or Territories of the said Collony as aforesaid, according to such Laws, Orders, Ordinances, Directions, and Instructions as by the said Council aforesaid shall be established; and in Defect thereof, in Cases of Necessity, according to the good Discretions of the said Governors and Officers respectively, as well in Cases capitall and criminall, as civill, both marine and others, so allways as the said Statutes, Ordinances, and Proceedings, as near as conveniently may be, agreeable to the Laws, Statutes, Government and Policie of this our Realme of England." 1 After providing that unauthorized persons should not enter upon and dwell within the precincts and territory of New England, and that if they so do they may be proceeded against and expelled therefrom, it was finally provided, insofar as material to the present purpose, that "all and every the Persons, beinge our Subjects, which shall goe and inhabitt within the said Collony and Plantation, and every of their Children and Posterity, which shall happen to be born within the Limitts thereof, shall have and enjoy all Liberties, and ffranchizes, and Immunities of free Denizens and naturall Subjects within any of our other Dominions, to all Intents and Purposes, as if they had been abidinge and born within this our Kingdome of England, or any other our Dominions." 2 Within a few years after this patent, settlements were made in the territory adjoining Massachusetts Bay, and, desiring to regularize their condition and to set up for themselves, they obtained a grant for a land and trading company. Wishing, however, to have their venture confirmed by the highest authority, they applied to the Crown to confirm their patent, to which were added powers of government by the royal charter of March 4, 1628-9. This first charter of Massachusetts was the third royal charter for New England, just as the Virginia charter of 1611-12 was the third royal charter for that portion of America, and, like it, so similar in terms that a reference to the summary of that charter would suffice, were it not for the importance of the colony whereof it was the charter and of the group of colonies to the north of Maryland. After a recital of the patent of 1620 to the Council of New England, and the grant by that Council to the Land and Trading Company of 1627-8, both of which were confirmed by the present charter, the grantees and "all such others as shall hereafter be admitted and made free of the Company and Society hereafter mencõed,” were created "one Body corporate and politique in Fact and Name, by the Name of the Governor and Company of the Mattachusetts Bay in Newe-England," by which name they were to have perpetual succession, to plead and be impleaded, to sue and to be sued, and to maintain actions "of what kinde or nature soever," and authorized to "acquire 1 Thorpe, Charters and Constitutions, Vol. 3, p. 1832; Poore, pp. 925-6. 2 Thorpe, ibid., p. 1839; Poore, p. 930. any Landes, Tenements, or Hereditaments, or any Goodes or Chattells," with power to dispose thereof "as other our liege People of this our Realme of England, or any other corporacon or Body politique of the same may lawfully doe." 1 In order to effect the purpose for which the colony was created, one Governor, one Deputy Governor, and eighteene Assistants ..., to be from tyme to tyme . . . chosen out of the Freemen of the saide Company, for the tyme being," it was provided that the officers should " applie themselves to take Care for the best disposeing and ordering of the generall buysines and Affaires of... the saide Landes and Premisses . . ., and the Plantacion thereof, and the Government of the People there." The charter thereupon appointed and mentioned by name the first governor, the deputy governor, and the assistants, to hold office for such time and in such manner as subsequently specified in the charter, empowering the governor or deputy governor to call together the members of the company so assembled. After authorizing the governor or deputy governor to call together the company, the charter then provides that the governor, deputy governor and assistants "shall or maie once every Moneth, or oftener at their Pleasures, assemble and houlde and keepe a Courte or Assemblie of themselves, for the better ordering and directing of their Affaires."2 Seven or more assistants, with the governor or deputy governor, were to constitute a sufficient court. For the larger and more important matters, as in the case of the third charter of Virginia, a general assembly was to be held four times a year, to be styled "the foure greate and generall Courts of the saide Company," which assembly, to be composed of the governor, or in his absence of the deputy governor, and of the assistants and at least six assistants or the freemen present, or the greater part of them, "shall have full Power and authoritie to choose, nominate, and appointe, such and soe many others as they shall thinke fitt, and that shall be willing to accept the same, to be free of the said Company and Body . . . and to elect and constitute such Officers as they shall thinke fitt and requisite" for the transaction of the affairs of the governor and company. The assembly was to possess, in addition, the attribute of sovereignty "to make Lawes and Ordiñnces for the Good and Welfare of the saide Company, and for the Government and ordering of the saide Landes and Plantacon and the People inhabiting and to inhabite the same, as to them from tyme to tyme shalbe thought meete, soe as such Lawes and Ordinances be not contrarie or repugnant to the Lawes and Statuts of this our Realme of England." The charter thereupon provided that officers of the Company were to be 1 Thorpe, Charters and Constitutions, Vol. 3, p. 1852; Poore, p. 936. 2 Thorpe, ibid., pp. 1852-53; Poore, p. 937. elected annually in the meeting of the general court or assembly held at Easter, and authority is given to fill by a majority of voices vacancies caused either by death, resignation or removal for cause; that the officers so appointed were required, before undertaking their duties, to take an oath for their faithful performance; that oaths of supremacy and allegiance were to be taken by all prospective colonists; that the colonists and their children, whether born in England or in the colonies, were invested with all the liberties and immunities of subjects in any of the British dominions as if born within England. Thereupon follows the specific authorization to the governor or deputy governor, assistants and freemen of the company assembled in one joint court or in any other Courtes to be specially sumoned and assembled for that Purpose, or the greater Parte of them. . . from tyme to tyme, to make, ordeine, and establishe all Manner of wholesome and reasonable Orders, Lawes, Statutes, and Ordiñnces, Direcĉons, and Instrucĉons not contrarie to the Lawes of this our Realme of England, aswell for setling of the Formes and Ceremonies of Governm and Magistracy, fitt and necessary for the said Plantacon, and the Inhabitants there, and for nameing and stiling of all sorts of Officers, both superior and inferior, which they shall finde needefull for that Governement and Plantacon, and the distinguishing and setting forth of the severall duties, Powers, and Lymytts of every such Office and Place, and the Formes of such Oathes warrantable by the Lawes and Statutes of this our Realme of England as shalbe respectivelie ministred vnto them for the Execucon of the said severall Offices and Places; as also, for the disposing and ordering of the Elecčons of such of the said Officers as shalbe annuall, and of such others as shalbe to succeede in Case of Death or Removeall, and ministring the said Oathes to the newe elected Officers, and for Imposicons of law full Fynes, Mulcts, Imprisonment, or other law full Correcĉon, according to the Course of other Corporacons in this our Realme of England, and for the directing, ruling, and disposeing of all other Matters and Thinges, whereby our said People, Inhabitants there, may be soe religiously, peaceablie, and civilly governed, as their good Life and orderlie Conversation maie wynn and incite the Natives of [that] Country to the Knowledg and Obedience of the onlie true God and Sauior of Mankinde, and the Christian Fayth, which in our Royall Intencon, and the Adventurers free Profession, is the principall Ende of this Plantacion.1 Inasmuch as the provisions of this charter speak for themselves, it does not seem necessary to comment upon them further than to say that the grant constitutes the grantees, and such persons as they should admit to the company, its representatives in legislative, executive and judicial matters, in accordance with the terms of the charter, with the usual provision that all action should be in conformity with the laws and customs of England. Under this charter a local government, known as "London's Plantation in Massachusetts Bay in New England" was established at Salem under the direction of John Endicott. Shortly thereafter, in 1630, the charter and government 1 Thorpe, Charters and Constitutions, Vol. 3, p. 1857; Poore, p. 940. Growth of the colony were transferred to America, the local government was discontinued, and remained in effect until the charter was annulled in 1684, which, however, was replaced by a royal charter in 1691 after the expulsion of James II, granting substantially the same rights and privileges, with the exception that the governor was hereafter to be appointed by the Crown instead of elected by the Assembly, as under the previous charter. There is an interesting passage in Mr. Hutchinson's History of the Colony of Massachusets-Bay in which that devoted son of New England and accurate historian traces the origin and growth of representative institutions in the Bay Colony. "The people," he says, "began to grow uneasy, and the number of freemen being greatly multiplied, an alteration of the constitution seems to have been agreed upon or fallen into by a general consent of the towns, for at a general court for elections, in 1634, twenty-four of the principal inhabitants appeared as the representatives of the body of freemen, and before they proceeded to the election of magistrates, the people asserted their right to a greater share in the government than had hitherto been allowed them, and resolved, 'That none but the general court had power to make and establish laws or to elect and appoint officers, as governor, deputy governor, assistants, treasurer, secretary, captains, lieutenants, ensigns, or any of like moment, or to remove such upon misdemeanor, or to set out the duties and powers of these officers That none but the general court hath power to raise monies. and taxes, and to dispose of lands, viz. to give and confirm proprieties.' Mr. Hutchinson states that after these resolutions they proceeded to the election of magistrates and that they further determined "That there shall be four general courts held yearly, to be summoned by the governor for the time being, and not to be dissolved without the consent of the major part of the court That it shall be lawful for the freemen of each plantation to chuse two or three before every general court, to confer of and prepare such business as by them shall be thought fit to consider of at the next court, and that such persons, as shall be hereafter so deputed by the freemen of the several plantations to deal in their behalf in the affairs of the commonwealth, shall have the full power and voices of all the said freemen derived to them for the making and establishing of laws, granting of lands, &c. and to deal in all other affairs of the commonwealth, wherein the freemen have to do, the matter of election of magistrates and other officers only excepted, wherein every freeman is to give his own voice." Mr. Hutchinson vouchsafes a further reason for this action on the part of the early settlers, saying: “The freemen were so increased, that it was impracticable to debate and determine matters in a body, it was besides unsafe, on account of the Indians, and prejudicial to their private affairs, to be so long absent from their families and business, 1 Hutchinson, History of the Colony of Massachusetts-Bay, pp. 35-6. so that this representative body was a thing of necessity, but no provision had been made for it in their charter." Anticipating Sir John Seeley's happy remark that it is in the nature of Englishmen to assemble, he comments on this incident, rightly connecting it with that of Virginia, for from the action of these two colonies representative government in the western world is to be dated: "Thus they settled the legislative body which, except an alteration of the number of general courts which were soon reduced to two only in a year, and other not very material circumstances, continued the same as long as the charter lasted. This I suppose was the second house of representatives in any of the colonies. There was, as has been observed, no express provision for it in the charter, they supposed the natural rights of Englishmen reserved to them, implied it. In Virginia, a house of burgesses met first in May 1620. The government in every colony like that of the colonies of old Rome may be considered as the effigies parva of the mother State." 1 As in the case of Virginia for a period the two houses sat together, so in Massachusetts they were together for ten years, when a separation took place for the reasons and with the results stated by Mr. Hutchinson: "About this time there was another struggle for power between the assistants or magistrates, and the deputies. The latter could not bear their votes should lose their effect by the non-concurrence of the former who were so much fewer in number; but, by the firmness of Mr. Winthrop, the assistants maintained their right at this time, and (March 25, 1644) the deputies, not being able to prevail, moved that the two houses might sit apart, and from that time votes were sent in a parliamentary way from one house to the other, and the consent of both was necessary to an act of the court.' Virginia and Thus, the colony of Virginia, under the charter of a trading company with its governing body in the home country, and the colony of Massachusetts, un- Compared der the charter of a trading company with its seat of government in the colony, provided the same course of development, the one serving as a model for what may be called the southern colonies, and the other for those which, in comparison, may be called the northern colonies. In each case a charter created a body politic, empowered to make laws for the government of the inhabitants, conforming as far as possible to the laws, customs and institutions of England. In each case a governor, supplied with a council or assistants, was the executive. A legislature in each came into being, sharing with the council the making of laws in common, and in each case separate but nevertheless sharing in the responsibilities of government. In each case the authorization was a written instrument, a charter or a constitution, within which the actions of the colony were lawful and beyond which their actions, 'Hutchinson, History of the Colony of Massachusets-Bay, p. 37. 2 Ibid., p. 143. |