Note (in a note) — Chapter VII

[215] Modern historians of New England generally speak of the Massachusetts Colony as having been unjustly deprived of its first Charter, after having faithfully observed it for more than half a century, and of having been treated harshly in not having the Charter restored. While Dr. Mather was earnestly seeking the restoration of the Charter at the hands of King William, Mr. Hampden (grandson of the famous John Hampden) consulted Mr. Hooke, a counsellor of note of the Puritan party, and friend of New England. Mr. Hooke stated that "a bare restoration of the Charter of Massachusetts would be of no service at all," as appears both from the Charter itself and the practice of that colony, who have hardly pursued the terms thereof in any one instance, which has given colour to evil-minded men to give them disturbance.

"I. As to the Charter itself, that colony, should they have their Charter, would want—

"1. Power to call a Parliament, or select assembly; for their many thousand freemen have, thereby, an equal right to sit in their General Assembly.

"2. Power to levy taxes and raise money, especially on inhabitants not being of the company, and strangers coming to or trading thither.

"3. They have not any Admiralty.

"4. Nor have they power to keep a Prerogative Court, prove wills, etc.

"5. Nor to erect Courts of Judicature, especially Chancery Courts.

"II. The deficiency of their Charter appears from their practice, wherein they have not had respect thereto; but having used the aforesaid powers without any grant, they have exercised their Charter powers, also, otherwise than the Charter directed:

"1. They have made laws contrary to the laws of England.

"2. Their laws have not been under their seal.

"3. They have not used their name of corporation.

"4. They have not used their seal in their grants.

"5. They have not kept their General Courts, nor

"6. Have they observed the number of assistants appointed by the Charter." (Hutchinson's History of Massachusetts Bay, Vol. I., pp. 410, 411, in a note.)

It is clear from the legal opinion, as has been shown in the foregoing pages, that the first Puritans of Massachusetts, though only a chartered company, set up an independent government, paid no attention whatever to the provisions of the Charter under which they held their land and had settled the colony, but acted in entire disregard and defiance of the authority, which had granted their Charter. Mr. Neal very candidly says: "The old Charter was, in the opinion of persons learned in the law, defective as to several powers which are absolutely necessary to the subsistence of the Plantation: for example, it gave the Government no more power than every corporation in England has; power in capital cases was not expressed in it; it mentioned no House of Deputies, or Assembly of Representatives; the Government had thereby no legal power to impose taxes on the inhabitants that were not freemen (that is, on four-fifths of the male population), nor to erect Courts of Admiralty, so that if the judgment against this Charter should be reversed, yet if the Government of New England should exercise the same powers as they had done before the quo warranto, a new writ of scire facias might undoubtedly be issued out against them. Besides, if the old Charter should have been restored without a grant of some other advantages, the country would have been very much incommoded, because the provinces of Maine and New Hampshire would have been taken from Massachusetts, and Plymouth would have been annexed to New York, whereby the Massachusetts Colony would have been very much straitened and have made a mean figure both as to its trade and influence.

"The new Charter grants a great many privileges to New England which it had not before. The colony is now made a province, and the General Court has, with the King's approbation, as much power in New England as the King and Parliament have in England. They have all English liberties, and can be touched by no law, by no tax, but of their own making. All the liberties of their religion are for ever secured, and their titles to their lands, once, for want of some form of conveyance, contested, are now confirmed for ever." (History of New England, Vol. II., pp. 478, 479.)