy which he might adopt towards New England. The declaration from Breda was calculated to dispel alarm. While their charter remained good in English law, they rested upon it as a sufficient shield.

In July, 1660, news arrived that the King had been proclaimed in England, but no advices had been received from authority, and he was not proclaimed in the colony. At the session of the Court in October, a motion was made for an Address to be sent, but it did not prevail. There were rumors that England was in an unsettled condition, that the body of the people were dissatisfied, and fears were felt that an address might fall into the hands of parties for whom it was not intended. In . November, however, they were informed that all matters were settled, and letters were received from Capt. John Leverett, their agent in London, and others, that petitions and complaints had been preferred against the Colony, to the King in Council, by Mason and Gorges, - each a grandson and heir of a late more distinguished proprietor of lands in New England, - and by others ; that the Quakers and some of the Eastern people had been making their grievances known, and that the demand was for a general governor to be sent over.'

An extraordinary meeting of the General Court was called on the 19th of December, and a loyal address to the King was agreed upon, and another to the two Houses of Parliament. Letters were also sent to Lord Manchester, Lord S.iy and Scle, and others of note, to intercede in behalf of the colony. The Address to the King was lavish in compliments, and aboundi^d in Scriptural phraseology.

" May it please your Majesty," they say, "in the day wherein you happily say, you now know that you are again king over your British Israel, to cast a favorable eye upon youf poor Mephibosheths, now - and, by reason of lameness in respect of distance, not until now - appearing in your presence ; we mean New England, kneeling with the rest of your subjects before your Majesty as her restored king. We forget not our ineptness as to these approaches. We at present own such impotency as renders us ' JIfass. Bay, I. 209. * Hutchinson, Papers, pp. 322, 323.

unable to excuse our impotency of speaking unto our lord the king ; yet contemplating such a king who hath also seen adversity, that he knoweth the hearts of exiles, who himself hath been an exile ; the aspect of majesty thus extraordinarily circumstanced iniluenceth and ammateth exanimated outcasts, yet outcasts as we hope for the truth, to make this Address unto their Prince, hoping to find grace in your sight"

This is certainly a very unpromising beginning, both as to rhetoric and as to taste. The Address proceeds to supplicate protection '* in the continuance both of our civil privileges and of our religious liberties, according to the grantees' known end of suing for the patent conferred upon this Plantation by your royal father. . . . Touching complaints put in against us, our humble request only is that for the interim, wherein we are dumb by reason of absence, your Majesty would permit nothing to make an impression upon your royal heart against us, until we have opportunity and license to answer for ourselves.*' As to the Quakers, " the Quakers died, not because of their other crimes, how capital soever, but upon their superadded presumptuous and incorrigible contempt of authority." ^

The General Court's instructions to their agent are expressed in a businesslike manner. He is to interest as many gentlemen of worth in Parliament, or that are near the King, as possible, and " get speedy and true information of his Majesty's sense of our petition, and of the government and people here, together with the like of the Parliament." As to any complaints ** relating to the bounds and limits of our patent," they desire to have liberty to make answer for themselves ; and " if any objection be made that we have forfeited our patent in several particulars, you may answer that you desire to know the particulars objected, and that you doubt not but a full answer will be given thereto in due season."

'^ We have made it our care to settle our lately distracted kingdom at home, and to extend our thoughts to increase the trade and advantages of our colonies and plantations abroad. Amongst which, as we consider New England to be one of the chiefest, having enjoyed and grown up in a long and orderly establishment, so we shall not come behind any of our royal predecessors in a just encouragement and protection of all our loving subjects there, whose application unto us, since our late happy restoration, hath been very acceptable, and shall not want its due remembrance upon all seasonable occasions ; neither shall we forget to make you and all our good people in those parts equal partakers of those promises of liberty and moderation to tender consciences expressed in our gracious declarations." '

Such benign language, employed by the King through Secretary Morrice, was well calculated to allay anxiety, and undoubtedly prepared the way for the reception of another document of a diflerent character, which proba- biy came by the same ship, yet bearing a little earlier date. Thb was an order for the arrest of Colonels Whalley and Goffe, the fugitive regicides, who arrived in the colony the preceding July, and had been seen in Boston by one Captain Breedan, a commercial adventurer from England, who, on his return home, gave information thereof to the authorities.

The Navigation Act of Cromwell, through the friendly feeling of the Protector, had been a dead letter in Ihe Colony. The Convention Parliament enacted a more stringent law. This forbade the importation of merchandise into any English colony, except in English vessels, with English crews ; and prohibited the exportation of certain colonial staples, specified, from the place of production to any other ports than such as belonged to England. The penalty in both cases was forfeiture of vessel and cargo. This oppressive system was extended, three years later, by confining the import trade of the colonists to a direct commerce with England, forbidding them to bring from any other country, or in aiiy but English ships, the products, not only of England, but of any European soil.^

It was not without reason that the General Court apprehended some difficulty in the execution of the more rigorous law passed in the year of the Restoration. Yet they desired to place themselves right on the record, and repealed certain laws which had hitherto made their harbor free to *' all ships which came for trading only from other parts ; " while they authorized the Governor to require bonds of the ship-masters coming hither, as the Navigation Act required, and returns to be made before they had liberty to depart. And, in order to give no unnecessary cause for complaint that the provisions of their charter had not been adhered to in a certain respect, they repealed the law limiting the number of Assistants to fourteen, and permitted the freemen to choose eighteen Assistants, " as the Patent hath ordained." The practice, however, remained the same.'

The government of the English colonies was first lodged in the Privy Council. The plan next devised, in 1634, was that of the Commission which has already been referred to, and of which Laud was at the head. At an early period of the Civil War, in 1642, a Parliamentary Commission was intrusted with the superintendence of colonial afiairs, with Robert, Earl of Warwick, at its head.' But this last commission exercised little authority. One of Lord Clarendon's earliest measures on the Restoration was the formation, in December, 1660, of a Council of Foreign Plantations, which was invested with similar powers to that last named. In the preceding month a Council of Trade had been established. A few months later, in May, 1661, twelve Privy Councillors were appointed to be a ** Committee touching the settlement of New England.'' But no immediate authority appears to have been exercised by this committee.* this time led the colonial authorities to reflect upon their own rights and duties. As the session of the General Court in May, 1661, was drawing to a close, a committee consisting or twelve or the principal laymen and clergymen was appointed to take into consideration " the present condition of our aflairs." They desired '' seriously to discuss, and rightly to understand, our liberty and duty, thereby to beget unity amongst ourselves in the due observance of obedience and fidelity unto the authority of England and our own just privileges/' At a special meeting of the General Court, June 10, this committee made a report which was ''allowed and approved." This remarkable paper, signed and probably written by Thomas Danforth, is a sort of declaration of rights and an acknowledgment of duties. As an exposition of those rights, and as showing the reliance placed upon their charter, it is worthy of a place here.

" I. We conceive the patent (under God), to be the first and main foundation of our civil polity here, by a governor and company, according as is therein expressed.

" 6. The governor, deputy-governor, assistants, and select representatives or deputies have full power and authority, both legislative and executive, for the government of all the people here, whether inhabitants or strangers, both concerning ecclesiastical and civil, without appeal, excepting law or kws repugnant to the laws of England.

'' 7. This government is privileged, by all fitting means (yea, if need be by force of arms), to defend themselves, both by land and sea, against all such person or persons as shall, at any time, attempt or .enterprise the desUruction, invasion, deUriment, or annoyance of this Plantation, or the inhabitants therein, besides other privileges, mentioned in the patent, not here expressed.

*' 8. We conceive any imposition prejudicial to the country, contrary to any just law of ours, not repugnant to the kws of England, to be an infringement of our right.

" I. We ought to uphold, and to our power maintain, this place as of right belonging to our Sovereign Lord the King, as holden of his Majesty's manor of East Greenwich, and not to subject the same to any foreign prince or potentate whatsoever.

" a. We ought to endeavor the preservation of his Majesty's royal person, realms, and dominions, and, so far as lieth in us, to discover and prevent all plots and conspiracies against the same.

'' 3. We ought to seek the peace and prosperity of our king and nation, by a faithfid discharge in the governing of this people committed to our care.

The Charter Of King Charles The First

" First. By punishing all such crimes (being breaches of the first or second table) as are committed against the peace of our Sovereign Lord the King, his royal crown and dignity.

" Second. In propagating the Gospel, defending and upholding the true Christian or Protestant religion, according to the faith given by our Lord Christ in his Word : our dread sovereign being styled, * Defender of the Faith.'

" The premises considered, it may well $tand with the loyalty and obedience of such subjects as are thus privileged by their rightful sovereign (lor himself, his heirs, and successors forever) as cause shall require, to plead with their prince against all such as shall at any time endeavor the violation of their privileges.

" We further judge that the warrant and letter from the King's Majesty for the apprehending of Colonel Whalley and Colonel GofTe ought to be diligently and faithfully executed by the authority of this country.*

"And also that the General Court may do safely to declare, that in case, for the future, any legally obnoxious, and flying from the civil justice of the state of England, shall come over to these parts, they may not here expect shelter." -

The formal proclaiming of the restored king had been deferred until August, 1661, fifteen months after his accession, when it was ordered by the Court that he be proclaimed in Boston; and the following form, selected from among several proposed, was adopted, -

'* Forasmuch as Charles the Second is undoubted King of Great Britain, France, and Ireland, and all other his Majesty's territories and dominions thereunto belonging, and hath been sometimes since lawfully proclaimed and crowned accordingly, we therefore do, as in duty we are bound, own and acknowledge him to be our Sovereign Lord and King, and do therefore hereby proclaim and declare his said Majesty, Charles the Second, to be lawful King of Great Britain, France, and Ireland, and all other the territories and dominions thereunto belonging." -

An address to the King, likewise agreed to at the same time, if not sent, is preserved by Hutchinson.* It is conceived and executed in bad taste, its rhetoric being beyond redemption. The tone was sufficiently submissive to satisfy the vanity of the most arbitrary monarch.

Hutchinson says that intelligence arrived about this time of further complaints against the Colony, and that orders were received from the King that persons should be sent over to make answer. That historian may have had papers not now on file. It is certain that, at the meeting of the General Court in November, the question of sending agents and providing money to defray the expenses of the mission was considered, and was referred to the next Court. A special session was called for December, at which it was resolved to send Mr. Bradstreet and Mr. Norton, with instructions to represent the Colony as his Majesty's loyal and obedient subjects, to endeavor to take off all scandal and objections, and to understand his Majesty's apprehensions concerning them. A humble petition and address to the King was prepared to accompany the agents, praying his Majesty to incline his royal ear unto the persons herewith sent, and iipploring his ** gracious confirmation of our patent granted by your royal predecessor of famous memory." Letters were also written to the Earl of Manchester, Viscount Say and Sclc, and the Earl of Clarendon.

Mr. Bradstrcet and Mr. Norton engaged in this service with great reluctance» as the mission was regarded by them as a delicate one, attended with heavy responsibilities. Mr. Norton had a special reluctance to serve. The agents feared that they might be detained as hostages for the good behavior of their constituents. A committee was appointed to make all the necessary arrangements, including the preparation of instructions. They met at the "Anchor Tavern in Boston," having ten sessions in five weeks; and though some members of the Committee, including the Governor, Mr. Endicott, and Deputy-Governor, Mr. Bcllingham, were so averse to the measure that they failed to attend the meetings, the business was finally arranged, and the agents sailed February ii, 1662-63.^

It has been remarked, as the occasion of some surprise, that the Colony, in a period so critical in their affairs, should have repeated an act calculated to give high offence in England. Soon after the agents had sailed, and before any tidings of them could have been received, the General Court passed an order for issuing a new coin of " two-penny pieces of silver." This coin continued to be struck for a long time, all the pieces being stamped with the date of the year of the first issue, as in the case of the earlier issue.*

The reception of the agents in England was far more favorable than they had dared to hope. In London they were confronted by some of the enemies of the Colony, particularly by the Quakers, who had little power to annoy them. Their stay in England was short, and they returned the next fall, - arriving September 3, - with a gracious letter from the King, bearing date June 28, 1662, "part of which cheered the hearts of the country." He told the authorities of Massachusetts that their Address to him had been very acceptable ; that he received them into his gracious protection; confirmed the patent and charter heretofore granted to them,

* (The first coining had taken place in 1652, iii.), throw light on Hull's life and character. when,byorder of the Court, shilKngs, sixpences. The one date, 1652, continued on these early and threepences were to be struck to take the coins as struck for thirty years. Hull claimed place of ** paper bills, very subject to be lost, all his rights under a very advantageous conrent, or counterfeited/' tract for coining the money, and died rich. J}q/P -sp M and John Hull,- a sil- Felt, Mass, Currency, The coins are figured ^^f^^ wti4^ ^ vcrsmith, and Robert in Drake's Boston^ p. 330, and lutudmarks^ pp. Sanderson were placed 211, 237, and in l^ossing's Fieldbock of the in charge of the minting, Hull being the mint- RevoltUion, i. 449, &c. Cf. John H. Hickox, master. Hull lived till 16S3, and left a will, IHsL Ace. of Amer, Coitiage^ Albany. Hull is which is abstracted in Drake's Boston^ pp. 329, supposed to have lived in Shcaffe Street ; he 450. His daughter Hannah, of whom the old lies buried in the Granary. A large property story goes that he gave her on her marriage a - 350 acres - which he possessed in Longsettlement in pine-tree shillings equal to her wood was known as Sewall's Farm after it deweight, was the wife ol the famous Judge Sewall, scended to his son-in-law. Wood, Brookliue^ whose Diary (5 Meat, Nisi. Coll, v.), and that p. 109. - Ed.]

and was ready to renew the same whenever desired ; and that he pardoned ail his subjects of that Plantation Tor all crimes and oflTences committed against him during the late troubles, except any such persons who stood attainted of high treason, if any such persons had transported themselves into those parts.

These clauses in this missive of the King were then regarded by the colonists, and were often afterwards referred to by them, as a confirmation of their charter privileges and an amnesty of all past errors.

There were some things, however, in the King's letter, hard to comply with ; and though the authorities, agreeably to the King's command, ordered it to be published, it was with the proviso that " all manner of actings in relation thereto shall be suspended until the next General Court"

" Provided always, and be it in our declared expectation, that upon a review of all such laws and ordinances that are now or have been during these late troubles in practice there, and which are contrary or derogative to our authority and government, the same may be annulled and re|Kalcd» and tiic rules and prescriptions of the said charter for administering and taking the oath of allegiance be henceforth duly observed, and that the administration of justice be in our name.* And since the principle and foundation of that Charter was and is the freedom of liberty of conscience. We do hereby charge and require you that that freedom and liberty be duly admitted and allowed, so that they that desire to use the Book of Common Prayer, and perform their devotion in that manner that is established here, be not denied the exercise thereof, or undergo any prejudice or disadvantage thereby, they using their liberty peaceably without any disturbance to others ; and that all persons of good and honest lives and conversations be admitted to the Sacrament of the Lord's Supper ; according to the said Book of Common Prayer, and their children to baptism. We cannot be understood hereby to direct or wish that any indulgence should be granted to those persons commonly called Quakers, whose principles being inconsistent with any kind of government, We have found it necessary, with the advice of our Parliament here, to make a sharp law against them, and are well content you do the like there. Although We have heix:by declared our expectation to be that the Charter granted by our royal father, and now confirmed by us, shall be particularly observed ; yet, if the number of assistants enjoined thereby be found by experience, and be judged by the country, to be inexpedient, as We are informed it is, We then dispense with the same, and declare our will and pleasure, for the future, to be, that the number of the said assistants shall not exceed eighteen, nor be less at any time than ten. We assuring ourselves, and obliging and commanding all persons concerned, that, in the election of the governor or assistants there be only consideration of the wisdom and integrity of the persons to be chosen, and not of any faction with reference to their opinion or profession, and that all the freeholders of competent estates, not vicious in conversations, orthodox in religion (though of different persuasions concerning church-government), may have their vote in the election of all officers civil or military. Lastly, our will and pleasure is, that, at the next General Court of that our Colony, this our letter and declaration be conununicated and published, that all our loving subjects may know our grace and favor to them, and that We do take them into our protection as our loving and dutiful subjects, and that We will be ready from time to time to receive any application or address from them which may concern their interest and the good of our Colony, and that We will advance the benefit of the trade thereof by our uttermost endeavor and countenance, presuming that they will still merit the same by their duty and obedience." ^

Many of these requirements were grievous to our ancestors. "The agents met with the same fate," says Hutchinson, '' of most agents ever since. The favors which they obtained were supposed to be no more than might well have been expected, and their merits were soon forgot; the evils which they had it not in their power to prevent were attributed to their neglect or to unnecessary concessions." Mr. Norton was so sensibly affected by the displeasure of his neighbors that he drooped and died in a few months after his return. Mr. Bradstrect was a man of more '* phlcm," and of less ability than his associate, and perhaps was regarded as less responsible.^

The only thing done at this session of the General Court, - held in October, 1662, - in obedience to the King's orders, beside making the letter public, was the ordering that "all writs, process with indictments," &c., be made and set forth in the King's name. At the next session, in May, 1663, a commission was appointed, after long and serious debate, to consider what was proper to be done as to other parts of the letter; and in the mean time both clergymen and laymen were invited to send in their thoughts, so that something might be agreed upon " satisfactory and safe, conducing to the glory of God and the felicity of his people."*

Notwithstanding the gracious expressions and promises in some of the King's letters to the Massachusetts authorities, it must be admitted that, from the Restoration until the vacating of the charter, the Colony never stood well in England, and the principal persons in the colony, both Church and State, were never without fears of being deprived of their privileges. The years 1664 and 1665 afforded them greater occasion for apprehension than they had met with at any previous period, - certainly since the time of the meeting of the Long Parliament.

At a meeting of the Privy Council, Sept. 25, 1662, "The settlement of the plantations in New England [were] seriously debated and discoursed, and the Lord Chancellor declared then that his Majesty would speedily send commissioners to settle the respective interests of the several colonies.

The Charter Op King Charles The First

The Duke of York to consider of the choice of fit men." At a meeting on the lOth April, 1663, ** A letter from New England, and several instruments and papers being this day read at the Board, his Majesty (present in Council) did declare that he intends to preserve the charter of the plantation, and to send some commissioners thither speedily to see how the charter is maintained on their part, and to reconcile the diflferences at present amongst them."

These orders of the Privy Council were a foreshadowing of what was to come. In the spring of 1664 intelligence was brought that several menof-war were coming from England, with some gentlemen of distinction on board. At the meeting of the Court in May, they order that " the Captain of the Ccistic, on the first sight and knowledge of their approach, give speedy notice thereof to the honored Governor and Deputy-Governor; and that Captain James Oliver and Captain William Davis are hereby ordered forthwith to repair on board the said ships, and to acquaint those gentlemen that this Court hath and dotli by them present their respects to them, and that it is the desire of the authority of this place that they take strict order that their under officers and soldiers, in their coming on shore to refresh themselves, at no time exceed a convenient number, and that without arms, and that they behave themselves orderly," &c. A solemn day of humiliation and prayer was commended to be held by all the churches, " for the Lord's mercy to be towards us." And " forasmuch as it is of great concernment to this Commonwealth to keep safe and secret our patent, it is ordered, the patent and duplicate, belonging to the country, be forthwith brought into the Court ; and that there be two or three persons appointed by each House to keep safe and secret the said patent and duplicate, in two distinct places, as to the said committee shall seem most expedient; " and " that the Deputy-Governor, Major-General Leverett, Captain Clarke, and Captain Johnson are appointed to receive the grand patent from the secretary, and to dispose thereof as may be most safe for the country. The secretary, being sent for the patent, brought it into Court, and delivered it to the Deputy-Governor, Richard Bcllinghnm, ICsq., and the rest of the committee, in the presence of the whole Court, and was discharged thereof."* The train-bands were put in order, and Captain Davenport was placed in command of the Castle. "Having trimmed their vessel, the wakeful pilots awaited the storm."*

On Saturday the 23d of July, 1664, two ships of war, the " Guinea" and the " Elias," came to anchor before the town of Boston. They had sailed ten weeks before from Portsmouth, England, in company with two other ships, the " Martin " and the ** William and Nicholas," from which they had parted a week or two before in bad weather. The fleet conveyed three or four hundred troops, and four persons chargetj with public business, viz.. Colonel Richard Nichols, Sir Robert Carr, Colonel George Cartwright, and Mr. Samuel Maverick.^ The two last named had arrived at Piscataqua three days before. They jointly bore a commission from the King for reducing the Dutch at Manhadoes (New York), and for hearing and dey^-r^ , y y§ . _^f termining all matters security of the country ; any three or two of them to be a quorum, Colonel Nichols during his life being one. The commission, dated April 25, 1664, is in Hutchinson.^ They also brought a letter from the King to the Governor of Massachusetts, of two days' earlier date, declaring the purpose of the embassy to be to obtain information for the guidance of his Majesty in his attempts to advance the well-being of his subjects in New England ; to suppress and utterly extinguish those unreasonable jealousies and malicious calumnies which wicked and unquiet spirits perpetually labored to infuse into the minds of men, that his subjects in those parts did not submit to his government, but looked upon themselves as independent of him and his laws; to compose such diflerences as existed upon questions of boundaries between different colonies; to assure the native tribes of his protection; to overthrow the usurped authority of the Dutch ; to confer upon the matter of his former letter sent by Bradstreet and Norton, and the Colony's answer thereto, of which he would only say that the same did not answer his expectations, nor the professions made by their messengers. The letter is in the MassacJiusetts Colony Records? They also had two sets of instructions from the King; one set to be shown, the other for the guidance of the Commissioners.^

At the wish of the Commissioners, the Governor called a meeting of the Council on Tuesday the 26th of July. The Commissioners then laid before that body their commission, the King's letter of the 23d of April, and part of their instructions, and proposed that the Colony should raise such a number of men as they could spare to <issist in the reduction of the Manhadoes, to begin their march on the 20th of August ; promising that in the mean time, if they could dispense with their services, they would give the necessary order. The Council replied that they would cause the General

The Charter Of King Charles The First

Court to assemble on the 3d of August, and lay the proposal before them. The Commissioners then proceeded to the Manhadoes, intimating, on their departure, that they should have many more things to communicate to the Council at their return, and desiring that the King's letter of June 28, 1662, might, in the mean time, be further considered, and a more satisfactory answer than before given to it.

On the assembling of the Court at the time appointed, they first resolved " that they would bear faith and true allegiance to his Majesty, to adhere to their patent, so dearly obtained and so long enjoyed by undoubted right in the sight of God and men." They then resolved to raise not exceeding two hundred men, at the Colony's charge, for his Majesty's service against the Dutch. As Manhadoes so soon surrendered upon articles, no orders were given for the men to march. The Court then proceeded to consider his Majesty's letter of 1662, - the letter brought by Bradstreet and Norton two years before, - to which the Council's attention had been specially called. They repealed the law which confined the franchise to church membership, superseding it by another which provided that from henceforth all Englishmen, being twenty-four years of age, householders, and settled inhabitants, and presenting a certificate from the minister of the place that they were orthodox in religion and not vicious in their lives, and a certificate from the selectmen that they were freeholders and ratable to the value of ten shillings, should h«ive the privilege of applying to be chosen freemen. The practical eflcct of this law was to produce little change. Fin«illy, the Court chose a committee of three, to draw up a petition to the King for the continuance of the privileges granted by charter.

Two months were spent in preparing this petition, which is a paper of some length. It bears date Oct. 19, 1664. It sets forth, with considerable eloquence, the sacrifices by which the liberties hitherto possessed by the Colony had been purchased, and urged the injustice of the present proceedings against them.

"This people," it said, "did, at their own charges, transport themselves, their wives and families, over the ocean, purchase the lands of the natives, and plant this Colony with great lal>or, hazards, costs, and difficulties ; for a long time wrestling with the wants of a wilderness and the burdens of a new plantation ; having also now above thirty years enjoyed the aforesaid power and privilege of government within themselves, as their undoubted right in the sight of God and man."

" We have applied ourselves to the utmost to satisfy your Majesty so far as doth consist with conscience of our duty towards God, and the just liberties and privileges of our patent. . . . But now what affliction of heart must it needs be unto us, that our sins have provoked God to permit our adversaries to set themselves against us, by their misinformations, complaints, and solicitations (as some of them have made that their work for many years), and thereby to procure a commission under the Great Seal, wherein four persons (one of them our known and professed enemy) are empowered to hear, receive, examine, and determine all compkiints and appeals in all causes and matters, as well military as criminal and civil, and to proceed in all things for settling this country according to their good and sound discretions, &c. ; whereby, instead of being governed by rulers of our own choosing (which is the fundamental privilege of our patent), and by laws of our own, we are like to be subjected to the arbitrary power of strangers, proceeding, not by any established law, but by their own discretions." *

Nichols was now occupied at New York by the duties of his new government. The other three commissioners met at Boston in February following (1665), and thence immediately proceeded to Plymouth, Rhode Island, and Connecticut, to transact with these colonics the business of their mission, before making a final trial of their strength with the Massachusetts. With their reception in these colonics the commissioners, in their report to the King, express complete satisfaction. By the following May they had arrived at Boston, Nichols coming from New York to join his associates only the day before the meeting of the Court of Elections. The parties now entered with spirit into the contest, which was begun and ended in a month. The venerable Governor Endicott had died in the preceding . ^ March, and he was succeeded the Court, and demanded answers. There was considerable skirmishing on both sides. The purpose of the Commissioners was primarily to have their commission acknowledged by the Government, by which they might substantially override the charter, and prepare the way for a modification of the government. The proceedings occupy a large space in the records of the colony, in which the correspondence is preserved. The personal bearing of some of the envoys was offensive, and the conference soon descended into altercation. The Court demanded that the Commissioners should at once show their whole hand, instead of delivering their papers by piecemeal. Finally, the Commissioners peremptorily asked that body : " Do you acknowledge his Majesty's Commission to be of full force to all the intents and purposes therein contained?" To this question the Court replied : " We humbly conceive it is beyond our line to declare our sense of the power, intent, or purpose of your commission. It is enough /or us to acquaint you what we conceive is granted to us by his Majesty's royal charter. If you rest not satisfied with our former answer, it is our trouble, but we hope it is not our fault." ^ The Commissioners* however, attempted to sit as a court to hear a complaint against the Governor and Company, when the General Court published, by sound of trumpet, its disapprobation of the proceeding, and prohibited every one from abetting a conduct so inconsistent with their duty to God and allegiance to their King. The Commissioners failed in their mission to the Massachusetts, and soon afterwards proceeded to the eastward. Colonel Nichols, however, returned to New York.* Chalmers's reflection on these proceedings is as follows : -

''The General Court considered the least infringement of those forms that had been established, however contrary to the letter or intent of the patent, as an attack on the chartered rights of the Colony. The truth lay, as usual, in the middle, between both. No grant, no usage, however ancient or inveterate, could exclude a king of England from the power of executing the general laws of the State within the dominions of the State. But that commission was liable to great objection ; because it might have been extended to aflect English liberties, which no prerogative of the Crown can abridge. An Act of Parliament was assuredly necessary in order to cut up efTcctually those principles of independence that had rooted with the settlement of New England." -

The leading colonists of Massachusetts held more radical views as to their rights and their relation to the mother country. They regarded civil subjection as either necessary or voluntary. Necessary subjection, arising from actual residence within any jurisdiction, created an obligation to submit to its authority, in like manner as every alien who resides in England owes a temporary allegiance ^o the king, and obedience to the laws. Voluntary subjection proceeded from special compact ; but the mere circumstance of birth they deemed no necessary cause of allegiance, as subjects of all States had a natural right to remove to any other State, or any other part of the world, and their removal would discharge all former connection and obligation. From this reasoning they deduced this practical principle of independence : *' that they no longer owed any allegiance to the Crown, or any obedience to the laws of the State from which they emigrated with its consent." The country to which they themselves had removed had been claimed and possessed by independent princes, whose right to the lordship and sovereignty thereof had been acknowledged by the kings of England. All this they had purchased for a valuable consideration. Their charter, however, they deemed a compact, whence voluntary subjection arose ; and by this test, to which they always appealed, they claimed that the nature and extent of their obligation ought to be determined. Though no natural allegiance was due, they thought themselves bound by their patent to subject the Colony to no other sovereign, to make no laws contrary to those of England; yet at the same time, that they were to be governed wholly by regulations established, and by officers elected by themselves. Principles somewhat dissimilar, or conclusions

The Commissioners were powerless. " Gentlemen/* they wrote, " we thought when we received our commission and instructions, that the King and his Council knew what was granted to you in your charter, and what right his Majesty had to give us such commission and commands ; and we thought the King, his chancellor, and his secretaries, had sufficiently convinced you that this commission did not infringe your charter; but since you will needs misconstrue all these letters and endeavors, and that you will make use of that authority which he hath given you, to oppose that sovereignty which he hath over you, we shall not lose more of our labors upon you, but refer it to his Majesty's wisdom, who is of power enough to make himself to be obeyed in all his dominions." *

The Colony could not expect otherwise than that their cause would be unfavorably represented to the Government in England by the Commissiotiers ; and the reports of those officials could not fail also to show that their efforts had become powerless to effect the purpose which the authorities had in view. In this quarrel the Government had been defeated ; but they resolved to carry the contest by another method. On the loth of April, 1666, the King, by his secretary, in a letter to the Colony, wrote : -

** It is very evident to his Majesty ... that those who govern the colony of the Massachusetts do believe that the commission given by his Majesty to those Commissioners ... is an apparent violation of their charter, and tending to the dissolution of it ; and that in truth they do, upon the matter, believe that his Majesty hath no jurisdiction over them, but that all persons must acquiesce in their judgments and determinations how unjust soever, and cannot appeal to his Majesty." The King had, therefore, resolved to recall his said Commissioners, *^ to the end that he may receive from them a more particular account of the state and condition of those his plantations, and of the particular differences and debates they have had with those of the Massachusetts, so that his Majesty may pass final judgment and determination thereupon. His Majesty's express command and charge is, that the Governor and Council of the Massachusetts do forthwith make choice of five or four persons to attend upon his Majesty, whereof Mr. Richard Bellingham and Major Hathorn are to be two, . - . and his Majesty will then in person hear all the allegations, suggestions, or pretences to right or favor that can be made on the behalf of the said Colony, and will there make it appear how fan he is from the least thought of invading or infringing, in the least degree, the royal charter granted to the said Colony ; and his Majesty expects the appearance of the said persons as soon as they can possibly repair hither after they have notice of this his Majesty's pleasure." *

At a special meeting of the Court in September following, the King's letter, which had been received through Mr. Samuel Maverick, was considered, and a reply, addressed to Secretary Morrice, adopted. In this they say: -