The difficulties involved in attempting to administer so vast a territory, possessed of wholly inadequate means of communication, and embracing such a variety of social, religious, and economic communities, were virtually insuperable in the seventeenth century. Difficult as the task would have been in any case, it was rendered hopeless from the outset by the opposition of all the colonies involved, and by the lack of properly qualified men to administer the government, as well as by those faults of the Stuarts which, it was now evident, could be counted upon to wreck any administrative policy.
The choice of Andros, however, as the man to be entrusted with bringing about the enormous changes incident to the new policy, while not altogether happy, was probably as good a one as the circumstances of the case allowed. The task of making the new government successful from the standpoint of the King, and acceptable to the inhabitants, was beyond the power of any man; and under James few were available for foreign administrative posts who would be likely to be sympathetically inclined toward the peculiarities of New Englanders. In an exceedingly difficult position, with his choice of subordinates mainly limited to greedy place-seekers from home and honestly disaffected colonials, Andros seems to have carried out his orders with loyalty and probity, though not always with tact or discretion.[[1042]]
The powers given to him in his commission and instructions were very broad, and, under the conditions existing in the colonies, had he, in truth, been the “tyrannical Bajazet” which he was proclaimed by the Reverend Mr. Mather, the story of his brief rule would have been very different from what it was in reality. As had been the case in the temporary government of Dudley, there was no provision made for a popular assembly, although Andros himself had no objection to such a body, and had even tried to secure one for the inhabitants of New York when Governor of that colony.[[1043]] The King, however, had steadily opposed it in both provinces; and instead, the Governor, “by and with the advice and consent of” the Council, or the majority of them, was empowered to make all laws—which, it may be noted, was the exact wording of the Act passed by Congress in 1804 for the government of Louisiana after its purchase from France.[[1044]] The judicial and taxing functions of the government were bestowed under the same conditions, though the laws passed were to be approved in England, and appeals were allowed in cases involving over £300. Although, apparently, the consent of the Council was required in the above matters, the further power granted the Governor, to suspend summarily any member of it “from sitting voteing and Assisting therein,” if he should find “just cause,” gave him virtually sole authority in the event of disagreement between them and himself, in any case which he considered just.
Such clauses in his instructions as those which required that, except in cases of extraordinary necessity, he was to act with not less than seven members of his Council, although his commission placed the limit at five, and that, further, he was to permit the members to “enjoy freedom of Debate and Votes in all things,” would seem to indicate that the English authorities intended the Council to occupy a position of importance in the scheme of government. But the scheme was one which could hardly be workable. If the Council were, in reality, a body of representatives of various sections and parties, it would necessarily contain a large number of irreconcilables, who would constantly be outvoted, as the Crown could not be expected to appoint a majority from the opposition. Had the Governor, as was the case in many of the royal colonies, possessed the executive power, and an elected assembly the legislative, then the struggle between them would have taken the course with which the student of colonial history is so familiar. In the scheme of government which Andros was supposed to carry out, however, as in that temporarily provided for Louisiana, the usual rôles of governor and legislature were reversed, and Andros could quite legitimately consider himself the sole legislative power, his acts being merely subject to approval by a body the members of which were, in the first instance, at least, removable by him. For a half-century, the one policy of the leaders of Massachusetts, in their effort to balk England's efforts at control, had been to “avoid or protract,” and it is not likely that that policy would be suddenly laid aside. The complaints made in general terms by five of the later accusers of Andros, that in legislation he did not give sufficient opportunity for debate, that laws were passed with only a bare quorum, and that, sometimes, the votes were not counted, cannot, even if true, be taken as very serious charges, considering his actual powers, and the practical difficulties which beset him.[[1045]]
An attempt was, indeed, made to have the Council, which at first comprised twenty-seven members, roughly representative of the various parts of the Dominion; and, as other provinces were added, the membership was enlarged to permit the seating of members from them. Nor were prominent names wanting in the list, which included Dudley, the two Winthrops, Stoughton, Hinckley, William Bradford, Arnold, Tyng, Pynchon, Treat, and Allyn.[[1046]] Under the circumstances, however, such an attempt was bound to break down, for important men from other parts of the Dominion could not be expected to remain permanently in Boston, or to make frequent and long journeys thither, in order to attend meetings of a body whose only powers were those of advice and veto, and even those of none too strong a character. It was entirely natural, therefore, that, during the brief rule of Andros, the actual conduct of affairs should tend, more and more, to be guided by his own will and that of a clique among the councillors, and that attendance at the meetings should have steadily dwindled.
As in the case of New Hampshire, the question of the establishment of a new administrative machinery was complicated by the distinct one of titles to the land. In the former case the unhappy complication had been forced upon the English government, as the question in that province had not been as to the rights of the Crown against those of its subjects, but as to the legal claims of one subject against those of others. In Massachusetts, the case was entirely different; and although the colonists were technically at fault in not having taken out valid titles when they might readily have done so, nevertheless, the course of the English government was both stupid and unjust.
Throughout all the colonies in the early period, there was a general and rather likeable prejudice against professional lawyers. But, unfortunately, that prejudice, if indulged in too rashly in civilized society, is apt to entail some mauvais quarts d'heures on occasion. In New England, not only was there an almost total absence of professional lawyers, but there seems to have been very little legal knowledge among any class in the community. The most marked difference between the libraries of that section and those of Virginia, in the seventeenth and eighteenth centuries, is the rapidly increasing number of law-books to be found on the shelves as we journey southward. In New England, not only was the whole administration of justice in the hands of laymen who had little or no knowledge of law, but the most important legal questions with reference to the charter were, in virtually every case, referred to the clergy, who seem to have been delightfully ignorant of legal theory and practice, as evidenced both by their decisions and by the fairly complete absence of any books on the subject in their studies. They had proved but blind leaders of the blind, and the insistence upon popular, but erroneous, interpretations of charter rights, which had necessitated the voiding of that instrument, now threatened an overwhelming disaster, which might easily have been averted had the leaders been possessed of better legal training.
As we saw in an earlier chapter, virtually all the land granted in Massachusetts, as well as in those other New England colonies which possessed charters, had been bestowed upon towns in their corporate capacity, and by them granted to individuals. But as the original company had had no power to create other corporations, the towns, as such, had no legal existence, and could not, therefore, give valid title to land. Moreover, a company could not act except under its seal; which the Massachusetts Company had rarely used in giving title. It may well be that Randolph was far nearer the truth than usual in his figures, when he wrote to Blathwayt that he did not believe that “10 men hold of better Title then Town Grants or Indian Purchase and not Three have a Grant legally executed.”[[1047]] Just as the substitution of Exodus, Deuteronomy, and the discretion of the magistrate for the common law of England could continue workable only so long as too many alien elements, which would naturally find such a system “uncongenial and oppressive,” were not added to the population, so a land-title, as derived by the Reverend Mr. Higginson from “the Grand Charter in Genesis 1st. and 9th. Chapters,” from Adam through Noah, could remain satisfactory only until questioned by purchasers more used to modern forms.[[1048]] One of the last acts of Connecticut under her charter, before submitting, had been to validate land-titles by confirming under seal, to individuals, all lands previously granted through towns; thus there was no land question in Connecticut.[[1049]]
But, aside from land in individual possession, there were, in most of the colonies, very large amounts as yet ungranted at all, or still possessed and used by towns in the then essential form of “commons” for wood and pasture. Andros, in his instructions, had been directed to dispose of all lands “yet undisposed of,” and others “for which Our Royall Confirmation may be wanting,” for a moderate quit-rent, not under two shillings and sixpence for every hundred acres. He was also instructed that no man's “Freehold or Goods” were to “be taken away or harmed,” but by laws agreeable to those of England.[[1050]] How far it may have been the considered policy of the home government to take advantage of the technical invalidity of title to allotted land, and how far such attempts as were made may have been due to Andros's own reading, correct though it was, of his orders, it is impossible to say. That the Crown came into possession of the unallotted lands could be disputed by no one. In regard to those that had been improved, the only statesmanlike action would have been to confirm existing titles without rent. They were, to a great extent, in the hands of innocent holders, who had naturally believed that the colony's leaders, lay and clerical, who for two generations had constituted the government, would have known enough to give a valid title when they granted land.
Not only had the people for a long period enjoyed undisturbed possession, but, to a considerable extent, as we have already pointed out, New England had been settled by emigrants to whom such possession of land in fee simple had been the main attraction. In fact, in respect to land, the New England migration had accomplished what the English Revolution had failed to do, and had virtually redistributed property. It has often been said—not quite truly, perhaps—that the English movement did not succeed because it left the injustices and inequalities of the English property system untouched. To have done otherwise would have meant the expropriation of a large and powerful class. In the wilderness of America, the unlimited fund of free land could be drawn upon for the purpose, and an economic leveling be accomplished with no disturbance of existing rights. It was another of the results of the influence of the frontier, to which, in the story of America, we have to come back over and over again; for it was in this free and abundant land that were sown the seeds of democracy and revolution. In New England, owing in part to social and in part to geographic factors, the equalizing of economic status had proceeded further, perhaps, than anywhere else at that time; and the resultant wide distribution of small holdings would there cause the maximum, both of dissatisfaction with any policy attacking titles, and of difficulty in enforcing it.