Constitutional conflict in provincial Massachusetts

Front matter

IN

Provincial Massachusetts

A Study of Some Phases of the Opposition

Chapter I. Antagonistic Colonial Ideals

In the constitutional history of Massachusetts there are presented to view three well marked periods of development, separated by revolutions. They may be called the colonial, the provincial and the commonwealth periods, and correspond roughly with the seventeenth, the eighteenth and the nineteenth centuries, respectively. But in its more obvious features, at least, this is not a history of steady progress toward constitutional liberty; rather there are two periods of such development, separated by a third of conscious reaction.

In the first or colonial period we see what claimed to be, and in many respects was, a commonwealth, self-sufficient, dependent on England for sovereignty, but itself assuming the exercise of all sovereign powers. Barely nominal regard was shown for the express commands of the king of England, and the relations held with him were those rather of diplomacy than of colonial subjection. The reason for this was to be found first, in the infancy of the colony, a time when generally the ideas of private founders are allowed free course, in the ideal of a free Calvinistic commonwealth, enjoying complete self-determination in a polity which made the state serve the church ; secondly, after the colony had acquired a character, and strength to stand for that character, in the preoccupation of the home government with civil disturbance in England.

With the progress of Charles II's reign, as the purity of the colonial ideal was corrupted and as the home government won leisure to attack its problem of empire, this quasi-independent regime was attacked by foes without and within, a process which reached its climax in what may be called the revolution of 1684- 91. The foes without were the English agents of the Restoration policy, such as Randolph and Andros ; the foes within were Massachusetts men dissatisfied with the old. regime, such as Joseph Dudley and a growing party, who were wearying of the old exclusive Congregationalism and the Puritan morals, or who had commercial aspirations toward larger economic possibilities of the province in trade with the mother country; their co-operation

CHAPTER I. ANTAGONISTIC COLONIAL IDEALS.

In the constitutional history of Massachusetts there are presented to view three well marked periods of development, separated by revolutions. They may be called the colonial, the provincial and the commonwealth periods, and correspond roughly with the seventeenth, the eighteenth and the nineteenth centuries, respectively. But in its more obvious features, at least, this is not a history of steady progress toward constitutional liberty; rather there are two periods of such development, separated by a third of conscious reaction.

In the first or colonial period we see what claimed to be, and in many respects was, a commonwealth, self-sufificient, dependent on England for sovereignty, but itself assuming the exercise of all sovereign powers. Barely nominal regard was shown for the express commands of the king of England, and the relations held with him were those rather of diplomacy than of colonial subjection. The reason for this was to be found first, in the infancy of the colony, a time when generally the ideas of private founders are allowed free course, in the ideal of a free Calvinistic commonwealth, enjoying complete self-determination in a polity which made the state serve the church ; secondly, after the colony had acquired a character, and strength to stand for that character, in the preoccupation of the home government with civil disturbance in England.

With the progress of Charles II's reign, as the purity of the colonial ideal was corrupted and as the home government won leisure to attack its problem of empire, this quasi-independent regime was attacked by foes without and within, a process which reached its climax in what may be called the revolution of 1684- 91. The foes without were the English agents of the Restoration policy, such as Randolph and Andros ; the foes within were Massachusetts men dissatisfied with the old. regime, such as Joseph Dudley and a growing party, who were wearying of the old exclusive Congregationalism and the Puritan morals, or who had commercial aspirations toward larger economic possibilities of the province in trade with the mother country ; their co-operation resulted in 1684 in the annulment of the charter of 1629, the downfall of the old self-government, and the setting up of a provincial government strictly dependent upon England, first in 1685-6, as defined merely in Andros's commission and instructions, then in 1691, elaborated in a charter. What is often called the revolution of April 19, 1689, when the Andros government was overthrown and the old system set on its feet again de facto for a brief period, must be regarded as a mere episode in the experimentation toward a satisfactory provincial system. It certainly affected the form of that system, but the real revolution was from colony to province. This was reaction from the Massachusetts point of view, progress from the imperial. The theory of the empire demanded that its members be strictly subordinated to its head, that the home government have its responsible agents in the colonies, to secure co-operation and some degree of uniformity. Hence an independent commonwealth, like the Massachusetts of the seventeenth century, with no means of enforcing the empire's Vv^ill in the colony, was anomalous and unendurable.

The present study is concerned with some phases of the second or provincial period. The new system was a mixture of two diverse, frequently opposed, sets of institutions, those of the normal British province, and those commonwealth institutions which Massachusetts had developed in her seventeenth-century independence. In the antagonism soon found and developed between them there appeared a constant tendency to reaction toward colonial autonomy, a tendency which was constantly opposed and hampered in its progress by the prerogative elements in the system. The latter had been designed to be predominant, but were obliged perforce to give place more and more to the encroaching popular elements. The provincial system of the first part of the eighteenth century was then a multiform attempt to reconcile actual British sovereignty with considerable practical applications of colonial self-government. But as the century progressed the reconciliation became more and more difficult. The menacing presence of the French on the northern border necessitated during the "half-century of conflict" a conciliatory policy on the part of England, to secure willing co-operation in defence, and this meant that the constitutional issue must be postponed. After the passing of the French peril in 1763 the issue was forced from home. But in a series of constitutional conflicts between popular and prerogative elements of the system the province had been developing a constitutional opinion, and a sentiment in favor of that opinion : it held that self-government to secure the Massachusetts conception of the rights of Englishmen was indispensable to her welfare and was worth even the sacrifice of the British name, if that should prove necessary ; it developed a sentiment that was to prove strong enough even to sustain the shock of a war to make good that opinion.

It is this development of the provincial period that resulted i-n what is called the American Revolution, whose issue for Massachusetts was a third status, that of the legally as well as actually independent commonwealth, fully self-determining in its policy and conduct, and shortly entering into a union with other commonwealths for the purpose of making more secure the enjoyment of independence and self-government.

It is necessary, first, to examine the two opposing governmental principles whose interaction is the key to the constitutional history of the provincial period. Three-quarters of a century of neglect by the home government had given the infant colony opportunity to develop in its own way, its form determined by the fact of organization as a corporation ; but even this form was disregarded when the central purpose of the enterprise demanded the assumption of powers not usual among corporations. Under the guidance of two generations of determined, aristocratic Puritans Massachusetts had become a theocracy, its sovereignty vested in the "freemen" of the Massachusetts Bay Company, whose power was concentrated, with the consent of the churchmembers, in the hands of the rulers of the Congregational church. This Company, originally organized with an English corporation's powers for trade, land-holding, and colonization, had been transplanted to America, where it became merged in the colony by the admission of the prominent resident colonists to the corporation. It gradually forsook its natural original functions, and became merely a political body, exercising as its chief reason for being the power to "governe and rule,"^ v/hich had been intended to be merely incidental to the more ordinary powers of colony-planting, land-holding, and trading.

' Mass. Col. Records, I. 17.

The Assistants, or governing body of the corporation, began the exercise immediately of executive, more gradually of legislative and judicial, powers. But the first twenty years of the colony's history saw a steady growth of democracy, the generality of the corporation asserting and making good their claim to a share in the government. The result of this conflict was the development of the General Court as the governing body of the colony, composed of two houses, which, taken together, constituted its highest authority and could speak the wall of the Massachusetts Bay Company. Massachusetts, in the seventeenth century, was a prophecy of what the Great Britain of the nineteenth century should be, a unified parliamentary system, with all powers of government depending mediately or immediately on the legislature, the General Court, which not only made law and raised money in its legislative capacity, but also elected and superintended the action of the executive, the two departments being in a relation of mutual control and guidance. The church-membership qualification made it far from a democracy resting on the consent of the governed ; but to the extent of the church membership, for the political people, it was practically what it sometimes called itself, a commonwealth. It depended on the outside world (even the mother country) for none of its essential powers; it was a self-governing colony of the nineteenth-century type, rather than a province of the eighteenth-century type.

The normal English province of the eighteenth century, on the other hand, suggests the second of the two governmental principles, whose contradiction and conflict was to be the central thread running through Massachusetts provincial history. With the restoration of Charles II came the formulation of the British theory of colonies, that was to be put forth during a century and a half, an essential part of the mercantile system. It regarded the colony as existing primarily for the sake of the mother country, only secondarily for its own as part of that mother country's family. The colony was justifying its existence only if it ministered to the development of the mother country, furnishing raw materials for her manufacture or a market for her products. Commercial interests were dominant, and the theory of government for colonies was evolved with a view to promoting them.

Here, then, is the fundamental idea in the imperial theory of colony government. The province was to exist not primarily for its own sake, but for the mother country. If, then, England's will, and not that of Massachusetts, was to prevail, the form of government must be adapted to that end. It must be a province and not a commonwealth. The political center of gravity, the right to give sovereign command, must be not within, not the general will of the members, but without, in the sovereign will of England. The expression and execution of that will in and for the colony was most conveniently and effectually performed through a governor. Its constitution was to be like that of the Tudors, a monarch governing the people through his own action and that of agents constituted and controlled by himself; the representative "body existing merely to grant the taxes demanded and assent to the laws proposed by the executive body.

This was in general terms the ideal English view of colonies in the later seventeenth century. It never got a complete application in Massachusetts except in the brief administration of Andros, but it must be borne in mind as one of the two rival principles.

The first shock of their opposition in Massachusetts came in the early sixties on the home government's attempt to enforce the acts of trade and to bring about substantial uniformity ,of law throughout the empire, with the correspondence of Charles II and Massachusetts, and the sending of the royal commission 'of 1664. With the discovery, as the result of this correspondence and of Randolph's efforts, that these two ends could not be attained under the existing constitution, that the empire had no agents to enforce its will in the colony, that the colony's government was self-sufficient and could afford to be heedless of the home government's suggestions or even commands, obviously the next thing was the removal of the present obstacle, the colony charter, on v/hich rested these claims of autonomy. Wtih the annulment in 1684 of the charter granted in 1629, the colony found itself in the hands of the king, with nothing in law to prevent the complete application to Massachusetts of any colonial theory he should deem fit. Would the state of public opinion in Massachusetts and the force available for the purpose make it practicable for the home government to apply the extreme prerogative theory? The Andros regime was an experiment in this direction. As an imperial official he was given powers nearly absolute, all government to be by himself, assisted by a council named lO CONSTITUTIONAL CONFLICT

in England, a body which by the terms of its constitution could be made an instrument entirely in his hands. Legislation and tax-granting should be by this council, as well as the constitution of courts of justice.

The failure of the Andros experiment was immediately due to the collapse in England of the unconstitutional rule of James II, and it is impossible to say whether or not it would have failed in Massachusetts in case James's rule had been accepted by. the English people or William had accepted James's colonial theory entire. It seems probable that at least a violent struggle would have been made by Massachusetts against such a regime as permanent, for in spite of Andros's generally mild rule there was very strong opposition in several parts of the colony to the payment of taxes, not as excessive, but as unconstitutional, the general sentiment being one of resentment against Andros for "accepting an illegal commission." Besides the constitutional opposition, Andros found himself in a difficult situation in that he must antagonize the two strongest elements of the population, the ecclesiastical by his attempt to secure religious liberty (for the Anglican church), the property-holding by his declaration of the invalidity of titles which rested on grants by the general court through towns (almost the universal form).

Whether inevitably or not, the Andros experiment failed, and the settlement resulting from the "glorious revolution" was in Massachusetts a compromise between the two principles of government which up to that time received a trial. It was early decided not to attempt to govern Massachusetts in the manner of absolute monarchy; that was probably impossible after what happened at home in 1688; A charter should be granted defining the relation between king and people. But it should not be the old charter, under which practically absolute power had been granted to or assumed by the general court. The new charter of 1691, deriving sovereignty nominally from the king of England, so distributed powers that the exercise of sovereignty was shared between the home governm.ent and the organized Massachusetts people. The governor represented the tradition of the Andros absolute government. The general court represented the tradition of colonial self-government. The contrast is not the same thing as the separation of executive from legislative povN'crs, but the two have a close relation. In g'eneral terms, which will receive considerable qualification, we may say that the bodies of government which exercised executive powers represented the provincial element in the system, while the bodies which exercised legislative powers represented the commonwealth element.

The provincial period witnessed the interaction of these two theories and forces. Government, in the last instance, was to be by neither the governor nor the house, but by the two in agreement, one necessarily yielding to the other. The compromise (Pownall's "great question between external and internal principles")^ whose foundation was laid in the charter, was subjected to modifications as time went on and as doubtful points in the charter received interpretation. These determinations depended somewhat on occasional circumstances, but in a larger way they show a tendency toward the restriction of the charter rights of the king, and the enlargement of the charter powers of the people, a tendency by which the provincial constitution gradually reverted toward the colonial. But the duality of the provincial government was always marked, as compared with the unity of the colonial, and though there were times when, under a native lieutenant-governor or a weak governor, the house became practically the sovereign parliament, controlling executive policy as well as legislative, this was never more than temporary. As soon as the home government realized the situation a new appointment brought its proper agents again into action for the execution of its policy, and the unified parliamentary government gave way to the normal provincial government of balanced governor and house.

The purpose of this study is to portray the agents that were used in carrying out these principles, especially the governor and the house-; to study their characteristics as bearing on the general question of their relation to one another ; and to follow to their conclusion some of the more important disputes, to find how far the tendency, above hinted at, for the house to gain at the expense of the governor, in the end prevailed. It is believed that such a study is necessary to a proper appreciation of the constitutional position of the respective contestants, when in the middle of the eighteenth century the home government found itself ready to push to an issue the differences of opinion then prevailing regardin? its constitutional rights over the colonies. In these contests

^ Povv'nall, Administration of the Colonies, ix.

the colony was learning the specific bearings of the difference between prerogative and popular theories of government, was developing the theoretical views which it was to claim and defend as its own, and was educating opinion to a point where the people would fight sooner than give up these constitutional claims ; in a word, the whole provincial period was the time when the issues were formulated and the forces were stored up which were to occasion the American Revolution. Or it might be figured as a siege, conducted on the plan of the successive capture of outposts till finally the home government makes a sortie and loses aH. But there was no conscious striving after independence. It was the specific privileges that were fought for and won, and independence was the outcome only because by the home government the specific privileges claimed were deemed incompatible with colonial dependence.

Chapter II. Compromise In The Charter

The charter of 1691 is to be observed from two points of view ; first, it was the written constitution of Massachusetts during the provincial period. After what has become, largely under its influence, a characteristically American fashion, it contained a grant of governmental powers, to be exercised in certain prescribed modes, and created a limited system of government, unable to enlarge its own powers, subject to a superior sovereign body which was then the king in parliament, but could readily be changed in 1780 to the people of Massachusetts. The charter may also be regarded as a summing up of the constitutional struggle, the rigid statement in a document of the compromise now arrived at between royal and popular principles. That this rigidity was only relative the provincial period was to show, with its shiftings of checked and balanced powers.

The charter was signed October 7, 1691, the result of several months' negotiation by four agents of the province on the one side, and on the other by the privy council's Committee for Trade and Plantations and Attorney-General Treby. The annulment of the former charter by Charles II and the fall of James II and Andres had conditioned the work of the negotiations in two ways ; the independence of the province was done away for good and all, but the experiment of absolutism had proved a failure as well. The committee, having experience of both regimes, was ready now on the basis of the lessons thus learned to establish not what was correct theory, but what was practicable. The agents, moreover, had certain well defined ideals, but were prepared to compromise when necessary. Elisha Cooke and Thom.as Oakes, who arrived in England as extra agents in March, 1690, having left Massachusetts when the old charter government re-established under Bradstreet was in operation, were firm for the restoration de jure of what had been de facto restored. The other two agents, however, Sir Henry Ashurst, an Englishman, and Rev. Increase Mather, who had left Massachusetts when the Andros regime was in full operation, knowing better the condition of opinion in England and the impossibility of a continuance of the old system, were ready to take what they could get, using the familiar market-place method of claiming everything, but showing a readiness to yield here and there in order to make good their claim to other points.

As a first step, early in 1689 Mather used all his "interest" to prevent William's reappointment of Andros to his place held under James, and upon the news of Andros's fall to prevent the appointment of any successor as general governor of New England. Partly because of the hasty manner in which the old charter had been annulled, partly because of the uncertainty as to the attitude of the new Whig monarchy to the colonial policy of James, the matter was left undetermined till Andros and his subordinates should make known their side of the case, and meanwhile word was sent by the privy council to those who were administering the government in Massachusetts to continue in that service until further orders.^

In order to a permanent settlement Mather hoped at first for legislative action. The Convention Parliament, in January of 1690, resolved that the abrogation of charters in the last reign was "illegal and a grievance," and passed a bill through the commons for restoring them. But it was overweighted with vindictive propositions displeasing to the king, and was thrown out by the lords. Upon the dissolution the newly elected parliament was too much under the influence of the reaction against Whig revolution to pass the bill. Therefore the application to the legislature was given up. The defense of Andros and his subordinates against the complaint made (though unsigned) by the agents, and the complaint which Andros and Randolph were able to/ftiake good good against Massachusetts in the matter of the acts of trade, their religious exclusiveness and the like, produced a strong sentiment in England against countenancing the revolutionary party in Boston ; and the shower of petitions and counter-petitions in 1690, some in favor of the continuance of the conciliar regime, showed that the province was by no means a unit in the desire that the old charter should be restored.^

The result of all this was a direct application by the agents to the king, in whose hands the province now rested. The decision

'August 12. 1689. Quoted in Palfrey, New England, IV. 25. ' Palfrey, IV. 64-7.

of the courts against the charter was not likely to be reversed. Parliament would not restore it. But the king might be prevailed upon to reincorporate his subjects. Accordingly a petition was presented to the king in council with the heads of the charter of the Massachusetts Bay Company and of the proprietary charter to Gorges for the province of Maine (since 1677 the property of the Massachusetts corporation), and the request that their Majesties "re-establish their corporation and grant them their laws and former privileges." In addition to what was contained in the old charter new powers were desired; viz., precise authorization of a representative house, power to tax non-freemen and strangers, power to punish offenders (the right to apply the death penalty being "difficult to make out" of the old charter), admiralty jurisdiction such as had been granted to Gorges for Maine, power to erect probate and chancery courts, to coin money, to settle and raise the militia, and finally a general confirmation of grants of land, together with the pardon of past irregularities. This petition, having been favorably reported on in general terms by the law officers, was referred to the lords of trade. Later they reported that it was necessary for them to know whether it was the king's pleasure "to have a governor or single representative of his own appointment from time to time, to give his consent to all laws and acts of government, as in Barbadoes and other Plantations, Or Whether His Majesty will leave the Power of making Laws wholy to the People and officers to be appointed by them." The king declared his pleasure that there be a governor appointed by himself, and April 30 the privy council ordered that the lords of trade prepare "the draft of a new charter upon that foundation."

The work now proceeded expeditiously, Attorney-General Treby putting the draft into legal form in accordance with the determinations of the lords of trade as to policy, holding frequent consultations with the Massachusetts agents. Mather especially received many marks of their consideration for his opinion and the province's desires, but on matters important to the prerogative his protests, however earnest, were unavailing. Even the attorney-general's proposals in behalf of the province were in some cases overridden by the lords. For example, the governor's veto upon laws and the appointment of the lieutenant-governor from home were omitted by him until insisted upon l6 CONSTITUTIONAL CONFLICT

by them, though Mather had declared in this very connection that "he would sooner part with his life than consent."^ On July 30 the draft was reported to the privy council and sent to the king (then with the army on the continent) for his approval, and decision as to two chief points objected to by the agents. They desired that judicial as well as other general officers be elected by the general court, not by the governor and council, and that the governor have no veto upon elections to the council. From the king came word, August 20, that he "did by no means approve of the objections," but "did approve of the minutes agreed unto by the Lords of the Committee." On August 27 the agents presented a petition requesting a number of changes in detail, and two were granted; the "corporal" oath was altered, "that so no snare may be laid before such as scruple swearing on the book ;" and a clause was added validating land-titles of the old regime which lacked the public seal. One of the rejected clauses was prophetic of a dispute later to arise. It would have given power to the assembly to constitute agents paid by the province, to "represent their interest at home as well against the governor as otherwise."

The document thus negotiated constituted the province a body politic and corporate, established a frame of government, and distributed governmental powers among the agents thus created. This was a century too early for the charter to contain a list of rights which the subject should enjoy because they were his originally and inalienably. Individual liberty was unprovided for, and the liberties of the people were secured rather in the frame of government and in the political means of defence which were granted, than in any enumeration of rights which might not be infringed by government.

Speaking in general of the frame of government, we must recognize first the continuity between the old and new systems. It is not a case of throwing down one in 1684 and setting up another in 1691. However complete the discretion of the lords of the committee as to the details of the charter, they did not, practically they could not, get away from the fact that the colony had a political past which must be considered the foundation of its future ; that it had evolved a system of government which,

^ C. Mather, Parentator, 134, in Andros Tracts.

though it had lost its legal form in 1684, was still present as a • hard political fact, and whose ignoring in essentials would cause friction impossible to overcome. Essentially the new charter meant only the re-establishment of the colony government with certain important modifications in the direction of dependence on England. Eighteenth-century Massachusetts was rather a corporate colony modified toward the province type than a province varying toward the colony type.

But in form the province charter wrought several striking changes. The executive was no longer elective, with power derived from the representative general court. The king was to send over a governor, a lieutenant governor and secretary, commissioned to hold office during his pleasure. The magistrates, constituting both the governor's council and the upper legislative house, had been changed from the assistants, elected by the general court and of practically equal rank and power with the governor, to the council, subject to the governor's veto (a point strenuously resisted by the agents), and distinctly inferior to him in the executive. Its character was thus changed to a minor prerogative body, the leadership of the colony having passed from it to the house. In respect to the house the change wrought by the charter was unimportant practically, but a great gain to the province legally. What had sprung up spontaneously at the demand of the rising spirit of democracy, but with no foundation in the colonial constitution, was now given precise authorization, and the powers and privileges of the house, already long exercised and reduced to custom, were now given express recognition and legality. A judicial system should again be set up by the colonial legislature, but the appointment of judges should now be not by the people or the representative body, but by the governor and council. An important step in the reduction of the colony to its proper provincial status was the charter's guaranty of appeal from colonial courts to the king in council, in personal actions of a certain value, a final denial of the colony's long-maintained claim of jurisdictional self-sufficiency. The questions were now set at rest which had risen as to the legality of the colonial courts and their right to inflict punishments, such functions having rested hitherto upon an extremely loose construction of a corporation's powers. The powers of legislation and finance were now set on a firm foundal8 CONSTITUTIONAL CONFLICT