be, as near as conveniently may be, agreeable to the laws, statutes, government, and policy of England; and finally to regulate trade and traffic to and from the colony, prohibiting the same to all persons not licensed by the corporation. The charter further contains some extraordinary powers in cases of rebellion, mutiny, misconduct, illicit trade, and hostile invasions, which it is not necessary to particularize. The charter also declares that all the territory shall be holden of the crown, as of the royal manor of East Greenwich, in Kent County, in free and common socage, and not in capite, nor by knight service; 2 and that all subjects, inhabitants of the plantation, and their children and posterity born within the limits thereof, shall have and enjoy all liberties and franchises and immunities of free denizens and natural subjects within any other of the dominions of the crown, to all intents and purposes as if they had been abiding and born within the kingdom of England, or any other dominions of the crown. The charter also authorized the council to transport to the plantation any subjects, or strangers who were willing to become subjects and live under the king's allegiance. But it prohibited papists to be transported, by requiring all persons going there to take the oath of supremacy, and authorizing the president of the council to administer the oath.4 § 62. Some of the powers granted by this charter were alarming to many persons, and especially those which granted a monopoly of trade. The efforts to settle a colony within the territory were again renewed, and again were unsuccessful." The spirit of religion, however, soon effected what the spirit of commerce had failed to accomplish. The Puritans, persecuted at home, and groaning under the weight of spiritual bondage, cast a longing eye towards America as an ultimate retreat for themselves and their children. They were encouraged by the information that the colonists at Plymouth were allowed to worship their Creator according to the dictates of their consciences, without molestation. They opened a negotiation, through the instrumentality of a Mr. White, a distinguished non-conforming 1 1 Haz. Coll. 109, 110, 112, 113, 141. 2 Ibid. 111. 4 Ibid. 117. 8 Ibid. 117. 6 Marsh. Colon. ch. 3, p. 83; 1 Chalm. Annals, 81, 83. • Robertson's America, B. 10; 1 Chalm. Annals, 90. minister, with the council established at Plymouth; and in March, 1627, procured from them a grant, to Sir Henry Rosewell and others, of all that part of New England lying three miles south of Charles River and three miles north of Merrimack River, extending from the Atlantic to the South Sea.1 § 63. Other persons were soon induced to unite with them, if a charter could be procured from the crown which should secure to the adventurers the usual powers of government. Application was made for this purpose to King Charles, who accordingly, in March, 1628, granted to the grantees and their associates the most ample powers of government. The charter confirmed to them the territory already granted by the council established at Plymouth, to be holden of the crown, as of the royal manor of East Greenwich, "in free and common socage, and not in capite, nor by knight's service, yielding to the crown one fifth part of all ore of gold and silver," &c., with the exception, however, of any part of the territory actually possessed or inhabited by any other Christian prince or state, or of any part of it within the bounds of the southern colony (of Virginia) granted by King James. It also created the associates a body politic by the name of "The Governor and Company of the Massachusetts Bay in New England," with the usual powers of corporations. It provided that the government should be administered by a governor, a deputy-governor, and eighteen assistants, from time to time elected out of the freemen of the company, which officers should have the care of the general business and affairs of the lands and plantations, and the government of the people there; and it appointed the first governor, deputy-governor, and assistants by name. It further provided that a court or quorum for the transaction of business should consist of the governor, or the deputy-governor, and seven or more assistants, which should assemble as often as once a month for that purpose, and also that four great general assemblies of the company should be held in every year. In these great and general assemblies (which were composed of the governor, deputy, assistants, and freemen present), freemen were to be admitted free of the company, officers were to be elected, and laws and ordinances for the good and welfare of the colony made; 1 These are not the descriptive words of the grant, but a statement of the substance of it. The grant is recited in the charter in Hutchinson's Collection, p. 1, &c. and in the Colonial and Province Laws of Massachusetts, printed in 1814. "so as such laws and ordinances be not contrary or repugnant to the laws and statutes of this our realm of England." At one of these great and general assemblies held in Easter Term, the governor, deputy, and assistants, and other officers were to be annually chosen by the company present. The company were further authorized to transport any subjects or strangers willing to bccome subjects of the crown to the colony, and to carry on trade to and from it, without custom or subsidy for seven years, and were to be free of all taxation of imports or exports to and from the English dominion for the space of twenty-one years, with the exception of a five per cent duty. The charter further provided that all subjects of the crown who should become inhabitants, and their children born there, or on the seas going or returning, should enjoy all liberties and immunities of free and natural subjects, as if they and every of them were born within the realm of England. Full legislative authority was also given, subject to the restriction of not being contrary to the laws of England, as also for the imposition of fines and mulcts "according to the course of other corporations in England."1 Many other provisions were added, similar in substance to those found in the antecedent colonial charters of the crown. § 64. Such were the original limits of the colony of Massachusetts Bay, and such were the powers and privileges conferred on it. It is observable that the whole structure of the charter presupposes the residence of the company in England, and the transaction of all its business there. The experience of the past had not sufficiently instructed the adventurers that settlements in America could not be well governed by corporations resident abroad; or if any of them had arrived at such a conclusion, there were many reasons for presuming that the crown would be jealous of granting powers of so large a nature, which were to be exercised at such a distance as would render control or responsibility over them wholly visionary. They were content, therefore, to get what they could, hoping that the future might furnish more ample opportunities for success; that their usurpations of authority would not be closely watched; or that there might be a silent indulgence, until the policy of the crown might feel it a duty to yield, what it was now useless to contend for, 1 Hutch. Coll. pp. 1-23; 1 Haz. Coll. 239; 1 Chalm. Annals, 137. 5 as a dictate of wisdom and justice. The charter did not include any clause providing for the free exercise of religion or the rights of conscience (as has been often erroneously supposed).2 It gave authority to the governor and other officers to administer the oath of supremacy, thereby probably intending to discourage the settlement of papists in the colony. But there is nothing in it which exhibits on the part of the monarch any disposition to relax in favor of the Puritans the severe maxims of conformity so characteristic of his reign. The first emigrants, however, paid no attention to this circumstance; and the very first church planted by them was independent in all its forms, and repudiated every connection with Episcopacy or a liturgy. § 65. But a bolder step was soon afterwards taken by the company itself. It was ascertained that little success would attend the plantation, so long as its affairs were under the control of a distant government, knowing little of its wants, and insensible to its difficulties. Many persons, indeed, possessed of fortune and character, warmed with religious zeal, or suffering under religious intolerance, were ready to embark in the enterprise, if the corporation should be removed, so that the powers of government might be exercised by the actual settlers.7 The company had already become alarmed at the extent of their own expenditures, and there were but faint hopes of any speedy reimbursement. They entertained some doubts of the legality of the course of transferring the charter. But at length it was determined, in August, 1629, "by the general consent of the company, that the government and patent should be settled in New England." This resolution infused new life into the association; and the next election of officers was made from among those proprietors who had signified an intention to remove to America. The government and charter were accordingly removed; and henceforth the whole management of all the affairs of the colony 8 1 Robertson's America, B. 10; 1 Chalm. Annals, 141. 2 1 Chalmers's Annals, 141; Robertson's America, B. 10, and note. But see 1 Grahame, Hist. ch. 1, p. 245, note. 4 Robertson's America, Book 10, and note; 1 Chalm. Annals, 141. Robertson's America, B. 10; Hutch. Coll. 201; 1 Chalm. Annals, 143, 144, 145. 1 Chalmers's Anuals, 94, 95. 71 Hutch. Hist. 12, 13; 1 Chalmers's Ann. 150, 151. 81 Hutch. Hist. 13; Hutch. Coll. 25, 26; Robertson's America, B. 10; Marsh. Colonies, ch. 8, p. 89; 1 Holmes's Annals, 197; 1 Chalm. Annals, 150. was confided to persons and magistrates resident within its own bosom. The fate of the colony was thus decided; and it grew with a rapidity and strength that soon gave it a great ascendency among the New England settlements, and awakened the jealousy, distrust, and vigilance of the parent country. § 66. It has been justly remarked, that this transaction stands alone in the history of English colonization.1 The power of the corporation to make the transfer has been seriously doubted, and even denied. But the boldness of the step is not more striking than the silent acquiescence of the king in permitting it to take place. The proceedings of the royal authority a few years after sufficiently prove that the royal acquiescence was not intended as any admission of right. The subsequent struggles between the crown and the colony, down to the overthrow of the charter, under the famous quo warranto proceedings, in 1684, manifest a disposition on the part of the colonists to yield nothing which could be retained; and, on the part of the crown, to force them into absolute subjection. 8 § 67. The government of the colony, immediately after the removal of the charter, was changed in many important features; but its fundamental grants of territory, powers, and privileges were eagerly maintained in their original validity. It is truc, as Dr. Robertson has observed, that, as soon as the Massachusetts emigrants had landed on these shores, they considered themselves, for many purposes, as a voluntary association, possessing the natural rights of men to adopt that mode of government which was most agreeable to themselves, and to enact such laws as were conducive to their own welfare. They did not, indeed, surrender up their charter, or cease to recognize its obligatory force. But they extended their acts far beyond its expression of powers; and, while they boldly claimed protection from it against the royal demands and prerogatives, they nevertheless did not feel that it furnished any limit upon the freest exercise of legislative, executive, or judicial functions. They did not view it as creating an English corporation, under the narrow construction of the common law, but as affording the means of 1 Robertson's America, B. 10. 2 See 1 Hutch. Hist. 410, 415; 1 Chalmers's Annals, 139, 141, 142, 148, 151, 178. 31 Hutch. Hist. 25; Hutch. Coll. 199, 200, 203, 205, 207. 4 Robertson's America, B. 10, 6 Hutch. Coll. 199, 203. |