Chapter I - Charters ...

The Virginia Charter thus established two colonies in America. Each colony was to be administered in America by a council of thirteen "persons"[25] whose vague task was to "governe and order all matters and causes [cases] which shall arise grow or happen to or within the said severall colonies" according to laws signed by the king and "passe under the Privie Seale", which means that initially at least - since there was to be a legislative assembly in Virginia in 1619 - the settlers where to live under English rules, drafted by themselves but not contrary to the laws of England, or under rules made by the Company in the making of which they did not have a say.

The King also appointed the thirteen members of the Council of Virginia, which was to remain in England to deal with the two colonies, and therefore with the whole of the English possessions in America. These were all the instructions about the institutions and the organization of civilization contained in the first Virginia Charter. In the two subsequent charters of 1609 and 1612 the differences dealt with territorial expansion and not with the right to govern. In the second, the King, who had lost interest in the adventure when it had become clear that no easy fortune would be made, relinquished the ownership of the Colony to the Virginia Company. It is also noteworthy that in 1619, Sir Edward Sandys, the new treasurer of the Virginia Company, pushed for the creation of a House of Representatives directly elected by the settlers themselves[26], thus giving Virginia her first taste of, if not democracy,[27] at least self-government and representation.

The Charter of New England was drafted the following year. It established a Council, whose official name was "the Council established at Plymouth, in Devon[28] for the planting, ruling, ordering and governing of New England, in America" and which was to be "one Body Politique and[29] Corporate", a government which would also be a board of directors.[30] This body was to be composed by forty members "and no more" who were named in the Charter, most of them Privy Councilors, Knights, Esquires or Lords, therefore wealthy and influent men but not necessarily Puritans, and it would be quite free and self-governing in so far as it could make its own laws and regulations, as any commercial company is expected to. The initial members were appointed by the King and those who would replace them when either removed or dead would be elected by the body of remaining members, on behalf of the king. The possibility of removing a member is alluded to but no further detail is given, so we might assume that the Council could decide on what grounds it could expel a member.

The President of the Council was to be elected and chosen by and among the forty, for a duration that was left at the discretion of the Council, but not longer. His only power was to summon the Council to meet and he seemed to have no personal power. No dictatorship could arise therefrom.

The Council as a whole could, on behalf of the monopoly it had been granted over the land, admit people to trade with or within the Colony, to own land in it, and "to be made free", which might refer to the franchise, or to land ownership. The Council had power to appoint and remove "Governors, Officers and Ministers[31]" over there, to create and shape institutions, and make laws provided that they were "not repugnant to the laws and statutes of the realm", thus implying the realistic awareness that different conditions might lead to slight departures from the customs of England. This was the recurrent proviso - it appeared in every single charter issued by the Council of New England - used to limit departures and innovations on the part of Separatists, or at the very least, religious and political dissenters.

The Governor of the Colony, in New England, had mainly judicial powers. He was a sort of keeper of the peace, a Justice of the Peace with extended powers since he could exercise "marshall laws" in cases of rebellion, insurrection and mutiny "in as large and ample manner as our[32] lieutenants in our counties within our realme of England have or ought to have", thereby showing a clear will to transfer to the New World the English customs concerning the suppression of sedition, and to a wider extent dissent, an evil which would undermine unity, and consequently survival.[33] Moreover, he was granted absolute power to "correct, punish, pardon, govern and rule" His Majesty's subjects in New England, according to the laws established by the Council, or to his "good discretion[34] in defect thereof", which, as all loose and vague clauses, left the door open to controversial personal construction of the notion of crime and punishment, including capital punishment.[35] It was only specified in the Charter that "lewd and ill-disposed persons" who breach their contract with the Adventurers[36] or shall "misbehave themselves" or speak ill of the colony to discredit it could be arrested by the governor or his deputy, and could be examined by the Council. However they could as well be judged in New England, either as in "other like cases within our realm of England, or else at their [the New Englanders'] discretion[37]" or according to the laws in use there. This clause as many others left a very free hand to the settlers to organize the colonies as they thought best, provided they remained within the bounds accepted by England. According to which laws people were to be judged is not clear, but it must have been so because it was assumed that the laws of New England were to be as close to those of Old England as possible, or as much as the conditions would allow, as we have seen concerning the "not repugnant" clause.

To prevent the development of any doubtful innovations in New England the Charter specified that oaths of allegiance (to the crown) and of supremacy (of the Church of England, and thus of uniformity) had to be administered to all settlers: no dissent was allowed, even though Separatists had been granted land lavishly by the Council of New England in 1620. However, given the distance, who would know if there were intolerable practices in New England? And it is further mentioned that this clause was intended at "papists", thus not explicitly mentioning Separatists.

If James had not been very precise in the establishment of political and judicial institutions in New England, the Charter of Massachusetts Bay of 1629 granted to the Massachusetts Bay Company by his son and successor was much clearer.[38] The ruling body was to be the Company, with the governor at its head. Matthew Cradock was appointed at that post, with Thomas Goffe as his Deputy. Their successors were to be chosen among the freemen - the shareholders[39] - of the Company, as were the eighteen appointed Assistants, among whom we find familiar names like Richard Saltonstall, Isaac Johnson, John Humfrey, John Endecott, Increase Nowell, Theophilius Eaton and William Pynchon[40], whose task was to take care of "the best disposeing and ordering of the general business and affairs", and the "government of the people there."

These twenty leaders were to meet once a month, or more often if they wanted, "for the better ordering and directing of their affairs", which, again, evokes more a meeting of a board of directors than a body politic. This came to be known as the Court of Assistants, which in 1644 became the first upper house in New England. For the first time we find a clear mention of an assembly, as well as the establishment of a quorum to do business, which was seven assistants plus the governor or his deputy.

Following the English model of the four judicial terms epitomized by the Courts of Quarter Sessions[41], a "Great and General Court of the Company" was to meet on the last Wednesday of March, June, October and December. Where it was to meet is not specified and this omission is of utmost importance, since it made possible the transfer of the Charter to New England. This assembly was composed of the assistants - the administrators of the colony, the board of directors - and the freemen of the Company, a term which initially referred to the stockholders of the Company but that would come to refer to the citizens. The General Court had power to admit new Freemen, to elect officers, to make laws "for the good and welfare of the Company" and for the government of land and people, provided as usual that they be not repugnant to the laws of England.

Once a year, on the last Wednesday of the Easter term, all the officers for the year to come were to be elected "by such greater parse of the said Company", therefore by the majority of freemen, or shareholders in that context. Consequently, this excluded from the franchise and from office-holding all the inhabitants who had not invested money in the Company, and all those who had not paid for their passage, therefore restricting power to a moneyed group, a fact which nevertheless was to be expected from a trading company, a commercial venture. In Chapter III, we shall analyze the relations between this majority vote and democracy, and between government by a small group and oligarchy. What can be said here is that the Charter established what can be compared to a board of directors and nothing more.

As in the Charter of New England, there are, in the Charter of Massachusetts, a few disturbingly vague clauses which, could be subject to radically different constructions and interpretations. For instance, all the officers could be removed "for any misdemeanour or defect." Depending on the people in charge, an act which one would consider as trivial or tolerable would be considered as high crime by, say, a Puritan. As with the subsequent "unfitness" clause[42], if a faction gained the slightest majority, it had the legal guarantee to purge the colony of any opponent and dissenter on account of "unfitness."

Likewise, that the laws passed by the General Court should be "wholesome and reasonable" is subject to interpretation. To Puritans, God's ordinances as they can be found in the Old Testament were absolutely "wholesome" since they were intended for the good of the (chosen) people of Israel - they were Divine laws after all, so they could not be bad - and reasonable, since God Himself was considered as reasonable by all the most influential Puritan divines.[43]

As for the other English possessions in North America, the only two interesting texts were written ten years after the Charter of the Massachusetts Bay Company. Ferdinando Gorges was granted the Province of Maine in 1639, and Rhode Island obtained a royal charter in 1643. However, the institutions in Rhode Island did in no way emanate from England: a "Democracie" had been explicitly established by the General Court there as early as 1641.[44] The Royal Charter was then nothing more than the recognition and the legitimization of their presence on the land they already actually occupied. Furthermore the Royal Charter was ironically granted by Parliament, in the middle of the Civil War.

On the contrary Maine was granted by Charles to one of his most faithful subject. Perhaps because King Charles was highly discontented with what he had heard from Massachusetts,[45] the Charter insisted heavily on religious uniformity and the Supremacy of the Church of England. Gorges and the majority of the freeholders - landowners and not shareholders since it was not a corporate venture - were allowed to make or change their own laws, for the public good, provided again they be not repugnant to those of England and as near as could be. They had power to punish and even to take "life or limb", thus making them more powerful than English JPs.[46]

Gorges was endowed with extensive personal power, reflecting Charles I's absolutism during the Personal Rule, much wider than Winthrop and Bradford were ever to have. He was to put laws into execution, he had power to erect courts of justice, both civil and ecclesiastical[47], to appoint and remove judges and magistrates at his good pleasure, and power to determine the jurisdiction of the said courts, and he had power to pardon into the bargain, which implies that he had power to overrule a decision of the majority of the freeholders. All this resembles an absolute monarchy without a proper king, but for one clause: they were subordinate to the power and rules of "lords and commissioners for forraigne plantacions" in England. However, there were three thousand miles between these lords and the reality of Maine.

One of the most, if not the most, important feature of the Charter of the Massachusetts Bay Colony is actually what we may call "the missing clause", for it has been, knowingly or not, omitted from the document. This clause would have required the Charter to remain in London, as had been the case already for the Charters of Virginia - the Council remained in London, so adventurers and planters were two separate groups, the former reaped the profits of the work of the latter - and for the Charter of New England. Similarly, the very name of the Council for New England stipulated that it was to hold its meetings in Plymouth, Devon. What was clear was that the Virginia Company had its Charter confiscated in 1624, and the Colony was then administered by a standing committee of the Privy Council and a royal governor.[48] We have already glimpsed at possible reasons why James did so, and very lively accounts of the preparation of the transfer of the Charter of the Massachusetts Bay Company can be found in Morison and Morgan[49]; thus we need not enter into the details of the affair, we shall only point at the repercussions of that missing clause.

The usual pattern was for the governor of the Company and the Company itself to remain in England and for the governor of the Colony to enforce their decisions overseas. Yet if the Charter was transferred to Massachusetts, and if consequently the Company were to hold their meetings across the Atlantic, then the governor of the Company and the governor of the Colony would be one single person, whereas the "general court of the company could become the legislative assembly of the colony"[50], more powerful than the English Parliament in so far as it was assured to meet quarterly, which was quite significant for Englishmen at the beginning of Charles' "Personal Rule." Thus the settlers would be totally self-governing, and they would be out of reach of an unfriendly monarch, whose Catholic sympathies they held responsible for the Arminian blend of the Church of England. And by being out of reach of the crown, they would not run the risk of having their Charter, and therewith their self-governing privileges, confiscated. When in 1637 Charles wanted the Charter to be sent back to England, he went as far as threatening John Winthrop that he would send the Navy with Ferdinando Gorges at its head to seize the document. Whereas he reiterated his threats more seriously in 1638, the Massachusetts Puritans were saved by the outbreak of Civil War in Scotland. They would not be endangered before another generation and another James,[51] and had their hands free and a blank check to establish the type of society they desired. The institutional basis would first be the Charter since it set up the Court of Assistants and the General Court, and gave directions for the organization of their political life. As English subjects, they might also, use their knowledge of the Common Law.

As they reached the shore of Massachusetts, the Puritan settlers felt the need to add a spiritual layer consistent with their vision of the colonies upon these foundations, to express the Special Commission John Winthrop had expounded in a famous lay sermon called "A Modell of Christian Charity" delivered aboard the Arbella during the crossing to America in 1630. Indeed they believed that they had been chosen by God and sent to America to found Christian communities with Scriptural laws, and pledge absolute obedience to these laws. For those purposes they would resort to a favorite Puritan device: covenants.

[26] Roger Lockyer, Tudor and Stuart Britain (1471-1714), Longman, London, 1965, 424; Jack A. DeNovo, Ed., Selected Writings in American History, Volume I: Main Themes to 1877, Charles Scribners' Sons, New York, 1969, 50-51.

[27] The word must be handled most carefully. See chapter III for a discussion on the themes of aristocracy and democracy in the light of the constitutional changes during the period herein covered.

[28] This is crucial because it is the clause that is missing in the Massachusetts Bay Colony charter, as we shall see later.

[30] That system will be the starting point of the third chapter: this was the situation the settlers inherited.

[33] See Chapter IV for an analysis of the actual treatment of dissent in Puritan New England, and also how it was thought to jeopardize unity.

[36] People whose passage had been financed by investors in exchange for work for a certain amount of time.

[37] Emphasis mine again: it is crucial to notice the amount of discretion left to those who were to manage - if we may say - the colonies. This particular aspect will be discussed in chapter III in the light of the fight between the magistrates and the deputies of Massachusetts.

[38] We may however wonder whether the content of the Charter reveals the will of Charles or of the Company.

[39] It is extremely important to remember that the original freemen of the Charter were in no way church members. The clause restricting freemanship to church members, as we shall see, was added in 1631 by the General Court. This momentous decision will be focused upon in Chapter III.

[40] But not John Winthrop, who was convinced of accepting the governorship of the Company only later that year.

[41] County courts where Justices of the Peace sat, a system not unknown to John Winthrop, himself a JP from Suffolk. See Chapter IV for a comparison between the judicial systems in Old and New England.

[42] In the Constitution of Massachusetts Bay, 1629, the clause reads: "if any of them [the assistants] ... for any misdemeanor or unfitness shall be held unmeet for the place he was formerly chose unto, [the others] shall have power ... to remove and displace such unfit person or persons." They would then nominate someone else in his place.

[43] See Perry Miller, "The Marrow of Puritan Divinity" in Errand Into The Wilderness, Harper TorchBooks, New York, 1956, 48-98. The theme of the Special Commission - of being sent by God to America to enforce His laws and walk His ways - is the subject of the next chapter, while the Scriptural character of the laws of the New Englanders will be assessed in chapter IV.

[45] He had already asked for the Charter to be sent back to England, probably to confiscate it as his father had done with the Virginia Charter in 1624, this time to stifle the Puritan experience, whereas the reasons why James confiscated the Virginia Charter were threefold: pressure from Spain, hatred toward the Puritan Sandys, and stifling of the nascent democracy established with the creation of the House of Burgesses in 1619. See Willson, King James VI and I, Jonathan Cape, London, 1956, 329; Richard Middleton, Colonial America: A History (1607-1760), Blackwell, Cambridge Ma. and Oxford UK., 1992, 62; Harry M.Ward, Colonial America 1607-1763, Prentice Hall, Englewood Cliffs, NJ, 1991, 48.

[46] The most serious cases in England, those for which the penalty might be loss of life or limb, were not judged by Courts of Quarter Sessions but at Courts of Assizes. See chapter IV.

[47] These highly unpopular courts - at least with the persecuted Puritan gentry - were to be abolished in England two years later in 1641.

[48] Churchill, Winston, A History of the English-Speaking Peoples, Vol. 2, The New World, Cassell, London, 1956, 134.

[49] Samuel Eliot Morison, Builders of the Bay Colony, 65-79; Edmund S. Morgan, The Puritan Dilemma. Morison wonders whether this omission was unwanted, or on the contrary, obtained "by greasing the palm of some government clerk who drafted the document" (p66). If it was not voluntary on the part of the Adventurers, they realized and took advantage of it very early. Indeed the Cambridge Agreement - in which the future rulers of Massachusetts pledged themselves to emigrate if they could transfer the Charter to New England - was written in August 1629, three months after the Charter had been granted.

[51] We are referring to James I 's grandson, James II; see Everett Emerson, Letters from New England, 220.