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PART SECOND

THE CORPORATE COLONIES OF NEW ENGLAND

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CHAPTER I

THE TRANSFER OF GOVERNMENT INTO MASSACHUSETTS.

THE GENERAL COURT

At the beginning and for the purpose of comparison, it is necessary again to call attention to two leading characteristics of the colonies which have thus far been described. In the first place, they were founded and managed chiefly for profit, and thus assumed the form of plantations. Though at the outset mines were sought, that soon became a subsidiary object, and agriculture, trade, and fishing commanded the chief attention. The management of the land, the administration of the stock employed in trade and fishing, suggest the topics of greatest interest and importance in the study of colonies of this type. The reason for this is that the colonies here referred to were passing through the early stages of settlement, and that while in this condition they were under the control of parties who had undertaken to develop them as an investment.

In the second place, these colonies were managed by proprietors, trading companies, and land companies, that were resident in England. From them came financial support, food, tools, cattle, and other supplies in considerable variety, without which the plantations could not have secured their start. Officials, authority to do and restrain, direction as to the course and form which the colony should take, all came from the same source. That too was a distant source, where misapprehension and indifference were likely to prevail. Because of their remoteness from one another the company and colony were essentially distinct. The colonists in no sense enjoyed rights of self-government. They were to a large extent indented servants, and were subject to the

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rigid control of their overseers. Whether free or unfree tenants, they were under an authority of three grades: that of their magistrates, of the proprietors, and of the king, for the monarch himself might possibly interfere to change the policy of the company, or the terms of its charter, or to remove it out of the way altogether. The experience of the London company, as well as that of many others which were trading and colonizing elsewhere than on the American continent, showed that the possibility of this was always present. The risk of loss and disaster in such enterprises was also great, and events of this nature might terminate the existence of the company. Such considerations as these will help to explain the revolutionary step taken by the Massachusetts patentees, the character and results of which must now be described.

It is important to notice in this connection that the model chosen for imitation by the Massachusetts patentees was the London company. That was an open, not a closed, body; the significance of that expression being that its membership could be indefinitely increased. If, as was not improbable, the Massachusetts patentees had thought beforehand of expanding their corporation into a colony, they could not have taken the New England council as their model. There was no need of adopting or devising a third form of corporation, had that been possible, for the London system gave them what they wanted. It was chosen and readjusted by those who within a few months came into control of the corporation, so as to give form to a colony which was not only independent of proprietors, but, so far as possible, of the home government itself. The readjustment was effected by the transfer of the governing body of the corporation—its governor and assistants—into the colony which it was creating. This removal was a fact of the greatest importance, not only in the history of New England, but in the development of modern social and governmental forms, and as such it is worthy of detailed study.

That a transaction of this kind was considered possible by some of the patentees when the royal charter of 1629 was procured, is indicated, though not fully established, by contemporary

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evidence. Thomas Dudley¹ states that as early as 1627 the project of planting the gospel in New England was under discussion among the Puritans of Lincolnshire, and that, by letters and messages, they imparted their views to “some in London and the west country.” The proposition was considered, and by means of it a connection was established between the Puritans of the east counties and those who had been interested in the fishing enterprise at Cape Ann. At length, “with often negotiation,” the business was so ripened, that the royal charter was procured. John Winthrop, at a much later date though in most direct and authoritative terms,² stated that it was intended “to keep the chief government in the hands of the company residing in England,” as had been provided in the charters of Virginia and the Bermudas. This part of the statement is confirmed by the docket attached to the “King’s bill,” in which the provisions of the patent were outlined. It mentions the existence in the document of “clauses for the election of governors and officers here in England,” and states that such privileges were bestowed as “are usuallie allowed to corporations in England.”³

But in the charter as it passed the great seal are no words which necessitate the residence of the corporation in England. Winthrop, in the passage just cited, explains this omission of the usual clause necessitating residence in England, by the statement that “with much difficulty we got it abscinded.” So effectually were legal obstacles to removal eliminated from the charter, that chief justices Rainsford and North, in an opinion which they delivered in the reign of Charles II, interpreting the words “in New England” which occur in the corporate name, declared that the company was created a corporation on the place. And yet, for a year after the issue of the charter the corporation was actually resident in England and there transacted

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its business. During that time conditions were ripening which led to removal, though not till five months after the issue of the charter was the project mentioned in the general court. The history of the company, therefore, shows that it became established in New England as the result rather of removal than of original creation.

The Puritans of New England, at least that group among them which became interested in the Massachusetts colony, regarded the prospect before the reformed churches in Europe in 1629 as gloomy in the extreme. The victories of the imperial forces in the Thirty Years’ War and the defeat of the Huguenot party in France seemed to involve the permanent triumph of the reactionist cause. In England Charles I had dissolved his third parliament in anger and had entered upon a régime of personal government, a leading feature of which was an ecclesiastical policy that met with the full approval of the bishops of the Anglo-Catholic party. In a little more that two months after the dissolution of parliament John Winthrop wrote to his wife, “I am veryly persuaded God will bring some heavye Affliction upon this land and the speedylye.” To him times seemed growing worse and worse. All the other churches had been smitten, and had been made to drink the cup of tribulation even unto death. England had seen this, but had not turned from its evil ways, and “therefore he is turninge the Cappe towards us also, & because we are the last, our portion must be to drink the verye dreges which remaine.”

Soon after this Winthrop lost his position¹ as attorney bf the court of wards, and was able to return to his home in Suffolk for a period of greater leisure. Not far from this time a paper was prepared entitled, “Reasons to be considered for justifieinge the undertakeres of the intended Plantation in New England,” of which there is strong evidence that Winthrop was the author.² In this the evil conditions existing in England, including the alleged social and moral decline of the common people which occupies so prominent a place in the writings of those interested in colonization, are described, and removal to a new continent is urged as a

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way of escape which has the divine approval. “The whole earth is the Lords garden and He hath given it to the sonnes of men with a general Commission, Gen. i. 28, ‘increase and multiplie and replenish the earth and subdue it.’ Why then should we stand here striving for places of habitation, . . . & in the mean time suffer a whole continent, as fruitful & convenient for the sue of man, to lie waste without any improvement? The ill success of Virginia should not deter those who are interested in the undertaking, for the projectors of that colony committed the fundament error of pursuing an object that was “casual and not religious,” of using “unfit instruments”—a multitude of rude persons, the scum of the land—and of not establishing “a right form of government.” The Massachusetts patentees in their letters to Endicott had laid great stress on the conversion and education of the Indians, but the authors of this paper speak of the enterprise as the founding of a “church,” of “a particular church,” which is the “work of God,” to be used for the increase of religious faith and the removal of “the scandal of worldly and sinister respects which is cast upon the adventurers.” These expressions indicate a desire to make religious objects and motives controlling within the Massachusetts company. The several versions of this paper which have been preserved, as well as references to it, show that it was circulated among the Massachusetts patentees and their friends.

The earliest reference to the matter in the general court of the company was made on July 28,¹ when the governor, Mr. Cradock, read a certain proposal to the effect that, for the advancement of the plantation and the encouragement of “persons of worth and quality” to remove themselves and families thither, the government of the plantation should be transferred to those that shall inhabit there, and “not to contiane the same in subordination to the Company here, as it now is.” After some debate, and a resolve that the members present should seriously consider the question in private, noting the reasons for and against it and report the same at the next general court, the company adjourned for a month.

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Near the close of that interval Winthrop by invitation met a number of the patentees at Cambridge, and a common agreement¹ was reached and reduced to writing. It was to the effect that the signers, with their families and with church supplies as they could conveniently carry would be ready to embark for New England by the first of the following March. But the condition of their going must be that, by order of the company, the government and patent should be removed into the colony, there to permanently remain. Among the signers of this, besides Winthrop, were Saltonstall, Dudley, Johnson, Humphrey, Nowell, and Pynchon.

At the next meeting of the general court,² which occurred on August 28, two days after the agreement was signed at Cambridge, preparations were made for a debate on the question of removal. The debate was held on the 29th, and at its close, by a practically unanimous vote, it was agreed to transfer the patent and government to New England. Among the members of a committee appointed at the meeting of September 19 the name of John Winthrop appears, though the first general court which he attended was that of the 15th of October. At the time when Winthrop joined the company one of its committees³ was taking the advice of counsel as to the legality of the course they had resolved upon. It was also considering the proper time for the removal, how the affairs of the company should be arranged so that its interests in England might be properly safeguarded, and to whom as governor and magistrates the fortunes of the company should be intrusted during the crisis of its removal. To the last of these questions an answer was given on October 20 by the election⁴ of Winthrop as governor of the company and colony. Humphrey was chosen deputy governor, and the full number of eighteen assistants was elected, among the list of whom appear the names of nearly all who signed the agreement at Cambridge.

Later, when the time of departure actually came, those of the assistants who decided to remain in England resigned their places, and, so far as possible, the vacancies were filled

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from among those who were ready to embark. Under the circumstances, however, it was not possible to fill all the eighteen places required by the charter. John Humphrey, having resolved to stay behind in England, resigned his office of deputy governor, and Thomas Dudley was chosen in his place. This was the only business done at the last court of assistants which met in England, the session being held on board the ship Arbella, one of the company’s vessels, March 23 (O.S.), 1629-30. The first session of the court in New England was held at Charlestown, August 23, 1630, somewhat more than two months after the landing at Salem of Winthrop and his immediate companions. Seventeen vessels in all came over that year under the auspices of the Massachusetts company, bringing about a thousand colonists with their supplies. Although only a part of the patentees ever emigrated, no further sessions of the general court were held in England. It met for the first time in Massachusetts, October 19, 1630.¹ The removal of the company’s charter into Massachusetts was a matter of slight importance; the significant fact was that the governor, the deputy governor, and assistants, with enough of the patentees to constitute a general court, came over. The governing body of the company was thus removed into the colony. But before referring to the changes which took place in its organization and in the motives which underlay its later action, we must note how the business affairs of the company were settled.

When the removal into New England was decided upon, the company was in debt to the amount of £2500, while £1500 were needed for immediate disbursement.² It was suggested that the need of the hour might be met in one of three ways. Apparently on the supposition that the business side of the enterprise was to be continued and was to remain, as formerly, under the management of the company, it was proposed that the adventurers should double their subscriptions. On the other hand, with the view that the company should at once go out of business, it was proposed that all its assets, save land, should be sold, and the

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subscribers to the joint stock be paid the proportions which should accrue to them from the sale.

The third proposition was a compromise between the other two, and suggested the creation of a temporary trusteeship. It was the one adopted. At a meeting of the company, held November 30, 1629, a board of ten, called undertakers and made up equally of planters and adventurers, was chosen to take charge for seven years of the joint stock. They were to assume both the assets and liabilities of the company, and were guaranteed five per cent net profit on the business done. They were to receive half the profits of the fur trade with the colony; and were assured a monopoly of salt-making, of the transportation of passengers and goods to and from the colony, and of furnishing the colonial magazine at fixed rates.¹ They were also to receive subscriptions to the common stock from such as might choose to invest, and on such terms as they, as managers, might determine. A treasurer was chosen to receive, care for, and disburse all funds, and Governor Winthrop was made the head of the board. The undertakers provided vessels for the transportation of those who went with Winthrop, and possibly for a time thereafter; but to their subsequent activity, along this or any other line mentioned in the contract, we find almost no reference in the printed authorities. The settlement of the Dutch on the Connecticut and the Hudson, the preoccupation of the Kennebec by Plymouth and of the Piscataqua by John Mason and his associates, prevented Massachusetts from absorbing a large part of the fur trade of New England. Such trade of this nature as there was appears to have been carried on by individuals or associations under conditions prescribed by the general court;² but of connection of the undertakers with it no evidence has been found.

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The meagre references in the Records and other contemporary authorities to the salt industry show that it was not of sufficient importance to demand much regulation,¹ and not the slightest trace of its being carried on by the undertakers appears. The part played by the magazine in the trade system of Massachusetts must also have been slight, for neither in the writings of Winthrop nor in the minutes of the company have we any account of its existence in the colony subsequent to 1630.² In fact, immediately after Winthrop’s arrival in Massachusetts, he was forced to send back to Bristol by John Pierce and Isaac Allerton of Plymouth for a supply of provisions.³ Early the following summer Allerton arrived in the White Angel with livestock and provisions for both Massachusetts and Plymouth.⁴

Private trading appears soon to have become the rule in the Bay colony. Of the undertakers who were expected to take up their residence in New England, Isaac Johnson soon died, while John Revell returned to England.⁵ This left Winthrop and Dudley in Massachusetts as the only survivors of the board from whom active participation in its work might be expected. But in Winthrop’s correspondence, as preserved, the only references to business transactions with the undertakers in England concern payment for the ships which brought over the emigrants of 1630.⁶ With Samuel Aldersey, who, as treasurer of the company when Winthrop left England, was to care for the moneys of the “joint stock “⁷ and pay them out upon warrants under the bonds

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of the undertakers, or any three of them, he apparently did not correspond at all.¹ In his Letter to the Countess of Lincoln Thomas Dudley said² that the loss of the livestock which had died on the outward voyage, the failure to send a supply of the same from Ireland, and the delay in building, “weakened our estates, especially the estates of the undertakers, who were 3 or £4000 engaged in the joint stock, which was now not above so many hundreds.” Still, in 1634, a committee, most if not all of whom were patentees resident in England, was appointed to choose from among themselves one to be treasurer for a year “for this plantation” and to grant a full discharge to the existing treasurer; and in 1638 George Harwood, the treasurer, was requested to present his account. These entries indicate that commercial relations of some sort were for a number of years kept up with adventurers resident in England, but not with the undertakers as such. The hints which have been preserved concerning such relations do not seriously modify the conclusion that by the close of 1630 the joint stock or purely commercial element in the Massachusetts enterprise had practically disappeared. It was decided that henceforth that company should not directly engage in trade, but should confine itself to regulating it. With the removal of the patentees into the colony, they began to devote themselves to the work of settlement and government. Trade continued and expanded, but it was in private hands, subject to the legislative and administrative control of the colonial government.

An analogous change was wrought in the land system of the colony at the time of the transfer of the government to Massachusetts. After Winthrop’s arrival, as will be shown in detail in a later chapter, the corporation acted no longer, in the capacity of a land company, it no longer sought to obtain a profit from its domain. Instead, the township system developed, as was occurring under similar conditions in Plymouth. This means that, owing to the circumstances

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attending the migration and settlement, the colonists established themselves in detached groups about Massachusetts bay. Sickness, which Winthrop on his arrival found prevailing at Salem, caused him to seek a place of settlement elsewhere. The lack of food caused by the sickness and by the arrival of so many new colonists forced the liberation of 180 servants, and so broke up completely the system of cultivating the company’s land by means of them. Owing to the outbreak of sickness among the newcomers, it became necessary to abandon the project, characteristic of colonization thus far, of building a fortified town some distance inland. The variety of the coast, with the rivers which flow into Massachusetts bay, offered several attractive places for settlement, at one of which Cradock’s plantation was established. Therefore Winthrop and his associates yielded at once to the natural course of events, and seven different settlements immediately sprang into existence about the bay.¹

The removal of the seat of the colonial government from Salem to Charlestown caused Salem to appear distinctly as a town. Charlestown had enjoyed a separate existence for a brief time before it became the temporary residence of the governor and other magistrates. As the result of a second removal, Boston became both a town and the permanent place of residence of the colonial authorities. These and the other early settlements were established without express authorization from the general court, but soon the court began to name them² and to provide for fixing their boundaries. Constables were also appointed,³ and other provision was made for the exercise within them of local powers, subject to control by the colonial government.⁴ For our purpose the important point is that the towns as communities became the chief grantees of the company’s land. After the town had been established and its limits fixed, those of its inhabitants who were the direct objects of the grant became the proprietors of the land within its bounds, and either held and managed it as common or disposed of it to individuals. The colony as such made no effort to secure a

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territorial revenue; it did not establish a land office or a system of quitrents. Thus one of the most characteristic features of the provincial system was lacking. In the towns, even when the commons were divided or when grants were occasionally made to individuals, the land was not often sold or leased. Rent only occasionally appeared, and in no sense did it form a characteristic element of the system. At the same time all titles derived their validity from some prior grant of the general court.

We have now seen what was the policy of the corporation of Massachusetts bay concerning trade and land. In form, at least, the corporation was created to be a land and trading company. But it was not the intention of its founders that it should chiefly pursue those lines of enterprise. In fact, after the removal of the corporation into Massachusetts, a form of organization was assumed which was incompatible with the direct cultivation of land and prosecution of trade. This may be regarded as the negative result of the process we are describing.

The transition from the colonial or trading corporation to the corporate colony will appear most clearly when we notice the change which it wrought in the character of the freemen. But in order to understand the ideal from which that sprang, reference should first be made to Winthrop’s Modell of Christian Charity,¹ a sort of sermon, or meditation on Christian love, which he wrote during the voyage from England. The suggestive part of the discourse is the application of its thought to the problem before the colonists of Massachusetts. In the view of the writer, the work upon which they had entered was one of peculiar importance. Instead of undertaking to found a colony for profit or in order that thereby the power and dominions of the English crown might be increased, they, by mutual consent and with the special approval of true Christian churches, were seeking a place where they could live together under “a due form of government both civil and ecclesiastical.” Not only must they do that to which they were accustomed when they lived in England, but more. They must not only profess, but live,

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Christianity. They must learn to bear one another’s burdens, and be united by such strong social bonds that “the care of the public” would “oversway all private respects.” The object of the enterprise, in short, was “the comfort and increase of the body of Christ, whereof we are all members.” “Thus stands the cause between God and us. We are entered into a covenant with Him for this work. We have taken out a commission. The Lord hath given us leave to draw our own articles. We have professed to enterprise these and those accounts, upon these and those ends. We have hereupon besought Him of favor and blessing. Now if the Lord shall please to hear us, and bring us in peace to the place we desire, then hath He ratified this covenant and sealed our commission, and will effect a strict performance of the articles contained in it: but if we shall neglect the observation of these articles which are the ends we have propounded, and, dissembling with our God, shall fall to embrace this present world and prosecute our carnal intentions, seeking great things for ourselves and our posterity, the Lord will surely break out in wrath against us; be revenged of such a sinful people, and make us know the price of the breach of such a covenant.”

This was the thought, clearly grasped by the leaders, and by many of their less prominent associates, which from the outset had strongly influenced the Massachusetts enterprise, and which now suddenly transformed it and gave rise to a colony of a peculiar religious and political type.

For some months after the arrival of Winthrop and his followers, the magistrates constituted nearly all the members of the corporation who were present in Massachusetts.¹ But at the general court, held October 19 of that year, more than one hundred persons, several of them old planters, applied for admission as freemen.² Had these been simply adventurers, offering to purchase shares in a commercial enterprise or to move into a dependent colony and take up land there, they would have been welcomed. Instead, we find the Massachusetts authorities hesitating. They seem to be casting about for means to save their enterprise from being

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swamped. They apparently desired to ascertain the political qualifications of the would be freemen, and not their capacity to become good farmers or to pay for the stock for which they subscribed; and, as things were, their fitness politically had to be determined largely by moral and religious considerations. The magistrates first and naturally sought to perpetuate their power by procuring the assent of the settlers to an order giving to the assistants not only the right of choosing the governor and deputy governor, but, with them, of making laws and appointing the officers to execute them. To the freemen was left simply the power to elect the assistants.¹ This was clearly a violation of the patent,² and was so acknowledged at the next session of the general court. At that time, May, 1631, John Winthrop was reëlected governor “by the general consent of the Court, according to the meaning of the patent “; and by the same body Thomas Dudley was chosen deputy governor. If we seek for an explanation of this sudden return to the form prescribed in the charter, and the abandonment of the narrow oligarchical system of the previous year, we shall probably find it in the religious test which was established by the court at this session:—

“To the end the body of the commons may be preserved of honest & good men, it was likewise ordered and agreed that for time to come no man shall be admitted to the freedome of this body polliticke but such as are members of some of the churches within the lymitts of the³ same.” With this condition established it was safe to admit freemen⁴ and

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to intrust to them the election of all the magistrates, together with legislative power. The difficulty which had threatened the enterprise the year before was thus overcome, the first hard question was solved. By this act more than by any other, except the transfer of government, was effected the transition from the colonial corporation to the Puritan commonwealth. It was done by attaching to the position of freeman a wholly new qualification, and as the result of the change he became no longer an adventurer, but an active citizen.

In May, 1632, it was voted that the governor, deputy governor, and assistants should be chosen in the court of election, and that the governor should always be selected from among the assistants.¹ In May, 1634, the powers of the general court as contained in the charter were reaffirmed. It was then declared that it alone had power to admit freemen, to make laws, to elect and appoint officers, to raise money and grant lands. The freeman’s oath of fidelity to the government, as established, was enacted by this court. It took the place of an earlier freeman’s oath which apparently has not been preserved. If by the reference is meant an oath administered to members of the corporation while resident in England, the nature of the two was wholly different. The oath of 1634 provided for submission and loyalty to the “government . . . of this commonweale,” and had reference to nothing but political obligations.

The merging of the corporation in the colony, taken in connection with the early dispersion of settlements and increase of the number of freemen, necessitated the development of the deputies, the element representing the localities in the general court. This was a change not contemplated in the charter, and it resulted in the creation of a colonial legislature by a process quite different from that followed in Virginia and the later proprietary provinces. It was created in Massachusetts not under authority of an instruction from the company or proprietor in England, but by the expansion of the general court of an open corporation when removed into the colony itself.

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Governor Winthrop told certain representatives who appeared before him in 1634, “When the patent was granted, the number of freemen was supposed to be (as in like corporations) so few, as they might well join in making laws; but now they were grown to so great a body, as it was not possible for them to make or execute laws, but they must choose others for that purpose.”¹

As is well known, the deputies appeared as the immediate result of a protest against the narrow oligarchy established by the magistrates in 1630, and the levy of taxes by them alone. The protest of Watertown, though it was followed by submission, occasioned some important results. In the first place, it drew from Governor Winthrop the declaration that, “this government was rather in the nature of a parliament” than of a mayor and aldermen, as the objectors had thought.² This is the earliest authoritative statement from a leader in the enterprise of a change which it was believed had been wrought by the transfer of government to Massachusetts. Expressed in modern scientific terms, it meant that by the change in the qualification of freemen the corporation had been raised from the domain of private law into that of public law. It was regarded as no longer in the proper sense of the word a corporation, but a commonwealth. As a result of this development, the assistants, who, as Winthrop claimed, were representatives of the freemen, had become possessed, like members of parliament, of full discretionary power to legislate and to levy taxes; while the freemen could exercise political control over them through elections and the presentation of grievances.

It is also probable that the protest from Watertown contributed to the legislation of May 9, 1632, which restored to the general court the right of electing the governor and deputy governor. It certainly caused the issue of an order by that court that two from every plantation should be appointed “to conferre with the Court about raiseing of a

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publique stocke.”¹ The language of Winthrop concerning this event, and the fact that this was a court of election, leads to the inference that the conferrees were chosen then and there by the freemen who were present from the respective towns.² Winthrop says they were chosen “to be at the next court to advise with the governor and assistants about the raising of a public stock.”³ There is no proof, however, that the conferrees ever met. They are not mentioned again in the Records, and Winthrop makes no further reference to them. There is, furthermore, no record of the levy of another tax till March 4, 1633, and that was voted by the assistants.⁴

The movement, however, though stifled for the time, was secretly spreading. Shortly before the meeting of the May court of 1634, representatives from each town met to consider matters which were to be brought before that body.⁵ They desired to see the patent. The reply of the governor to them shows that they also urged the establishment of a representative system. He put them off with the proposal that a committee of deputies from the towns should yearly be appointed to revise the laws and present grievances to the assistants, but not to make new laws. This was by no means satisfactory, and by the next court it was ordered⁶ that thereafter the freemen of each town might choose two or three representatives to prepare business for the general court and to act therein with full authority on their behalf in the making of laws, granting of lands, and doing of whatever else the freemen might do, elections only excepted. From and after this time, the general court of Massachusetts consisted of the assistants and the deputies. They sat together in one house till 1644, though in March, 1636, as a

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result of the controversy over the settlement of the river towns of Connecticut, the legislative equality of the two branches was declared.¹ Thus within a period of fourteen years from the transfer of the government the Massachusetts legislature had assumed its final form.

It always bore, however, not only in name but in character, the marks of its origin. As in the corporation, so in the colony, the general court was the source of power. Says the act of 1634, repeatedly confirmed in later years, “It is hereby declared that the General Court . . . is the Chief Civil power of this Commonwealth, which onely hath power to raise taxes upon the whole Country, & dispose of lands, . . . and may act in all affairs of this Commonwealth according to such power, both in matters of Counsel, making of Lawes & matters of judicature, by impeaching & sentencing any person, or persons according to law, & by receiving & hearing any complaints orderly presented against any person² or Court.”

Like the general court of the corporation, it was wholly an elected body. The governor and assistants were elected just as truly as were the deputies, and for the same terms. From this point of view the only difference between the assistants and deputies was that the former received their mandate from the freemen as a collective body in the court of election while the deputies received theirs from the freemen organized into towns. Over the former the governor presided, while the latter chose a speaker for a single session or a shorter period;³ under the law of 1636 there were two regular sessions annually, in May and October. The one

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was devoted to the business of election and legislation, the other to legislation. Before either, as will subsequently appear, important cases might be brought for trial. The court of election differed from that of legislation in that it was a joint session of the outgoing magistrates, together with the new deputies and such freemen as chose to attend in person, and it appears to have been presided over by the outgoing governor.

Regularly two deputies were returned from each town.¹ Cases of disputed election begin to appear in 1635. In that year five commissioners were appointed by the court to in vestigate the election of the deputies from Ipswich. It was decided that two of them had been irregularly chosen, and they were dismissed. At the same session, however, it was enacted that the deputies should have authority to hear and determine differences that might arise about the election of their own members.² But it would seem from the language of later entries that the court confirmed the action of the deputies in such cases. In May, 1642, a writ for a new election was ordered to be sent to Salem, on the ground that the court was doubtful about the choice of one of the deputies from that town.³ In 1654, because of uncertainty as to its numbers and membership, the court ordered that constables, on penalty of fine, should thereafter return the names of persons chosen as deputies by their respective towns, and whether they were chosen for one session or two sessions.⁴ Occasionally constables had been fined by the court for neglecting to do this.⁵ If non-freemen voted for deputies, or if freemen voted for one who was unsound in belief, was unfaithful to the government, or who was under bond to keep the peace, they themselves were liable to penalties.⁶

As was the practice among the trading companies of England, both houses made frequent use of committees.⁷ This

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was especially true after 1637. But comparatively few of these were in the proper sense of the word legislative committees. Of this character were committees appointed in March, 1638, October, 1666, and May, 1669, to examine petitions before the court and report what should be done with them; and many that were appointed during the controversy with the home government subsequent to 1660. But by far the larger number of the committees mentioned in the records were composed in part of individuals who were not members of the general court and were properly executive committees. They were created to supplement the general executive work of the magistrates.

Petitions in large numbers and on a variety of subjects were presented before the general court, and in many cases they occasioned legislation. One of the earliest, as well as one of the most famous, was the Boston petition and remonstrance of March, 1637,¹ against the action of the court in the case of Rev. John Wheelwright. This was signed by more than sixty persons, and resulted in the expulsion of many of its signers from the colony. The Boston petition was probably the result of an effort to settle matters out of court, though in any case, if the committee chose, matters thus broached might be brought before the court. The petition of the inhabitants of Springfield, in 1641, concerning their relation with the river towns of Connecticut was read in open court² and referred to a committee. On their report it was further considered, with the result that the control of Massachusetts over Springfield was fully asserted. In 1646, and perhaps earlier, the court had passed an order that no petitions

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should be received after the first three days of the session, but this was repealed in the November session of that year.¹ In 1654, however, such was the inconvenience arising from the presentation of petitions late in the session, that it was ordered that none be received after the first four days of a court of election, or after the first week of the other sessions.²

By the middle of the century petitions had become numerous and varied, as a reference to the journals will show.³ For some years subsequent to 1650 the entries in the journals fall roughly into the classes of laws, petitions, and miscellaneous orders.⁴ Petitions were presented for the bestowment of office, for license to keep ordinaries or to sell liquor, for permission to carry on the business of salt-making, for grant of lands, for permission to buy or sell lands, for confirmation of sales, for the bounding of towns, for the probate of wills, the payment of dues, the redress of wrongs of all kinds, remission of fines and other penalties. An examination of the entries reveals the fact that a large majority of the petitions had reference to matters of a private nature, and called for action of an administrative or judicial character. This statement is further confirmed by a detailed order of May, 1680,⁵ respecting the fees payable on reception of petitions. Because the members were put to expense and much time was spent every session in considering petitions, it was ordered that the fees collected on the reception of them be divided among the members according to the same rule which was observed when cases were heard in open court. As this would reduce the emoluments which the secretary of the colony had been receiving from this source, it was provided that one-fourth of his salary should be paid in money from the treasury. Only occasionally do petitions with a distinct political purpose appear.

The governor occupied toward the general court substantially

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the same position which he held toward the court of the corporation in England. He possessed no veto power. As in the charter, so now, the number of sessions of the general court which must be annually held was specified.¹ After 1639 the court of election met without special summons. Though the governor called the court together on extraordinary occasions² and presided over its deliberations, he was not empowered to adjourn or dissolve the court without its consent. On these, as on other questions, he simply declared the will of the majority of that body.³ His assent to legislation was not required. Therefore, in Massachusetts, the governor could not be considered a branch of the legislature; in no sense was he its constituting officer.⁴ He was simply its president, as he had been of the court of the corporation in England, and had the casting vote when there was a tie.⁵ When the court was divided into two houses, he presided over that of the assistants. It was in his magisterial power, then, rather than in his connection with the legislature, that the governor of Massachusetts found his strength. During his term, as will appear later and more in detail, he was the permanent administrative head of the colony, and presided over its highest judicial court. Through the exercise of these functions he, with the men who surrounded him, could restrain and conserve, but the onward flow of legislation the governor could modify only through personal and official influence. His position, therefore, was in every way analogous to that occupied by Sir Edwin Sandys in the London company, while in important respects it differed from that of the proprietary or royal governors. His position was stronger than theirs in one respect—he was an elected officer, and thus might be

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supposed to carry with him the support of his constituents. His means of controlling legislation were much less direct than theirs, though, as events proved, they may have been quite as effective. The position of the governor in Massachusetts is but typical of the system of which he formed a part. It was a system in which tenure by election predominated, a characteristic which resulted from the merging of the corporation in the colony and which made all the easier the transition to the commonwealth.

Though both the house of magistrates and the house of deputies in the Massachusetts general court were elective, and that for the same terms; though both were elected by the same body of freemen, and Massachusetts society from which they proceeded was not sharply divided into classes, yet persistent conflicts arose between the two branches of the legislature and continued until, after the Restoration, both were forced to combine in passive resistance to the crown. The explanation of this is to be found in the connection between the civil and the ecclesiastical power in the colony. In order to secure that, and to maintain it when secured, magistrates and elders combined in close alliance, and thus became strong enough usually to control elections and the general court. This, with other causes, insured the retention of the same individuals in the magistracy for long periods. The magistrates were men of ability, who, because of their adherence to the ideal which Winthrop set forth in his Modell of Christian Charity, soon came to have strong administrative traditions. They were not believers in equality, and least of all did they cherish anarchical tendencies. These they repressed in order that, as Puritans, they might attain the ideal to which they had committed themselves. Hence the element of leadership and the aristocratic temper from which it originates, were strong among the magistrates and clergy of Massachusetts. It led them to form a clique, and against its predominance and exclusiveness a party in the deputies kept up a prolonged conflict. This struggle forms one of the main features of Massachusetts political life during the first twenty years of the colony’s existence. It took the form of an attack on the

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legislative independence and equality of the magistrates—the so-called negative voice—and on their administrative discretion. With only the former are we here concerned.

It has already been noticed that the charter of 1629, unlike those which were granted to the London company, provided for a quorum of assistants whose presence was necessary for the transaction of business. Its language was, “We do . . . give and grant . . . that the governor or . . . the deputy governor and such of the assistants and freemen of the said company as shall be present, or the greater number of them so assembled, whereof the governor, or deputy governor, and six of the assistants, at least to be seven, shall have full power,” etc. According to the common law, this quorum must be present when business was being transacted in the general court, and this fact gave to the assistants in the Massachusetts legislature a distinct place which the council in Virginia could not claim by the words of their royal charter, though they could claim it under orders of the company.

When, in 1634, the inhabitants of Newtown asked for leave to remove to the banks of the Connecticut, the majority of the assistants opposed the proposition and the majority of the deputies favored it. “Upon this,”¹ says Winthrop, “grew a great difference between the governor and assistants and the deputies. They would not yield the assistants a negative voice, and the others (considering how dangerous it might be to the commonwealth, if they should not keep that strength to balance the greater number of the deputies) thought it safe to stand upon it.” What the deputies evidently wanted at that time was, that the general court should sit and vote as a single democratically organized assembly; and in that case the numerical superiority of the deputies would enable them to carry the day. A fast was kept, and John Cotton preached. He argued that society consisted of magistracy, ministry, and people; the first standing for authority, the second for purity, the third for liberty. Each of these, he said, had a negative on the others,

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and the ultimate decision must be reached by the agreement of the whole. This argument closed the mouths of the opposition, and the attack on the negative voice of the magistrates was for the time abandoned. As we have seen, the legislative equality of the two branches of the court was soon affirmed.

But in 1642 the controversy was resumed. At this time an element of sectionalism also appears, for Salem and the adjacent towns were jealous because the colony was governed so exclusively by a group of magistrates and clergy who lived in, or near, Boston. An incident resulting in part from this feeling was the severe criticism of Winthrop’s management of relations with the rival French claimants of territory to the eastward, D’Aunay and La Tour. But the specific occasion of the renewal of the controversy over the negative voice was the famous suit of Mrs. Sherman, a poor widow, against Robert Keayne, a well-to-do Boston shopkeeper, for the recovery of a lost sow.¹ Popular prejudice against Keayne, and in favor of the widow, was strong, and it was increased by the fact that a few years before Keayne had been punished because he charged exorbitant prices for his goods. There was no evidence, however, to show that he was guilty of the charge brought against him by the widow Sherman, and the assistants, as a result of a jury trial, declared him innocent. But the case was appealed to the general court, and there the majority of the magistrates voted for Keayne, while the majority of the deputies favored Mrs. Sherman. This brought up again the question of the negative voice. Winthrop wrote a defence of it,² basing his argument on the doctrine of the quorum as he found it in English precedents. By virtue of it he claimed that the negative voice of the magistrates was original and fundamental, and that they had the authority to assent to or reject all propositions which were brought before the general court. Not only, he argued, was the presence of the quorum of assistants necessary to a legal session of the general court, but they, as a distinct body, must legislate in it. Saltonstall in a pamphlet attacked

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the executive as embodied in the standing council, and in this Bellingham supported him. This led to prolonged discussions in the court and among the elders, the latter in all cases defending institutions as they were. So warm did the discussion become, that, when the session of May, 1643, was about to adjourn, an order was passed that every member should take pains to inform himself about the negative voice, and any one might soberly discuss it orally or in writing. But Mrs. Sherman and her supporters finding it impossible to convict Keayne, the interest in the constitutional aspects of the subject subsided. In 1644 the question was forever laid to rest by the legal separation¹ of the legislature into two coequal houses. Thus the contention of the magistrates prevailed.