Great pressure must have been brought by some who had suffered, for Samuel Maverick, the Episcopalian, who had been fined and imprisoned in 1646 for petitioning with Childe, was made a member. Colonel Richard Nichols, the head of the board, was a man of ability and judgment; the choice of Sir Robert Carr and Colonel George Cartwright was less judicious.
The commissioners were given a public and private set of instructions, [Footnote: Public Instructions, Hutch. Hist. i. 459.] and both were admirable. They were to examine the condition of the country and its laws, and, if possible, to make some arrangement by which the crown might have a negative at least upon the choice of the governor; they were to urge the reforms already demanded by the king, especially a larger toleration, for “they doe in truth deny that liberty of conscience to each other, which is equally provided for and granted to every one of them by their charter.” [Footnote: Private Instructions O’Callaghan Documents, iii. 58.] They were directed to be conciliatory toward the people, and under no circumstances to meddle with public worship, nor were they to press for any sudden enforcement of the revenue acts. On one point alone they were to insist: they were instructed to sit to hear appeals in causes in which the parties alleged they had been wronged by colonial decisions.
Unquestionably the chancellor was right in principle. The only way whereby such powerful corporations as the trade-guilds or the East India Company could be kept from acts of oppression was through the appellate jurisdiction, by which means their enactments could be brought before the courts, and those annulled which in the opinion of the judges transcended the charters. The Company of Massachusetts Bay was a corporation having jurisdiction over many thousand English subjects, only a minority of whom were freemen and voters. So long, therefore, as she remained within the empire, the crown was bound to see that the privileges of the English Constitution were not denied within her territory. Yet, though this is true, it is equally certain that the erection of a commission of appeal without an act of Parliament was irregular. The stretch of prerogative, nevertheless, cannot be considered oppressive when it is remembered that Massachusetts was a corporation which had escaped from the realm to avoid judicial process, and which refused to appear and plead; hence Lord Clarendon had but this alternative: he could send judges to sit upon the spot, or he could proceed against the charter in London. The course he chose may have been illegal, but it was the milder of the two.
The commissioners landed on July 23, 1664, but they did not stay in Boston. Their first business was to subdue the Dutch at New York, and they soon left to make the attack. The General Court now recurred, for the first time, to the dispatch which their agents had brought home, and proceeded to amend the law relating to the franchise. They extended the qualification by enacting that Englishmen who presented a certificate under the hands of the minister of the town that they were orthodox in religion and not vicious in life, and who paid, beside, 10s. at a single rate, might become freemen, as well as those who were church-members. [Footnote: Mass. Rec. vol. iv. pt. 2, p. 117.] The effect of such a change could hardly have been toward liberality, rather, probably, toward concentration of power in the church. However slight, there was some popular control over the rejection of an applicant to join a congregation; but giving a certificate was an act that must have depended on the pastor’s will alone.
The court then drew up an address to the king: “If your poore subjects, ... doe... prostrate themselues at your royal feete, & begg yor favor, wee hope it will be graciously accepted by your majestje, and that as the high place you sustejne on earth doeth number you here among the gods, [priests can cringe as well as torture] so you will jmitate the God of heaven, in being ready... to receive their crjes...,” [Footnote: Mass. Rec. vol. iv. pt. 2, p. 129.] And he was implored to reflect on the affliction of heart it was to them, that their sins had provoked God to permit their adversaries to procure a commission, under the great seal, to four persons to hear appeals. When this address reached London it caused surprise. The chancellor was annoyed. He wrote to America, pointing out that His Majesty would hardly think himself well used at complaints before a beginning had been made, and a demand that his commission should be revoked before his commissioners had been able to deliver their instructions. “I know,” he said, “they are expressly inhibited from intermedling with, or instructing the administration of justice, according to the formes observed there; but if in truth, in any extraordinary case, the proceedings there have been irregular, and against the rules of justice, as some particular cases, particularly recommended to them by His Majesty, seeme to be, it cannot be presumed that His Majesty hath or will leave his subjects of New England, without hope of redresse by an appeale to him, which his subjects of all his other kingdomes have free liberty to make.” [Footnote: Hutch. Hist. i. 465.]
The campaign against New York was short and successful, and the commissioners were soon at leisure. As they had reason to believe that Massachusetts would prove stubborn, they judged it wiser to begin with the more tractable colonies first. They therefore went to Plymouth, [Footnote: Feb. 1664-5.] and, on their arrival, according to their instructions, submitted the four following propositions:—
First. That all householders should take the oath of allegiance, and that justice should be administered in the king’s name.
Second. That all men of competent estates and civil conversation, though of different judgments, might be admitted to be freemen, and have liberty to choose and be chosen officers, both civil and military.
Third. That all men and women of orthodox opinions, competent knowledge, and civil lives not scandalous, should be admitted to the Lord’s Supper [and have baptism for their children, either in existing churches or their own].
Fourth. That all laws ... derogatory to his majesty should be repealed. [Footnote: Palfrey, ii. 601.]