FOOTNOTES:
[89] For the conditions under which a despotic king granted these amazingly liberal charters, cf. American History and Government.
[90] Observe, this is not an appeal from the colonial court by an individual. The clause has reference to the troubles, then recent, between Rhode Island and Massachusetts—the latter having threatened to exclude Rhode Island commerce.
[XIX. AN ENGLISH COLONIAL SYSTEM]
99. Instructions for the Councill oppointed for Forraigne Plantations (1660) by Charles II
O'Callaghan's Documents relative to the Colonial History of New York (1853), III, 34-36.
For the significance of this first permanent "Colonial Department," cf. American History and Government, § 95.
1. You shall informe yourselves by the best wayes and meanes you can of the state and condicion of all Forraigne Plantacons, and by what co[m]missions or authorities they are and have bene governed and disposed of; and are to procure either from such persons as have any graunts thereof from the Croun, or from the records themselves, the copies of all such commissions or graunts, to be transcribed and registered in a booke provided for that purpose, that you may be the better able to understand judge and administer such affaires, as by your commission and instruccions are intrusted to your care and management.
2. You shall forthwith write letters to evrie of our Governors for the time being of all our English Plantacions and to evrie such person or persons who by any Letters Pattents from us or any of our predcesors doe claime or exercise a right of governement in any of the said plantacions in which letteres you are to informe them of our gratious care and provision in their behalfe both in erecting a General Councill of Trade wherein their concernments are mingled and provided for with the rest of our dominions and especially of this particular Councell which is applyed only to the inspeccion care and conduct of Forraigne Plantacions.
3. You are in the said letters to require the said Governors and persons above mesioned, to send unto you in writeing with the advise of the Councell of evrie of the said plantacions respectively, perticuler and exact accompt of the state of their affaires; of the nature and constitucoin of their lawes and governement and in what modell and frame they move and are disposed; what numbers of men; what fortifications and other strengths and defences are upon the place, and how furnished and provided for.
4. You are to order and settle such a continuall correspondencie that you may be able, as often as you are required thereunto, to give up to us an accompt of the Government of each Colonie; of their complaints, their wants, their abundance; of their severall growths and commodities; of every shipp trading there and its ladeing and whither consigned; and what the proceeds of that place have beene in the late yeares; that thereby the intrinsick value and the true condicion of each part and of the whole may be thoroughly understood; whereby a more steady judgement and ballance may be made for the better ordering and disposing of trade and of the proceede and improvements of the Plantacions; that soe each place within it selfe, and all of them being collected into one viewe and management here, may be regulated and ordered upon common and equall ground and principles.
5. You are to applie your selves to all prudentiall meanes for the rendering those dominions usefull to England and England helpfull to them, and for the bringing the severall Colonies and Plantacions, within themselves, into a more certaine civill and uniforme goverenment and for the better ordering and distributeing of publique justice among them.
6. You are to enquire diligently into the severall governments and Councells of Colonies Plantacions and distant Dominions, belonging to other Princes or States, and to examine by what conduct and pollicies they governe or benefit them; and you are to consult and provide that if such councells be good wholsome and practiceable, they may be applied to the use of our Plantacions; or if they tend or were designed to the prejudice or disadvantage thereof or of any of our subjects or of trade or commerce, how they may be ballanced or turned back upon them.
11. You are lastly required and impowered to advise order settle and dispose of all matters relating to the good governmt improvement and management of our Forraine Plantacôns or any of them, with your utmost skill direccon and prudence. And in all cases wherein you shall judge that further powers and assistants shall be necessary, you are to addresse your selves to us [or] our Privy Councill for our further pleasure resolucôn and direccôns therein.
100. The Commercial Policy
a. "First"[91] Navigation Act, 1660
Statutes of the Realm, V, 246-250. The act is known as 12 Car. II, c. 18. The text would fill some ten pages of this volume. For history and references upon this and subsequent navigation acts, cf. American History and Government, §§ 96, 116.
An Act for the Encourageing and increasing of Shipping and Navigation.
[1.] For the increase of Shiping and incouragement of the Navigation of this Nation, (wherin, under the good providence and protection of God, the Wealth, Safety, and Strength of this Kingdome is soe much concerned), Bee it Enacted by the Kings most Excellent Majesty and by the Lords and Commons in this present Parliament assembled and the Authoritie therof, that from and after [December 1, 1660], and from thence forward, noe Goods or Commodities whatsoever shall be Imported into or Exported out of any Lands, Islelands, Plantations, or Territories to his Majesty belonging or in his possession or which may hereafter belong unto or be in the possession of His Majesty His Heires and Successors, in Asia, Africa, or America, in any other Ship or Ships, Vessell or Vessells whatsoever, but in such Ships or Vessels as doe truely and without fraude belong onely to the people of England or Ireland, Dominion of Wales, or Towne of Berwicke upon Tweede, or are of the built of, and belonging to any of the said Lands, Islands, Plantations, or Territories ... and whereof the Master and three fourthes of the Marriners at least are English,[92] under the penalty of the Forfeiture [of Vessell and Cargo]....
[III. In like words, limits the commerce of England herself to the same shipping.]
[XVIII.] And it is further Enacted ... That from and after ... [April 1, 1661] ... noe Sugars, Tobaccho, Cotton-Wool, Indicoes, Ginger, Fustick, or other dyeing wood, of the Growth, Production, or Manufacture of any English Plantations in America, Asia or Africa shall be shiped, carryed, conveyed, or transported from any of the said English Plantations to any Land, Island, Territory, Dominion, Port, or place whatsoever, other than to such other English Plantations as doe belong to His Majesty His Heires and Successors, or to the Kingdome of England or Ireland or Principallity of Wales or Towne of Berwicke upon Tweede ... under penalty of forfeiture [as before]....
b. Second Navigation Act, 1663
Statutes of the Realm, V, 449-452 (15 Car. II, c. 7).
The act of 1660 had (1) "protected" English and colonial shipping by shutting out all other shipping from the English and colonial trade; and (2) it had "enumerated" a few semi-tropical products which colonies could export only to England. This act of 1663 provides that all European imports to the colonies must be obtained through England.
An Act for the Encouragement of Trade.
[IV.] And in reguard His Magesties Plantations beyond the Seas are inhabited and peopled by His Subjects of this His Kingdome of England, For the maintaining a greater correspondence and kindnesse betweene them and keepeing them in a firmer dependance upon it, and rendring them yet more beneficiall and advantagious unto it in the farther Imployment and Encrease of English Shipping and Seamen, vent of English Woollen and other Manufactures and Commodities, rendring the Navigation to and from the same more safe and cheape, and makeing this Kingdome a Staple not onely of the Commodities of those Plantations but alsoe of the Commodities of other Countryes and Places for the supplying of them, and it being the usage of other Nations to keepe their Plantation Trade to themselves, Be it enacted, and it is hereby enacted, That from and after [March 25, 1664], noe Commoditie of the Growth, Production, or Manufacture, of Europe, shall be imported into any Land, Island, Plantation, Colony, Territory, or Place, to His Majestie belonging, or which shall [belong hereafter] unto, or be in the Possession of His Majestie His Heires and Successors, in Asia, Africa, or America, (Tangier onely excepted) but what shall be bona fide and without fraude laden and shipped in England, Wales, [and] the Towne of Berwicke upon Tweede, and in English built Shipping, ... and whereof the Master and three Fourthes of the Marriners at least are English, and which shall be carryed directly thence to the said Lands, Islands, Plantations, Colonyes, Territories, or Places, and from noe other place or places whatsoever, Any Law, Statute, or Usage, to the contrary notwithstanding, under the Penaltie [of forfeiture of vessel and cargo]....
[V.] Provided alwayes ... That it shall and may be lawfull to shipp and lade in such Shipps, and soe navigated as in the foregoeing Clause is sett downe and expressed, in any part of Europe, Salt for the Fisheries of New England and New found land, and to shipp and lade in the Medera's Wines of the Growth thereof, and to shipp and lade in the Westerne Islands or Azores Wines of the Growth of the said Islands, and to shipp [or] take in Servants or Horses in Scotland or Ireland, and to shipp or lade in Scotland all sorts of Victuall of the Growth of Production of Scotland, and to shipp or lade in Ireland all sortes of Victuall of the Growth or Production of Ireland, and the same to transport into any of the said Lands, Islands, Plantations, Colonyes, Territories, or Places, Any thing in the foregoeing Clause to the contrary in any wise notwithstanding.
[The extension of the navigation policy after 1690 to restrict American manufactures, with some additions to the "enumerated articles" in the First Navigation Act, is not illustrated in this volume. For this, with quotations from the laws, see American History and Government, § 116. But the following law (c) of the later period has so unique a significance that it is here inserted, out of its chronological order. Cf. American History and Government, § 116, note at close.]
c. Sugar Act of 1733. May 17/27, 1733
Pickering's Statutes at Large, XVI, 374-379 (6 Geo. II, c. 13). (Italics only as in the original.)
An act for the better securing and encouraging the trade of his Majesty's sugar colonies in America.
WHEREAS the welfare and prosperity of your Majesty's sugar colonies in America are of the greatest consequence and importance to the trade, navigation and strength of this kingdom: and whereas the planters of the said sugar colonies have of late years fallen under such great discouragements, that they are unable to improve or carry on the sugar trade upon an equal footing with the foreign sugar colonies, without some advantage and relief be given to them from Great Britain: for remedy whereof ... be it enacted ..., That from and after [December 25, 1733], there shall be raised, levied, collected and paid, unto and for the use of his Majesty ..., upon all rum or spirits of the produce or manufacture of any of the colonies or plantations in America, not in the possession or under the dominion of his Majesty ..., which at any time or times within or during the continuance of this act, shall be imported or brought into any of the colonies or plantations in America, which now are or hereafter may be in the possession or under the dominion of his Majesty ..., the sum of nine pence, money of Great Britain ..., for every gallon thereof, and after that rate for any greater or lesser quantity: and upon all molasses or syrups of such foreign produce or manufacture as aforesaid, which shall be imported or brought into any of the said colonies or plantations of or belonging to his Majesty, the sum of six pence of like money for every gallon thereof ... and upon all sugars and paneles of such foreign growth, produce, or manufacture as aforesaid, which shall be imported into any of the said colonies or plantations of or belonging to his Majesty, a duty after the rate of five shillings of like money, for every hundred weight Avoirdupoize....
[Sections II-VIII make provision for enforcing the act and for extending its provisions to Ireland.]
IX. And it is hereby further enacted ..., That in case any sugar or paneles of the growth, produce or manufacture of any of the colonies or plantations belonging to or in the possession of his Majesty ..., which shall have been imported into Great Britain after the twenty-fourth day of June one thousand seven hundred and thirty-three, shall at any time within one year after the importation thereof, be again exported out of Great Britain, and that due proof be first made, by certificate from the proper officers, of the due entry and payment of the subsidies or duties charged or payable upon the importation thereof, together with the oath of the merchant or his agent importing and exporting the same, or in case such merchant or agent shall be one of the people called Quakers, by his solemn affirmation to the truth thereof, and that all other requisites shall be performed that are by law to be performed in cases where any of the said subsidies or duties are to be paid by any former statute, all the residue and remainder of the subsidy or duty, by any former act or acts of parliament granted and charged on such sugar or paneles as aforesaid, shall without any delay or reward be repaid to such merchant or merchants, who do export the same, within one month after demand thereof.[93]
[X. Rebate and bounty in England upon sugar refined from brown sugar imported from English colonies.]
101. The Duke of York's Charter for New York, March 12/22, 1663/4
O'Callaghan's Documents relating to the Colonial History of New York, II, 295-298.
This grant was made some months before the English were in actual possession of the territory. After the loss and recapture of the Province in 1673-1674, a second grant was issued by Charles II, practically identical with this one of 1664.
CHARLES the Second, ... [etc.] ... Know ye that we ... by these presents for us Our heirs and Successors Do Give and Grant unto our Dearest Brother James Duke of York his Heirs and Assigns All that part of the maine Land of New England[94] ... [detailed bounds, the Duke to pay yearly forty beaver skins, "when they shall be demanded, or within ninety days after">[. And We do further ... Grant unto our said Dearest Brother James Duke of York his Heirs, [etc] full and absolute power and authority to correct, punish, pardon, govern and rule all such the subjects of us Our Heirs and Successors who may from time to time adventure themselves into any the parts or places aforesaid or that shall or do at any time hereafter inhabit within the same, according to such Laws, Orders, Ordinances, Directions and Instruments as by our said Dearest Brother or his Assigns shall be established, And in defect thereof, in cases of necessity, according to the good discretions of his Deputies, Commissioners, Officers or Assigns respectively, as well in all causes and matters Capital and Criminal as civil both marine and others. So always as the said Statutes Ordinances and proceedings be not contrary to but as near as conveniently may be agreeable to the Laws, Statutes and Government of this Our Realm of England And saving and reserving to us our Heirs and Successors the receiving, hearing and determining of the Appeal and Appeals of all or any Person or Persons of in or belonging to the territories or Islands aforesaid in or touching any Judgment or Sentence to be there made or given[95] And further that it shall and may be lawful to and for our said Dearest Brother his Heirs and Assigns by these presents from time to time to nominate, make, constitute, ordain and confirm by such name or names stile or stiles as to him or them shall seem good and likewise to revoke, discharge, change and alter as well all and singular Governors, Officers and Ministers which hereafter shall be by him or them thought fit and needful to be made or used within the aforesaid parts and Islands And also to make, ordain and establish all manner of Orders, Laws, directions, instructions, forms and Ceremonies of Government and Magistracy fit and necessary for and Concerning the Government of the territories and Islands aforesaid, so always as the same be not contrary to the laws and statutes of this Our Realm of England but as near as may be agreeable thereunto ... And We do further ... Grant ... That it shall and may be lawful to and for the said James Duke of York his heirs and Assigns in his or their discretions from time to time to admit such and so many Person and Persons to trade and traffic unto and within the Territories and Islands aforesaid and into every or any part and parcel thereof and to have possess and enjoy any Lands or Hereditaments in the parts and places aforesaid, as they shall think fit, according to the Laws, Orders, Constitutions and Ordinances by Our said Brother his Heirs, Deputies, Commissioners and Assigns from time to time to be made and established ... and under such conditions, reservations, and agreements as Our said Brother his Heirs or Assigns shall set down, order, direct and appoint, and not otherwise....
[Observe the absence of any provision for participation by the settlers in lawmaking. The charter does not even contain the usual guarantee of the "rights of Englishmen," though the provision for appeals to English courts would secure such rights indirectly. Cf. American History and Government, § 109.]
102. Penn's Grant of Pennsylvania, March 4/14, 1680/88
Charters and Laws of Pennsylvania (Harrisburg, 1879), 81-90.
Penn made the first draft of this charter from Baltimore's Maryland Charter of 1632, but the Attorney-General inserted several clauses which increased the authority of the English government, cf. American History and Government, § 110.
CHARLES THE SECOND [etc.]. ... Whereas our Trustie and well beloved Subject, William Penn, Esquire, sonn and heire of Sir William Penn, deceased, out of a commendable desire to enlarge our English Empire, and promote such usefull comodities as may bee of benefitt to us and our Dominions, as alsoe to reduce the Savage Natives by gentle and just manners to the love of civill Societie and Christian Religion hath humbley besought leave of us to transport an ample colonie unto a certaine Countrey hereinafter described in the partes of America not yet cultivated and planted. And hath likewise humbley besought our Royall Majestie to give, grant, and confirm all the said Countrey with certaine priviledges and Jurisdiccons requisite for the good Government and safetie of the said Countrey and Colonie, to him and his heirs forever. Knowe yee, therefore, that wee favouring the petition and good purpose of the said William Penn, and haveing regard to the memorie and meritts of his late father ... by this Our present Charter, for us, Our heires and successors, Doe give and grant unto the said William Penn, his heires and assignes All that Tract or parte of land in America, [the long and indefinite bounding clause follows.] ... and him the said William Penn, his heires and Assignes, Wee do, by this our Royall Charter ... make, ... the true and absolute Proprietaries of the Countrey aforesaid, Saving unto us ... the Sovreignity of the aforesaid Countrey ... To bee holden of us, our heires and Successors, Kings of England, as of our Castle of Windsor, in our County of Berks, in free and common socage by fealty only for all services, and not in Capite or by Knights services, Yeelding and paying therefore ... two beaver Skins to bee delivered att our said Castle of Windsor, on the first day of Januarie, in every yeare; and also the fifth parte of all Gold and Silver Oare, which shall from time to time happen to be found within the Limitts aforesaid, cleare of all Charges, and ... wee doe hereby erect the aforesaid Countrey and Islands, into a Province and Seigniorie, and doe call itt Pensilvania ..., And forasmuch as wee have hereby made and ordeyned the aforesaid William Penn, his heires and assignes, the true and absolute Proprietaries of all the Lands and Dominions aforesaid. Know yee therefore, that wee reposing speciall trust and Confidence in the fidelitie, wisdome, Justice, and provident circumspeccon of the said William Penn ..., Doe grant free, full and absolute power, by vertue of these presents to him and his heires, and to his and their Deputies, and Lieutenants, for the good and happy government of the said Countrey, to ordeyne, make, Enact, and under his and their Seales to publish, any Lawes whatsoever, for the raising money for the publick use of the said province, or for any other End apperteyning either unto the publick state, peace, or safety of the said Countrey, or unto the private utility of perticular persons, according unto their best discretions, by and with the advice, assent, and approbacon of the freemen of the said Countrey, or the greater parte of them, r of their Delegates or Deputies, whom for the Enacting of the said Lawes, when, and as often as need shall require, Wee will, that the said William Penn, and his heires, shall assemble in such sort and forme as to him and them shall seeme best, and the same Lawes duely to execute unto, and upon all people within the said Countrey and limitts thereof; And wee doe likewise give and grant unto the said William Penn, and his heires, and to his and their Deputies and Lieutenants, such power and authoritie to appoint and establish any Judges, and Justices, Magistrates and Officers whatsoever, for what Causes soever, for the probates of will and for the granting of Administracons within the precincts aforesaid, and with what power soever, and in such forme as to the said William Penn, or his heires, shall seeme most convenient. Alsoe, to remitt, release, pardon and abolish, whether before Judgement or after, all Crimes and Offences whatsoever, comitted within the said Countrey, against the said Lawes, Treason and wilfull and malicious Murder onely excepted; and in those Cases, to Grant Reprieves untill Our pleasure may bee knowne thereon, and to doe all and every other thing and things which unto the compleate establishment of Justice unto Courts and Tribunals, formes of Judicature and manner of proceedings doe belong, altho' in these presents expresse mencon bee not made thereof; ... Provided, Nevertheles, that the said Lawes bee consonant to reason, and bee not repugnant or contrarie, but as neare as conveniently may bee agreeable to the Lawes, Statutes and rights of this our Kingdome of England, And Saveing and reserving to us, Our heirs and Successors, the receiving, heareing, and determining of the Appeale and Appeales, of all or any person or persons, of, in or belonging to the Territories aforesaid, or touching any Judgement to bee there made or given ... [In emergencies, the proprietor or his representatives may make ordinances without the consent of the freemen; the same to be agreeable to the laws of England with limitation as in the Maryland Charter.] And our further will and pleasure is, that the Lawes for regulateing and governing of Propertie, within the said Province, as well for the descent and enjoyment of lands, as likewise for the enjoyment and succession of goods and Chattells, and likewise as to felonies, shall be and continue the same as shall bee for the time being, by the general course of the Law in our Kingdome of England, untill the said Lawes shall be altered by the said William Penn, his heires or assignes, and by the freemen of the said Province, their Delegates or Deputies, or the greater part of them. And to the End the said William Penn, or heires, ... may not att any time hereafter, by misconstrucon of the powers aforesaid, through inadvertiencie or designe, depart from that faith and due allegiance which ... they always owe unto us, Our heires and successors, ... by force or colour of any lawes hereafter to bee made in the said Province, ... Our further will and pleasure is, that a transcript or Duplicate of all lawes which shall bee soe as aforesaid, made and published within the said province, shall within five yeares after the makeing thereof, be transmitted and delivered to the privy Councell, for the time being, of us, our heires and successors; And if any of the said Lawes within the space of six months, after that they shall be soe transmitted and delivered, bee declared by us, our heires or successors, in our or their privy Councell, inconsistent with the sovereignety or lawfull prerogative of us, our heirs or successors, or contrary to the faith and allegiance due by [to] the legall Government of this realme, from the said William Penn, or his heires or of the Planters and Inhabitants of the said province; and that thereupon any of the said Lawes shall bee adjudged and declared to bee void by us, our heirs or successors, under our or their Privy Seale, that then, and from thenceforth such Lawes concerning which such Judgement and declaracon shall be made, shall become voyd, otherwise the said lawes soe transmitted, shall remaine and stand in full force according to the true intent and meaneing thereof.[96]...
[Grant of right to export products of the province into any English port, "and not into any other country whatsoeve," with a clause insisting upon obedience to "the Acts of Navigation.">[ And Wee doe further appoint and ordaine ... That he the said William penn, his heires and assignes, may from time to time forever, have and enjoy the Customes and Subsidies in the ports, harbours and other Creeks, and places aforesaid, within the province aforesaid, payable or due for merchandizes and wares, there to be Laded and unladed, the said Customes and Subsidies to be reasonably assessed, upon any occasion by themselves, and the people there as aforesaid, to be assembled to whom wee Give power, by these presents for us, our heires and Successors, upon just cause, and in a due proporcon, to assesse and impose the same, Saveing unto us, our heires and Successors, such imposicons and customes as by Act of parliament are and shall be appointed. And further ... Wee doe ... grant ... That Wee, our heeres and Successors shall att no time hereafter sett or make, or cause to be sett, any imposition, custome or other taxacon, rate or contribucon whatsoever, in and upon the dwellers and inhabitants of the aforesaid province, for their Lands, tenements, goods or chattels, within the said province, or in and upon any goods or merchandize within the said province, or to be laden or unladen within the ports or harbours of the said province, unles the same be with the consent of the proprietary, or chiefe Governor and assembly, or by Act of parliament in England.[97]...
103. Penn's Grants to the Pennsylvanians
a. "Laws Agreed upon in England," 1683
Hazard's Annals of Pennsylvania, 568-574. Penn gave a formal charter to the settlers in 1683, prefaced by the following "laws" which constitute a bill of rights and which were to be altered only by the consent of six sevenths of the legislature. The charter of 1683 was replaced by that of 1701 (see b, below); but these "Lawes" were a separate instrument of government, and remained in force.
III. That all elections of members or representatives of the people ... of the province ... to serve in the provincial council or general assembly, to be held within the said province, shall be free and voluntary, and that the elector that shall receive any reward or gift, in meat, drink, moneys, or otherwise, shall forfeit his right to elect; and such person as shall directly or indirectly give, promise, or bestow such reward as aforesaid, to be elected, shall forfeit his election, and be thereby incapable to serve as aforesaid: and the provincial council and general assembly shall be the sole judges of the regularity or irregularity of the elections of their own respective members.
IV. That no money or goods shall be raised upon, or paid by any of the people of this province, by way of public tax, custom, or contribution, but by a law for that purpose made, and whosoever shall levy, collect, or pay any money or goods contrary thereto, shall be held a public enemy to the province, and a betrayer of the liberties of the people thereof.
V. That all courts shall be open, and justice shall neither be sold, denied, or delayed.
VII. That all pleadings, processes, and records in court, shall be short, and in English, and in an ordinary and plain character, that they may be understood, and justice speedily administered.
VIII. That all trials shall be by twelve men, and as near as may be, peers or equals, and of the neighbourhood, and men without just exception. In cases of life, there shall be first twenty-four returned by the sheriffs for a grand inquest, of whom twelve at least shall find the complaint to be true, and then the twelve men or peers, to be likewise returned by the sheriff, shall have the final judgment. But reasonable challenges shall be always admitted against the said twelve men, or any of them.
IX. That all fees in all cases shall be moderate, and settled by the provincial council and general assembly, and be hung up in a table in every respective court, and whosoever shall be convicted of taking more, shall pay twofold, and be dismissed his employment, one moiety of which shall go to the party wronged.
X. That all prisons shall be workhouses for felons, vagrants, and loose and idle persons, whereof one shall be in every county.
XI. That all persons shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident, or the presumption is great.
XII. That all persons wrongfully imprisoned or prosecuted at law, shall have double damages against the informer or prosecutor.
XIII. That all prisons shall be free as to fees, food, and lodging.
XIV. That all lands and goods shall be liable to pay debts, except where there is legal issue, and then all the goods, and one-third of the land only.
XV. That all wills in writing, attested by two witnesses, shall be of the same force as to lands as other conveyances, being legally proved within forty days, either within or without the said province.
XVI. That seven years quiet possession shall give an unquestionable right, except in cases of infants, lunatics, married women, or persons beyond the seas.
XXVIII. That all children within this province, of the age of twelve years, shall be taught some useful trade or skill, to the end none may be idle, but the poor may work to live, and the rich, if they become poor, may not want.
XXIX. That servants be not kept longer than their time, and such as are careful be both justly and kindly used in their service, and put in fitting equipage at the expiration thereof, according to custom.
b. Penn's Charter of Privileges to Pennsylvania, October 28/November 8, 1701
Votes and Proceedings of the House of Representatives of Pennsylvania, I, pt. II, i-iii.
A brief statement of the political conditions in the colony previous to this grant will be found in American History and Government, § 110. After a long absence in England, Penn returned to the colony in December, 1699, to find turmoil and confusion. After a few months, it became clear that Penn must again go back to England promptly to save his proprietary rights from attacks there; but before he left, he granted, and the Assembly accepted, this noble charter, which remained the constitution of the colony until 1776, and which the more conservative patriots of that Revolutionary day wished to have continued still longer as the constitution of the independent State.
Italics are as in the original. The editor has used black italics sparingly to call attention to especially important passages.
[Recital of grant of charter of 1681 to Penn, the liberal "frame of government" established by Penn in 1683, the later distractions, and Penn's promise either to restore the "frame" of 1683 or to grant a new one "better adapted to ... the present circumstances.">[
KNOW YE THEREFORE, That for the further Well-being and good Government of the said Province, and Territories; and in Pursuance of the Rights and Powers before-mentioned, I the said William Penn do declare, grant and confirm, unto all the Freemen, Planters, and Adventurers, and other Inhabitants of this Province and Territories, these following Liberties, Franchises and Privileges, so far as in me lieth, to be held, enjoyed, and kept, by the Freemen, Planters and Adventurers, and other Inhabitants of and in the said Province, and Territories thereunto annexed, for ever.
I.
BECAUSE no People can be truly happy, tho' under the greatest Enjoyment of civil Liberties, if abridged of the Freedom of their Consciences, as to their Religious Profession and Worship: And Almighty God being the only Lord of Conscience, Father of Lights and Spirits; and the Author as well as Object of all divine Knowledge, Faith and Worship, who only doth enlighten the Minds, and persuade and convince the Understandings of People, I do hereby grant and declare, That no Person or Persons, inhabiting in this Province or Territories, who shall confess and acknowledge One almighty God, the Creator, Upholder and Ruler of the World, ... shall be in any Case molested or prejudiced, in his or their Person or Estate, because of his or their conscientious Perswasion or Practice, nor be compelled to frequent or maintain any religious Worship, Place, or Ministry, contrary to his or their Mind, or to do or suffer any other Act or Thing, contrary to their religious Perswasion.[98]
AND that all Persons who also profess to believe in Jesus Christ, the Saviour of the World, shall be capable (notwithstanding their other Perswasions and Practices in Point of Conscience and Religion) to serve this Government in any Capacity, both legislatively and executively, he or they solemnly promising, when lawfully required, Allegiance to the King as Sovereign, and Fidelity to the Proprietary and Governor,...
II.
FOR the well governing of this Province and Territories, there shall be an Assembly yearly chosen by the Freemen thereof, to consist of Four Persons out of each County, of most Note for Virtue, Wisdom, and Ability (or of a greater Number at any Time, as the Governor and Assembly shall agree) upon the first Day of October for ever; and shall sit on the fourteenth Day of the same Month at Philadelphia, unless the Governor and Council for the Time being, shall see Cause to appoint another Place within the said Province or Territories: Which Assembly shall have Power to chuse a Speaker and other their Officers; and shall be judges of the Qualifications and Elections of their own Members; sit upon their own Adjournments; appoint Committees; prepare Bills, in order to pass into Laws; impeach Criminals, and redress Grievances; and shall have all other Powers and Privileges of an Assembly, according to the Rights of the Freeborn Subjects of England, and as is usual in any of the King's Plantations in America.
AND if any County or Counties, shall refuse or neglect to chuse their respective Representatives as aforesaid, or if chosen, do not meet to serve in Assembly, those who are so chosen and met, shall have the full Power of an Assembly, in as ample Manner as if all the Representatives had been chosen and met, provided they are not less than Two Thirds of the whole Number that ought to meet.
AND that the Qualifications of Electors and Elected, and all other Matters and Things relating to Elections of Representatives to serve in Assemblies, tho' not herein particularly expressed, shall be and remain as by a Law of this Government, made at Newcastle in the Year One Thousand Seven Hundred, intituled, An Act to ascertain the Number of Members of Assembly, and to regulate the Elections.[99]
III.
THAT the Freemen in each respective County, at the Time and Place of Meeting for Electing their Representatives to serve in Assembly, may, as often as there shall be Occasion, chuse a double Number of Persons to present to the Governor for Sheriffs and Coroners, to serve for Three Years, if so long they behave themselves well; out of which respective Elections and Presentments, the Governor shall nominate and commissionate one for each of the said Offices, the third Day after such Presentment, or else the first named in such Presentment, for each Office as aforesaid, shall stand and serve in that Office for the Time before respectively limited; and in case of Death or Default, such Vacancies shall be supplied by the Governor, to serve to the End of the said Term.
PROVIDED ALWAYS, That if the said Freemen shall, at any Time, neglect, or decline to chuse a Person or Persons for either or both the aforesaid Offices, then and in such Case, the Persons that are or shall be in the respective Offices of Sheriffs or Coroners, at the Time of Election, shall remain therein, until they shall be removed by another Election as aforesaid.
AND that the Justices of the respective Counties, shall or may nominate and present to the Governor three Persons, to serve for Clerk of the Peace for the said County when there is a vacancy, one of which the Governor shall commissionate within ten Days after such Presentment, or else the first nominated, shall serve in the said Office during good Behaviour.
IV.
[Style and manner of recording laws.]
V.
THAT all Criminals shall have the same Privileges of Witnesses and Council as their Prosecutors.
VI.
THAT no Person or Persons shall, or may, at any Time hereafter, be obliged to answer any Complaint, Matter or Thing whatsoever relating to Property, before the Governor and Council, or in any other Place, but in ordinary Course of Justice, unless Appeals thereunto shall be hereafter by Law appointed.
VII.
[Ordinaries and Taverns to be licensed by the Governor, on recommendation of the Justices of the counties concerned,—with power to suppress for misbehaviour.]
VIII.
IF any Person, through Temptation or Melancholy, shall destroy himself, his Estate, real and personal, shall, notwithstanding, descend to his Wife and Children, or Relations, as if he had died a natural Death;[100] and if any Person shall be destroyed or killed by Casualty or Accident, there shall be no Forfeiture to the Governor by Reason thereof.
AND no Act, Law or Ordinance whatsoever shall, at any Time hereafter, be made or done, to alter, change or diminish the Form or Effect of this Charter, or of any Part or Clause therein, contrary to the true Intent and Meaning thereof, without the Consent of the Governor for the Time being, and Six Parts of Seven of the Assembly met.[2]
BUT because the Happiness of Mankind depends so much upon the Enjoying of Liberty of their Consciences as aforesaid, I do hereby solemnly declare, promise and grant, for me, my Heirs and assigns, That the first Article of this Charter relating to Liberty of Conscince, and every Part and Clause therein, according to the true Intent and Meaning thereof, shall be kept and remain, without any Alteration, inviolably for ever.[101]
[Provision for separation of the Delaware "Territories" under their own legislature, if they so desire.]
NOTWITHSTANDING which Separation of the Province and Territories, in Respect of Legislation, I do hereby promise, grant and declare, That the Inhabitants of both Province and Territories, shall separately enjoy all other Liberties, Privileges and Benefits, granted jointly to them in this Charter, any Law, Usage or Custom of this Government heretofore made and practised, or any Law made and passed by the General Assembly, to the contrary hereof notwithstanding.
104. Berkeley's Report on Virginia, 1671
Hening's Statutes, II, 511-517.
In 1670 the Colonial Board (No. 99, above) sent out questions, which, with the answers of Governor Berkeley for Virginia (1671), are given below. Other colonies sent like reports.
1. What councils, assemblies, and courts of judicature are within your government, and of what nature and kind?
Answer. There is a governor and sixteen counsellors, who have from his sacred majestie, a commission of Oyer and Terminer, who judge and determine all causes that are above fifteen pound sterling; for what is under, there are particular courts in every county, which are twenty in number. Every year, at least the assembly is called, before whom lye appeals, and this assembly is composed of two burgesses out of every county. These lay the necessary taxes, as the necessity of the war with the Indians, or their exigencies require.
[2. Courts of admiralty.]
3. Where the legislative and executive powers of your government are seated?
Answer. In the governor, councel and assembly, and officers substituted by them.
4. What statute laws and ordinances are now ... in force?
Answer. The secretary of this country every year sends to the lord chancellor, or one of the principal secretaries, what laws are yearly made; which for the most part concern only our own private exigencies; for, contrary to the laws of England, we never did, nor dare make any, only this, that no sale of land is good and legal, unless within three months after the conveyance it be recorded in the general court, or county courts.
5. What number of horse and foot are within your government, and whether they be trained bands or standing forces?
Answer. All our freemen are bound to be trained every month in their particular counties, which we suppose, and do not much mistake in the calculation, are near eight thousand horse: there are more, but it is too chargeable for poor people, as wee are, to exercise them.
6. (Castles and forts.)
7. What number of privitiers do frequent your coasts ... the number of their men, and guns, and names of their commanders?
Answer. None to our knowledge, since the late Dutch war.
8. What is the strength of your bordering neighbors, be they Indians or others ...?
Answer. We have no Europeans seated nearer to us than St. Christophers or Mexico, that we know of, except some few ffrench that are beyond New England. The Indians, our neighbours, are absolutely subjected, so that there is no fear of them[102]....
9. (Arms, amunition, and stores ... "sent you upon his majestys account?")
Answer. ... His majesty in the time of the Dutch warr, sent us thirty great guns, most of which were lost in the ship that brought them. [No others sent; some bought by the colony.]
10. What monies have been paid ... by his majesty, or levied within your government for and towards the buying of armes or making or maintaining of any ffortifications or castles, and how have the said monies been expended?
Answer. Besides those guns I mentioned, we never had any monies of his majesty towards the buying of ammunition or building of fforts. What monies can be spared out of the publick revenue, we yearly lay out in ammunition.
11. What are the boundaries and contents of the land, within your government?
Answer. As for the boundaries of our land, it was once great, ten degrees in latitude, but now it has pleased his majesty to confine us to halfe a degree. Knowingly, I speak this. Pray God it may be for his majesty's service, but I much fear the contrary.[103]
12. What commodities are there of the production, growth and manufacture of your plantation; and particularly, what materials are there already growing, or may be produced for shipping in the same?
Answer. Commodities of the growth of our country, we never had any but tobacco, which in this yet is considerable, that it yields his majesty a great revenue; but of late, we have begun to make silk, and so many mulberry trees are planted, and planting, that if we had skilfull men from Naples or Sicily to teach us the art of making it perfectly, in less than half an age, we should make as much silk in an year as England did yearly expend three score years since; but now we hear it is grown to a greater excess, and more common and vulgar usage. Now, for shipping, we have admirable masts and very good oaks; but for iron ore I dare not say there is sufficient to keep one iron mill going for seven years.
13. Whether saltpetre is or may be produced within your plantation, and if so, at what rate may it be delivered in England?
Answer. Saltpetre, we know of none in the country.
14. What rivers, harbours or roads are there in or about your plantation and government, and of what depth and soundings are they?
Answer. Rivers, we have four, as I named before, all able, safely and severally to bear an harbour a thousand ships of the greatest burthen.
15. What number of planters, servants and slaves; and how many parishes are there in your plantation?
Answer. We suppose, and I am very sure we do not much miscount, that there is in Virginia above forty thousand persons, men, women and children, and of which there are two thousand black slaves, six thousand christian servants, for a short time; the rest are born in the country or have come in to settle and seat, in bettering their condition in a growing country.
16. What number of English, Scots, or Irish have for these seven years past came yearly to plant ... within your government; as also what blacks or slaves have been brought in ...?
Answer. Yearly we suppose there comes in, of servants, about fifteen hundred, of which most are English, few Scotch, and fewer Irish, and not above two or three ships of Negroes in seven years.[104]
17. [Mortality? The answer expresses inability to give exact figures, from lack of a "register office," but insists upon improvements in health of new immigrants as compared with earlier times.]
18. What number of ships to trade yearly to and from your plantations, and of what burthen are they?
Answer. English ships, near eighty, come out of England and Ireland every year for tobacco; few New England ketches; but of our own we never had yet more than two at one time, and those not more than twenty tons burthen.
19. What obstructions do you find to the improvement of trade and navigation ...?
Answer. Mighty and destructive, by that severe act of parliament which excludes us the having any commerce with any nation in Europe but our own.[105] [Navigation Acts of 1660, 1663] ... Besides this, we cannot procure any skillfull men for our now hopefull commodity, silk; for it is not lawfull for us to carry a pipestave or a barrel of corn to any place in Europe out of the king's dominions.[106] If this were for his majesty's service or the good of his subjects, we should not repine, whatever our sufferings ... but on my soul, it is the contrary for both. And this is the cause why no small or great vessels are built here;[107] for we are most obedient to all laws, whilst the New England-men break through, and trade to any place that their interests lead them.
20. What advantages ... do you observe that may be gained to your trade or navigation?
Answer. None, unless we had liberty to transport our pipe staves, timber and corn to other places besides the king's dominions.
21. What rates and duties are charged and payable upon any goods exported out of your plantation, whither of your own growth or manufacture, or otherwise, as also upon goods imported?
Answer. No goods, either exported or imported, pay any the least duties here, only two shillings the hogshead on tobacco exported, which is to defray all public charges; and this year we could not get an account of more than fifteen thousand hogsheads, out of which the king allows me a thousand yearly, with which I must maintain the part of my place, and one hundred intervening charges that cannot be put to public account. And I can knowingly affirm, that there is no government of ten years settlement, but has thrice as much allowed him. But I am supported by my hopes, that his gracious majesty will one day consider me.
22. What revenues doe or may arise to his majesty within your government, and of what nature is it; by whom is the same collected, and how answered and accounted to his majesty?
Answer. There is no revenue arising to his majesty but out of the quit-rents; and this he hath given away to a deserving servant, Col. Henry Norwood.
23. What course is taken about the instructing the people, within your government in the christian religion ...?
Answer. The same course that is taken in England out of towns; every man according to his ability instructing his children. We have fforty eight parishes, and our ministers are well paid, and by my consent should be better if they would pray oftener and preach less. But of all other commodities, so of this, the worst are sent us, and we had few that we could boast of, since the persicution in Cromwell's tiranny drove divers worthy men hither. But, I thank God, there are no free schools nor printing, and I hope we shall not have these hundred years; for learning has brought disobedience, and heresy, and sects into the world, and printing has divulged them, and libels against the best government. God keep us from both!
105. The Franchise in Virginia again Restricted[108]
Hening's Statutes at Large.
For the general reaction of this period, American History and Government, §§ 103, 104.
[October, 1670.]
Act III. Whereas the usuall way of chuseing burgesses by the votes of all persons who, haveing served their tyme, are ffreemen of this country, who, haveing little interest in the country, doe oftner make tumults at the election to the disturbance of his majesties peace, then by their discretions in their votes provide for the conservasion thereof, by makeing choyse of persons fitly qualifyed for the discharge of soe greate a trust, And whereas the lawes of England grant a voyce in such election only to such as by their estates real or personall have interest enough to tye them to the endeavour of the publique good; It is hereby enacted, that none but ffreeholders and housekeepers who only are answerable to the publique for the levies shall hereafter have a voice in the election of any burgesses in this country; and that the election be at the court house.
["Bacon's Assembly" of 1676 repealed this restriction and restored free manhood franchise; but that act fell with the other attempted reforms of that year; Nos. 106, 109, below.]
106. "Bacon's Laws," in Virginia (Political Discontent)
Hening's Statutes at Large, II, 341-365.
Cf. American History and Government, § 105.
At a Grand Assemblie Holden at James Citie the fifth day of June, 1676.
Act I. [An act for carrying on a warre against the barbarous Indians.]
[Nearly ten pages. Declares war; Provides an army of 1000 men; decrees that captives shall be made slaves; appoints Bacon "genll. and commander in cheife.">[
Act II. [Prohibits trade with Indians.]
Act III. [Reserves to the colony as a whole any deserted Indian lands.]
Act IV. [To suppress tumults.]
Act V. [Sheriffs.]
Whereas divers complaints have been made throughout the country of the abuses ... of divers offices ... Bee it enacted by the governour, councell, and burgesses of this grand assembly, and by the authority of the same, that noe person whatsoever within this country shall exercise, hold, and enjoy the office of sherriffe or under-sherriffe more than one year successively. [Penalty, 20,000 pounds of tobacco] ... And bee it further enacted ... that noe person or persons whatsoever shall hold or enjoy two of these offices hereafter named at one and the same time ... viz. ... sherriffs, clerke of courte, surveyor, and escheator. ... [Three years residence necessary for eligibility to any office. ... Provision, in much detail, against sheriffs or other officers exacting more than the legal fees.]
Act VI. [Vestries.]
Whereas the long continuance of vestries ... is presented as a greivance, Bee it enacted ... that it shall and may be lawfull ... for the freeholders and freemen of every parish ... by the majoritie of votes to elect ... certaine freeholders or substantiall householders to the number of twelve ... which said twelve shall be ... the vestrie of the parish ... and such election to be made ... once in every three yeares.
Act VII [Suffrage.]
Bee it enacted ... that the act of assembly [1770; see No. 105] ... which forbids freemen to have votes in the election of burgesses be repealed, and that they be admitted, together with freeholders and householders, to vote as formerly in such elections.
Act VIII. [To add representatives to the Board of County Justices, except for judicial purposes.]
Whereas the justices of the county courts ... have accustommarily sett ... a rate or assessment upon the people of their counties ... and whereas it hath been suspected ... that under colour thereof many sums have bin raised ... for the interest of particular persons. ... Bee it enacted ... that some of the discreetest and ableest of the inhabitants of each county, equal in number to the number of justices ... be yearly chosen ... [by parishes] by majoritie of votes of householders, ffreeholders, and ffreemen ... which said representatives, together with the justices ... are to meet at the usual place ... and are hereby authorized and impowered to have equal votes with them, the said justices, in laying county assessments and of [in] making wholesome by-lawes for the good of their counties.
IX, X, XI. [Forms of procedure in collecting levies and administering estates.]
XII. [Abolition of exemptions from taxation.]
For the greater ease of the country ... Bee it enacted that the 55th act of the printed laws [code of 1662], soe far as it relates to the honorable councill of state and ministers, bee ... repealed, and that for the future the persons of the councill and all others of their families be liable to pay levies ... and that the person of every minister bee exempted, ... but all other tithable persons in his familie shall be liable to pay levies....
XIII. [Permitting wolf-bounties.]
XIV. [Regarding trespass by "unrulie horses" "within another person's enclosure.">[
XV. [Forbids exportation of corn until next session of the assembly.]
XVI. [For temperance reform.]
Whereas it is most apparently found that the many ordinaries [taverns] in severall parts of the country are very prejudiciall ... Bee it therefore enacted ... that no ordinaries, ale houses, or other tipling houses whatsoever ... be kept in any part of the country [except "at James Citty" and "at the two great ferries" of Yorke river]; Provided ... that [these exceptions] be admitted ... to sell ... mare's meate, horse-meate, beer, and syder, but no other strong drinke whatsoever. ... [Penalty of 1000 pounds tobacco for selling "any sorte of drinke or liquor" or for "being drunke ... in his ... house.">[
XVII. XVIII. [Special Acts, relating to James City and two counties.]
Act XIX. [General Pardon and Oblivion.]
Act XX. [Disabling Lt. Col. Edward Hill and Lieut. John Stith. from bearing any office, civil or military, because these men had "bin the greatest instruments ... of raiseing, promoteing, and stirring up the late differences and misunderstandings ... between the honorable governour and his majesties good and loyal subjects," Beacon's party.]
107. Bacon's Proclamation, July 30, 1676
Massachusetts Historical Society Collections, Fourth Series, IX, 184-187.
The closing paragraphs (here given) follow some two pages of specific charges of misgovernment against Governor Berkeley and certain of "his wicked and pernicious counsellors, confederates, aides and associates against the Comonality."
The Declaracion of the People
... And we doe further demand that the said Sir William Berkeley with all the persons in this list be forthwith delivered up or surrender themselves within fower days after the notice hereof, Or otherwise we declare as followeth.
That in whatsoever place, howse, or ship, any of the said persons shall reside, be hidd, or protected, we declaire the owners, Masters or inhabitants of said places, to be confederates and trayters to the people; and the estates of them as alsoe of all the aforesaid persons to be confiscated, and this we the Commons of Virginia, doe declare, desiering a firme union amongst ourselves that we may joyntly and with one accord defend ourselves against the common Enimy, and lett not the faults of the guilty be the reproach of the inocent, or the faults or crimes of the oppressors devide and separate us who have suffered by theire oppressions.
These are therefore in his majesties name to command you forthwith to seize the persons above mencioned as Trayters to the King and Country and them to bring to Midle plantacon, and there to secure them untill further order, and in case of opposicion, if you want any further assistance you are forthwith to demand itt in the name of the people in all the Counties of Virginia.
Nath. Bacon.
Genll by Consent of the people.
108. Testimony of Political Discontent as a Cause of Bacon's Rebellion
Virginia Historical Magazine, II, 166-173, 289-292.
When Bacon's Rebellion had been crushed, royal commissioners arrived in the colony, with instructions to inform themselves "of all grievances." The commissioners met the inhabitants at various County Courts, and took down their complaints in writing. These complaints show some of the real causes of Bacon's Rebellion. Of course, to these royal commissioners the people as a rule would say little of infringements upon political liberty (because commissioners from Charles II could not be expected to have any sympathy with such complaints), and they would say much about misgovernment and economic oppression. The following extracts from the commissioners' records are selected to show that complaints regarding political oppression did find voice, even under such conditions. These entries might be greatly extended.
(1) Gloster County
4. That severall grievances being presented to the June Assembly [1676] upon which many good Lawes were consented to by that Assembly [No. 106] ... they Beg those good and wholesome Lawes may be confirmed.
(2) Lower Norfolk County
5. Request for Liberty to Transport their Tobacco to any of his majesties Plantations without paying the Impost payable by Act of Parliament. [This request the commissioners declare "wholly mutinous.">[
(3) Surry County
1. That the last Assembly continued many yeares....
10. That it has been the custome of County Courts att the laying of the levy to withdraw into a private Roome,—by which meanes the poore people, not knowing for what they paid, did admire how their taxes could be so high.
12. That, contrary to the lawes of England and this Country, high sheriffs have usually continued two years, and under sheriffs 3 or 4 years together: wee humbly pray that for the future no person may continue sheriffe above one yeare.
14. That we have not had liberty to choose vestrymen: wee humbly desire that the wholle parish may have a free election.
15. That since his most gracious Majesty hath been most mercifully pleased to pardon our late disloyalty, wee most earnestly and humbly pray that this present grand assembly would make an Act of Oblivion,—that no person may be injured by the provoking names of Rebell, Traitor and Rogue.
(4) Northampton County
2. That we may have Liberty grannted us to choose a new vestery, and that every three years a new vestery may be chosen.
6. That it may be graunted us to make a free choyse of six housekeepers without Interposing of any Ruling Magistratre [to sit with the Justices of the County as a Board to assess taxes], to prevent oppressions ... as we humbly suspect ... to have Received heretofore.
15. That no Sheriff may officiate two years together.
(5) Isle of Wight
14. We desire wee may have libertie to chuse our Vestries once in three yeares, and that their may noe member of the Court [County Justices] be therein.
109. Abolition of Bacon's Reforms for Virginia
a. The King's Orders
Additional instructions [from King Charles II] for our trusty and well beloved Sir William Berkeley, Knt. our governor of our colony of Virginia, November 13, 1676
Hening's Statutes, II, 424 ff.
2. You shall take care that the members of the assembly be elected only by ffreeholders, as being more agreeable to the custome of England, to which you are as nigh as conveniently you can to conforme yourselfe.
6. You shall declare voyd and null all the proceedings of the late assembly ... ["Bacon's Assembly">[.
b. Repeal by the Assembly, February, 1676/1677
Hening's Statutes at Large, II, 380.
Whereas Nathaniell Bacon ... in the month of June, 1676 ... did enter James Citty in a rebellious manner with a considerable number of armed men ... environing and beseigeing the governour and councell and burgesses ... threatening them with sudden death if they would not grant his unreasonable, unlawfull, rebellious and treasonable demands, and by his threats and ... violence did obteine to himselfe whatsoever he soe ... demanded; And whereas the kings most excellent majestie by his gratious proclamation ... hath long since declared all the proceedings of the said assembly to be voyd in law: Bee it therefore enacted by this present grand assembly and the authority thereof, and it is hereby enacted, that all acts, orders, and proceedings of the said grand assembly be repealed and made null and voyd.
110. Self-government in Massachusetts Decreased
a. Randolph's Report, 1676
Hutchinson's Collection of Original Papers (1769), 477 ff.
Randolph had been sent to the colonies as a "commissioner" by the Lords of Trade.
Second Enquiry. What lawes and ordinances are now in force there derogatory or contrary to those of England, and what oath is prescribed by the government?
The lawes and ordinances made in that colony are no longer observed than as they stand with their convenience. The magistrates not so strictly minding the letter of the law when their publick interest is concerned, in all cases more regarding the quality and affection of the persons to their government than the nature of their offence. They see no evill in a church member, and therefore it is very difficult to get any sentence or verdict against him, tho' in the smallest matters.
No law is in force or esteeme there but such as are made by the generall court, and therefore it is accounted a breach of their privileges and a betraying of the liberties of their commonwealth to urge the observation of the lawes of England or his Majesties commands.
The lawes most derogatory and contradictory to those of England.
All persons of the age of 21 years, being excommunicate or condemned, have liberty to make wills and dispose of lands and estates.
In capital cases, dismembering or banishment; where no law is made by the generall court, or in case of defect of a law in any particular case, the offender to be tryed by the word of God and judged by the generall court.
Ministers are ordained by the people and no injunction to be put upon any church officer or member, in point of doctrine, worship or discipline, whether for substance or circumstance, besides the institution of the Lord.
Whoever shall observe christmasse day or the like festivity, by forbearing to labour, feasting or other way shall pay 5s. and whosoever shall not resort to their meeting upon the Lord's day and such days of fasting and Thanksgiving as shall be appointed by authority, shall pay 5s. no days commanded by the lawes of England to be observed or regarded.
No person shall be impressed or compelled to serve in any wars but such as shall be enterprized by that commonwealth, by the consent of a generall court, or by authority derived from them.
No person whatsoever shall joine any persons in marriage but a magistrate, it being an honorable ordinance and therefore should be accordingly sollemnized.
All strangers professing the true christian religion that shall fly to them for succour from the tyranny or oppression of their persecutors, or for any necessary or compulsory cause, they shall be entertained and protected amongst them according to that power and prudence God shall give them. By which law Whalley and Gosse and other traytors were kindly receaved and entertained by Mr. Godkins and other magistrates.
Whosoever shall be in the possession of any land 5 years, altho' the grant of said land was to another, and the possessor have nothing to shew for the alienation thereof but his possession, the possessor shall have the land confirmed to him.
No oath shall be urged or required to be taken by any person but such oath as the generall court hath considered allowed and required.
The oaths of allegiance and supremacy are neither taken by the magistrates nor required to be taken by the inhabitants, only an oath of fidelity to the government is imposed upon all persons as well strangers as inhabitants, upon the penalty of 5l. for every week they shall refuse the said oath.
b. Second Charter of Massachusetts, October 7/17, 1691
Acts and Resolves of the Province of Massachusetts Bay, I, 1-20.
The stubborn persistence of Massachusetts in resisting all regulation from England finally involved all New England in the despotic rule of Andros. On the overthrow of Andros (on the flight of James II and the accession of William III), Connecticut and Rhode Island continued their former charter governments; but the Massachusetts Charter of 1629 had been declared void by the English courts and had been formally surrendered. The best Massachusetts could now do was to secure a much more limited instrument. For a fuller history, cf. American History and Government, § 97.
[Recital of the creation of the Plymouth Council in 1620, of the grant by that Council to the Massachusetts Bay Company in 1628, of the royal charter of 1629, and of the vacating of that charter in 1684.]
And Whereas severall persons employed as Agents in behalfe of Our said Collony of the Massachusetts Bay in New England have made their humble application unto Us that Wee would be graciously pleased by Our Royall Charter to Incorporate Our Subjects in Our said Colony and to grant and confirme unto them such powers priviledges and Franchises ... and Wee being graciously pleased to gratifie Our said Subjects. And alsoe to the end Our good Subjects within Our Collony of New Plymouth in New England aforesaid may be brought under such a forme of Government as may put them in a better Condition of defence....
... Wee doe by these presents for Us Our Heirs and Successors Will and Ordeyne that the Territories and Collonyes comonly called or known by the Names of the Collony of the Massachusetts Bay, and Collony of New Plymouth, the Province of Main, the Territorie called Accadia or Nova Scotia, and all that Tract of Land lying betweene the said Territories of Nova Scotia and the said Province of Main be Erected United and Incorporated ... into one reall Province by the Name of Our Province of the Massachusetts Bay in New England And ... [grant of territory]....
Provided ... that all and every such Lands Tenements and Hereditaments and all other estates which any person or persons or Bodyes Politique or Corporate (Townes, Villages, Colledges, or Schooles) doe hold and enjoy or ought to hold and enjoy within the bounds aforesaid by or under any Grant or estate duely made or granted by any Generall Court formerly held or by vertue of the Letters Patents herein before recited or by any other lawfull Right or Title whatsoever shall be by ... [them] ... for ever hereafter held and enjoyed according to the purport and Intent of such respective Grant. ... And wee doe further ... Establish and ordeyne that ... there shall be one Governour, One Leiutenant or Deputy Governour, and One Secretary of Our said Province or Territory, to be from time to time appointed and Commissionated by Us ... and Eight and Twenty Assistants or Councillors to be advising and assisting to the Governour ... for the time being as by these presents is hereafter directed and appointed, which said Councillors or Assistants are to be Constituted, Elected, and Chosen in such forme and manner as hereafter in these presents is expressed. [Appointment of first set of officers, the Assistants to continue until the last Wednesday in May, 1693.]
And Our Will and Pleasure is that the Governour ... shall have Authority from time to time at his discretion to assemble and call together the Councillors or Assistants ... and that the said Governour with the said Assistants or Councillors or Seaven of them at the least shall and may from time to time hold and keep a Councill for the ordering and directing the Affaires of Our said Province And Further Wee Will ... that there shall ... be convened ... by the Governour ... upon every last Wednesday in the Moneth of May every yeare for ever and at all such other times as the Governour ... shall think fitt and appoint a great and Generall Court of Assembly Which ... shall consist of the Governour and Councill or Assistants ... and of such Freeholders ... as shall be from time to time elected or deputed by the Major parte of the Freeholders and other Inhabitants of the respective Townes or Places who shall be present at such Elections ... To which Great and Generall Court ... Wee doe hereby ... grant full power and authority from time to time to direct ... what Number each County Towne and Place shall Elect and Depute to serve for and represent them respectively ... Provided alwayes that noe Freeholder or other Person shall have a Vote in the Election of Members ... who at the time of such Election shall not have an estate of Freehold in Land within Our said Province or Territory to the value of Forty Shillings per Annum at the least, or other estate to the value of Forty pounds Sterling ... and that the Governour for the time being shall have full power and Authority from time to time as he shall Judge necessary to adjourne Prorogue and dissolve all Great and Generall Courts ... And ... Wee doe ... Ordeyne that yearly once in every yeare ... the aforesaid Number of Eight and Twenty Councillors or Assistants shall be by the Generall Court ... newly chosen ... [Four at least of the Assistants to come from the former Plymouth Colony and three from Maine. The General Court may remove Assistants from office, and may also fill vacancies caused by removal or death.] And Wee doe further Grant and Ordeyne that it shall and may be lawfull for the said Governour with the advice and consent of the Councill or Assistants from time to time to nominate and appoint Judges, Commissioners of Oyer and Terminer, Sheriffs, Provosts, Marshalls, Justices of the Peace, and other Officers to Our Councill and Courts of Justice belonging, Provided alwayes that noe such Nomination or Appointment of Officers be made without notice first given or summons issued out seaven dayes before such Nomination or Appointment unto such of the said Councillors or Assistants as shall be at that time resideing within Our said Province ... and for the greater Ease and Encouragement of Our Loveing Subjects Inhabiting our said Province ... and of such as shall come to Inhabit there Wee doe ... Ordaine that for ever hereafter there shall be a liberty of Conscience allowed in the Worshipp of God to all Christians (Except Papists) Inhabiting ... within our said Province ... [Courts for the trial of both civil and criminal cases may be established by the General Court, reserving to the governor and assistants matters of probate and administration.] And whereas Wee judge it necessary that all our Subjects should have liberty to Appeale to us ... in Cases that may deserve the same Wee doe ... Ordaine that incase either party shall not rest satisfied with the Judgement or Sentence of any Judicatories or Courts within our said Province ... in any Personall Action wherein the matter in difference doth exceed the value of three hundred Pounds Sterling that then he or they may appeale to us ... in our ... Privy Council Provided such Appeale be made within Fourteen dayes after the Sentence or Judgement given and that before such Appeal be allowed Security be given by the party or parties appealing in the value of the matter in Difference to pay or Answer the Debt or Damages for the which Judgement or Sentence is given With such Costs and Damages as shall be Awarded by us ... incase the Judgement or Sentence be affirmed [provided that no execution shall be stayed by reason of such appeal.] And we doe further ... grant to the said Governor and the great and Generall Court ... full power and Authority from time to time to make ... all manner of wholesome and reasonable Orders Laws Statutes and Ordinances Directions and Instructions either with penalties or without (soe as the same be not repugnant or contrary to the Lawes of this our Realme of England) as they shall Judge to be for the good and welfare of our said Province. ... And for the Government and Ordering thereof and of the People Inhabiting or who shall Inhabit the same and for the necessary support and Defence of the Government thereof [and also] full power and Authority to name and settle Annually all Civill Officers within the said Province (such Officers Excepted the Election and Constitution of whome wee have by these presents reserved to us ... or to the Governor) ... and to Settforth the severall Duties Powers and Lymitts of every such Officer ... and the forms of such Oathes not repugnant to the Lawes and Statutes of this our Realme of England as shall be respectively Administred unto them for the Execution of their severall Offices and places. And alsoe to impose Fines, mulcts, Imprisonments, and other Punishments; And to Impose and leavy proportionable and reasonable Assessments, Rates, and Taxes, upon the Estates and Persons of all and every the Proprietors and Inhabitants of our said Province ... Provided alwaies ... that in the frameing and passing of all such Orders ... and in all Elections and Acts of Government whatsoever to be passed made or done by the said Generall Court ... or in Councill, the Governor ... shall have the Negative voice, and that without his consent or Approbation signified and declared in Writeing, no such Orders ... Elections or other Acts of Government ... shall be of any Force effect or validity ... And wee doe ... Ordaine that the said Orders Laws Statutes and Ordinances be by the first opportunity after the makeing thereof sent or Transmitted unto us ... under the Publique Seale to be appointed by us for Our ... approbation or Disallowance And that incase all or any of them shall, at any time within the space of three yeares next after the same shall have been presented to us ... in Our ... Privy Councill, be disallowed and rejected and soe signified by us ... unto the Governor for the time being then such ... of them as shall be soe disallowed ... shall thenceforth cease and determine and become utterly void and of none effect. [Laws not disallowed within the three years, to remain in force until repealed by the General Court. Grants of land by the General Court, within the limits of the former colonies of Massachusetts Bay and New Plymouth, and the Province of Maine, excepting the region north and east of the Sagadahoc, to be valid without further royal approval. The governor to direct the defense of the province, and to exercise martial law in case of necessity] Provided alwayes ... That the said Governour shall not at any time hereafter by vertue of any power hereby granted or hereafter to be granted to him Transport any of the Inhabitants of Our said Province ... or oblige them to march out of the Limitts of the same without their Free and voluntary consent or the Consent of the Great and Generall Court ... nor grant Commissions for exercising the Law Martiall upon any the Inhabitants of Our said Province ... without the Advice and Consent of the Councill or Assistants of the same ... [In case of the death, removal or absence of the governor, the lieutenant-governor may take his place; failing both governor and lieutenant-governor, the council, or the major part of them, are to act.] Provided alwaies ... that nothing herein shall extend or be taken to ... allow the Exercise of any Admirall Court Jurisdiction Power or Authority but that the same be and is hereby reserved to Us ... and shall from time to time be ... exercised by vertue of Commissions to be issued under the Great Seale of England or under the Seale of the High Admirall or the Commissioners for executing the Office of High Admirall of England. ... And lastly for the better provideing and furnishing of Masts for Our Royall Navy Wee doe hereby reserve to Us ... all Trees of the Diameter of Twenty Four Inches and upwards of Twelve Inches from the ground growing upon any soyle or Tract of Land within Our said Province ... not heretofore granted to any private persons.
111. Attempts by England at Closer Control after 1700
For an outline of these natural and long-continued attempts, see American History and Government, §§ 117, 118. The first attempt, barely avoided and only by accident, is given under a, below; b represents American feeling toward such encroachments; and c illustrates the activity of a New England town meeting in this field of general politics.
a. Recommendation from the Board of Trade to make all the Colonies into Royal Provinces. March 26/Apr. 5, 1701
North Carolina Colonial Records, I, 535.
To the King's most Excellent Majestie.
May it please, etc.
Having formerly on severall occasions humbly represented to your Majesty the state of the Government under Proprietors and Charters in America; and perceiving the irregularities of these Governments dayly to increase, to the prejudice of Trade and of your Majesties other Plantations in America, as well as of your Majesties revenue arising from the Customes here, we find ourselves obliged at present humbly to represent to your Majesty;
That those Colonies in general have no ways answered the chief design for which such large Tracts of Land and such Priviledges and Immunities were granted by the Crown.
That they have not conformed themselves to the severall acts of Parliament for regulating Trade and Navigation, to which they ought to pay the same obedience, and submit to the same Restrictions as the other Plantations, which are subject to your Majesties immediate Government; on the contrary in most of these Proprieties and Charter Governments, the Governours have not applyed themselves to your Majesty for your approbation, nor have taken the Oaths required by the acts of Trade, both which Qualifications are made necessary by the late Act for preventing frauds and regulating abuses in the Plantation Trade.
That they have assumed to themselves a power to make Laws contrary and repugnant to the Laws of England, and directly prejudicial to Trade, some of them having refused to send hither such Laws as they had enacted, and others having sent them but very imperfectly.
That diverse of them have denyed appeals to your Majesty in Councill, by which not only the Inhabitants of those Colonies but others your Majesties subjects are deprived of that benefit, enjoyed in the Plantations, under your Majesties immediate Government, and the parties agrieved are left without remedy from the arbitrary and Illegal proceedings of their Courts.
That these Colonies continue to be the refuge and retreat of Pirates and Illegal Traders, and the receptacle of Goods imported thither from foreign parts contrary to Law: In return of which Commodities those of the growth of these Colonies are likewise contrary to Law exported to Foreign parts; All which is likewise much incouraged by their not admitting appeals as aforesaide.
That by raising and lowering their coin from time to time, to their particular advantage, and to the prejudice of other Colonies, By exempting their Inhabitants from Duties and Customes to which the other Colonies are subject, and by Harbouring of Servants and fugitives, these Governments tend greatly to the undermining the Trade and Welfare of the other Plantations, and seduce and draw away the People thereof; By which Diminution of Hands the rest of the Colonies more beneficial to England do very much suffer.
That these Independent Colonies do turn the Course of Trade to the Promoting and proprogating woolen and other Manufactures proper to England, instead of applying their thoughts and Endeavours to the production of such commodities as are fit to be encouraged in these parts according to the true design and intention of such settlements.
That they do not in general take any due care for their own defence and security against an Enemy, either in Building Forts or providing their Inhabitants with sufficient Armes and Amunition, in case they should be attacked, which is every day more and more to be apprehended, considering how the French power encreases in those parts.
That this cheifly arises from the ill use they make of the powers entrusted to them by their Charters, and the Independency which they pretend to, and that each Government is obliged only to defend its self without any consideration had of their Neighbours, or of the general preservation of the whole.
That many of them have not a regular militia and some (particularly the Colonies of East and West New Jersey) are no otherwise at present than in a state of Anarchy and confusion.
And because the care of these and other great mischiefs in your Majesties Plantations and Colonies aforesaid, and the introducing such an administration of Government and fit regulation of Trade as may put them into a better State of Security and make them duly subservient and usefull to England, does every day become more and more necessary, and that your Majesties frequent Commands to them have not met with due complyance: We humbly conceive it may be expedient that the Charters of the severall Proprietors and others intitling them to absolute Government be reassumed to the Crown and these Colonies put into the same State and dependency as those of your Majesties other Plantations, without prejudice to any man's particular property and freehold. Which being no otherwise so well to be effected as by the Legislative power of this Kingdome.
Wee humbly submit the same to your Majesties Royal consideration.
b. John Wise upon Englishmen and Tyranny
This extract comes from a pamphlet by John Wise, minister at Ipswich, and a leader (and sufferer) against arbitrary taxation by Andros twenty years earlier, and is in the nature of a warning that the American English will not submit to political aggression.
Englishmen hate an arbitrary power (politically considered) as they hate the devil. ... And though many of their incautelous princes have endeavored to null all their charter rights and immunities, and agrandize themselves in the servile state of the subjects, by setting up their own seperate will, for the great standard of government over the nation, yet they have all along paid dear for their attempts, both in the ruin of the nation, and in interrupting the increase of their own grandeur, and their foreign settlements and conquests.
Had the late reigns, before the accession of the great William and Mary, to the throne of England, but taken the measures of them, and [of] her present majesty,[109] in depressing vice, and advancing the union and wealth, and encouraging the prowice and bravery of the nation, they might by this time have been capable to have given laws to any monarch on earth; but spending their time in the pursuit of an absolute monarchy (contrary to the temper of the nation, and the ancient constitution of the government) through all the meanders of state craft: It has apparently kept back the glory, and dampt all the most noble affairs of the nation. And when under the midwifry of Machiavilan art, and cunning of a daring prince, this Monster, tyranny, and arbitrary government, was at last just born, upon the holding up of a finger! or upon the least signal given, ON the whole nation goes upon this HYDRA.[110]
The very name of an arbitrary government is ready to put an Englishman's blood into a fermentation; but when it really comes, and shakes its whip over their ears, and tells them it is their master, it makes them stark mad.
c. Boston's Action Relative to the Proposed Permanent Salary for the Governor in 1729
Boston Town Records (for dates given).
The full records of the meeting are given, that the student may see how great matters of state were mingled with trivial and local business. The attempt of England to secure a fixed salary for the Governor of Massachusetts would, if successful, have made that officer wholly independent of popular control. Cf. American History and Government, § 118, for the whole story.
At a Meeting of the Freeholders and Other Inhabitants of the Town of Boston Duly Qualified being Regulerly Assembled in a Publick Town meeting at the Town House Tuesday May the 6th 1729—
After Prayer by the Revd mr Thomas Prince [and after] Elisha Cooke Esqr Chose[n] Moderator for this Meeting.
- Sundry Petitions Read Vizt
- About a place for the Grainery
- About m. [Mr.] Peleg Wiswalls Sallary
- About m. Edward Mills Sallary
- m. Samuel Oakes Petition
- m. Jerā [Jeremiah] Condys Petition
- The Selectmens Report of Sundry things left to them
- Voted to Chuse 4 Representatives
- The Number of Voters Were 192
| votes. | ||
|---|---|---|
| Elisha Cooke Esqr | 188 | Chose[n] Representatives |
| m. Thomas Cushing | 190 | |
| m. Ezekll Lewis | 190 | |
| m. Samll Welles | 184 | |
Voted To Chuse a Cōmittee to Prepare Instructions for the Representatives for their Acting at the General Court at their Approching Session, And to Lay them befor the Meeting in the Afternoon—
Voted: That John Alford Esqr mesrs Henry Dering and Nathll Cunningham be the Said Committee—
On the Petition of Sundry Inhabitants about the Situatian of the Grainery
Voted That mr Moderator and the Selectmen be Joyned with the Cōmittee appointed for Building the Grainery, Be desired to View the Place, And make Return of their Opinion thereof to the Meeting after Dinner this Day—
| mr John Jeffers | Excus'd | Chosen Assessors. |
| mr Thomas Moffat | Excus'd | |
| Edward Maycomb | Sworn | Clerks of the Market. |
| John Spooner | Sworn | |
| Nathanll Cobbit | Sworn |
Post Meridiem.
Voted That the Grainery be Erected and Set up Rainging with the Line of the Burying place on the Cōmon fronting Eastward, The Said Building to be not Less then [than] forty feet distant from the [South] Corner of the Brick wall of the Burying place—
| mr James Pemberton | Pay[111] | Assessors. |
| mr James Watson | Sworn |
In as much as the Gramer School at the North End of the Town of which mr Peleg Wiswall is the Master is much Increaced in the Number of the Schollers, and that no Usher is alowed to assist him in his School:
Voted That there be an Additian of Forty Pounds to the Said mr Wiswalls Salary—
Samll Oakes Petition Read and Dismist—
In Answer to Mr. Edward Mills His Petitian. Voted That there be an Addition of Twenty Pounds to the Said Mr. Edward Mills Sallary—
Upon A Motion made by Elisha Cook Esquire That the Dividing Line between the Towns Land in the Occupation of Mr. Nathaniel Williams and His Land on the East Side in School Street is for want of due Care become Crucked, intrenching both upon the One and the Others Land, That therefore they would Direct and Imp[o]wer the Selectmen to Rectifie that line as to them Seems Just and Equitable—And Further That they would be pleased to Accomodate him with about two feet of the Front of his Land next Mr. Williams on Such Terms as the Selectmen Shall Agree for with the Said Mr. Cooke—
Read and Voted That it be left with the Selectmen to Act therein as they Judge Meet—
On the Petition of Mr. Jeramiah Condy for Addition to his Salary.
Voted that the Consideration of Said Petition be Referred for further Consideration to the Next Town Meeting, and That in the mean time Nathaniel Green John Alford Esquires and Mr. Thomas Cushing Junior are desired to Inspect the Several Wrighting Schools within this Town at Such Time as they Shall think Avisable for the year Currant, And that they do in an Espesial Manner Vizit Mr. Condys School and Report to the Town at their Meeting the Ability and Industry of the Said Mr. Condy and the Proficiency of the Schollers under His Tuition—
The Comittee this day chosen and Appointed to Prepare Instructions for the Representatives, for their Acting at the General Court at their Approching Session And to Lay [them] before the Meeting in the afternoon—Return as Follows: Viz.
To Elisha Cooke Esquire, Messrs. Thomas Cushing, Ezekiel Lewis and Samuel Welles:—
Gentlemen—
Your known Loyalty to His Present Majesty King George, and Sincear Atachment to the Succession in the Illustrious House of Hannover, Your Hearty Love to this Your native Country, Your Singuler Value for the Liberty and Propperty of this People, your Cheerfull and Una[ni]mous Concurrance to promote our Best Intrist, And your Approved Integrity in those Publick Stations wherein you have bin Employed, Have fixed the Eyes of this Town on and Determined their Choice of you as Propper Persons to Represent them in the Next General Assembly Wherin they Expect That you behave your Selves with your Wonted Zeal and Courage in Prossecuting those good Designes which may tend to the Peace and wellfair of these His Majestys Good Subjects, and Secure those Rights and Priviledges which by the Royal Charter we have a Just claim to, and as Englishmen do of Right appertain to us, And agreable there unto we Recomend unto you in an Especial Manner—
That you Endeavor to Maintain all our Civil Rights and Propertys against any Incrochments upon them.
That you Continue to Pay a due Regard to His Excellency Our Governor, and that you Endeavor that He may have an Honourable Support, But we desire at the Same time That you use your utmost Endeavor That the Honourable House of Representatives may not be by any means Prevailed upon or brought into the Fixing a Certain Sallary for any Certain time, But that they may Improve their usual freedom in granting their Money from time to time, as they Shall Judg the Province to be able, and in Such a manner as they Shall think most for the Benefit and advantage thereof, And if your Pay Should be diverted you may Depend on all the Justice Imaginable from this Town whom you Represent:—
| John Alford Henry Dering Nathll Cuningham | Comittee |
The Foregoing Return of the Committee was Presended[ted] Read Sundry times and Voted Approved.
The Report of the Selectmen upon Several Votes of the Town at their Meeting the 10th of March, 1728: were Read and Considered Viz.,
The Selectmen have Viewed the Marsh at the Bottom of the Common, and not finding any Material use that can be made of it at the present, and Considering the Present Circumstances of the Town Are of Opinion it is best to ly in the Condition it now is.
Read and the Report Accepted—....
As to the Proposals About Bennet Street—It is thought Convenient to be Paved if the Town thinke it Convenient to Raise Money for the Doing it at this Meeting.
Read and Refer'd for further consideration to the Next March Meeting....
d. Connecticut refuses to obey a Royal Officer appointed to command her Militia against French and Indians in 1693
New York Colonial Documents, IV, 71.
King William III appointed Fletcher governor of the royal province of New York, and commissioned him to command the militia also of Connecticut, the neighboring charter colony, in the war usually known as King William's War. The device was eminently wise, as a military measure; but it was stubbornly resisted by Connecticut. The historians of that colony delight to tell a legend that when the governor arrived and tried to have his commission read by his secretary to the militia (drawn up in arms to repel rather than to receive him), Captain Wadsworth drowned the reading by commanding drums to beat; three times this was repeated; and the last time Wadsworth added, "If you try again, I'll make daylight shine through you." The following document gives what is probably a more accurate statement,—but one which shows equally well that Connecticut had her way. For the general conflict of which this was one incident between crown and colonies, cf. American History and Government, §§ 117, 118.
Governor Fletcher of New York, to Mr. Southwell
Connecticute in New England
Octoer 30th '93.
Sir:
I have been in this Collony 20 dayes laboreing to perswade a stubborne people to theire dewty. I Publis'd their Majesties [William and Mary] Commission in theire General Court att Hartford. Assured them I had noe pretentions to their civell adminestration. But the mallitia being lodged in the Crowne ... I came with commission under the greate seale to take that ... charge. They refused all obedienc. Have sepperated not only from the Church, But Crowne of England; and allowe of noe appeale from theire Courts, nor the Lawes of England to have any force amongst them. Some of the wiseest have saide "Wee are not permitted to vote for any members of Parliamt, and therefore [are] not lyable to theire lawes." [Expresses military dangers due to refusal.]
I never sawe the like people. ... I could not force obedience haveing noe Company but a few servants and two friends; nor did I think it the King's service to carry on the contest to Bloude, tho they threaten to draw mine for urging my Masters right ... I have just now a letter from a sure freinde acquainting mee the mobb have a designe upon my life. I must not goe out of the way, tho' very thinly attended....
[The following November 10, Fletcher wrote from New York to the Committee on the Colonies urging that the Connecticut Charter be proceeded against under a writ of quo warranto, with a view of uniting that colony with New York. The same letter describes in detail the serious perils from French and Indians. One paragraph should be quoted: "Our hardships grow upon us. Canada ... hath received seven hundred men and stores of Warr from France this last Summer. Our Indians falter ... These small Colonies ... are [as] much divided in theire interest and affection as Christian and Turk. ...">[
112. Commission of a Royal Governor
New Hampshire Provincial Papers, VI, 908 (edited by N. Benton).
This commission, in compact form, describes the government of a royal colony just before the Revolution. The omissions (indicated by ...) are mainly tautological phrases.
George the Third, by the grace of God of Great Britain, France, and Ireland, King....
To our Trusty and well beloved Benning Wentworth Esquire, Greeting: Know you, that Wee, reposing especial Trust and Confidence in the Prudence, Courage, and Loyalty of you Benning Wentworth, of our Especial grace, certain Knowledge, and meer motion, Have thought fit to constitute and appoint you ... to be our Governour and Commander-in-Chief of our Province of New Hampshire ... with all ... the authoritys hereby granted you ... during our will and Pleasure:
And We do hereby require ... you to ... execute all things ... that shall belong unto your said Command ... according to the several Powers ... granted ... you by this Present Commission ... or by such further powers, Instructions, and Authorities as shall at any time be granted or appointed you under our ... sign manual ... and according to such reasonable Laws and Statutes as now are in force or hereafter shall be made and agreed upon by you with the advice and consent of our Council and the Assembly of our said Province....
And wee do hereby give ... you full Power ... to suspend any of the members of our said Council from sitting, Voting, and assisting therein, if you shall find just cause for so doing: and if it shall at any time happen that by the Death or Departure out of our said Province, suspension of any of our said Councillors, or otherwise, there shall be a Vacancy in our said Council (any three whereof we do hereby appoint to be a Quorum), our Will and Pleasure is that you signify the same to us by the first opportunity, that we may ... appoint others in their stead; but that our affairs at that Distance may not suffer for want of a due number of Councillors, if ever it shall happen that there shall be less than seven of them residing in our said Province, Wee do hereby give ... unto you ... full Power ... to choose as many Persons out of the Principal Freeholders, Inhabitants thereof, as will make up the full Number of our said Council to be seven, and no more....
And wee do hereby give ... you full Power ... with the advice and consent of our said Council from time to time, as need shall require, to summon and call General Assemblys of the said Freeholders and Planters within your Government, in manner and form according to the usage of our Province of New Hampshire:
Wee do hereby Declare that the Persons so elected and qualified shall be called and Deemed the General Assembly of our said Province ... and that you ... with the consent of our said Council and Assembly, or the major part of them respectively, shall have full Power ... to make, Constitute, and ordain Laws, Statutes, and Ordinances, for the Publick Peace, Welfare, and good Government of our said Province ... and for the Benefit of us our Heirs and Successors,—which said Laws ... are not to be repugnant, but, as near as may be, agreeable to the laws ... of this our Kingdom of Great Britain.
Provided that all such Statutes and Ordinances, of whatever nature and Duration soever, be, within three months ... after the making thereof, transmitted unto us ... for our approbation or Disallowance [as also Duplicates of the same by the next conveyance]; and in case any or all of the said Laws ..., not before confirmed by us, shall at any time be disallowed ... and so signified by us our Heirs or Successors ... unto you ... or to the Commander-in-Chief of our said Province for the time being, then such and so many of the said Laws ... shall from thence cease, Determine, and become utterly void....
And to the end that nothing may be passed or done by our said Council or Assembly to the Prejudice of us, our Heirs and Successors, We will and ordain that you ... shall have ... a negative Voice in the making and Passing of all Laws and Statutes and ordinances ... and you shall and may ... from time to time, as you shall judge it necessary, adjourn, Prorogue, and Dissolve all General Assemblies as aforesaid....
And We do hereby authorize ... you to constitute ... Judges, and, in cases requisite, Commissioners of Oyer and Terminer, Justices of the Peace, and other necessary officers ... in our said Province for the better administration of Justice and putting the Laws in execution....
And we do hereby give ... you full Power ... where you shall see cause, or shall Judge any offenders ... fit objects for our mercy, to Pardon all such ... offenders, and to remit all ... fines and forfeitures, Treason and Willfull murder only excepted ... in which cases you shall likewise have Power, upon extraordinary occasions, to grant reprieves ... until ... our royal Pleasure may be known....
And We do hereby give ... unto you ..., by yourself or by your Captains ... by you to be authorized, full Power ... to Levy, arm, muster, command, and Employ all persons whatsoever residing within our said Province ... for the resisting and withstanding of all enemies, Pyrates, and rebels ... and to transport such forces to any of our Plantations in America, if necessity shall require, for the Defence of the same ... and to Execute martial Law in time of Invasion, or other times when by Law it may be executed, and to do and execute every other thing ... which to our Commander-in-Chief doth or ought of right to belong....
And We do hereby command all officers ... civil and military, and all other Inhabitants ... to be obedient aiding and assisting unto you, the said Benning Wentworth, in the Execution of this our Commission ... and in case of your Death, or absence out of our Province, unto such person as shall be appointed by us to be our Lieutenant Governor ... to whom we do therefore by these Presents give and grant all and singular the Powers and authorities aforesaid [and, if no Lieutenant Governor has been named, then] the Eldest Councillor, whose Name is first placed in our Instructions to you ... shall take upon him the administration of the government and Execute our said Commission ... and the several Powers therein contained.
113. Free Speech Vindicated
(Trial of John Peter Zenger, 1735.)
Zenger, in 1738, published a "Brief Narrative of the Case and Tryall," somewhat in the form of a modern "Report," though he speaks in the first person. In 1735 the governor of New York removed the chief justice of the colony for personal reasons. Zenger, in his Weekly Journal, vigorously criticized this and other despotic actions of the governor. He was prosecuted for criminal libel; and the new chief justice showed a determination to secure a conviction, trying to limit the jury to deciding only whether Zenger was responsible for the publication, and reserving to himself the decision whether the words were punishable. This was the custom in English courts of the day in government prosecutions.
Italics and black-faced type are as in the original.
[The Attorney General's complaint, as Zenger reports, characterized him as "a seditious person and a frequent Printer and Publisher of false news and seditious Libels, and charged specifically that he] "did falsely, seditiously, and scandalously print and publish ... a certain false, malicious, seditious, scandalous Libel ... concerning His Excellency the Governour ... [in which publication he represented a former inhabitant explaining that he had left the colony, as he doubts not others will, because, among other reasons] They ... think ... that their LIBERTIES and PROPERTIES are precarious, and that SLAVERY is likely to be intailed on them and their Posterity if some past Things be not amended ... (meaning, the past Proceedings of his Excellency the Governor ...) ... [and] WE ... SEE MENS DEEDS DESTROYED, JUDGES ARBITRARILY DISPLACED, NEW COURTS ERECTED WITHOUT CONSENT OF THE LEGISLATURE....
"Who then [can] call any Thing his own, or enjoy any Liberty ... longer than those in the Administration ... will condescend to let them?"
[This publication, the Attorney General charges, was] to the great disturbance of the Peace of the ... Province ... to the Great Scandal of Our said Lord the King, of His Excellency the Governor [etc]; whereupon the said Attorney General of Our said Lord the King, for Our said Lord the King, prays ... the due Process of the Law against him the said John Peter Zenger ... in the Premises.
[The Report continues:]
To this Information the Defendant has pleaded Not Guilty, and we are ready to prove it....
Then Mr. Hamilton,[112] who at the Request of some of my Friends, was so kind as to come from Philadelphia to assist me on the Tryal, spoke.
Mr. Hamilton, "May it please your Honour; I am concerned in this Cause on the Part of Mr. Zenger the Defendant. The Information against my Client was sent me, a few days before I left Home, with some Instructions to let me know how far I might rely upon the Truth of those Parts of the Papers set forth in the Information, and which are said to be libellous ... I cannot think it proper for me (without doing Violence to my own Principles) to deny the Publication of a Complaint, which I think is the Right of every free-born Subject to make, when the Matters so published can be supported with Truth; and therefore I'll save Mr. Attorney the Trouble of Examining his Witnesses to that Point; and I do (for my Client) confess, that he both printed and published the two News Papers set forth in the Information, and I hope in so doing he has committed no Crime. ..."
Mr. Attorney, ... "The Case before the Court is, whether Mr. Zenger is guilty of Libelling his Excellency the Governor of New-York, and indeed the whole administration of the Government? Mr. Hamilton has confessed the Printing and Publishing, and I think nothing is plainer, than that the Words in the Information are scandalous, and tend to Sedition, and to disquiet the Minds of the People of this Province. And if such Papers are not Libels, I think it may be said, there can be no such Thing as a Libel."
Mr. Hamilton, "May it please your Honour; I cannot agree with Mr. Attorney: For tho' I freely acknowledge, that there are such Things as Libels, yet I must insist at the same Time, that what my Client is charged with, is not a Libel; and I observed just now, that Mr. Attorney in defining a Libel, made use of the Words scandalous, seditious, and tend to disquiet the People; but (whether with Design or not I will not say) he omitted the Word false."
Mr. Attorney, I think I did not omit the Word false: But it has been said already, that it may be a Libel, notwithstanding it may be true.
Mr. Hamilton, In this I must still differ with Mr. Attorney; for I depend upon it, we are to be tried upon this Information now before the Court and Jury, and to which we have pleaded Not Guilty, and by it we are charged with printing and publishing, a certain false, malicious, seditious and scandalous Libel. This Word false must have some Meaning, or else how came it there?...
Mr. Ch. Justice, You cannot be admitted, Mr. Hamilton, to give the Truth of a Libel in Evidence. A Libel is not to be justified; for it is nevertheless a Libel that [i.e. tho'] it is true.
Mr. Hamilton, I am sorry the court has so soon resolved upon that Piece of Law; I expected first to have been heard to that Point. I have not in all my Reading met with an Authority that says, we cannot be admitted to give the Truth in Evidence, upon an Information for a Libel.
Mr. Ch. Justice, The Law is clear, That you cannot justify a Libel....
Mr. Hamilton, I thank your Honour. Then, Gentlemen of the Jury, it is to you we must now appeal, for Witnesses, to the Truth of the Facts we have offered, and are denied the Liberty to prove; and let it not seem strange, that I apply my self to you in this Manner, I am warranted so to do both by Law and Reason. The Last supposes you to be summones, out of the Neighbourhood where the Fact is alledged to be committed; and the Reason of your being taken out of the Neighbourhood is, because you are supposed to have the best Knowledge of the Fact that is to be tried. And were you to find a Verdict against my Client, you must take upon you to say, the Papers referred to in the Information, and which we acknowledge we printed and published, are, false, scandalous and seditious; but of this I can have no Apprehension. You are Citizens of New-York; you are really what the Law supposes you to be, honest and lawful Men; and, according to my Brief, the Facts which we offer to prove were not committed in a Corner; they are notoriously known to be true; and therefore in your Justice lies our Safety. And as we are denied the Liberty of giving Evidence, to prove the Truth of what we have published, I will beg Leave to lay it down as a Standing Rule in such Cases, That the suppressing of Evidence ought always to be taken for the strongest Evidence; and I hope it will have that Weight with you....
... It is true in Times past it was a Crime to speak Truth, and in that terrible Court of Star-Chamber, many worthy and brave Men suffred for so doing; and yet even in that Court, and in those bad Times, a great and good Man durst say, what I hope will not be taken amiss of me to say in this Place, to wit, the Practice of Informations for Libels is a Sword in the Hands of a wicked king and [of] an arrand Coward to cut down and destroy the innocent; the one cannot, because of his high station, and the other dares not, because of his Want of Courage, revenge himself in another Manner.
Mr. Attorney, Pray Mr. Hamilton, have a Care what you say, don't go too far neither, I don't like those Liberties.
Mr. Hamilton, Sure, Mr. Attorney, you won't make any Applications; all Men agree that we are governed by the best of Kings, and I cannot see the Meaning of Mr. Attorney's Caution. ... May it please Your Honour, I was saying, That notwithstanding all the Duty and Reverence claimed by Mr. Attorney to Men in Authority, they are not exempt from observing the Rules of common Justice, either in their private or publick Capacities; the Laws of our Mother Country know no Exception....
I hope to be pardon'd, Sir, for my Zeal upon this Occasion: It is an old and wise Caution, That when our Neighbour's House is on Fire, We ought to take Care of our own. For tho', blessed be God, I live in a Government where Liberty is well understood, and freely enjoy'd; yet Experience has shewn us all (I'm sure it has to me) that a bad Precedent in one Government, is soon set up for an Authority in another; and therefore I cannot but think it mine, and every Honest Man's Duty, that (while we pay all due Obedience to Men in Authority) we ought at the same Time to be upon our Guard against Power [i.e., arbitrary power], wherever we apprehend that it may effect Ourselves or our Fellow-Subjects.
I am truly very unequal to such an Undertaking on many Accounts. And you see I labour under the Weight of many Years, and am born down with great Infirmities of Body; yet Old and Weak as I am, I should think it my Duty, if required, to go to the utmost Part of the land, where my Service cou'd be of any Use in assisting to quench the flame of Prosecutions upon Informations, set on Foot by the Government, to deprive a People of the Right of Remonstrating (and complaining too) of the arbitrary Attempts of Men in Power. Men who injure and oppress the People under their Administration provoke them to cry out and complain; and then make that very Complaint the foundation for new Oppressions and Prosecutions. ... But to conclude; the Question before the Court and you, Gentlemen of the Jury, is not of small nor private Concern, it is not the Cause of a poor Printer, nor of New-York alone, which you are now trying; No! It may in its Consequence, affect every Freeman that lives under a British Government on the Main of America. It is the best Cause. It is the Cause of Liberty; and I make no Doubt but your upright Conduct, this Day, will not only entitle you to the Love and Esteem of your Fellow-Citizens; but every Man, who prefers Freedom to a Life of Slavery, will bless and honour You, as Men who have baffled the Attempt of Tyranny; and by an impartial and uncorrupt Verdict, have laid a noble Foundation for Securing to ourselves, our Posterity, and our Neighbours, That to which Nature and the Laws of our Country have given us a Right,—the Liberty—both of exposing and opposing arbitrary Power (in these Parts of the World, at least) by speaking and writing Truth....
Mr. Ch. Just. Gentlemen of the Jury. The great pains Mr. Hamilton has taken, to shew how little Regard Juries are to Pay to the Opinion of the Judges; and his insisting so much upon the Conduct of some Judges in Tryals of this kind; is done, no doubt, with a Design that you should take but very little Notice of what I may say upon this Occasion. I shall therefore only observe to you that, as the Facts or Words in the Information are confessed: The only Thing that can come in Question before you is, Whether the Words, as set forth in the Information, make a Libel. And that is a Matter of Law, no doubt, and which you may leave to the Court. But I shall trouble you no further with any Thing more of my own, but read to you the Words of a learned and upright Judge in a Case of the like Nature.
To say that corrupt Officers are appointed to administer Affairs, is certainly a Reflection on the Government. If People should not be called to account for possessing the People with an ill Opinion of the Government, no Government can subsist. For it is necessary for all Governments that the People should have a good Opinion of it. ...
[Zenger adds]
The Jury withdrew, and in a small Time returned, and being asked by the Clerk, Whether they were agreed of their Verdict, and whether John Peter Zenger was guilty of Printing and Publishing the Libels in the Information mentioned? They answered by Thomas Hunt, their Foreman, Not Guilty. Upon which there were three Huzzas in the Hall which was crowded with People, and the next Day I was discharged from my Imprisonment.
114. Franklin's "Albany Plan," July 10, 1754[113]
On the eve of the French and Indian War, in June 19, 1754, there met at Albany, on the call of the Lords of Trade, a colonial congress to agree upon measures of defense. Seven colonies were represented,—New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, and Maryland,—none south of the Potomac. Massachusetts had authorized her commissioners to "enter into articles of union and confederation" with the other colonies "as well in time of peace as of war." On the sixth day of the session, the Congress voted unanimously that a union of all the colonies was "absolutely necessary for their security." A committee, representing each of the colonies present, was created to consider various plans, and, after almost daily discussions, a general plan was accepted on July 9. Franklin was appointed to draft the detailed plan,—and, the next day, a form submitted by him was adopted. Franklin afterward said of the result: "the Fate of this Plan was singular ... The Crown disapproved it, as having too much Weight in the Democratic Part of the Constitution; and every Assembly, as having allowed too much to Prerogative. So it was totally rejected."
The text of a number of other plans for colonial federation, between 1696 and 1754, are collected in No. 14 of the American History Leaflets.
a. Motives
The following extract is part of the "introduction" to the Plan afterward drawn up by Franklin and printed in his Works (Smyth edition, III, 203-204).
The commissioners from a number of the northern colonies, being met at Albany, and considering the difficulties that have always attended the most necessary general measures for the common defence, or for the annoyance of the enemy, when they were to be carried through the several particular Assemblies of all the colonies; some Assemblies being before at variance with their governors or councils, and the several branches of the government not on terms of doing business with each other: others taking the opportunity, when their concurrence is wanted, to push for favorite laws, powers, or points, that they think could not at other times be obtained, and so creating disputes and quarrels; one Assembly waiting to see what another will do, being afraid of doing more than its share, or desirous of doing less, or refusing to do anything because its country is not at present so much exposed as others, or because another will reap more immediate advantage; from one or other of which causes, the Assemblies of six out of seven colonies applied to, had granted no assistance to Virginia when lately invaded by the French, though purposely convened, and the importance of the occasion earnestly urged upon them;—considering moreover, that one principal encouragement to the French, in invading and insulting the British American dominions, was their knowledge of our disunited state, and of our weakness arising from such want of union; and that from hence different colonies were, at different times, extremely harassed, and put to great expense both of blood and treasure, who would have remained in peace, if the enemy had had cause to fear the drawing on themselves the resentment and power of the whole;—the said commissioners, considering also the present encroachments of the French, and the mischievous consequences that may be expected from them, if not opposed with our [united] force, came to an unanimous resolution; That a union of the colonies is absolutely necessary for their preservation.
b. The Plan
Broadhead's Documents relative to the Colonial History of New York, VI, 589-591.
Plan of a proposed Union of the several Colonies of Massachusetts Bay, New Hampshire, Connecticut, Rhode Island, New York, New Jerseys, Pennsylvania, Maryland, Virginia, North Carolina, and South Carolina,[114] for their mutual defence and security, and for extending the British Settlements in North America.
That humble application be made for an Act of the Parliament of Great Brittain, by virtue of which, one General Government may be formed in America, including all the said Colonies, within and under which Government each Colony may retain its present Constitution, except in the particulars wherein a [change] may be directed by the said Act, as hereafter follows.
That the said General Government be administered by a president General, to be appointed and supported by the Crown, and a grand Council to be chosen by the representatives of the people of the severall Colonies, [met] in their respective Assemblies.[115]
[Provision for election of first grand council, of forty-eight members,—Massachusetts and Virginia to have seven each, Pennsylvania six, Connecticut five, New York, Maryland, North Carolina, and South Carolina each four, New Jersey three, New Hampshire and Rhode Island each two.]
Who shall meet for the present time at the City of Philadelphia in Pennsylvania, being called by the President General as soon as conveniently may be after his appointment.
That there shall be a New Election of the Members of the Grand Council every three years, and on the death or resignation of any Member, his place should be supplyed by a new choice at the next sitting of the Assembly of the Colony he represented.
That after the first three years, when the proportion of money arising out of each Colony to the General Treasury can be known, the number of Members to be chosen, for each Colony shall from time to time in all ensuing Elections be regulated by that proportion (yet so as that the Number to be chosen by any one province be not more than seven nor less than two).
That the Grand Council shall meet once in every year, and oftener if occasion require, at such time and place as they shall adjourn to at the last preceding meeting, or as they shall be called to meet at by the President General, on any emergency, he having first obtained in writing the consent of seven of the Members to such call, and sent due and timely notice to the whole.
That the Grand Council have power to chuse their speaker, and shall neither be dissolved prorogued, nor continue sitting longer than six weeks at one time without their own consent,[116] or the special command of the Crown.
That the Members of the Grand Council shal be allowed for their service ten shillings sterling per diem, during their Sessions or [and] Journey to and from the place of Meeting; twenty miles to be reckoned a days Journey.
That the Assent of the President General be requisite to all Acts of the Grand Council, and that it be his Office and duty to cause them to be carried into execution.
That the President General with the advice of the Grand Council, hold or direct all Indian Treaties in which the general interest of the Colonys may be concerned; and make peace or declare War with Indian Nations. That they make such Laws as they judge necessary for the regulating all Indian Trade. That they make all purchases from Indians for the Crown, of lands not [now] within the bounds of particular Colonies, or that shall not be within their bounds when some of them are reduced to more convenient dimensions. That they make new settlements on such purchases by granting Lands, [in the King's name] reserving a Quit rent to the Crown, for the use of the General Treasury.
That they make Laws for regulating and governing such new settlements, till the Crown shall think fit to form them into particular Governments.
That they raise and pay Soldiers, and build Forts for the defence of any of the Colonies, and equip vessels of Force to guard the Coasts and protect the Trade on the Ocean, Lakes, or great Rivers; but they shall not impress men in any Colonies without the consent of its Legislature. That for these purposes they have power to make Laws and lay and Levy such general duties, imposts or taxes, as to them shall appear most equal and just, considering the ability and other circumstances of the Inhabitants in the several Colonies, and such as may be collected with the least inconvenience to the people, rather discouraging luxury, than loading Industry with unnecessary burthens.—That they might appoint a General Treasurer and a particular Treasurer in each Government when necessary, and from time to time may order the sums in the Treasuries of each Government, into the General Treasury, or draw on them for special payments as they find most convenient; yet no money to issue but by joint orders of the President General and Grand Council, except where sums have been appropriated to particular purposes, and the President General is previously impowered by an Act to draw for such sums.
That the General accounts shall be yearly settled and reported to the several Assemblies.
That a Quorum of the Grand Council impowered to act with the President General, do consist of twenty five Members, among whom there shall be one or more from a majority of the Colonies. That the laws made by them for the purposes aforesaid, shall not be repugnant, but as near as may be agreeable to the Laws of England, and shall be transmitted to the King in Council for approbation, as soon as may be after their passing, and if not disapproved within three years after presentation to remain in Force.
That in case of the death of the President General, the Speaker of the Grand Council for the time being shall succeed, and be vested with the same powers and authority, to continue until the King's pleasure be known.
[Commissions, military and civil, for officers acting under this constitution, to be issued jointly by President-General and Grand Council.]—That the particular, Military as well as Civil establishments in each Colony remain in their present State this General constitution notwithstanding. And that on sudden emergencies any Colony may defend itself, and lay the accounts of expence, thence arisen, before the President General and Grand Council, who may allow and order payment of the same if judged reasonable.
[In 1789 Franklin wrote, with good reason, that the adoption of the Albany Plan would have probably delayed the separation of the colonies from England, "perhaps during another century." There would have been a central legislature to vote supplies and prepare defense against Indians and French, and the British reasons for the Stamp Act would not have existed.]