The Emancipation of Massachusetts

In fact, however, Massachusetts was a petty state, too feeble for independence, yet ruled by an autocratic priesthood whose power rested upon legislation antagonistic to English law; therefore the ecclesiastics were jealous of Parliament, and had little love for Cromwell, whom they found wanting in “a thorough testimony against the blasphemers of our days.” [Footnote: Diary of Hull, Palfrey, ii. 400, 401, and note.]

The result was that the elders clung obstinately to every privilege which served their ends, and repudiated every obligation which conflicted with their ambition. Clerical political morality seldom fails to be instructive, and the following example is typical of that peculiar mode of reasoning. The terms of admission to ordinary corporations were fixed by each organization for itself, but in case of injustice the courts could give relief by setting aside unreasonable ordinances, and sometimes Parliament itself would interfere, as it did upon the petition against the exactions of the Merchant Adventurers. Now there was nothing upon which the theocracy more strongly insisted than that “our charter doeth expresly give vs an absolute & free choyce of our oune members;” [Footnote: Mass. Rec. v. 287.] because by means of a religious test the ministers could pack the constituencies with their tools; but on the other hand they as strenuously argued “that no appeals or other ways of interrupting our proceedings do lie against us,” [Footnote: Winthrop, ii. 283.] because they well knew that any bench of judges before whom such questions might come would annul the most vital of their statutes as repugnant to the British Constitution.

Unfortunately for these churchmen, their objects, as ecclesiastical politicians, could seldom be reconciled with their duty as English subjects. At the outset, though made a corporation within the realm, they felt constrained to organize in America to escape judicial supervision. They were then obliged to incorporate towns and counties, to form a representative assembly, and to levy general taxes and duties, none of which things they had power to do. Still, such irregularities as these, had they been all, most English statesmen would have overlooked as unavoidable. But when it came to adopting a criminal code based on the Pentateuch, and, in support of a dissenting form of worship, fining and imprisoning, whipping, mutilating, and hanging English subjects without the sanction of English law; when, finally, the Episcopal Church itself was suppressed, and peaceful subjects were excluded from the corporation for no reason but because they partook of her communion, and were forbidden to seek redress by appealing to the courts of their king, it seems impossible that any self-respecting government could have long been passive.

At the Restoration Massachusetts had grown arrogant from long impunity. She thought the time of reckoning would never come, and even in trivial matters seemed to take a pride in slighting Great Britain and in vaunting her independence. Laws were enacted in the name of the Commonwealth, the king’s name was not in the writs, nor were the royal arms upon the public buildings; even the oath of allegiance was rejected, though it was unobjectionable in form. She had grown to believe that were offence taken she had only to invent pretexts for delay, to have her fault forgotten in some new revolution. General Denison, at the Quaker trials, put the popular belief in a nut-shell: “This year ye will go to complain to the Parliament, and the next year they will send to see how it is; and the third year the government is changed.” [Footnote: Sewel, p. 280.]

But, beside these irritating domestic questions, the corporation was bitterly embroiled with its neighbors. Samuel Gorton and his friends were inhabitants of Rhode Island, and were, no doubt, troublesome to deal with; but their particular offence was ecclesiastical. An armed force was sent over the border and they were seized. They were brought to Boston and tried on the charge of being “blasphemous enemies of the true religion of our Lord Jesus Christ, and of all his holy ordinances, and likewise of all civil government among his people, and particularly within this jurisdiction.” [Footnote: Winthrop, ii. 146.] All the magistrates but three thought that Gorton ought to die, but he was finally sentenced to an imprisonment of barbarous cruelty. The invasion of Rhode Island was a violation of an independent jurisdiction, the arrest was illegal, the sentence an arbitrary outrage. [Footnote: See paper of Mr. Charles Deane, New Eng. Historical and Genealogical Register, vol. iv.]

Massachusetts was also at feud in the north, and none of her quarrels brought more serious results than this with the proprietors of New Hampshire and Maine. The grant in the charter was of all lands between the Charles and Merrimack, and also all lands within the space of three miles to the northward of the said Merrimack, or to the northward of any part thereof, and all lands lying within the limits aforesaid from the Atlantic to the South Sea.

Clearly the intention was to give a margin of three miles beyond a river which was then supposed to flow from west to east, and accordingly the territory to the north, being unoccupied, was granted to Mason and Gorges. Nor was this construction questioned before 1639—the General Court having at an early day measured off the three miles and marked the boundary by what was called the Bound House.

Gradually, however, as it became known that the Merrimack rose to the north, larger claims were made. In 1641 the four New Hampshire towns were absorbed with the consent of their inhabitants, who thus gained a regular government; another happy consequence was the settlement of sundry eminent divines, by whose ministrations the people “were very much civilized and reformed.” [Footnote: Neal’s New England, i. 210.]

In 1652 a survey was made of the whole river, and 43° 40’ 12” was fixed as the latitude of its source. A line extended east from three miles north of this point came out near Portland, and the intervening space was forthwith annexed. The result of such a policy was that Charles had hardly been crowned before complaints poured in from every side. Quakers, Baptists, Episcopalians, all who had suffered persecution, flocked to the foot of the throne; and beside these came those who had been injured in their estates, foremost of whom were the heirs of Mason and Gorges. The pressure was so great and the outcry so loud that, in September, 1660, it was thought in London a governor-general would be sent to Boston; [Footnote: Leverett to Endicott. Hutch. Coll., Prince Soc. ed. ii. 40.] and, in point of fact, almost the first communication between the king and his colony was his order to spare the Quakers.

The outlook was gloomy, and there was hesitation as to the course to pursue. At length it was decided to send Norton and Bradstreet to England to present an address and protect the public interests. The mission was not agreeable; Norton especially was reluctant, and with reason, for he had been foremost in the Quaker persecutions, and was probably aware that in the eye of English law the executions were homicide.

However, after long vacillation, “the Lord so encouraged and strengthened” his heart that he ventured to sail. [Footnote: Feb. 11, 1661-2. Palfrey, ii. 524.] So far as the crown was concerned apprehension was needless, for Lord Clarendon was prime minister, whose policy toward New England was throughout wise and moderate, and the agents were well received. Still they were restless in London, and Sewel tells an anecdote which may partly account for their impatience to be gone.

“Now the deputies of New England came to London, and endeavored to clear themselves as much as possible, but especially priest Norton, who bowed no less reverently before the archbishop, than before the king....

“They would fain have altogether excused themselves; and priest Norton thought it sufficient to say that he did not assist in the bloody trial, nor had advised to it. But John Copeland, whose ear was cut off at Boston, charged the contrary upon him: and G. Fox, the elder, got occasion to speak with them in the presence of some of his friends, and asked Simon Broadstreet, one of the New England magistrates, ‘whether he had not a hand in putting to death those they nicknamed Quakers?’ He not being able to deny this confessed he had. Then G. Fox asked him and his associates that were present, ‘whether they would acknowledge themselves to be subjects to the laws of England? and if they did by what law they had put his friends to death?’ They answered, ‘They were subjects to the laws of England; and they had put his friends to death by the same law, as the Jesuits were put to death in England.’ Hereupon G. Fox asked, ‘whether they did believe that those his friends, whom they had put to death, were Jesuits, or jesuitically affected?’ They said ‘Nay.’ ‘Then,’ replied G. Fox, ‘ye have murdered them; for since ye put them to death by the law that Jesuits are put to death here in England, it plainly appears, you have put them to death arbitrarily, without any law.’ Thus Broadstreet, finding himself and his company ensnar’d by their own words, ask’d, ‘Are you come to catch us?’ But he told them ‘They had catch’d themselves, and they might justly be questioned for their lives; and if the father of William Robinson (one of those that were put to death) were in town, it was probable he would question them, and bring their lives into jeopardy. For he not being of the Quakers persuasion, would perhaps not have so much regard to the point of forbearance, as they had.’ Broadstreet seeing himself thus in danger began to flinch and to sculk; for some of the old royalists were earnest with the Quakers to prosecute the New England persecutors. But G. Fox and his friends said, ‘They left them to the Lord, to whom vengeance belonged, and he would repay it.’ Broadstreet however, not thinking it safe to stay in England, left the city, and with his companions went back again to New England.” [Footnote: Sewel, p. 288.]

The following June the agents were given the king’s answer [Footnote: 1662, June 28.] to their address and then sailed for home. It is certainly a most creditable state paper. The people of Massachusetts were thanked for their good will, they were promised oblivion for the past, and were assured that they should have their charter confirmed to them and be safe in all their privileges and liberties, provided they would make certain reforms in their government. They were required to repeal such statutes as were contrary to the laws of England, to take the oath of allegiance, and to administer justice in the king’s name. And then followed two propositions that were crucial: “And since the principle and foundation of that charter was and is the freedom of liberty of conscience, wee do hereby charge and require you that that freedom and liberty be duely admitted,” especially in favor of those “that desire to use the Book of Common Prayer.” And secondly, “that all the freeholders of competent estates, not vicious in conversations, orthodox in religion (though of different perswasions concerning church government) may have their vote in the election of all officers civill or millitary.” [Footnote: Hutch. Coll., Prince Soc. ed. ii. 101-103.]

However judicious these reforms may have been, or howsoever strictly they conformed with the spirit of English law, was immaterial. They struck at the root of the secular power of the clergy, and they roused deep indignation. The agents had braved no little danger, and had shown no little skill in behalf of the commonwealth; and the fate of John Norton enables us to realize the rancor of theological feeling. The successor of Cotton, by general consent the leading minister, in some respects the most eminent man in Massachusetts, he had undertaken a difficult mission against his will, in which he had acquitted himself well; yet on his return he was so treated by his brethren and friends that he died in the spring of a broken heart. [Footnote: April 5, 1663.]

The General Court took no notice of the king’s demands except to order the writs to run in the royal name. [Footnote: Oct. 8, 1662. Mass. Rec. vol. iv. pt. 2, p. 58.] And it is a sign of the boldness, or else of the indiscretion, of those in power, that this crisis was chosen for striking a new coin, [Footnote: 1662, May 7.]—an act confessedly illegal and certain to give offence in England, both as an assumption of sovereignty and an interference with the currency.

From the first Lord Clarendon paid some attention to colonial affairs, and he appears to have been much dissatisfied with the condition in which he found them. At length, in 1664, he decided to send a commission to New England to act upon the spot.

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.]

Substantially the same proposals were made subsequently in Rhode Island and Connecticut. They were accepted without a murmur. A few appeal cases were heard, and the work was done.

The commissioners reported their entire satisfaction to the government, the colonies sent loyal addresses, and Charles returned affectionate answers.

Massachusetts alone remained to be dealt with, but her temper was in striking contrast to that of the rest of New England. The reason is obvious. Nowhere else was there a fusion of church and state. The people had, therefore, no oppressive statutes to uphold, nor anything to conceal. Provided the liberty of English subjects was secured to them they were content to obey the English Constitution. On the other hand, Massachusetts was a theocracy, the power of whose priesthood rested on enactments contrary to British institutions, and which, therefore, would have been annulled upon appeal. Hence the clerical party were wild with fear and rage, and nerved themselves to desperate resistance.

“But alasse, sir, the commission impowering those commisioners to heare and determine all cases whatever, … should it take place, what would become of our civill government which hath binn, under God, the heade of that libertie for our consciences for which the first adventurers … bore all … discouragements that encountered them … in this wildernes.” Rather than submit, they protested they had “sooner leave our place and all our pleasant outward injoyments.” [Footnote: Court to Boyle. Hutch. Coll., Prince Soc. ed. ii. 113.]

Under such conditions a direct issue was soon reached. The General Court, in answer to the commissioners’ proposals, maintained that the observance of their charter was inconsistent with appeals; that they had already provided an oath of allegiance; that they had conformed to his majesty’s requirements in regard to the franchise; and lastly, in relation to toleration, there was no equivocation. “Concerning the vse of the Common Prayer Booke”… we had not become “voluntary exiles from our deare native country, … could wee haue seene the word of God, warranting us to performe our devotions in that way, & to haue the same set vp here; wee conceive it is apparent that it will disturbe our peace in our present enjoyments.” [Footnote: 1665. Mass. Rec. vol. iv. pt. 2, p.200]

Argument was useless. The so-called oath of allegiance was not that required by Parliament; the alteration in the franchise was a sham; while the two most important points, appeals to England and toleration in religion, were rejected. The commissioners, therefore, asked for a direct answer to this question: “Whither doe yow acknowledge his majestjes comission … to be of full force?” [Footnote: Mass. Rec. vol. iv. pt. 2, p.204] They were met by evasion. On the 23d of May they gave notice that they should sit the next morning to hear the case of Thos. Deane et al. vs. The Gov. & Co. of Mass. Bay, a revenue appeal. Forthwith the General Court proclaimed by trumpet that the hearing would not be permitted.

Coercion was impossible, as no troops were at hand. The commissioners accordingly withdrew and went to Maine, which they proceeded to sever from Massachusetts. [Footnote: June, 1665] In this they followed the king’s instructions, who himself acted upon the advice of the law officers of the crown, who had given an opinion sustaining the claim of Gorges. [Footnote: Charles II.‘s letter to Inhabitants of Maine. Hutch. Coll., Prince Soc. ed. ii. 110; Palf. ii. 622.]

The triumph was complete. All that the English government was then able to do was to recall the commissioners, direct that agents should be sent to London at once, and forbid interference with Maine. No notice was taken of the order to send agents; and in 1668 possession was again taken of the province, and the courts of the company once more sat in the county of York. [Footnote: July, 1668. Report of Com. Mass. Rec. vol. iv. pt. 2, p. 401.]

This was the culmination of the Puritan Commonwealth. The clergy were exultant, and the Rev. Mr. Davenport of New Haven wrote in delight to Leverett:—

“Their claiming power to sit authoritatively as a court for appeales, and that to be managed in an arbitrary way, was a manifest laying of a groundworke to undermine your whole government established by your charter. If you had consented thereunto, you had plucked downe with your owne hands that house which wisdom had built for you and your posterity.... As for the solemnity of publishing it, in three places, by sounding a trumpet, I believe you did it upon good advice, … for declaring the courage and resolution of the whole countrey to defend their charter liberties and priviledges, and not to yeeld up theire right voluntarily, so long as they can hold it, in dependence upon God in Christ, whose interest is in it, for his protection and blessing, who will be with you while you are with him.” [Footnote: Davenport to Leverett. Hutch. Coll., Prince Soc. ed. ii. 119.]

Although the colonists were alarmed at their own success, there was nothing to fear. At no time before or since could England have been so safely defied. In 1664 war was begun against Holland; 1665 was the year of the plague; 1666 of the fire. In June, 1667, the Dutch, having dispersed the British fleets, sailed up the Medway, and their guns were heard in London. Peace became necessary, and in August Clarendon was dismissed from office. The discord between the crown and Parliament paralyzed the nation, and the wastefulness of Charles kept him always poor. By the treaty of Dover in 1670 he became a pensioner of Louis XIV. The Cabal followed, probably the worst ministry England ever saw; and in 1672, at Clifford’s suggestion, the exchequer was closed and the debt repudiated to provide funds for the second Dutch war. In March fighting began, and the tremendous battles with De Ruyter kept the navy in the Channel. At length, in 1673, the Cabal fell, and Danby became prime minister.